J-A25023-15

2015 PA Super 210

IN THE INTEREST OF: C.L.P., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: F.M.P. AND P.T.A., 

MATERNAL GRANDPARENTS

No. 42 EDA 2015

Appeal from the Order Entered November 21, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): CP-51-DP-0002355-2013

 CP-51-FN-004529-2013

IN THE INTEREST OF: G.L.P., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: F.M.P. AND P.T.A., 

MATERNAL GRANDPARENTS

No. 43 EDA 2015

Appeal from the Order Entered November 21, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): CP-51-DP-0002361-2013

 CP-51-FN-004529-2013

BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

OPINION BY MUNDY, J.: FILED OCTOBER 02, 2015

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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Appellants, F.M.P. (Maternal Grandfather) and P.T.A. (Maternal 

Grandmother), (collectively, Grandparents) appeal from the November 21, 

2014 order denying, inter alia, their motion to schedule a custody trial 

pursuant to Pennsylvania Rule of Civil Procedure 1915.4, with respect to 

their grandsons, G.L.P. and C.L.P., who are adjudicated dependent pursuant 

to 42 Pa.C.S.A. § 6302. After careful review, we reverse and remand for 

further proceedings.

The factual background of this case, as gleaned from the certified 

record, is as follows. In November 2013, G.L.P., who was then five-monthsold, and C.L.P., who was then three-years-old, were removed from their 

biological parents, G.P.T. (Mother) and C.L.R. (Father), and placed in the 

custody of the Philadelphia Department of Human Services, Children and 

Youth Division (DHS), following a non-accidental trauma suffered by G.L.P. 

See Trial Court Opinion, 5/18/15, at 1-2. A physician at the Children’s 

Hospital of Philadelphia, where G.L.P. was treated, certified his injury as a 

near-fatality. Id. at 2.

On March 24, 2014, the trial court adjudicated G.L.P. and C.L.P. 

dependent. In addition, the trial court issued an aggravating circumstances 

order with respect to G.L.P. and C.L.P. stating that “[t]he Child or another 

child of the parent has been the victim of physical abuse resulting in serious 

bodily injury[,] sexual violence[,] or aggravated neglect by the parent; 

proven as to Mother and Father.” Trial Court Order, 3/24/14, at 1. 
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Nevertheless, the trial court directed DHS to provide reunification services 

for the family. Id. Since their placement, G.L.P. and C.L.P. have been in 

foster care through Catholic Social Services.

On June 19, 2014, Grandparents filed a complaint for custody against 

Mother, Father, and DHS, wherein they asserted they had standing to seek 

custody of G.L.P. and C.L.P. pursuant to Section 5324(3) of the Custody Act, 

23 Pa.C.S. §§ 5321-5340. On the same date, Grandparents filed a motion 

to intervene, wherein they requested that the trial court schedule a custody 

hearing or, alternatively, “grant[] them permission to participate in the 

dependency proceedings naming them as the care alternative which is the 

least restrictive for the boys.” Motion to Intervene, 6/19/14, at ¶ 19. 

Thereafter, the certified record reveals that, by a July 30, 2014 

permanency review order, the trial court directed DHS to explore 

Grandparents as possible resources, and to schedule supervised visitation 

between Grandparents, G.L.P., and C.L.P., upon receipt of criminal 

clearances for Grandparents.1 By permanency review order dated August 

21, 2014, the trial court directed Grandparents to submit a brief within 30 

days concerning whether the trial court has jurisdiction to hear the custody 

____________________________________________

1 By a permanency review order dated October 31, 2014, the trial court 

directed the parties to arrange supervised weekly visits between 

Grandparents and their grandsons.
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matter. On October 28, 2014, Grandparents filed a motion to schedule a 

custody trial pursuant to Pa.R.C.P. 1915.4.

An oral argument on Grandparents’ motions occurred on November 

21, 2014, during which counsel for DHS, Mother, Father, and Grandparents 

participated, along with the Child Advocate. Counsel for Grandparents 

explained to the trial court that the motion to intervene, filed concurrently 

with the custody complaint on June 19, 2014, “was nothing more than a 

vehicle to request a trial date under Pennsylvania Rule of Civil Procedure 

1915.4. It [was] never intended to be a motion to intervene in 

dependency.” N.T., 11/21/14, at 11. As such, counsel for Grandparents 

acknowledged to the trial court that Grandparents do not have standing in 

the dependency action. Id. at 62. 

