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HomeMy WebLinkAbout2021-00244 AMANDA HARRIS IN THE COURT OF COMMON PLEAS OF PATRICK HARRIS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. CIVIL ACTION JADEN ROSS NO. 2021-00244CIVIL TERM DESIREE MORA, Defendants CUSTODY IN RE: OPINION ON FATHER’S PRELIMINARY OBJECTIONS HYAMS, J., JANUARY 26, 2022 Statement of Facts and Procedural History Maternal Grandmother and her husband, Maternal Step-Grandfather (“Plaintiffs”), filed a Complaint in Custody and an Emergency Petition for Special Relief onJanuary 19, 2021 with regard to their daughter’s child, D.J.R.. At the time of the initial filings, the natural mother of the subject minor child, Desiree Moran, (“Defendant/Mother”) was seventeen (17) years old. D.J.R.. was approximately eight (8) months old at the time this action was initiated. Father, Jaden Ross, (Defendant/Father), was residing and continues to reside in Harrisburg with his Mother, the subject minor child’s paternal grandmother.Plaintiffs were pro se at the time of their initial filings and not all of the historical and background information within the pleadings was ultimately clear. On January 20, 2021, the Plaintiffs’ Emergency Petition for Special Relief was granted on a limited basis to permit time for theGuardian ad litem, (Katie Maxwell, Esquire was appointed within the same Order), to perform an immediate investigation into the living arrangement for the subject child, D.J.R..to include related custody actions, PFA’s, CYS involvement and any criminal activity. In addition, the GAL was to properly identify the stakeholders/parents/guardians of D.J.R.. Following receipt of the GAL’s report and recommendation, an Order was issued on January 22, 2021, granting the Plaintiffs temporary physical and legal custody of D.J.R.. until an expedited conciliation could be held. The Order further directed that both parents were to have liberal visitation with the subject minor child at the home of Plaintiffs and the GAL’s appointment would continued at least through the expedited conciliation. On March 26, 2021, Father filed an Answer to Plaintiffs’ Emergency Petition for Special Relief and simultaneously filed Preliminary Objections alleging that the Plaintiffs lacked standing, never were in loco parentis and that venue was improper and should be transferred to Dauphin County. The first custody conciliation was held on March 30, 2021 and the parties agreed to an Order (pending the resolution of Father’s standing Preliminary Objections), which provided for shared legal custody between Plaintiffs, Mother and Father. Primary physical custody was awarded to Maternal Grandmother with Father having partial physical custody of D.J.R. every Friday at 4:30 p.m. to Monday at 7:30 a.m. Mother’s periods of partial custody were to take place while D.J.R. was in maternal grandmother’s physical custody, when agreed upon by Mother and Maternal Grandmother. On June 3, 2021, Father filed an Emergency Petition for Special Relief seeking removal of the D.J.R. from the Plaintiffs’ care and providing the Defendants emergency shared custody. A June 3, 2021 Order of Court denied Father’s requested emergency relief for failing to identify a viable emergency. The parties were further directed to work together to identify a reasonable custody schedule that permits D.J.R. safe contact with, and parenting by, her very young parents. Not to be outdone by Father, on July 15, 2021, Maternal Grandmother filed her own Emergency Petition for Special Relief also alleging problems with the custodial schedule exchanges and other non-emergency allegations. On July 16, 2021 Maternal Grandmother’s Emergency Petition was 2 denied for failing to identify any type or form of an emergency. The parties were directed to return to conciliation to address custodial exchanges including the location of those exchanges and directed the parties not to engage in video taping or recording the exchanges. The parties attended conciliation on August 3, 2021 and agreed to an Order that modified the custodial exchange location for Monday mornings. By Order of Court, the Father’s preliminary objections were scheduled for an evidentiary hearing and argument to be held on October 25, 2021. The pertinent factual background presented at the hearing can be summarized as follows: Mother attended the hearing, but was unrepresented. She wants to share physical and legal custody with the Father only. Father has resided in Dauphin County since July 2020 where he lives with his mother. Prior to that, he briefly resided with the Plaintiffs in Cumberland County from April 2020-July 2020. Both he and Mother were residing there just before and after D.J.R.’s birth. Father and Mother provided care to D.J.R. from the April 2020-July 2020 timeframe. Father and Mother purchased baby items for the child, fed the child and took care ofthe child if not working. Father and Mother took the child to the pediatrician during the first few months of her life, although she was behind on vaccinations at the end of 2020 as the parents did not have insurance for her. Father has not taken the child to the doctor in 2021 because Maternal Grandmother and Mother take the child to the doctor. Mother and Father left the Plaintiffs’ residence towards the end of July 2020 as a result of 1 tension in the home after Plaintiffs learned that Mother was pregnant again.In July 2020, Mother moved in with her biological father,who lived in Dauphin County, and Father moved in with his mother, who also lived in Dauphin County. Mother and Father followed a fifty/fifty custody 1 Mother subsequently terminated this pregnancy. 