J-S47045-18

2018 PA Super 268

* Retired Senior Judge assigned to the Superior Court.

M.W., Appellant

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S.T. and V.T., Appellees

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 712 WDA 2018

Appeal from the Order Entered April 16, 2018

In the Court of Common Pleas of Somerset County

Civil Division at No(s): No. 146 Civil 2017

BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER, JJ.*

OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 26, 2018

M.W. (Grandmother) appeals from the order entered April 16, 2018,

which dismissed her complaint for custody of her minor grandchildren, O.T.

and S.T. (collectively, Children). We affirm.

We provide the following background. The biological parents of Children

are Appellees, S.T. and V.T. (collectively, Parents). Grandmother is the

biological mother of V.T., Children’s father. According to Grandmother,

Somerset County Children and Youth Services (CYS) placed Children in her

care in May 2015, and they remained with her until November 2015.

Complaint, 3/6/2017, at ¶ 7. During that placement, Children were

adjudicated dependent.1In November 2015, CYS removed Children from

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1 The dependency arose from the situation with Parents.
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Grandmother’s care and placed them in the care of their biological aunt.2

Subsequently, in July 2016, Children were moved again and placed with

another set of biological grandparents. According to Grandmother, it was at

this point that she stopped having visits with Children.

On September 29, 2016, Grandmother filed a petition with the juvenile

court to intervene in the dependency proceedings.3 N.T., 4/13/2018, at 12.

Prior to disposition of Grandmother’s petition, Children were returned to the

care of their Parents in January 2017, but remained dependent. On February

2, 2017, argument was held on Grandmother’s petition to intervene, and that

petition was denied on February 8, 2017. Id. at 13. The order provided that

Grandmother could re-file the petition in the civil division. On March 6, 2017,

Grandmother filed a complaint for custody against Parents in the civil division.4

Efforts to hold a required custody conference between Grandmother and

Parents were unsuccessful. The certified record reveals that a conciliation or

mediation conference was scheduled for May 12, 2017. However, prior to that

conference, all parties were required to attend a Families of Children Under

Stress (FOCUS) seminar. As of May 12, 2017, neither Grandmother nor

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2 According to Grandmother, she still saw Children three-to-four days each

week. N.T., 4/13/2018, at 11.

3 There were two separate dependency proceedings, one for each child.

4 That complaint for custody also listed CYS as a defendant.
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Parents had attended the FOCUS seminar, and the trial court rescheduled the

conference to August 4, 2017.

Meanwhile, on June 21, 2017, “CYS determined that [Children] were no

longer dependent, reunited [Children] with [Parents], and closed the CYS

investigation and dependency proceedings.” Trial Court Opinion, 5/25/2018,

at 4. On August 4, 2017, Grandmother requested a continuance of the

custody conference due to her health issues. The trial court granted the

continuance and required Grandmother to file a praecipe to reschedule the

conference. Grandmother filed a praecipe on September 29, 2017, and the

conference was scheduled for December 8, 2017. Neither Grandmother nor

Parents appeared for that conference, and the trial court entered an order

permitting the case to be scheduled for non-jury trial upon praecipe of either

party.

On December 12, 2017, Grandmother filed a praecipe. Counsel for

Parents entered his appearance on February 27, 2018, and on March 7, 2018,

Parents filed a petition to dismiss Grandmother’s complaint. In that petition,

Parents asserted that Grandmother does not have standing to seek custody

of Children pursuant to 23 Pa.C.S. § 5324, because the juvenile court closed

the dependency case on June 21, 2017, and Children and Parents were living

together as an intact family.

Argument on the motion was scheduled for April 13, 2018. Both the

day before argument and just prior to the argument itself, there were
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attempts to resolve the matter amicably. However, negotiations proved to be

unsuccessful and argument on the petition to dismiss was held. See N.T.,

4/13/2018, at 2-3. Parents contended that Grandmother’s standing ended on

June 21, 2017, when the juvenile court closed the dependency case.

