J-S16003-15

K.H. and M.T.-C., : IN THE SUPERIOR COURT OF

Appellants : PENNSYLVANIA

:

v. : No. 1748 MDA 2014

:

T.M., A.L., E.D., and :

Berks County Children and :

Youth Services :

Appeal from the Order Entered October 3, 2014 

in the Court of Common Pleas of Berks County 

Civil Division, at No. 14-17221

BEFORE: PANELLA, J., OLSON, J., and OTT, J. 

MEMORANDUM BY PANELLA, J.: FILED APRIL 13, 2015

K.H. and M.T.-C. (Parental Grandparents) appeal the order of the 

Court of Common Pleas of Berks County, Civil Division, entered October 3, 

2014, by which the trial court declined to hear Paternal Grandparents’ 

Petition for Custody of a Minor Child on the grounds that the matter had 

already been decided by a court of coordinate jurisdiction and that Paternal 

Grandparents had failed to join Berks County Children and Youth Services 

(BCCYS) as an indispensable party. We affirm.

The record supports the following recitation of the facts of this case. 

On September 4, 2013, the trial court adjudicated B.M. (Child) dependent 

and transferred her to the temporary legal custody of BCCYS for placement, 

with concurrent goals of reunification and adoption. 

At the time of Child’s placement, T.M. (Mother) and E.D. (Legal Father) 

identified Child’s foster parents as kinship resources for Child. Child has 

remained in placement with them throughout this case. When BCCYS 
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located A.L. (Biological Father) and requested information about his relatives 

as possible placements for Child, Biological Father explicitly stated that he 

did not want Child placed with his parents, Paternal Grandparents. The trial 

court granted limited visits between Paternal Grandparents and Child, but 

ordered that Child was to remain in her current foster home. 

Paternal Grandparents applied for licensing as foster parents through 

BCCYS in September of 2014. BCCYS denied their application on January 

14, 2014. Paternal Grandparents appealed BCCYS’ denial to the Bureau of 

Hearings and Appeals of the Department of Human Services. On July 22,

2014, the Bureau issued a Recommendation that Paternal Grandparents’ 

appeal be denied. 

In its Recommendation, the Bureau concluded that Paternal 

Grandparents were not able to provide a caring, nurturing and adequately 

supervised environment for a child placed in their care. The Bureau further 

concluded that M.T-C.’s mental stability and emotional adjustment were 

fragile and needed to be monitored, especially in light of M.T.-C.’s 

aggressive and intimidating behavior toward the BCCYS employees who 

worked with them. The Bureau also concluded that Paternal Grandparents’ 

home was not a safe environment for Child because their son, Biological 

Father, a drug addict, has lived with them off and on for all of his adult life. 

In addition, M.T.-C. and Biological Father were involved in a physical 

altercation in September of 2010 when M.T.-C. assaulted and injured 
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Biological Father. The Bureau also concluded that Paternal Grandparents 

failed to cooperate with BCCYS throughout the licensing process, and failed 

to disclose important details to BCCYS. Among the details Parental 

Grandparents failed to disclose were M.T.-C.’s arrest and conviction records, 

their own smoking and drinking habits, Biological Father’s drug addiction, 

their history of domestic violence and the September 2010 physical 

altercation between M.T.-C. and Biological Father. 

Paternal Grandparents filed a Petition for Custody of a Minor Child in 

the trial court on August 15, 2014. Paternal Grandparents identified Mother, 

Legal Father and Biological Father as defendants, but, although they served 

BCCYS with the petition, they failed to include BCCYS as a party. 

The trial court held a hearing on the petition on September 24, 2014. 

The trial court first refused to address the merits of the petition on the 

grounds that Paternal Grandparents’ petition was defective and that a judge 

of concurrent jurisdiction had entered an order awarding custody of Child to 

BCCYS pursuant to a dependency petition. The trial court granted BCCYS’ 

oral motion to dismiss Paternal Grandparents’ petition for failure to name 

BCCYS as an indispensable party. 

