J-A04044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.S. AND D.S., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants

v.

S.D. AND M.S. v. G.L.S., II v. S.D. v. M.S., Appellees No. 1480 WDA 2013

Appeal from the Order dated August 16, 2013 In the Court of Common Pleas of Clearfield County

Civil Division at No: 2012-309-CD DISSENTING MEMORANDUM BY STABILE, J.: FILED FEBRUARY 12, 2015 I must respectfully dissent from the learned Majori ty’s decision for two principal reasons. First, I believe the Majority h as exceeded our standard of

review 1 by finding facts and addressing issues not raised before this Court.

1 In McMillen v. McMillen , 602 A.2d 845 (Pa. 1992), our Supreme Court explained an appellate court’s scope of review in c hild custody matters: The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellat e court is not bound by the deductions or inferences made by the t rial court from its findings of fact, nor must the reviewing c ourt accept a finding that has no competent evidence to support i t. However, this broad scope of review does not vest in the rev iewing court the duty or the privilege of making its own indepen dent determination. Thus, an appellate court is empower ed to determine whether the trial court’s incontrovertibl e factual findings support its factual conclusions, but it ma y not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, repre sent a gross abuse of discretion. Id. at 847 (citations omitted).J-A04044-14

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Second, to my knowledge, the Majority essentially h as recognized for the first time grandpaternity by estoppel as a judicial doctrine in this Commonwealth. No such doctrine ever has been recog nized in our law. Nonetheless, even if such a doctrine were to be rec ognized, I would not find circumstances present here for its application. The sole issue properly 2 before this Court is whether the trial court erred when it failed to equitably estop Mother from terminating the visitation and custody rights of Appellants, putative grandpar ents, after the results of a paternity test established that Appellants’ son w as not the biological father of Mother’s child, C.S. (“Child”). After a hearing , the trial court dismissed Appellants’ complaint on the basis that Appellants did not have standing under 23 Pa.C.S.A. § 5324 (sole physical custody) t o sue for custody of Child, because Appellants were not Child’s grandpar ents. Instead of restricting our review in this matter to the equitable estoppel issue raised and decided by the trial cour t, the learned Majority sua sponte has raised and decided the non-jurisdictional issu e of whether Mother waived her right to challenge standing for failure to raise this issue at an earlier opportunity. The Majority, acting as a fac t-finder, finds waiver without the benefit of an evidentiary hearing, or n otice and opportunity for Mother to address this waiver issue or to explain t he timing of her actions.

2 Appellants also argue whether the trial court erre d by not finding that continued custody by Appellants was in the best int erest of Child. Because I would not find error with the trial court dismissin g this action for lack of standing, I would not address the best interest iss ue.J-A04044-14

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Having determined the challenge to standing as waiv ed, the Majority concludes, after detailed fact-finding ab initio from its review of the record, that Mother is equitably estopped from challenging Appellants’ status as grandparents to Child. The Majority finds equitabl e estoppel without any evidence in the record to support the essential ing redient of detrimental reliance to equitable estoppel. With standing and equitable estoppel decided by sua sponte raising issues and finding facts, the Majority compounds th ese errors by again sua sponte raising and concluding that Appellants, alternativ ely, have standing for partial custody of Child. The Majority accompl ishes this feat by disregarding the complaint filed for full custody a nd by treating Appellants’ complaint as if it were filed for partial custody u nder 23 Pa.C.S.A. § 5325. The Majority again does so without the benefit of a ny findings by the trial court or an opportunity by the parties to be heard on this issue. I now set forth the reasons for my dissent. At the outset, the Majority acknowledges the central issue on appeal is whether Mother should be estopped equitably from challenging Appellants’ sta nding (as grandparents) to dismiss Appellants’ underlying custody complaint and related custody orders. Yet, despite this acknowledgment, the lear ned Majority takes it upon itself to circumvent this central issue by dis posing of this case based on a waiver of standing claim—an issue Appellants faile d to raise and preserve below or address in their appellate brief. The Maj ority attempts to

rationalize its sua sponte consideration of this waiver issue by reasoning th isJ-A04044-14

