J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

TIMOTHY HUGENDUBLER

v.

AMANDA SICS

APPEAL OF: KARL SICS :

:

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 175 MDA 2022

Appeal from the Order Entered January 19, 2022

In the Court of Common Pleas of Lebanon County Civil Division at No(s):

2020

- 20549

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J. *

MEMORANDUM BY COLINS, J.: FILED: AUGUST 29, 2022

Karl Sics (“Grandfather”), the maternal grandfather of D.J.H. (“Child”),

appeals from the order denying his petition to intervene in the custody action

initiated by Child’s father, Timothy Hugendubler (“Father”), against Child’s

mother, Amanda Sics (“Mother

, ” collectively “Parents” ). 1 We affirm.

On June 21, 2021, Father filed a custody complaint against Mother,

seeking shared legal and physical custody of Child. At the time the complaint

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 At the trial court hearing , as well as in this appeal, Grandfather’s counsel

purport s to represent the interest of both maternal grandparents in this

matter . However, the petition to intervene was filed solely on behalf of

Grandfather, and we therefore only consider the appellate issues as they

relate to Grandfather’s interest as a proposed intervenor. See Liles v.

Balmer , 653 A.2d 1237, 1239 n.1 (Pa. Super. 1994) (individual who was not

party to action and who did not seek permission to intervene in trial court is

not aggrieved by the trial court order and has no standing to appeal).J

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was filed, Child was three

- years old and resided with Mother in Lebanon,

Pennsylvania. A conciliation conference was held on September 30, 2021, at

which point the parties were unable to agree and an interim order was entered

providing that P arents had shared legal custody, Mother had primary physical

custody, and Father had partial physical custody

.

On October 29, 2021, Grandfather filed the instant petition to intervene.

According to the petition, Mother was then residing with her parents in

Gilberton, Pennsylvania. Petition to Intervene, 10/29/21, ¶¶2

- 3. In th e

petition, Grandfather asserted standing to pursue custody of Child under

Section 5324(3) and Section 5325(2) of what is commonly referred to as the

Child Custody Act, 23 Pa.C.S. §§ 5324(3), 5325(2)

. Petition to Intervene,

10/29/21, ¶8. The petition lacked any substantive factual allegations

concerning Grandfather’s basis for standing. Father filed an answer to the

petition, in which he opposed Grandfather’s intervention.

The trial court held a hearing on Grandfather’s petition on January 14,

202 2. At the hearing, counsel for Grandfather asserted that Mother and Child

moved in with her parents in April 2021 and Mother was residing in a different

residence on their property. N.T., 1/14/22, at 4 , 9 . Grandfather’s counsel

asserted t hat Mother had been committed in 2021, was “still dealing with a

lot of mental health issues,” and therefore maternal grandparents were the

“primary caregivers . . . doing the day

- to

- day care of” Child. Id. at 7, 9

- 10.

While counsel for Grandfather reque sted the opportunity to elicit testimony

from maternal grandparents showing that his client stood in loco parentis toJ

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Child, the trial court did not permit the development of an evidentiary record.

Id. at 6, 12

- 13. Father’s counsel indicated that, while h is client did not oppose

maternal grandparents spending as much time as they desir ed with Child

during Mother’s periods of physical custody, Father opposed Grandfather’s

request to intervene

. Id. at 3, 8. Mother’s counsel indicated that , although

she re mained under professional care, Mother is capable of parenting Child,

but she did not oppose Grandfather’s intervention. Id. at 3, 11.

At the conclusion of the hearing, the trial court stated its conclusion that

Grandfather had not met the statutory cri teria for grandparent standing and

that it would deny the petition to intervene. Id. at 12

- 13. On January 19,

2022, the trial court entered an order denying the petition

. Grandfather

thereafter filed this timely appeal. 2 Before this Court, Grandfather raises the

following issue: “Did the [trial c]ourt err when it denied [Grandfather’s]

Petition to Intervene without hearing any testimony to establish a factual

record with which to base its decision or allow for the decision to be reviewed

on appeal?” Grandfather’s Brief at 3.

