J-A04001-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.S. 

Appellant

v.

C.J.

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 IN THE SUPERIOR COURT 

OF PENNSYLVANIA

 No. 1768 EDA 2020

Appeal from the Order Entered August 11, 2020

In the Court of Common Pleas of Philadelphia County 

Domestic Relations at No: No. OC2000388

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED: MARCH 15, 2021

E.S. (“Grandmother”) appeals from the order entered August 11, 2020, 

which denied her petition to intervene in the custody proceeding involving her 

granddaughter, B.S. (“Child”), born in August 2017, due to lack of standing. 

After careful review, we affirm.

We glean the facts and procedural history of this case from the certified 

record. The Montgomery County juvenile court adjudicated Child dependent 

in October 2017. Grandmother is Child’s maternal grandmother, and the court 

placed Child with Grandmother from August 2018 until June 2019. However, 

the Montgomery County orphans’ court terminated the parental rights of R.S. 

(“Mother”) involuntarily by decree dated May 16, 2019. By order dated July 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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2, 2019, the Montgomery County juvenile court transferred legal and physical 

custody of Child to C.J. (“Father”). The court later ended Child’s dependency. 

Despite the involuntary termination of her parental rights, Mother filed 

a pro se complaint for custody of Child in Philadelphia, where both she and 

Father lived, on February 27, 2020. Father filed pro se preliminary objections 

on March 11, 2020, arguing that Mother lacked standing to seek custody. On 

July 17, 2020, Grandmother filed a petition to intervene, requesting primary 

physical custody of Child. She averred that it would be in Child’s best interest 

to live with her because of Father’s criminal history. Father, now represented 

by counsel, filed a second set of preliminary objections on August 5, 2020, 

challenging Grandmother’s standing. 

The trial court conducted hearings on Father’s preliminary objections on 

August 11, 2020, after which it entered orders dismissing Mother’s custody 

complaint and denying Grandmother’s petition to intervene due to a lack of 

standing. Grandmother timely filed a notice of appeal from the order denying 

her petition to intervene on September 3, 2020. By order entered September 

21, 2020, the court directed Grandmother to file a concise statement of errors 
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complained of on appeal within twenty-one days, and Grandmother timely 

complied by filing a concise statement on September 25, 2020.1, 2

Grandmother now raises the following claims for our review:

A. Whether the trial court erred as a matter of law in finding that 

[Grandmother] lacked standing to have filed a Petition to 

Intervene in the [custody case?]

B. Whether the trial court erred as a matter of law in finding that 

[Grandmother’s] rights as a grandparent are derivative of 

[M]other’s parental rights[?]

C. Whether the trial court erred as a matter of law in failing to 

consider “brief temporary absences” under 23 Pa.C.S.[A.] 

§5325(3), before concluding that the child had not resided with 

[Grandmother] for 12 consecutive months[?]

Grandmother’s Brief at 4 (suggested answers omitted).

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1 As this is a children’s fast track appeal, our Rules of Appellate Procedure

required Grandmother to file her concise statement at the same time as her 

notice of appeal. See Pa.R.A.P. 1925(a)(2)(i) (“In a children’s fast track 

appeal . . . [t]he concise statement of errors complained of on appeal shall be 

filed and served with the notice of appeal.”). Despite Grandmother’s failure 

to comply with Rule 1925(a)(2)(i), we will accept her concise statement. See 

In re K.T.E.L., 983 A.2d 745, 747-48 (Pa. Super. 2009) (declining to quash 

or dismiss the appeal, or find waiver, where the appellant filed her concise 

statement three days after her notice of appeal).

2 Although there is no longer a custody action for Grandmother to intervene 

in, we conclude that this matter is not moot. Grandmother requested in her 

petition that she receive primary physical custody of Child, and the trial court 

ruled that she lacked standing to make that request. If we were to agree with 

Grandmother that she did have standing, we would reverse the court’s ruling, 

remand, and direct the court to treat Grandmother’s petition as a complaint

for custody. Thus, this is not a situation where we would be unable to enter 

an order having any legal force or effect. See In re D.A., 801 A.2d 614, 616 

(Pa. Super. 2002) (“An issue before a court is moot if in ruling upon the issue 

the court cannot enter an order that has any legal force or effect.”). 
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All three of Grandmother’s claims challenge the trial court’s conclusion 

that she lacked standing to pursue custody of Child. “‘Threshold issues of 

standing are questions of law; thus, our standard of review is de novo and our 

scope of review is plenary.’” K.W. v. S.L., 157 A.3d 498, 504 (Pa. Super 

2017) (quoting Rellick–Smith v. Rellick, 147 A.3d 897, 901 (Pa. Super. 

