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A. L., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY,
: PENNSYLVANIA:
v. :
:
B. B., :
Defendant :
:
v. :
:
M. and B. :
U. : CIVIL ACTION - LAW
Intervenors : 2013-03683
IN RE: 1925(a) OPINION
PLACEY, J. August 7, 2020
PROCEDURAL HISTORY
Plaintiff (Mother) initiated this custody action against Defendant
(Father) by filing of an emergency petition seeking return of their child on
June 26, 2013. Once the issue of paternity was addressed, custody
proceeded via conciliation resulting in an agreed upon custodial
arrangement signed by the Honorable M.L. Ebert, Jr., on September 4,
2013, and a written stipulation by the parents modifying custody on
December 2, 2013.
2013-03683
In December 2019, Intervenors (Paternal Great-Grandparents)
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sought to intervene and requested special relief. A rule to show cause
was issued on Mother and Father, and the three parties were directed to
conciliation, which ultimately was unsuccessful. On June 23, 2020, upon
consideration of the record, Intervenors’ request was denied as neither
natural parent agreed to Paternal Great-Grandparents’ intervention, nor did
the parents allow child to do more than visit Intervenors and stay overnight
2
at Intervenors’ home on a regular basis.
Intervenors filed a Children’s Fast Track appeal to the Superior Court
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on July 24, 2020. Intervenors allege an abuse of discretion in their
Concise Statement of Matters Complained of on Appeal as follows:
1. The trial court committed an abuse of discretion and erred in ruling
that Intervenors do not have standing in this custody matter under
23 Pa. C.S. § 5325(2), as grandparents.
2. The trial court abused its discretion and erred in ruling that
Intervenors do not have standing in this custody matter under
23 Pa. C.S. § 5325(2), as they have and do stand in loco parentis
to the child.
1
Intervenors sought “primary physical and legal custody of the minor child” at
Paternal Great-Grandparents’ Petition for Leave to Intervene and for Special Relief,
(hereinafter Petition), at paragraph 20, and in their WHEREFORE clause sought an
order “awarding Plaintiff \[sic\] Intervenors Sole Physical Custody of the child pending
the outcome of the instant custody action.”
2
Id., at paragraph 12.
3
This is improperly captioned with Intervenors being Plaintiff and parents being
Defendants.
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3. The trial court abused its discretion and erred in deciding this issue
based solely on Appellee Mother’s Answer, and without hearing
testimony or weighting evidence as to a disputed matter of fact.
4. The trial court abused its discretion and erred in failing to properly
consider the well-reasoned preference of the child based on the
child’s maturity and judgment, pursuant to 23 Pa. C.S. §
5328(a)(7).
5. The trial court abused its discretion and erred in ruling on Appellee
Mother’s Answer, which was never severed upon Intervenors.
6. The trial court abused its discretion and erred in denying
Intervenors’ due process rights by ruling on Appellee Mother’s
Answer without allowing Intervenors an opportunity to reply.
7. The trial court abused its discretion and erred in ordering relief that
was not petitioned for in removing Intervenors from the custody
matter.
8. The trial court abused its discretion and erred by not considering
the best interests of the child.
This 1925(a) Opinion addresses the focal issue on appeal – standing.
DISCUSSION
Statement of Law: The issue of standing in custody disputes is a
threshold question that must be resolved before proceeding to the merits of
4
any custody action. Standing “is a conceptually distinct legal question
which has no bearing on the central issue within the custody action-who is
entitled to physical and legal custody of a child in light of his or her best
4
C.G. v. J.H., 193 A.3d 891, 898 (Pa. 2018).
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interests.” The following individuals may file an action under this chapter
for any form of physical custody or legal custody: … (2) A person who
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stands in loco parentis to the child. “The term in loco parentis literally
means in the place of a parent. There are two components to in loco
parentis standing: (1) the assumption of parental status and (2) the
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discharge of parental duties.”
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-
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grandparents should have custody under this section\[.\]
A biological parent's prima facie right to custody should not be
subject to challenge without a clear and convincing showing that the child is
5
Id., at 898 (internal citations and quotations omitted).
6
23 Pa.C.S. § 5324(2).
7
M.L.S. v. T.H.-S., 195 A.3d 265, 267 (Pa. Super. 2018).