At the conclusion of the oral argument, the trial court, on the record, 

denied Grandparents’ motion to intervene, and further stated that the court 

will not entertain the custody complaint or the motion to schedule a custody 

trial because Grandparents do not have legal standing. Id. at 69-70, 75. 

The trial court explained on the record that Section 5324 confers legal 

standing upon grandparents of dependent children “when the parents[’] 

rights either [have] been terminated or the parent is deceased, or the parent 

is in no position to become a parent, which is different from this case, 

because ... the parents right now ... I believe they’re fully compliant [with 

their Family Service Plan objectives.]” Id. at 29. By order dated November 
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21, 2014, the trial court denied Grandparents’ motion to intervene. In 

addition, the order stated that Grandparents “were ruled out as possible 

kinship parents.”2 Trial Court Order, 11/21/14, at 1. 

On December 18, 2014, Grandparents filed notices of appeal and 

concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i), which this Court consolidated by stipulation of the parties. 

The trial court issued a Rule 1925(a) opinion on May 18, 2015.3

On appeal, Grandparents present three issues for our review.

A. Whether it was an error of law for the trial court 

to refuse to schedule a trial on the Grandparents’ 

Complaint for Custody where the subject 

grandchildren had been adjudicated dependent by 

the trial court, such adjudication triggering the 

Grandparents’ standing to file a complaint for 

custody pursuant to 23 Pa.C.S.A. § 5324, and such 

filing requiring the scheduling of a trial pursuant to 

[Pa.R.C.P.] 1915.4[?]

____________________________________________

2 During the oral argument on November 21, 2014, counsel for DHS advised 

the trial court that Grandparents have been ruled out as a kinship resource 

for G.L.P. and C.L.P. because of an allegation that one or both of them may 

have been caring for G.L.P. at the time of his injury. See N.T., 11/21/14, at 

17, 20-21. 

3 The Child Advocate argues in its appellee brief that we should dismiss this 

appeal because the subject order did not dismiss or deny the custody 

complaint. We reject this argument because the motion to intervene, which 

the court denied, included a request to schedule a child custody hearing. In 

addition, the trial court ruled on the record that it will not act on the motion 

to schedule a custody trial because Grandparents do not have legal standing. 

N.T., 11/21/14, at 69-70, 75. We deem this to be, in effect, a dismissal of 

their custody complaint. Therefore, we conclude that this appeal is properly 

before us, and we will review it on its merits. 
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B. Whether it was an error of law and abuse of 

discretion for the trial court to find that the 

Grandparents’ Complaint for Custody could not be 

heard while reunification with the parents was being 

considered via the Juvenile Act[,] 42 Pa.C.S.A. 

§ 6301 et seq., which it determined to supersede the 

statutory mandate of 23 Pa.C.S.A. § 5324, when the 

plain language of 23 Pa.C.S.A. § 5324 imposes no 

such requirement, nor does case[]law interpreting 

it[?]

C. Whether it was an error of law for the trial court 

to conclude that any grant of custody to 

Grandparents via the Custody Act, including 

temporary custody which is an option within the 

Juvenile Act[,] 42 Pa.C.S.A. § 6351(a), and the 

Custody Act, 23 Pa.C.S.A. § 5323(b), would be 

impermissible, contrary to the parents’ prima facie 

rights and frustrate the goal of family unity within 

the Juvenile Act while reunification with the parents 

is being explored[?]

Grandparents’ brief at 3-4.

The crux of Grandparents’ arguments on appeal is that they have 

standing to seek custody of their dependent grandsons pursuant to Section 

5324(3) of the Custody Act, notwithstanding the permanency goals of 

reunification under the Juvenile Act, 42 Pa.C.S.A. §§ 6301–6375. Section 

5324 provides as follows. 

§ 5324. Standing for any form of physical 

custody or legal custody.

The following individuals may file an action under 

this chapter for any form of physical custody or legal 

custody:

...
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(3) A grandparent of the child who is not in 

loco parentis to the child:

(i) whose relationship with the child 

began either with the consent of a parent 

of the child or under a court order;

(ii) who assumes or is willing to assume 

responsibility for the child; and

(iii) when one of the following conditions 

is met:

(A) the child has been determined 

to be a dependent child under 42 

Pa.C.S. Ch. 63 (relating to juvenile 

matters);

