J-A18038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.S., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

M.I.S. AND T.W., :

:

Appellees : No. 47 MDA 2015

Appeal from the Order entered on December 9, 2014

in the Court of Common Pleas of Columbia County,

Civil Division, No. 2006-CV-0001648-DU

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 29, 2015

M.S. (“Paternal Grandmother”) appeals from two Orders, concerning 

custody of her minor grandchildren, C.S. and F.S. (“the Children”), ruling 

that (1) the mother of the Children, M.I.S. (“Mother”), is not an 

“incapacitated” parent under 23 Pa.C.S.A. § 5324(3)(iii)(B),1and Paternal 

Grandmother therefore lacks standing to seek legal and physical custody of 

the Children; and (2) Mother’s sister, T.W. (“Maternal Aunt”), shall have 

primary physical custody and full legal custody. We affirm.

The trial court set forth the relevant factual and procedural history 

underlying this appeal as follows:

 

1 Section 5324, governing standing for any form of legal or physical custody, 

provides, in relevant part, that “[a] grandparent of the child who is not in 

loco parentis to the child” has standing when “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) (emphasis added).
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The subjects of this matter are the [C]hildren of [Mother] 

and [F.T.S. (“Father”)]. ... [Mother] and [Father] were divorced 

on June 8, 2012, after long and contentious litigation. On July 1, 

2012, [Father] was murdered in his home located in Columbia 

County. Subsequently, a state-wide investigating grand jury 

issued a presentment charging [Mother] and her father, [A.R.F.], 

also known as [A.R.S.,FN 1] with the crime. [Mother] and 

[A.R.F.] are also charged in the same criminal information with 

the crime of arson, involving a fire at the home of [Paternal 

Grandmother]. [Mother] was arrested on July 28, 2014, and is 

currently incarcerated in the Columbia County Correctional 

Facility without bail and awaiting trial.

[FN 1] [A.R.F.] is presently in custody in Buenos Aires, 

Argentina, awaiting extradition proceedings to the United 

States.

Prior to her arrest, [Mother] executed a document which 

purports to appoint [Maternal Aunt] as guardian of[] [the 

C]hildren.

[Paternal Grandmother] then filed a [C]omplaint seeking 

legal and physical custody of the [C]hildren. Following the 

procedures adopted in the 26th Judicial District, the matter was 

referred to that court’s standing custody Master for [an] 

expedited hearing. The Master concluded that the best interests 

of the [C]hildren mandated that they temporarily live with 

[Maternal Aunt] in the Philadelphia area[,] pending resolution of 

the criminal charges against [M]other. [Paternal Grandmother] 

filed exceptions to the Master’s recommendation[,] and ... a 

preliminary conference was scheduled before [the trial court]. 

Given the unusual facts of this matter, th[e trial] court 

immediately appointed a guardian ad litem for the [C]hildren, 

and [a] further conference was scheduled to permit the guardian

ad litem to meet with the [C]hildren and determine their wishes. 

In addition, counsel for [Mother] objected to [Paternal 

Grandmother’s] standing to seek legal and physical custody of 

the [C]hildren. All counsel agreed that there were no issues of 

fact, and the [trial] court then issued a briefing schedule to 

resolve the issue of “standing.”
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The issue before the court was the meaning of the word 

“incapacitated” in 23 Pa.C.S.A. [§] 5324(3)[(iii)(B)].

[FN 2]

[Paternal Grandmother] assert[ed] that [Mother’s] indefinite 

incarceration prevents her [from] exercising essential parental 

duties. [M]other ... remind[ed the trial court] of her presumption 

of innocence. In addition, [Mother argued] that although her 

incarceration hampers her ability to be a parent, it does not 

prevent her from being able to make parental decisions for [the 

C]hildren, or from having regular, albeit re[s]trained, contact 

with them.

[FN 2] The legislature did not see fit to define this word in 

the context of grandparental custody litigation. [See 23 

Pa.C.S.A. § 5322 (definitions section).]

Trial Court Opinion, 1/23/15, at 1-3 (footnotes in original, some footnotes 

omitted).