“ Threshold issues of standing are questions of law; t hus, our standard

of review is de novo and our scope of review is plenary. ” M.W. v. S.T. , 196

A.3d 1065, 1069 (Pa. Super. 2018) (citation omitted). “Determining standing

_________________ __________ ______ ____ _______

2 Grandfather properly filed his con cise statement of errors concurrently with

his notice of appeal. See Pa.R.A.P. 1925(a)(2)(i). The trial court filed its

opinion on February 11, 2022. We note that an order denying a petition to

intervene in a child custody action is appealable as a collateral order pursuant

to Pa.R.A.P. 313. See K.C. v. L.A.

, 128 A.3d 774 (Pa. 2015).J

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in custody disputes is [an] issue that must be resolved before proceeding to

the merits of the underlying custody action.” C.G. v. J.H.

, 193 A.3d 891, 898

(Pa. 2018).

The 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. The purpose of this rule is to ensure that

cases are presented to the court by one having a genuine, and not

merely a theoretical, interest in the matter. Thus the traditional

test for standing is that the proponent of the action must have a

direct, substantial and immediate interest in the matter at hand.

. . .

In 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.

M.W.

, 196 A.3d at 1069 ( citation omitted ; some reformatting ). “ Grandparent

standing to seek an order d irecting custody or visitation is a creature of

statute

, as grandparents generally lacked substantive rights at common law

in relation to their grandchildren .” D.P. v. G.J.P. , 146 A.3d 204, 212 n.13

(Pa. 2016).

Here, Grandfather argues that he should have been permitted to

introduce evidence in the trial court to demonstrate his standing to intervene

under Sections 5324 and 5325 of the Child Custody Act. Section 5324

provid es that the “ following individuals may file an action under this chapter

for any form of physical custody or legal custody ”:J

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(2) A person who stands in loco parentis to the child.

(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:

. . .

(B) the child is substantially at risk due to parental

abuse, neglect, drug or alcohol abuse or incapacity [.]

23 Pa.C.S. § 5324 (2), (3).

Section 5325 is more limited in scope as it is applicable only to

grandparents and great

- grandparents and allows them only to seek partial

physical custody or supervised physical custody. As relevant here, the statute

permits a grandparent to seek custody

(2) where the relationship with the child began either with the

consent of a paren t 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 [.]

23 Pa.C.S. § 5325 (2).

Grandfather argues on appeal that there were facts at issue that

necessitated a hearing to determine whether he had standing to intervene in

the custody action initiated by Father . As to his claim of standing to seek

primary physical custody of C hild, Grandfather asserts that testimony wouldJ

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have shown Mother’s “incapacity” to parent Child due to her mental illness.

23 Pa.C.S. § 5324 (3)(iii)(B). Further, Grandfather contends that Mother’s

mental illness resulted in maternal grandparents becoming Child’s primary

caregivers, thus allowing for standing based upon in loco parentis status. 23

Pa.C.S. § 5324 (2) . Grandfather argues that the trial court’s reliance on

Mother’s counsel’s representation that Mother can still adequately parent Child

is not dispositive as counsel was not a mental health expert. Moreover,

Grandfather contends that the fact that Mother resides at the same address

as Grandf ather would not defeat standing as this Court has held that the fact

that a grandparent lives with and shares care responsibility with a parent does

not disqualify the grandparent from having in loco parentis sta tus

. See M.J.S.

v. B.B. , 172 A.3d 651, 656 (Pa. Super. 2017).

Even assuming that he did not have standing to assert primary physical

custody under Section 5324, Grandfather contends that he at least

demonstrated grounds for an evidentiary hearing to assert stan ding for partial

physical custody under Section 5325(2). Grandfather avers that , as to the

critical factor under the statute of whether the parents “do not agree as to

whether the grandparent [] . . . should have custody under this section

, ” 23

Pa.C.S. § 5 32 5(2)(ii)

, Father’s counsel’s representation at the hearing that

Father does not object to Grandfather spending time with Child during

Mother’s periods of physical custody did not answer the critical question of

whether he would consent to Grandfather having his own periods of partial

custody. Grandfather asserts that, absent testimony from Father thatJ

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Grandfather could have his own custody of Child “separate and apart from

[P] arent[s’] custodial times,” Parents do not agree under the statute and

Gran dfather should be entitled to “intervene to argue for [his] own time with”

Child. Grandfather’s Brief at 26.