(B) the child is substantially at risk 

due to parental abuse, neglect, 

drug or alcohol abuse or 

incapacity; or

(C) The child has for a period of at 

least 12 consecutive months, 

resided with the grandparent, 

excluding brief temporary absences 

of the child from the home, and is 

removed from the home by the 

parents, in which case the action 

must be filed within six months 

after the removal of the child from 

the home.
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23 Pa.C.S.A. § 5324(3). Specifically, Grandparents assert that they have 

standing to seek custody of G.L.P. and C.L.P. pursuant to Section 

5324(3)(iii)(A).4 

We begin by observing that “the interpretation and application of a 

statute is a question of law that compels plenary review to determine 

whether the court committed an error of law. As with all questions of law, 

the appellate standard of review is de novo and the appellate scope of 

review is plenary.” B.K.M. v. J.A.M., 50 A.3d 168, 172 (Pa. Super. 2012)

(citations and internal quotation marks omitted).

“The object of all interpretation and construction of 

statutes is to ascertain and effectuate the intention 

of the General Assembly. Every statute shall be 

construed, if possible, to give effect to all its 

____________________________________________

4 Neither DHS, Mother, nor Father filed an appellee brief in this appeal. The 

Child Advocate asserts in its brief that the trial court did not commit an error 

of law. The Child Advocate asserts that Grandparents do not have standing 

to intervene in the dependency matter pursuant to the Juvenile Act. We 

deem this argument irrelevant because the issue in this case is whether 

Grandparents may file a child custody action concurrent to the dependency 

actions pending with respect to their grandsons. Indeed, Grandparents 

expressly stated that they are not seeking to intervene in the dependency 

matters, as they agree they do not have standing to intervene under the 

Juvenile Act. See N.T., 11/21/14, at 11, 62. Next, the Child Advocate 

asserts that Section 5324 “appears to give the grandparents the right to file 

a petition for custody when their grandchildren have been adjudicated 

dependent, [but] it does not indicate how and when that petition should be 

heard in light of Juvenile Act’s hierarchy of permanency goals.” Child 

Advocate Brief at 24. The Child Advocate then asserts that the trial court 

found it premature to list the custody complaint for trial because the 

permanency goals for the family remained reunification, and, in so doing, 

the court gave effect to both the Custody Act and the Juvenile Act. We 

reject this argument for reasons explained fully below. 
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provisions.” 1 Pa.C.S. § 1921(a). The plain 

language of the statute is generally the best 

indicator of legislative intent, Commonwealth v. 

McCoy, 962 A.2d 1160, 1166 (Pa. 2009), and the 

words of a statute “shall be construed according to 

rules of grammar and according to their common 

and approved usage ....” 1 Pa.C.S. § 1903(a). We 

generally look beyond the plain language of the 

statute only where the words are unclear or 

ambiguous, or the plain meaning would lead to “a 

result that is absurd, impossible of execution or 

unreasonable.” 1 Pa.C.S. § 1922; see also 

Commonwealth v. Diodoro, 970 A.2d 1100, 1106 

(Pa. 2009).

Commonwealth v. Garzone, 34 A.3d 67, 75 (Pa. 2012) (parallel citations 

omitted).

Instantly, in its Rule 1925(a) opinion, the trial court reasoned as 

follows.

[O]nly in exceptional cases has Pennsylvania case 

law recognized grandparents’ standing in custody 

actions in the Domestic Relations Court when 

grandchildren have been adjudicated dependent by a 

court in a dependency action. Specifically only in 

cases, [sic] family’s unity preservation is not viable. 

Namely, when the permanency goal has been 

changed to adoption or parental rights have been 

terminated. In In re Ado[p]tion of Hess, 608 A.2d 

[12] (Pa. 1992), the Pennsylvania Supreme Court 

recognized standing to grandparents that filed a 

custody complaint at the adoption proceeding after 

the parents voluntarily relinquished their parental 

rights. [ ] In R.M. v. Baxter, 777 A.2d 446 (Pa. 

1999), the paternal grandmother had standing to file 

a custody action after the child was adjudicated 

dependent and the permanency goal was changed to 

adoption. ....

[In this case,] [t]he FSP [Family Service Plan] goal 

for both parents is still reunification, and parents 

have been fully compliant with their FSP goals ..., 
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and despite the trial court finding of aggravated 

circumstances, DHS was ordered to continue with 

reasonable efforts for [G.L.P.’s and C.L.P.’s] 

reunification with their parents.... The Grandparents’ 

rights under the Custody Act cannot trump the 

status of [G.L.P.’s and C.L.P.’s] biological parents, 

who have a prima facie right to custody. Parents’ 

rights have not been terminated and are fully 

compliant. The Grandparents also admitted that 

they do not have standing to participate in the 

dependency action; therefore, their Motion to 

Intervene had to be denied. Consequently, the trial 

court did not have to hear the custody petition filed 

by Grandparents.