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issue is an innate component of Appellants’ estoppe l claim because Mother’s ten-month delay in raising standing is subsumed in Appellants’ estoppel argument. My review of the record reveals that Appellants did not assert waiver as a defense to Mother’s standing challenge at any time before the trial court

or this Court. It is well established that issues not raised in the lower court

are waived and cannot be raised for the first time on appeal. See Pa.R.A.P. 302(a); see also Green v. Green , 69 A.3d 282, 287 (Pa. Super. 2013) (concluding that an issue cannot be raised for the first time on appeal).

Because it was this Court that raised the waiver is sue, not surprisingly, this issue of waiver also is not presented in Appellants ’ 1925(b) statement of issues for appeal. This absence provides a second basis for waiver of this issue on appeal to this Court. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived.”). The issue of waiver also does not appear in any of Appellants’ statement of quest ions in their brief to this Court. The issue again is waived. See Pa.R.A.P. 2116(a) (“The statement of the questions involved must state concisely the issues to be resolved, expressed in terms and circumstances of the case[.] ”). Even if this issue were not expressly stated in the questions presente d, this Court still would not be justified in addressing this claim because i t is entirely absent from any briefing submitted by Appellants to this Court. See Pa.R.A.P. 2119(a);

see also Burgoyne v. Pinecrest Cmty. Ass’n , 924 A.2d 675 (Pa. Super.J-A04044-14

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2007) (the failure to develop an argument with cita tion to and analysis of relevant authority waives the issue on appeal). 3 With specific reference to the issue of standing, o ur Supreme Court further has explained, courts are “prohibited from raising the issue of standing sua sponte . ‘Whether a party has standing to maintain an act ion is not a jurisdictional question.’” In re Nomination Petition of deYoung , 903 A.2d 1164, 1168 (Pa. 2006). In deYoung , our Supreme Court expressly rejected the notion that “standing can be raised by [a] court sua sponte ” because it is intertwined with subject matter jur isdiction. Id. at 1167-68. Hence, if courts are prohibited from rais ing the issue of standing on their own accord, then, by that same logic, the issue of waiver of a standing challenge likewise, cannot be raised sua sponte in this case. To the extent the Majority states it may raise the issue of waiver of standing sua sponte because the issue is subsumed by Appellants’ estop pel argument, I strongly disagree. 4 The doctrine of equitable estoppel, as

discussed infra , requires proof of an inducement relied upon by ano ther to their detriment. The issue of waiver, as raised by the Majority, concerns

3 It is likely unfair to speak in terms of Appellan ts waiving this issue, as it suggests some fault on the part of Appellants. Thi s Court has raised the issue. Appellants never have urged the trial court or this court to consider the issue of waiver.

4 Although the Majority does not cite any rule of ap pellate procedure regarding equitable estoppel subsuming a standing w aiver, I presume it refers to the “fairly suggested” language of Pa.R.A .P. 2116 (“[T]he statement of question will be deemed to include eve ry subsidiary question fairly comprised therein.”).J-A04044-14

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whether Mother had the right even to raise her chal lenge to standing based upon unreasonable delay in raising the issue. The timing consideration in the standing waiver issue exists wholly apart from any consideration regarding the elements of equitable estoppel. Simp ly stated, the substance of an equitable estoppel claim does not subsume the procedural question of whether a challenge to standing has been raised tim ely. Having determined that the issue of standing waiver was properly before this Court, the Majority, relying principall y upon Kellogg v. Kellogg , 646 A.2d 1246 (Pa. Super. 1994), concludes that Mot her waived any right to challenge standing by not raising this issue at an earlier time. Although the Majority relies upon Kellogg , I am not convinced Kellogg was properly decided. With respect to custody actions, Pa.R.C.P . No. 1915.5(a) quite clearly requires that a person raise only issues of “jurisdiction of the person” or “venue” by way of preliminary objection within t wenty days of service of the pleading to which they object. Preliminary obj ections to civil actions similarly are limited. See Pa.R.C.P. No. 1028(a)(1). Standing is not among the defenses that must be raised preliminarily. Ye t, the Kellogg court rewrote Rule 1915.5(a) through case law to include st anding as a third defense that must be preliminarily raised within tw enty days when responding to a custody complaint. 5 In my view, the Majority correctly