By an Order entered on December 9, 2014 (hereinafter “the Standing 

Order”), the trial court ruled that Mother is not “incapacitated” under 23 

Pa.C.S.A. § 5324(3)(iii)(B), and thus, Paternal Grandmother lacked standing 

to bring this custody action. The trial court later entered an Order on 

December 18, 2014 (hereinafter “the Custody Order”), granting full legal 

custody and primary physical custody of the Children to Maternal Aunt. 

Paternal Grandmother filed a timely Notice of Appeal from these two Orders, 

along with a Concise Statement of Errors Complained of on Appeal, pursuant 

to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Paternal Grandmother presents the following issues for our 

review:

I. Whether the [trial] court committed an abuse of discretion 

and/or an error of law in concluding that [] Mother is not an 

incapacitated person[,] as contemplated by 23 Pa.C.S.A. 
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§ 5324(3), thereby precluding Paternal Grandmother[’]s 

action for sole legal and sole physical custody due to lack of 

standing pursuant to 23 Pa.C.S.A. § 5324(3)?

II. Whether the [trial] court committed an abuse of discretion 

and/or an error [of] law in awarding sole legal and primary 

physical custody to [] Maternal Aunt?

III. Whether the [trial] court committed an abuse of discretion 

and/or an error [of] law by failing to hold any hearings 

(fact[-]finding or otherwise)[,] including an expedited 

hearing pursuant to 23 Pa.C.S.A. § 5330(A)[,] to assess 

whether [Mother] poses a risk of physical, emotional or 

psychological harm to the Children[,] or to take any 

evidence in this matter?

IV. Whether the [trial] court committed an abuse of discretion 

and/or an error [of] law by failing to follow the procedures 

set forth at 23 Pa.C.S.A. § 5337 regarding the relocation of 

the [] Children?

V. Whether the [trial] court[,] by it[]s specially[-]appointed 

[M]aster[,] committed an abuse of discretion and/or an 

error [of] law by failing to include counsel in his interview 

with the Children?

Brief for Appellant at 4 (capitalization omitted, issues numbered).

The scope of review of an appellate court reviewing a child 

custody order is of the broadest type; the appellate court is not 

bound by the deductions or inferences made by the trial court 

from its findings of fact, nor must the reviewing court accept a 

finding that has no competent evidence to support it. However, 

this broad scope of review does not vest in the reviewing court 

the duty or the privilege of making its own independent 

determination. Thus, an appellate court is empowered to 

determine whether the trial court’s incontrovertible factual 

findings support its factual conclusions, but it may not interfere 

with those conclusions unless they are unreasonable in view of 

the trial court’s factual findings; and thus, represent a gross 

abuse of discretion.
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D.G. v. D.B., 91 A.3d 706, 707-08 (Pa. Super. 2014) (citation and brackets 

omitted).

In Paternal Grandmother’s first issue, she argues that “[w]hen 

[M]other became incapacitated by her current state of incarceration, that 

incapacity gave rise to [Paternal Grandmother’s] standing to file an 

action[.]” Brief for Appellant at 20; see also 23 Pa.C.S.A. § 5324(3)(iii)(B) 

(granting standing to a grandparent of a child where “the child is 

substantially at risk due to parental ... incapacity”). 

This Court has explained that 

[t]he concept of standing, an element of justiciability, is a 

fundamental one in our jurisprudence: no matter will be 

adjudicated by our courts unless it is brought by a party 

aggrieved in that his or her rights have been invaded or 

infringed by the matter complained of. ... Moreover[, i]n the 

area of child custody, principles of standing have been applied 

with particular scrupulousness because they serve a dual 

purpose: not only to protect the interest of the court system by 

assuring that actions are litigated by appropriate parties, but 

also to prevent intrusion into the protected domain of the family 

by those who are merely strangers, however well-meaning.

D.G., 91 A.3d at 708 (citations, quotation marks and paragraph breaks 

omitted). A trial court’s determination regarding standing may not be 

disturbed absent an abuse of discretion or an error of law. Butler v. Illes, 

747 A.2d 943, 944 (Pa. Super. 2000).
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Here, observing that the Legislature did not define the term 

“incapacity” in connection with section 5324(3)(iii)(B),2Paternal 

Grandmother asserts that “Pennsylvania jurisprudence struggles with the 

term incapacity as it relates to an incarcerated parent in [a] child custody 

case.” Brief for Appellant at 11. However, Paternal Grandmother contends 

that cases involving termination of parental rights, based upon incapacity 

due to incarceration, provide guidance. 