Grandmother argued that the trial court should determine the standing issue

from the time she filed her complaint. Id. at 14. Alternatively, Grandmother

contended that the statute permits a grandparent “to come back later on to

sue for custody ... [because there is] the potential for [] issues [related to the

prior dependency] to reoccur.” Id. at 15.

At the close of argument, the trial court concluded that pursuant to the

statute, Grandmother no longer had standing to seek custody of Children

because they were no longer dependent and were residing with Parents.

Accordingly, the trial court granted Parents’ petition to dismiss Grandmother’s

complaint for custody.5 Order, 4/16/2018.

Grandmother timely filed a notice of appeal and concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial

court filed an opinion in response.

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In addition, the trial court dismissed CYS as a party in the action.
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On appeal, Grandmother argues the trial court erred in dismissing her

complaint for lack of standing pursuant to 23 Pa.C.S. § 5324.6 See

Grandmother’s Brief at 3. We review this claim mindful of the following. “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). 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 ____________________________________________

6 Grandmother also complains that the juvenile court erred in dismissing her

petition to intervene filed in the dependency proceedings. Grandmother’s Brief

at 13-15. However, Grandmother did not file an appeal at those docket

numbers or even identify those orders as orders from which she wished to

appeal in the notice of appeal in this case. While the rules permit a party to

file “only a single notice of appeal to secure review of prior non-final orders

that are made final by the entry of a final order,” the rule also provides that

“[w]here ... one or more orders resolves [sic] issues arising on more than one

docket..., separate notices of appeal must be filed.” See Pa.R.A.P. 341 (Note).

Accordingly, we will not review the juvenile court orders.

Additionally, according to Grandmother, she did not appeal those orders

“as said appeal would have almost certainly been treated by this Court as

interlocutory and quashed due to the unique procedural posture.”

Grandmother’s Brief at 14. That is not necessarily true. See K.C. v. L.A., 128 A.3d 774 (Pa. 2015) (holding that an appeal from an order denying

intervention in a custody action is a collateral order); In re J.S., 980 A.2d

117 (Pa. Super. 2009) (holding that an order granting foster parents’

permission to intervene in dependency case is an appealable collateral order);

In the Interest of B.S., 923 A.2d 517 (Pa. Super. 2007) (assuming

jurisdiction over appeal from order denying grandmother’s petition to

intervene in dependency proceeding). However, this Court has held

consistently that individuals in Grandmother’s situation do not have standing

to intervene in dependency proceedings. See e.g., In the Interest of L.C.,

II, 900 A.2d 378 (Pa. Super. 2006).
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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.

Moreover:

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.

D.G. v. D.B., 91 A.3d 706, 708 (Pa. Super. 2014) (internal quotations

omitted). “Generally, the Child Custody Act does not permit third parties to

seek custody of a child contrary to the wishes of that child’s parents. The Act

provides several exceptions to this rule, which apply primarily to grandparents

and great-grandparents.” K.W., 157 A.3d at 504.

The most recent version of the Grandparent Custody and Visitation Act

was enacted in 2010 and provides two separate provisions for grandparents

seeking custody of their grandchildren.7 Any grandparent may seek any form

of custody pursuant to 23 Pa.C.S. § 5324(3). In addition, for grandparents in

certain situations, they may seek partial custody pursuant to section 5325.8

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7 These sections also apply to great-grandparents seeking custody of their

great-grandchildren.

8 This section of the statute has been through several iterations due to our

Supreme Court having declared a portion of it unconstitutional in D.P. v.
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Here, there is no dispute that only subsection 5324(3) applies, and that

section provides the following in relevant 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:

(1) A parent of the child.