5 By including standing as a part of Rule 1915.5(a) through case law, the court creates a trap for practitioners who rely upo n the clear and unequivocal language of the rule for guidance. Kellogg was decided some 20 years ago. If standing is to be included in the required defenses that must be raised preliminarily to a custody complaint , the rule should beJ-A04044-14

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moves away from the mechanical inclusion of standin g within the strict time constraints of Rule 1915.5(a), recognizing the issu e of standing can be fluid in custody cases. Because Rule 1915.5(a) does not include standing among the defenses that must be preliminarily raised, it is my view standing should be treated like any other defense not subject to wa iver if not raised within a prescribed time under our rules. Regardless of whether standing is to be properly pl ed under Rule 1915.5(a), I nonetheless, on the merits of this iss ue, cannot conclude that Mother waived her right to raise the issue of Appel lants’ standing. The record is devoid of any hearing, evidence, or any f act-finding by the trial court on this timeliness issue (because it was not raised by Appellants). The only issue heard by the trial court prefatory to th is appeal was Appellants’ estoppel argument. There was no hearing or determi nation by the trial court

as to whether Mother was entitled to raise her stan ding challenge. Nonetheless, the Majority renders its own factual f indings contrary to our standard of review by stating: Mother claimed that she suspected that Putative Fat her was not C.S.’s birth father and that she advised him of her doubts. While Mother could not prove her suspicions that Appellan ts were not genetic relatives of C.S. until she obtained the re sults of [the] DNA testing, that does not excuse Mother’s protracted delay once she acquired the DNA results during the ongoin g custody proceedings. Mother obtained the results of a priv ate DNA test during June 2012; however, she did not assert her s tanding challenge until April 2013, ten months later. Rathe r than assert a standing challenge immediately after receiving conf irmation, Mother filed additional pleadings seeking to reduce Appellants’ custodial rights for various reasons unrelated to s tanding. properly amended so as not to prejudice practitione rs admitted after 1994 not entirely familiar with historical case law.J-A04044-14

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Maj. Mem. at 12 (emphasis added). The Majority con cludes although Mother was not required to raise a standing challenge at t he outset of the case, she certainly was required to do so as soon as she had tangible confirmation that Appellants were not genetically related to Child. The Majority makes these findings without an evidentiary record that would h ave provided Mother an opportunity to explain the timing of her actions, a ssuming timeliness may be dispositive of her standing challenge. There is no evidence of record to suggest that Moth er in fact knew of Child’s biological father until DNA testing was acc omplished. The Majority treats prior knowledge as a fait accompli without any findings by the trial court. No doubt, Mother thought to pursue this iss ue after experiencing numerous acrimonious and contentious court proceedi ngs with putative grandparents for custody of Child. Mother’s timing also may be explained by the fact that counsel did not represent her until t he filing of her standing challenge, a possible change of circumstance in her case. In all likelihood, Mother’s standing challenge was the result of couns el’s legal review of the proceedings, a task probably beyond Mother’s capabi lities. I, however, like the Majority, am in no position to make findings of fact in this regard. The point I wish to make clear is that Mother may v ery well have explained satisfactorily her timing on this standin g issue if given the opportunity to do so, and if the issue of waiver wa s properly raised before the trial court. The Majority impermissibly engage s in fact-finding to reach its conclusion without the benefit of any record or fact-finding by the trialJ-A04044-14