2016)).

We begin with Grandmother’s second claim, in which she argues that 

the trial court erred by concluding that the termination of Mother’s parental 

rights to Child also terminated her standing to seek custody.3 Grandmother’s 

Brief at 13-14. Grandmother contends that she does not lose standing until 

an adoption occurs and directs our attention to Section 5326 of Pennsylvania’s

child custody statute, which provides as follows:

Any rights to seek physical custody or legal custody rights and any 

custody rights that have been granted under section 5324 

(relating to standing for any form of physical custody or legal 

custody) or 5325 (relating to standing for partial physical custody 

and supervised physical custody) to a grandparent or great-

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3

In its opinion, the trial court states that it did not err in this regard because 

the termination of Mother’s parental rights was “not relevant to why [it] denied 

[Grandmother] standing to seek custody of [Child] in the instant case.” Trial 

Court Opinion, 10/21/20, at 8-9. To the contrary, the court stated as follows 

when explaining its decision at the conclusion of the August 11, 2020 hearing:

. . . . I’m also finding that [Grandmother] has no standing also, 

not just [because] of that reason, but also because her daughter 

has no standing. And her standing is derivative, because she’s no 

longer a grandparent, due to the Court’s order, terminating the 

mother’s biological rights, I’m sorry, strike that. Parental rights.

N.T., 8/11/20, at 34-35.
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grandparent prior to the adoption of the child by an individual 

other than a stepparent, grandparent or great-grandparent shall 

be automatically terminated upon such adoption.

23 Pa.C.S.A. § 5326.

Grandmother is correct that the termination of Mother’s parental rights 

alone does not deny her standing to seek custody of Child. The plain language 

of Section 5326 provides that a grandparent’s standing terminates “upon . . . 

adoption” of the child, and only if that adoption is by someone “other than a 

stepparent, grandparent or great-grandparent[.]” Id. Because the record 

does not indicate that Child has been adopted, let alone by someone other 

than a stepparent, grandparent, or great-grandparent, Grandmother may still

obtain standing if she otherwise meets the statutory requirements. 

This Court reached a similar conclusion when analyzing a prior version 

of the statute in Rigler v. Treen, 660 A.2d 111 (Pa. Super. 1995).4 There, 

we observed that an adoption by a stepparent or grandparent will necessarily 

involve termination of parental rights while the biological parents remain alive. 

Id. at 113. Since the rights of grandparents survive such an adoption, we 

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4 The Court analyzed Section 5314, which provided as follows:

Sections [of the custody statute conferring standing in various 

circumstances] shall not apply if the child has been adopted by a 

person other than a stepparent or grandparent. Any visitation 

rights granted pursuant to this section prior to the adoption of the 

child shall be automatically terminated upon such adoption.

23 Pa.C.S.A. § 5314 (repealed).
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explained, it follows that the termination of parental rights alone does not end 

any existing custody rights that a grandparent may have, nor does it end that

grandparent’s rights to pursue custody in the future. Id. at 113-14 (“Further, 

under the explicit provisions of Section 5314, the Riglers’ standing was not 

affected when . . . R.B.’s stepfather, adopted him. We therefore conclude that 

the Riglers did have standing to seek visitation with R.B., and that the trial 

court properly considered their petition on its merits.”). 

While we agree with Grandmother that the trial court erred by finding 

that her standing to pursue custody of Child was “derivative” of Mother’s 

parental rights, we conclude that the court’s error was harmless and does not 

entitle her to relief. See J.C. v. K.C., 179 A.3d 1124, 1130 (Pa. Super. 2018) 

(quoting Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 

2000)) (in order to avoid a finding of harmless error, an appellant “‘must 

demonstrate . . . . that he or she has suffered prejudice from the mistake.’”). 

As we discuss in detail below, Grandmother has failed to establish that she 

meets the requirements for standing under any of the relevant sections of the 

custody statute. 

Grandmother’s second and third claims are interrelated, and involve her 

contention that she has standing to seek custody of Child pursuant to Sections

5324(3), 5325(2), and 5325(3) of the custody statute. We begin with Section 

5324(3), which provides as follows: 

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.

23 Pa.C.S.A. § 5324(3).

It is undisputed that Grandmother meets the requirements of Section 

5324(3)(i) and (ii). The Montgomery County juvenile court ordered that Child 
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would reside with Grandmother during Child’s dependency, and Grandmother 

testified at the hearing that she was willing to assume responsibility for Child. 