Paternal Grandparents filed a motion for reconsideration of the trial 

court’s dismissal of their petition, which the trial court denied and then 

entered its order dismissing Paternal Grandparents’ petition on October 3, 

2014. Paternal Grandparents filed a timely notice of appeal of that order 
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and also filed an Emergency Application for Exercise of Plenary and 

Extraordinary Jurisdiction Using King’s Bench and Superintendency Powers in 

the Supreme Court of Pennsylvania. The Supreme Court promptly denied 

the application. On November 26, 2014, the trial court terminated the 

parental rights to Child of Mother, Legal Father and Biological Father.

Paternal Grandparents present the following questions for our review. 

I. Did the [trial] court abuse its discretion when it 

determined custody of a dependent child had already been 

decided through placement in the dependency action?

2. Did the lower court abuse its discretion when it 

dismissed the custody action for failure to include an 

indispensable party?

Paternal Grandparents’ Brief, at 3. 

In deciding this matter, we consider pure questions of law. “Our 

standard of review over questions of law is de novo and to the extent 

necessary, the scope of our review is plenary as [the appellate] court may 

review the entire record in making its decision.” K.A.R. v. T.G.L., 107 A.3d 

770, 775 (Pa. Super. 2014) (brackets in original; citation omitted). 

We will analyze both questions at the same time. Paternal 

Grandparents argue that “Denying grandparents the right to seek custody 

under 23 Pa.C.S.A. § 5324 until a dependency matter is concluded creates a 

situation where the statute is useless, as once dependency is concluded the 

matter is moot.” Parental Grandparents’ Brief, at 7. 
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The statute to which Paternal Grandparents refer, 23 Pa.C.S.A. § 

5324, provides, in pertinent part:

§ 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:

. . . 

(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); 

. . . 

23 Pa.C.S.A. § 5324(3).

The statute in question does no more than grant standing to 

grandparents in certain custody actions. A plain reading indicates that 

Paternal Grandparents are entitled to standing in this matter. What it does

not do, as Paternal Grandparents claim, is assure that their case will move 

forward once they file it, especially if they do not follow proper procedure. 

The trial court did not deny standing to Paternal Grandparents; it declined to 

hear their petition on other grounds. Here is how the trial court described 

their filing and its disposition of that filing:

[Paternal Grandparents] did not file a custody complaint when 

initiating this case, although the Berks County Prothonotary 
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docketed it as such, nor did they file the required custody 

coversheet, the mandatory order scheduling the matter for 

mediation and conciliation, and they did not seek a custody trial. 

Rather, Paternal Grandparents attempted to sidestep not only 

the ongoing [d]ependency proceeding, but also attempted to 

bypass the fundamental due process procedures involved in an 

ordinary custody case as required by the Pennsylvania Rules of 

Civil Procedure. Importantly, while the bulk of Paternal 

Grandparents’ 58-paragraph petition, along with voluminous 

exhibits, concerns the pending proceedings in Dependency Court 

and acknowledges that Child is in the custody of [BCCYS], they 

fail to name BCCYS as a party to the custody case.

Trial Court Opinion, at 1-2. 

It is clear from our review of the record that the Dependency Court 

had approved Child’s placement with appropriate foster parents. It is also 

clear from our review that Paternal Grandparents’ petition was procedurally 

defective, as the trial court describes above. And it is beyond question that 

Paternal Grandparents’ failure to join BCCYS, the entity with legal custody of 

Child, deprived their claim of an indispensable party. 

Thus, it appears that the trial court did not, as Paternal Grandparents 

claim, refuse, pursuant to 23 Pa.C.S.A. § 5324, to hear their claim on the 

ground that it had already been heard by the Dependency Court. Instead, it 

simply maintained the status quo ante previously established by the 

Dependency Court when Paternal Grandparents failed to present a justiciable 

claim. 

Accordingly, for the reasons stated, we affirm the order of the trial 

court entered October 3, 2014. 

Order affirmed.
J-S16003-15

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015