Family Law

Standing for Foster Parents to Assert In Loco Parentis Relationship to Children

By Aaron Weems

Under Pennsylvania law, an individual stands 'in loco parentis' to a child where he or she assumes the obligations of parenthood. In order to sustain an adoption petition predicated on a party's standing in loco parentis, the child's placement with that party must be with the agreement of the child's biological parents.

In the Superior Court case In Re: Adoption of BRS, the Court ruled that foster parents did not have standing to argue in loco parentis in their attempt to adopt a minor child. The minor child's biological parents were both incarcerated at the time she was born. At that point, she was taken by the Jefferson County Children & Youth Services and placed in foster care with a couple who were also caring for her half sister. Although the initial permanency goal of CYS was reunification with the parents, CYS eventually petitioned the Juvenile Court to change the goals to adoption and identified the foster parents as candidates for adopting the child.

Having received this authorization, the foster parents initiated the adoption process and sought to terminate the parental rights of mother and father. The father moved to quash the petition and assert his parental rights over the child.

Though the foster couple fulfilled the duties of parents since the birth of the child, custody, for the purposes of in loco parentis, did not run with them but, rather, Jefferson Child & Youth Services. Because CYS had stepped in and taken custody of the children, the biological parents had not agreed to the placement of the children with this couple as would be required for the foster parents to assert the in loco parentis argument. As a result, the foster parents did not have the requisite standing to utilize the adoption process to terminate the natural parents parental rights and the Superior Court ruled that the foster parents did not have custody or stood in loco parentis to the child as it applies to filing a petition to involuntarily terminate the natural parents' rights.

The distinction in how custody and in loco parentis is defined is critical to parties serve as foster parents to a child, related or unrelated, and wish to seek the adoption of that child. If the child is placed through a government agency such as Child & Youth Services, then they would be advised to seek the separate agreement of the natural parents to retain custody of the children or, in the alternative, position themselves in such a way that they may assert other arguments for the adoption of the child without being adversely affected by being agency appointed foster parents.

Full post as published by Pennsylvania Family Law on February 24, 2011 (boomark / email).