Upon review, w e find no error in the trial court’s denial of Grandfather’s

petition to intervene without holding a hearing. T his Court has obse rved that

“[w]hile standing issues sometimes can turn on pure questions of law, they

more commonly turn on questions of fact.” C.G. v. J.H. , 172 A.3d 43, 54 (Pa.

Super. 2017) (footnote omitted), affirmed , 193 A.3d 891 (Pa. 2018) ; see

also Raymond v. Raymo nd

, ___ A.3d ___

, 2022 PA Super 124

, at * 4 (Pa.

Super. 2022) . Thus, we have explained that where an individual asserts a

“ colorable claim to standing ” in a child custody dispute , a parent objects to

the individual’s participation in the custody action, and standing does not

hinge on a strictly legal issue , the trial court should hold a hearing, make

findings of fact, and resolve the issue of standing based upon those findings.

C.G. , 172 A.3d at 54

- 56 & n.8.

In this matter, Grandfather has not alleged a “colorable claim to

standing” that necessitated an evidentiary hearing prior to the trial court’s

denial of his petition to intervene. Id. at 55. First, we note that Grandfather’s

petition to intervene is completely devoid of any factual allega tions that would

support his claim for standing to seek custody of Child . Instead, Grandf ather

simply aver red that he “should be made a party to the . . . custody action

because [he] has standing for custody pursuant to 23 Pa.C.S. § 5325(2) orJ

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5324(3)(i), (ii), (iii)(B)” and baldly assert ed that the “best interests and

permanent welfare of [C]hild shall be served by” allowing intervention.

Petition to Intervene, 10/29/21, ¶¶8

- 9. Therefore, Grandfather did not

apprise Parents in his p etition of the factua l basis to support his claim for

standing to seek custody of Child in violation of our rules of civil procedure

which mandate that a party seeking standing “plead facts establishing

standing.” 3

Even putting aside the deficiencies in Grandfather’s petition

, his

standing claims were properly rejected by the trial court in the absence of an

evidentiary hearing

. Concerning Grandfather’s request to intervene under

_________________ __________ ______ ____ _______

3 Rule 1915.3 provides as follows:

(e) Pleading Facts Establishing Standing.

(1) An individual seeking physical or legal custody of a child, who

is in loco parentis to the child, shall plead facts establishing

standing under 23 Pa.C.S. § 5324(2) . . .

(2) A grandparent seeking physical or legal custody of a

grandchild, who is not in loco parentis to the child, shall plead

facts establishing standing under 23 Pa.C.S. § 5324(3) . . .

. . .

(4) A grandparent or great

- grandparent seeking partial physical

custody or supervised physical custody of a grandchild or great

grandchild shall plead facts establishing standing under 23 Pa.C.S.

§ 5325 . . .

Pa.R.C iv .P. 1915.3(e) (1), (2), (4)

. This rule also provides that a non

- parent

who seek s custody should do so by filing a complaint in the form set forth in

Pa.R.Civ.P. 1915.15(a) ; however, the trial court did not base its denial of

Grandfather’s intervention on his failure to seek custody of Child in the

prescribed form

. See Pa.R.Civ.P. 1915.3(e).J

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Section 5324(3), relating to the right of a grandparent who is not in loco

parentis to the subjec t child, Grandfather correctly observes that the sole

factor at issue was whether “the child is substantially at risk due to parental

abuse, neglect, drug or alcohol abuse or incapacity.” 23 Pa.C.S. §

5324(3)(iii)(B). 4 While Grandfather ’s counsel stated at the hearing that the

testimony of maternal grandparents would have shown that Mother’s mental

health condition prevented her from adequately caring for Child and that the

grandparents were engaged in the day

- to

- day p arenting in place of Mother

,

this evidence would only bear upon the care provided by Mother and ignored

Father’s responsibility as a parent to Child

. Father initiated the present matter

by filing a custody complaint and had already been awarded shared leg al and

partial physical custody of Child in an interim order. Grandfather did not

indicate that he was prepared to present evidence that Child was “substantially

at risk” due to Father’s “abuse, neglect, drug or alcohol abuse or incapacity

, ”

id.