(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:

____________________________________________ G.J.P., 146 A.3d 204 (Pa. 2016) and an amendment to the 2010 version of

the statute, which was effective on July 3, 2018. In 2010, this statute

permitted grandparents to seek custody where a parent of their grandchild is

deceased, where the parents of their grandchildren have been separated for

a period of at least six months or have commenced and continued a

proceeding to dissolve the marriage, or where their grandchild has been living

with them for at least 12 consecutive months. Then, in D.P., our Supreme

Court held unconstitutional only the portion of the statute permitting

grandparents to file a custody action where the parents of their grandchild are

separated. Finally, effective July 3, 2018, the entire statute has been

amended and provides for three situations where grandparents may file an

action for custody: 1) where a parent of their grandchild is deceased; 2) where

their relationship with their grandchild began with the consent of a parent or

court order and the parents of their grandchild have commenced a custody

proceeding and do not agree as to whether grandparents should have custody;

or 3) where their grandchild has resided with them for at least 12 consecutive

months. Because certain cases cited infra reference both statutes, we provide

this background for clarity.
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(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. § 5324. In this case, Grandmother contends that the Children were “dependent

from July 15, 2015 until June 21, 2017,” and she filed her complaint for

custody on March 6, 2017, while they were dependent. Grandmother’s Brief

at 17. Thus, she argues she satisfies subsection 5324(3)(iii)(A) because

“[children have] been determined to be [] dependent [children].”9 Id. At the time Grandmother filed her petition, she clearly had standing to

file a custody complaint pursuant to this statute because Children were

dependent. However, during the course of the proceedings, the juvenile court

determined Children were no longer dependent; thus, the trial court concluded

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9 There does not appear to be a dispute at this juncture that Grandmother

satisfies the other prongs of this statute, i.e., that her relationship with

Children began with the consent of Parents or court order, and that she is

willing to assume responsibility for Children. See 23 Pa.C.S. § 5324(3)(i) and

(ii).
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that Grandmother lost her standing. See Trial Court Opinion, 5/25/2018, at

5. Grandmother disagrees with this interpretation, instead arguing that a

“clear and plain reading of the statute provides no indication for termination

of standing upon closing of the dependency proceedings.” Grandmother’s Brief

at 20. Thus, Grandmother first argues that the trial court erred in concluding

she no longer had standing because it evaluated her claim at the wrong time.

According to Grandmother, the trial court should have looked back to the time

she filed her complaint to evaluate standing. See Grandmother’s Brief at 18- 19.

While there are no custody cases directly on point, we have pointed out

that “custody cases may be fluid under some circumstances.” M.G. v. L.D., 155 A.3d 1083, 1087 n.5 (Pa. Super. 2017). Furthermore, this Court has “re- evaluated a party’s standing following a factual change in circumstances, i.e., the termination of parental rights or adoption.” Id. Finally, our rules permit

parties to raise issues related to standing beyond the 20-day period provided

for preliminary objections. See Pa.R.C.P. 1915.5(a) (“A party must raise any

question of jurisdiction of the person or venue, and may raise any question

of standing, by preliminary objection filed within twenty days of service of

the pleading to which objection is made or at the time of the hearing,

whichever first occurs.”) (emphasis added).

Based on the foregoing, we conclude that Children’s change in status

from dependent to not dependent, and reunification with Parents, are relevant
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changes in circumstances that permit the re-evaluation of standing upon

motion by a party. In fact, it would not make sense to permit a party to raise

standing at any time, but then consider the factual circumstances as they

existed at the time the complaint was filed for such fluid child custody cases.

Accordingly, we hold the trial court did not err in considering the

circumstances as they were at the time the petition to dismiss was filed when

determining standing.10

Grandmother next argues that even if we were to consider the

circumstances at the time the petition to dismiss was filed, the statute

nevertheless permits a trial court to grant Grandmother standing due to the

potential for an unspecified future harm or future dependency adjudication. See Grandmother’s Brief at 20. To the extent that this portion of the statute

is ambiguous on this point,11 we consider it mindful of the following.