N.T., 8/11/20, at 7-9, 17-18, 26. What remains in question, however, is 

whether Grandmother meets any of the requirements of Section 5324(3)(iii). 

The trial court determined that Grandmother fails to meet these requirements, 

reasoning as follows:

. . . . [Child] was no longer dependent as of July 2, 2019, when 

the [Montgomery County juvenile court] found that it was in the 

best interest of [Child] to be placed in the legal and physical 

custody of [Father.

5] [Grandmother] submitted no evidence to 

indicate that the child is at risk due to parental abuse, neglect, 

and drug or alcohol abuse. Finally, [Child] only lived with 

[Grandmother] for a period of approximately ten and one-half 

months, not the required “period of at least twelve consecutive 

months.” Furthermore, [Grandmother] did not file her action in 

Philadelphia within six months after the child was removed from 

[Grandmother’s] home in Florida by representatives of 

Montgomery County C.Y.S., who had legal custody of the child at 

the time of her removal from [Grandmother’s] care. 

For the foregoing reasons, [Grandmother] does not have 

standing to seek custody of [Child] pursuant to 23 Pa.C.S.[A.] § 

5324(3).

Trial Court Opinion, 10/21/20, at 7 (footnote and citations omitted).

Initially, Section 5324(3)(iii)(A) grants standing if “the child has been 

determined to be a dependent child” under the Juvenile Act. 23 Pa.C.S.A. § 

5324(3)(iii)(A). Grandmother contends that she meets the requirements of 

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5 At the hearing, the trial court stated that Child’s dependency ended pursuant 

to an order entered July 30, 2019, which terminated court supervision. N.T., 

8/11/20, at 31-32. Father attached a copy of this order to his preliminary 

objections to Grandmother’s petition to intervene. 
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this subsection because Child has been adjudicated dependent in the past. 

Grandmother’s Brief at 10-11. In the alternative, she suggests that Child still 

meets the definition of “dependent child” because of Father’s “substance 

abuse and psychological issues.” Id. at 11.

Grandmother’s argument does not entitle her to relief. This Court has 

explained that Section 5324(3)(iii)(A) requires a dependency to be ongoing to 

confer standing. See M.W. v. S.T., 196 A.3d 1065, 1071-73 (Pa. Super. 

2018), appeal denied, 199 A.3d 336 (Pa. 2018) (concluding the appellant lost 

standing because her grandchildren’s dependency ended during the custody 

case). Child’s dependency in this case ended in 2019. Further, Grandmother’s 

personal opinion that Child should still be dependent clearly fails to satisfy the 

language of the statute, which requires that Child be “determined to be a 

dependent child,” pursuant to the requirements of the Juvenile Act to apply. 

23 Pa.C.S.A. § 5324(3)(iii)(A).

Next, Section 5324(3)(iii)(B) grants standing if “the child is substantially 

at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity[.]” 

23 Pa.C.S.A. § 5324(3)(iii)(B). Grandmother does not address this subsection 

separately from Section 5324(3)(iii)(A) in her brief, but simply relies on her 

allegations above that Father suffers from “substance abuse and psychological 

issues.” Grandmother’s Brief at 11.

We discern no abuse of discretion by the trial court. While Grandmother 

alleged during the hearing that Father posed a danger to Child, she failed to 
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support her allegations with corroborating evidence. See N.T., 8/11/20, at 7-

9. Moreover, Grandmother admitted that she had only even met Father three 

times. Id. at 11. It was within the court’s discretion to accord Grandmother’s 

allegations no weight, and we see no basis to disturb its determination. 

Finally, Section 5324(3)(iii)(C) grants standing if “the child has, for a 

period of at least 12 consecutive months, resided with the grandparent . . . 

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.” 23 

Pa.C.S.A. § 5324(3)(iii)(C). It appears that Grandmother fails with respect to 

the first two elements of this subsection, as the record reveals Child resided

with her for only ten months, and a child protective services agency removed 

Child from her care.

6

Grandmother’s argument to the contrary requires some explanation. At 

the hearing on August 11, 2020, Grandmother testified that Child was in her 

care from August 2018 until June 2019. N.T., 8/11/20, at 11. She repeats 

the same dates in her brief on appeal. Grandmother’s Brief at 5-6. However, 

Grandmother asserts in her brief that Child did not reside with her for about 

____________________________________________

6 With respect to the third element of Section 5324(3)(iii)(C), Grandmother 

filed her petition to intervene in Philadelphia on July 17, 2020, more than six 

months after Child’s removal in June 2019. However, the record indicates 

that Grandmother initially pursued custody of Child in Montgomery County in 

December 2019, within the relevant six months. N.T., 8/11/19, at 28-29. We 

need not consider if Grandmother’s initial filing in Montgomery County satisfies

the third element of Section 5324(3)(iii)(C), as she would lack standing 

regardless due to her failure to satisfy the first and second elements.
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ten months, as those dates would suggest, but actually resided with her for a 

year and a half. Id. at 12. She directs our attention to the following exchange 

during her cross-examination:

Q. So, again, [Grandmother], you agree that the child lived with 

you from August 14th 2018, until June 29th of 2019, when C[Y]S 

came and took the child from you in Florida, right?