, or that Father would be unable to supply the necessary care to Child that

Mother’s condition prevented her from doing. Moreover, Grandfather gave no

indication that Mother’s mental health condition placed Child in immediate

danger that prevented him from receivin g adequate care prior to the

_________________ __________ ______ ____ _______

4 Grandfathe r satisfied the other two factors for standing under Section

5324(3) as it is undisputed that he had a “relationship with the child [that]

began . . . with the consent of a parent” and he represented to the court that

he “assumes or is willing to assume re sponsibility for the child.” 23 Pa.C.S. §

5324(3)(i), (ii); Petition to Intervene, 10/29/21, ¶7.J

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resolution of the custody proceedings. 5 Therefore, Grandfather’s proffered

testimony would not have been sufficient to show standing under Section

5324(3).

Furthermore , with respect to Grandfather’s argument that he should be

permitted to intervene in the custody action as “[a] person who stands in loco

parentis to the child ,” 23 Pa.C.S. § 5324 (2), Grandfather did not cite the

relevant subsection of the Child Custody Act or raise this basis for standing in

his petition to intervene, and P arents were not able to adequately prepare and

respond to his claim

. See Trial Court Opinion, 2/11/22, at 7 (stating that,

because in loco parentis was not raised in the petition and Father did not have

the opportunity to prepare a defense, the trial court dismissed the claim) ; see

also Pa.R.Civ.P. 1915.3(e)

. Moreover, in loco parentis status cannot be

achieved without the consent and knowledge of the parent s ; here, no

allegation has been put forth that Father in any way consented to Grandfather

standing in loco parentis to Child. See T.B. v. L.R.M.

, 786 A.2d 913, 917

(Pa. 2001) (“ The third party in this type of relationship, however, can not

place himself in loco parentis in defiance of the parents ’ wishes and the

parent/child relationship. ”); K.W. v. S.L.

, 157 A.3d 498, 505 (Pa. Super.

2017) (“ [ I ] n loco parentis status cannot be achieved without the consent and

_________________ __________ ______ ____ _______

5 We note that, when awarding custody, the trial court shall consider “[t] he

mental and physical condition of a party ” among the other relevant statutory

cust ody factors. 23 Pa.C.S. § 5328(a) (15).J

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knowledge of, and in disregard of[,] the wishes of a parent. ”) (citation

omitted).

Finally, we are unpersuaded by Grandfather’s claim that he should have

been permitted to present evidence to show that he had standing to claim

partial physical custody under Section 5325(2) . In order to qualify for

standing under this subsection, a grandparent must show that he began a

relationship with the child with the consent of a parent and that a custody

proceeding has commenced

— both of w hich factors are undisputed ly satisfied

here

— and also that P arents “do not agree as to whether the grandparent[] .

. . should have custody under this section.” 23 Pa.C.S. § 532 5(2)(ii).

Grandfather ’s conten tion that Father should have been required to te stify as

to whether he would consent to Grandfather having exclusive periods of partial

physical custody so as to determine whether there is any disagreement

between P arents puts the cart before the horse, as Grandfather is demanding

an evidentiary hearing to flesh out his standing claim without first making any

allegations to substantiate it

. Grandfather did not make any representation

to the trial court that he had ascertained that a disagreement existed between

P arents

, including on the question of whet her Mother would consent to him

having any period of partial physical custody over Child. Therefore,

Grandfather failed to demonstrate a n unresolved question of fact that required

that the trial court accept evidence on the issue

.

Accordingly , because G randfather did not present a “colorable claim of

standing,” the trial court properly denied intervention in the custody disputeJ

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between Parents without holding a hearing. C.G. , 172 A.3d at 55. In affirming

the trial court’s denial of the petition to intervene, we note that, as stated in

prior cases, the concept of standing in child custody cases is “fluid” and can

be re

- evaluated if factual circumstances change

. E.A. v. E.C.

, 259 A.3d 497,

50 1 (Pa. Super. 2021) ; see also M.W. , 196 A.3d at 1071.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/29/2022