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court, and without any ability to weigh the testimo ny or credibility of the parties. [U]nlike trial courts, appellate courts are not equ ipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevan t hearing and often presiding over numerous other hearings regard ing the child and parents. Therefore, even where the facts could support an opposite result, . . . an appellate court must resi st the urge to second guess the trial court and impose its own cre dibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supporte d by the record and the court’s legal conclusions are not th e result of an error of law or an abuse of discretion. See In re Adoption of S.P. , 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted); see also D.G. v. D.B. , 91 A.3d 706, 707 (Pa. Super. 2014) (noting that a reviewing court’s standard of review “does not vest in the reviewing court the duty or the privilege of making its own independent determination”). Having dispatched Mother’s standing issue on the ba sis of waiver, the Majority proceeds next to address the issue of equi table estoppel, the only issue properly before this Court. See Maj. Mem. at 13. The Majority concludes that Appellants met their burden of proof with respect to equitably estopping Mother from challenging their status as C hild’s grandparents. The doctrine of “equitable estoppel” is one of fundamen tal fairness, designed to preclude a party from depriving another of a reason able expectation when the party inducing the expectation, albeit gratuito usly, knew or should have known that the other party would rely on that condu ct to his detriment. See

Jacob v. Shultz-Jacob , 923 A.2d 473, 480 (Pa. Super. 2007).J-A04044-14

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In this regard, acting again impermissibly as a tri al court, the Majority

finds and then concludes: [O]ur review of the case law did not reveal a singl e case that addressed a non-biological grandparent’s ability to invoke equitable estoppel against a birth parent[, like Mo ther,] who not only actively misled them to believe the child was their grandchild, but also consented to [their] exercise of custodial rights.

. . . . Mother represented over a two-year period that Appe llants were C.S.’s birth grandparents. Although Mother suspected from the outset that Putative Father was not C.S.’s birth parent, she identified him as the father on the child’s birth c ertificate and executed an acknowledgment of paternity that identi fied him as C.S.’s father. Similarly, her actions encouraged Appellants to fashion and maintain a grandparent-child relationsh ip with C.S. . . . . [Mother] mounted a largely unsuccessful campaign to erode the terms of the custody arrangement [with Appella nts].

. . . . The trial court ignores Mother’s inaction and consent to Appellants’ custody rights in declining to apply eq uitable estoppel to prevent Mother from invoking the results of a pa ternity test to strip Appellants of their custody rights. Appellant s have always held themselves out as grandparents, and with Mother’s express consent and endorsement , they have exercised legitimate, courtordered custodial rights as C.S.’s grandparents sin ce May 2012. Mother’s actions and representations regarding C.S. ’s parentage for the first two years of the child’s li fe and her silence in agreeing to the initial custody order induced Ap pellants to believe that C.S. was their grandchild. Appellants relied upon Mother’s representations and omissions to their det riment, and would be severely prejudiced if Mother were permitted to invoke the results of the genetic testing at this point in order to deny their beneficial relationship with C.S. Thus, we conclude that the trial court erred in holding that equitable estoppe l was inapplicable. Maj. Mem. at 16-19 (emphasis added). I disagree with the Majority’s conclusion that Appe llants met their burden of proof to establish detrimental reliance o n their equitable estoppel claim based upon Mother’s misrepresentations regard ing their genetic ties toJ-A04044-14

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Child. At the hearing on Mother’s motion to dismis s/vacate, Appellants

testified on their own behalf and offered the testi mony of their son, putative father. The Majority finds detrimental reliance, i n sum, based on the fact Appellants operated under the assumption created by Mother that they were the biological grandparents to Child. Beyond this, neither the Majority’s memorandum, nor my review of the record, yields any evidence that would support the conclusion that Appellants suffered any detriment sufficient to support an equitable estoppel claim, nonetheless su bstantial prejudice as claimed by the Majority. The Majority’s cumulative and repeated references

to Mother’s actions does not establish or answer wh ether Appellants suffered any detrimental reliance. Appellants enjoyed the benefit of acting as grandpa rents to Child, but the loss of this benefit to which they were not ent itled, alone, does not

establish detrimental reliance. The record does no t demonstrate Appellants are in any worse position now than they would have been if originally advised they were not Child’s grandparents. See Card v. Commonwealth of Pennsylvania, Pennsylvania School Employes' Retir ement Bd. , 478 A.2d 510, 514 (Pa. Cmwlth. 1984) (noting that petit ioner, despite repeatedly being advised of eligibility to purchase pension cr edits, could not claim equitable estoppel as record did not demonstrate he r position was detrimentally changed, since she was in no worse po sition than she would have been had she initially been informed correctly of her ineligibility). Appellants have not produced any evidence of a detr imental change inJ-A04044-14