Paternal Grandmother concedes that our Supreme Court, in a plurality 

decision in In re R.I.S., 36 A.3d 567 (Pa. 2011), held that “this Court has 

never adopted or countenanced a view that incarceration alone is per se 

evidence of parental incapacity ....” Id. at 574; see also Brief for Appellant 

at 17. However, Paternal Grandmother points out that the Supreme Court 

subsequently re-visited its decision in In re R.I.S., and concluded, in In re 

Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012), as follows:

[W]e now definitively hold that incarceration, while not a litmus 

test for termination [of parental rights], can be determinative of 

the question of whether a parent is incapable of providing 

“essential parental care, control or subsistence[,]” and the 

length of the remaining confinement can be considered as highly 

relevant to whether “the conditions and causes of the incapacity, 

abuse, neglect or refusal cannot or will not be remedied by the 

parent[.]”

 

2

Paternal Grandmother points out that the Pennsylvania Rules of Civil 

Procedure define the term “incapacitated person” as follows: “[A]n adult 

whose ability to receive and evaluate information effectively and 

communicate decisions in any way is impaired to such a significant extent 

that the person is partially or totally unable to manage financial resources or 

to meet the essential requirements for physical health and safety[.]” 

Pa.R.C.P. 2051; see also Brief for Appellant at 15.
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Id. at 830 (quoting 23 Pa.C.S.A. § 2511(a)(2)); see also Brief for Appellant 

at 16-17.

After review, we are unpersuaded by Paternal Grandmother’s claim 

that “the Pennsylvania Supreme Court holds the position that incarceration is 

determinative on the issue of incapacity.” Brief for Appellant at 18. Indeed, 

the Court in R.I.S. “emphatically” held that incarceration alone is not per se

evidence of parental incapacity. R.I.S., 36 A.3d at 574. Moreover, contrary 

to Paternal Grandmother’s claim, we conclude that the Supreme Court’s 

decision in S.P., supra, does not undermine the holding in R.I.S.,

3 which 

remains good law. If incarceration alone is not determinative on the issue of 

parental incapacity in the context of termination of parental rights, we see 

no reason to rule to the contrary in the context of grandparental standing 

under section 5324(3)(iii)(B), and conclude that the trial court correctly

 

3

Indeed, the S.P. Court stated that its holding, i.e., that “that incarceration, 

while not a litmus test for termination, can be determinative ... to provide 

grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2)[,]” was “[i]n 

line with the expressed opinion of a majority of justices in R.I.S.” S.P., 47 

A.3d at 828 (emphasis added). Moreover, the decisions in R.I.S. and S.P.

apply only to cases concerning the termination of parental rights. However, 

since our research discloses no appellate decisions interpreting the term 

“incapacity” under 23 Pa.C.S.A. § 5324(3)(iii)(B), we are guided by R.I.S.

and S.P.
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ruled that Mother is not “incapacitated” under that section.4 Additionally, it 

is undisputed that, here, Mother maintains contact and communication with 

the Children, albeit to a limited extent due to her incarceration. 

Accordingly, we conclude that (1) the trial court correctly ruled in the 

Standing Order that Paternal Grandmother lacks standing under 23 

Pa.C.S.A. § 5324(3)(iii)(B) at this time; and (2) she is therefore precluded 

from challenging the Custody Order. Moreover, we need not address 

Paternal Grandmother’s remaining issues on appeal, since her lack of 

standing precludes her from challenging these matters.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/29/2015

 

4 Though section 5324 does not define the term incapacity, we conclude that 

incarceration of a parent alone does not meet the definition of incapacity 

under any of the statutory or rule-based definitions of this term cited by 

Paternal Grandmother. See Pa.R.C.P. 2051, supra; 23 Pa.C.S.A. § 5602 

(section of the Pennsylvania Standby Guardianship Act defining incapacity as 

“[a] chronic and substantial inability, resulting from a mental or organic 

impairment, to understand the nature and consequences of decisions 

concerning the care of the designator’s dependent minor and a consequent 

inability to care for the minor.”) (emphasis added).