8
23 Pa.C.S. § 5325.
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not receiving proper parental care. The burden of proof is on the petitioner
in a child dependency case to establish by clear and convincing evidence
10
that proper care and control are not available.
Application of Law: It was clear from the initial reading of the Petition
that the Intervenors did not properly allege the requisites for standing;
however, the Intervenors were given an opportunity to ingratiate
11
themselves further into advancement of the family dynamic – they failed.
The Petition alleges that the “child visits \[Intervenors\] and stays overnight
12
at their home on a regular basis\[.\]” This is not the assumption of parental
status or the discharge of parental duties – it is child care. Furthermore,
plying a child with clothing and favors does not a parent make – it is
grooming.
9
Cardamone v. Elshoff, 659 A.2d 575, 581 (Pa. Super. 1995).
10
A court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make a finding that a child
is dependent if the child meets the statutory definition by clear and convincing
evidence. If the court finds that the child is dependent, then the court may make an
appropriate disposition of the child to protect the child's physical, mental and moral
welfare, including allowing the child to remain with the parents subject to
supervision, transferring temporary legal custody to a relative or public agency, or
transferring custody to the juvenile court of another state. 42 Pa.C.S. § 6351(a). In
re M.T., 101 A.3d 1163, 1173 (Pa. Super. 2014)(internal quotations omitted).
11
This opportunity was given to the Great-Grandparents notwithstanding the clear
deficits of the Petition but acknowledging the best interest of the child are served by
the court’s promotion of the family dynamic by getting the family together for a
conciliation rather than by this confrontational litigation. The legislative intent found
in the Domestic Relations Code instructs us to “cooperate with and utilize the
resources available to deal with family problems.” 23 Pa.C.S. § 3102.
12
Petition, at paragraph 12.
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Grandparents and great-grandparents may file an action for partial
physical custody or supervised physical custody per Section 5325.
Intervenors did not ask for this relief; specifically, their request was for
“primary physical and legal custody of the minor child” and or an award of
13
sole physical custody of the child. Thus, under Section 5325 this request
is outside of the scope of the limited statutory authorization for standing.
Moreover, the parents are in agreement that they do not wish these Great-
Grandparents to have even partial or supervised custody. It is noted that
Father’s lack of joining the originally filed Petition and subsequent lack of
filing any response connotes his tacit agreement with Mother. The bald
assertion that “the parents do not agree as to whether \[Intervenors\] should
have custody” is not supported in the factual allegations of their own
14
Petition or in the remainder of the record.
The Petition factually sounds in dependency, alleging that Mother is
“unable to provide for the child’s most basic needs, physically, emotionally
15
and spiritually” as their basis for special relief. If Mother and Father have
been unable, as alleged, to meet the child’s medical and financial needs
13
Petition, at paragraph 20 and WHEREFORE clause (emphasis added).
14
Id., at paragraph 16.
15
Id., at paragraph 30.
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that would be neglect, Children and Youth Services should have been
brought in, and perhaps Intervenors could have served as kinship care or a
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family resource.
The remaining Concise Errors asserted were not and are not
germane to the decision on standing. This rigorous application of our
statutory standing principles protects not only the court system by ensuring
that actions are litigated by appropriate parties, but more importantly, keeps
the family unit free from intrusion by those that are at best invitees,
however well-meaning they may be. Moreover, the fact that Intervenors
have far greater resources and can “better” provide than parents is of
absolutely no value in this decision.
BY THE COURT,
________________________
Thomas A. Placey C.P.J.
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A child who is without proper parental care or control, subsistence, education as
required by law, or other care or control necessary for his physical, mental, or
emotional health, or morals may be deemed dependent. A determination that there
is a lack of proper parental care or control may be based upon evidence of conduct
by the parent, guardian or other custodian that places the health, safety or welfare of
the child at risk, including evidence of the parent's, guardian's or other custodian's
use of alcohol or a controlled substance that places the health, safety or welfare of
the child at risk. 42 Pa.C.S. § 6302.
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2013-03683
Distribution
Megan Riesmeyer, Esq.
Zachary Williams, C.L.I.
45 N. Pitt Street
Carlisle, PA 17013
B.B.
316 Brooklyn Drive
York, PA 17406
Jason A. Shirley, Esq.
119 East Market Street
York, PA 17401
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