The nationwide enactment of nonparental visitation statutes

is assuredly due, in some part, to the States’ recognition of these

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10 As a corollary, Grandmother argues that much of the delay in having her

custody complaint heard was attributable to Parents. See Grandmother’s Brief

at 21. Even if such delay would permit this Court to evaluate standing at a

different time, this argument would not entitle Grandmother to relief as it is

belied by the record. As recounted supra, Grandmother initially tried to

intervene in the dependency proceedings, which, by law, she was not able to

do. Then, she filed her complaint for custody in the appropriate division, but

did not attend the FOCUS seminar as required. Thus, Grandmother herself

contributed significantly to any delay. 11 Arguably, the term “has been determined to be a dependent child,” could

be ambiguous under these circumstances. 23 Pa.C.S. § 5324(3)(iii)(A). In

that case, the object of interpretation “is to ascertain and effectuate the

intention of the General Assembly.” In re C.L.P., 126 A.3d 985, 989 (Pa.

Super. 2015).
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changing realities of the American family. Because grandparents

and other relatives undertake duties of a parental nature in many

households, States have sought to ensure the welfare of the

children therein by protecting the relationships those children form

with such third parties. The States’ nonparental visitation statutes

are further supported by a recognition, which varies from State to

State, that children should have the opportunity to benefit from

relationships with statutorily specified persons—for example, their

grandparents. The extension of statutory rights in this area to

persons other than a child’s parents, however, comes with an

obvious cost. For example, the State’s recognition of an

independent third-party interest in a child can place a substantial

burden on the traditional parent-child relationship.

Troxel v. Granville, 530 U.S. 57, 64 (2000) (plurality). The United States

Supreme Court observed that the “liberty interest ... of parents in the care,

custody, and control of their children—is perhaps the oldest of the

fundamental liberty interests recognized by this Court.” Id. at 65. Further, the Court has “recognized the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.” Id. at 66. Thus,

“so long as a parent adequately cares for his or her children (i.e., is fit), there

will normally be no reason for the State to inject itself into the private realm

of the family to further question the ability of that parent to make the best

decisions concerning the rearing of that parent’s children.” Id. at 68-69. The Pennsylvania Supreme Court has recognized these principles as

well.

[A]bsent factors such as abuse, neglect, or abandonment, the law

presumes parents are fit and, as such, that their parenting

decisions are made in their children’s best interests. In the

context of grandparent-initiated litigation, then, the rewritten

Chapter 53 can only [apply] if the prerequisites to grandparent

standing effectively filter out cases where there is little reason to
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believe the government may constitutionally exercise its parens

patriae power by ordering partial custody over the parents’

objections. D.P., 146 A.3d at 214 (internal citations omitted).

Our Supreme Court held that efforts to usurp a presumptively fit

parent’s rights to the upbringing of his or her children is subject to

constitutional limitations. The Court concluded “the fact of a parental

separation for six months or more does not render the state’s parens patriae

interest sufficiently pressing to justify potentially disturbing the decision of

presumptively fit parents concerning the individuals with whom their minor

children should associate.” Id. at 215.

Based on the foregoing, it is clear that Grandmother’s argument, which

relies upon bootstrapping a closed dependency adjudication in an effort to

obtain visitation, fails.12 If Grandmother had concerns for Children’s safety, she could have raised a subsection 5324(3)(iii)(B) (permitting grandparent

standing where “the child is substantially at risk due to parental abuse,

neglect, drug or alcohol abuse or incapacity”) argument before the trial court.

She did not, and in fact, she essentially agreed that Children were being cared

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12 D.P. analyzed section 5325, which involves partial custody only. We

recognize that this case involves section 5324, which permits any form of

custody. However, we must point out that in this case, Grandmother is

seeking only partial custody. Grandmother was asking the trial court for “a

weekend or two visit every six weeks.” N.T., 4/13/2018, at 18. Grandmother

was upset because she used to see Children frequently, but due to arguments

with Parents, she was no longer able to see Children. Id.
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for adequately, and her goal with these proceedings was to have the court

order periods of partial custody because Parents were not permitting her to

see Children. N.T., 4/13/2018, at 18. That is not the purpose of section 5324;

thus, we disagree with Grandmother that she should be permitted to bootstrap

a prior dependency adjudication for this purpose.

Based on the foregoing, we conclude the trial court did not err in

granting Parents’ petition to dismiss Grandmother’s complaint for custody.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/26/2018