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position to support their claim. Equitable estoppe l always must be predicated upon some detrimental reliance. See id. If the modicum of evidence offered by Appellants here was all that wa s necessary to claim grandparent status by equitable estoppel, there vir tually would be no case in which parentage is disputed where third parties wou ld not be able to establish standing on an equitable estoppel claim. Moreover, I disagree with the Majority’s finding of equitable estoppel and hence, reinstating custody in Appellants, on a more fundamental level. The focus in an equitable estoppel claim is upon th e expectation created and the detrimental reliance upon that expectation. He re, Appellants assert equitable estoppel against Mother to gain grandpare nt status in order to seek custody of Child. Invocation of the doctrine was for the benefit of Appellants. In every custody matter, however, the paramount focus is upon

the best interests of the child. See 23 Pa.C.S.A. § 5328(a). Nowhere in Appellants’ equitable estoppel claim, or as found b y the Majority, is the best interests of Child considered before conferring non -biological grandparent status upon Appellants so they can continue to seek custody of Child. This no doubt, is because the “best interests” of a chil d is not an element of an equitable estoppel claim. Therefore, I am in agree ment with the trial court that considerations underlying the doctrine of pate rnity by estoppel 6 do not

6 “[P]aternity by estoppel continues to pertain in P ennsylvania , but it will apply only where it can be shown, on a developed re cord, that it is in the best interests of the involved child.” K.E.M. v. P.C.S. , 38 A.3d 798, 810 (Pa. 2012).J-A04044-14

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apply to grandparents. This is buttressed by the f act that our Legislature has seen fit to codify paternity by estoppel, but h as not done so similarly for grandparents. See 23 Pa.C.S.A. § 5102. Succinctly stated, there is no grandpaternity by estoppel in Pennsylvania. Next, in determining that the doctrine of equitable estoppel would apply instantly, the Majority “observe[s] that Appe llants attained standing to pursue partial custody of C.S. pursuant to 23 Pa.C. S.[A.] § 5325(2), relating to grandparent’s standing for partial custody[.]” Maj. Mem. at 19. The parties here do not dispute the fact Appellants ini tiated their custody action under 23 Pa.C.S.A. § 5324, for sole physical custod y of Child. The Majority, by invoking Section 5325, essentially amends Appell ants’ custody complaint sua sponte from one seeking full custody to partial custody o f Child. Because partial custody was not the relief sought i n Appellants’ pleadings, I disagree with the Majority’s invocation of Section 5325. 7 I am not without sympathy for Appellants’ situation , i.e. , loving and caring for a child as one’s own grandchild only to discover later the lack of any genetic link. I have no doubt Appellants feel a bond with Child and are angered at Mother. Nonetheless, for the reasons se t forth above, I

7 Even were we to assume Appellants are the grandpar ents of Child for purposes of this appeal, they still would be unable to assert standing under Section 5324 of the Act to seek custody of Child. It is undisputed that Appellants are not the parents of Child, do not sta nd in loco parentis to him, and Child has not resided with Appellants for at le ast 12 consecutive months. Therefore, Appellants would be unable to a ssert standing under Section 5324 of the Act to seek custody of Child ev en if they were considered grandparents for purposes of this custod y action.J-A04044-14

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respectfully dissent from the Majority’s decision t o find Mother’s standing challenge to be waived, to confer grandparent statu s upon Appellants premised upon equitable estoppel, to convert Appell ants’ claim for custody to one for partial custody, and to reinstate the Ma rch 11, 2013 order granting Appellants partial custody subject to a be st interest analysis pursuant to § 5328(a). For all the foregoing reasons, I respectfully disse nt.