A. Yes.

Q. And that’s about ten months, right?

A. Yes.

Q. And you stated –

A. Well, a year-and-a-half.

Q. Okay. . . .

N.T., 8/11/20, at 11.

We find no merit in Grandmother’s argument. It appears that she simply 

miscalculated the amount of time that Child was in her care while testifying. 

Even if it is correct that Child spent a year and a half in Grandmother’s care, 

and she misstated the relevant dates during the hearing, she conceded that a 

child protective services agency removed child from her care and not a parent. 

Id. at 11-13. Accordingly, she would fail to meet the requirements of Section 

5324(3)(iii)(C) anyway. 

We now turn our attention to Grandmother’s claim that she possesses 

standing pursuant to Sections 5325(2) and 5325(3) of the custody statute, 

which provide as follows: 
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In addition to situations set forth in section 5324 (relating to 

standing for any form of physical custody or legal custody), 

grandparents and great-grandparents may file an action under 

this chapter for partial physical custody or supervised physical 

custody in the following situations:

***

(2) where the relationship with the child began either 

with the consent of a parent of the child or under a 

court order and where the parents of the child:

(i) have commenced a proceeding for 

custody; and

(ii) do not agree as to whether the 

grandparents or great-grandparents 

should have custody under this section; or

(3) when the child has, for a period of at least 12 

consecutive months, resided with the grandparent or 

great-grandparent, excluding brief temporary 

absences of the child from the home, and is removed 

from the home by the parents, an action must be filed 

within six months after the removal of the child from 

the home.

23 Pa.C.S.A. § 5325(2)-(3).

In its opinion, the trial court maintains that Section 5325 is inapplicable 

in this matter. Trial Court Opinion, 10/21/20, at 8. The court explains that 

Section 5325 applies to requests for partial or supervised physical custody, 

Grandmother requested primary physical custody in her petition to intervene,

and Grandmother did not move to amend her petition to include a request for 

partial or supervised physical custody at the hearing. Id. While this is correct, 

the court itself raised Section 5325 at the hearing and discussed it at length. 

N.T., 8/11/20, at 27-29. Given that the court injected the question of whether

Section 5325 grants Grandmother standing into the case, Grandmother should 
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be permitted to challenge the court’s analysis of that question on appeal. 

Thus, we address the merits of Grandmother’s claim. 

Grandmother argues that Section 5325(2) grants her standing because

Child resided with her pursuant to a court order, Mother commenced a custody 

action, and Mother and Father did not agree whether Grandmother should 

have custody. Grandmother’s Brief at 14-15. Grandmother argues Section 

5325(3) applies by largely repeating her previous argument regarding Section 

5324(3)(iii)(C). She insists that Child lived with her for over a year, this time 

contending that the trial court erred by failing to include “brief temporary 

absences” in its calculation of the relevant time period, and that the child 

protective services agency removed Child from her care improperly. Id. at 

15. 

Grandmother’s argument regarding Section 5325(2) does not entitle her 

to relief, as Mother filed her custody petition on February 27, 2020, after the 

Montgomery County orphans’ court terminated her parental rights to Child in 

May 2019. Therefore, Mother was no longer Child’s legal parent, and the 

custody proceeding she commenced was not one between “the parents of the 

child” as the statute requires. 23 Pa.C.S.A. § 5325(2).

As for Section 5325(3), Grandmother’s argument must fail for the same 

reasons as her argument regarding Section 5324(3)(iii)(C). Child did not live

with Grandmother for twelve months. Even if Child did live with Grandmother 
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for twelve months, it is beyond cavil that a parent did not remove Child from 

her care. Thus, Grandmother lacks standing under this subsection as well. 

Based on the foregoing analysis, we conclude that the trial court erred 

by ruling that Grandmother lacked standing due to the involuntary termination 

of Mother’s parental rights. However, the court’s error was harmless because 

Grandmother does not meet the statutory requirements for standing pursuant 

to Sections 5324 and 5325. We therefore affirm the court’s August 11, 2020 

order denying Grandmother’s petition to intervene.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/21