Trial Court Opinion, 5/18/15, at 8-9. We conclude the trial court erred for 

the following reasons.

The case authority cited by the trial court is inapposite to this matter. 

First, in Hess, our Supreme Court interpreted the Adoption Act, 23 Pa.C.S. 

§§ 2101 et seq., to permit grandparents to intervene in their grandchildren’s 

adoption proceedings after the parental rights of the children’s mother and 

father were terminated. In this case, Grandparents are not seeking to 

intervene in adoption proceedings. Indeed, the certified record indicates 

that there are no pending adoption proceedings as the parental rights of 

Mother and Father have not been terminated. Rather, Grandparents seek a 

hearing on their concurrent custody action under the Custody Act with 

respect to their dependent grandsons. As such, the Custody Act, and not 

the Adoption Act, is applicable in this case. Therefore, we conclude that 

Hess is not controlling in this matter.
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Second, in R.M., our Supreme Court held that 23 Pa.C.S.A. § 5313(b), 

the predecessor to Section 5324(3)(iii), conferred automatic standing upon a 

grandparent to seek physical and legal custody of a grandchild after the child 

has been adjudicated dependent. However, Section 5313(b) was 

superseded by Section 5324(3)(iii) on January 24, 2011. This provision 

provides that, to have standing to seek physical and legal custody, a 

grandparent who is not in loco parentis to the child5 must establish one of 

the three circumstances set forth in Section 5324(3)(iii)(A)-(C). See D.G. 

v. D.B., 91 A.3d 706, 712 (Pa. Super. 2014) (stating, “[u]nder 

§ 5324(3)(iii), a grandparent must establish one of the three circumstances 

set forth in subsections (A) through (C) in order to have standing to seek 

custody”) (emphasis omitted). Therefore, unlike the former Section 

5313(b), Section 5324(3)(iii) does not confer automatic standing upon a 

grandparent to seek physical and legal custody of a grandchild. 

Section 5324(3)(iii)(A) confers standing upon grandparents in cases 

where “the child has been determined to be a dependent child under 42 

Pa.C.S. Ch. 63 (relating to juvenile matters),” when the requirements of 

____________________________________________

5

“The phrase ‘in loco parentis’ refers to a person who puts oneself in the 

situation of a lawful parent by assuming the obligations incident to the 

parental relationship without going through the formality of a legal 

adoption.” T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001).
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Section 5324(3)(i) and (ii) are also met.6 23 Pa.C.S. § 5324(3)(iii)(A). The 

words of this provision are clear and unambiguous, and they do not impose 

the limitation construed by the trial court. Thus, we reject the trial court’s 

conclusion that “the Custody Act cannot trump the status of [G.L.P.’s and 

C.L.P.’s] biological parents, who have a prima facie right to custody.” Trial 

Court Opinion, 5/18/15, at 9. Such an interpretation, that a grandparent 

does not have standing to seek custody of a grandchild determined to be a 

dependent and having a goal of reunification with his biological parents 

under the Juvenile Act, is contrary to the plain language of Section 

5324(3)(iii)(A), by which we are to ascertain our General Assembly’s intent.7 

See Garzone, supra.

Therefore, the Custody Act grants standing to grandparents to file for 

any form of physical or legal custody when their grandchild has been 

adjudicated dependent notwithstanding a permanency goal of reunification. 

As such, we conclude that the trial court erred as a matter of law in failing to 

list Grandparents’ custody action for a hearing pursuant to Grandparents’ 

____________________________________________

6

In this case, it is undisputed that Grandparents’ relationship with G.L.P. 

and C.L.P. began with the consent of the parents, and that Grandparents are 

willing to assume responsibility for their dependent grandsons. See 23 

Pa.C.S. § 5324(3)(i)-(ii).

7 Any implications concerning the children’s reunification goals could pertain 

to the merits of the instant custody complaint, upon which we express no 

opinion. However, they do not negate the Grandparents’ standing, which, as 

we have explained, is controlled by the plain text of Section 5324(3)(iii)(A) 

in this case.
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request based on its conclusion that Grandparents did not have standing. 

Accordingly, the trial court’s November 21, 2014 order is reversed and the 

case is remanded for the trial court to promptly list Grandparents’ custody 

action for a hearing on the merits.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/2/2015