3 schedule of D.J.R. when Mother wasliving with maternal grandfather (her biological father) and Father was living with paternal grandmother. During the timeframe that Mother and D.J.R. were residing with biological paternal grandfather (July 2020 – December 2020), Mother was providing the care to D.J.R. while residing in his home, with assistance from the grandparents. Maternal Grandmother continued to see D.J.R. during this time as occasionally Mother would occasionally visit. In January 2021, Father and Mother got into an argument, presumably over the phone or text messages. Plaintiff/Maternal Grandmother, drove Mother to Father’s residence. Maternal Grandmother remained in a vehicle while the Mother and Father proceeded to get into a verbal and physical altercation. Father requested assistance from Maternal Grandmother, but she remained in the vehicle. The police were called, and Mother was the only one charged as she had thrown rocks through the residence of paternal grandmother’s window. Paternal grandmother filed for and obtained a PFA against Mother as a result of this incident. D.J.R. was not at the Father’s home and was not with Mother and Maternal Grandmother during this January 2021 altercation. It was this incident that resulted in Plaintiffs filing a Complaint in custody as well as an Emergency Custody Petition initiating the instant litigation. Father has been working at Sheetz since April/May 2021. Father acknowledged that he uses marijuana two to three times a week and he does not have a medical marijuana card. He typically does not use marijuana during his custodial period, but if he does, he leaves the child in the care of his mother and walks somewhere outside to use marijuana. Mother and Father have moved past the January 2021 altercation and are committed to co-parenting. Mother believes she is able to physically care for the child and she would like to have physical custody, which would be shared fifty/fifty with the Father. Mother has primarily lived with her biological father over the 4 last several years, but is currently residing with Plaintiffs because Plaintiffs currently haveprimary physical custody of D.J.R. Mother would not necessarily move out of Plaintiffs’ home if Mother would be awarded aspects of physical custody of D.J.R., but it would depend on whether this change in custody would cause tension within the household. Mother had mental health concerns and treatment while she was a minor. She is not currently engaged in mental health treatment, and she has taken herself off her medications. She is currently working as a manager at Hot Topic, a store located at that Capitol City Mall. Discussion Generally, the Child Custody Act does not permit third parties to seek custody of a child contrary to the wishes of that child'sparents. The Act provides several exceptions to this rule, which apply primarily to grandparents and great-grandparents.” K.W. v. S.L., 157 A.3d 498, 504 (Pa. Super. 2017).The most recent version of theGrandparent Custody and Visitation Act provides two separate provisions forgrandparentsseeking custody of their grandchildren. Any grandparentmay seek any form of custody pursuant to23 Pa.C.S. § 5324. In addition, for grandparentsin certain situations, they may seek partial custody pursuant to section 5325. Here, there is no dispute that only section 5324 could apply, andPlaintiffs claim they meet section 5324(2) and/or section 5324(3)(iii)(B). 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 parentof the child or under a court order; 5 (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); (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. It is evident from the testimony and evidence presented that these two young parents will need guidance, assistance and support along their parental journey. However, this is not unlike the majority of new parents. As the old adage goes, “it takes a village to raise a child.” D.J.R.’s village includes various grandparents and a great-grandparent. The outcome of the pending preliminary objections should not change the fact that Mother and Father will need guidance and support as new parents and that they have supportive resources through their parents, step-parent and great-grandparent.It is in the best interests of D.J.R. for her parents to receive this support from their family members. Notwithstanding this court’s desire to place the child best interests first and foremost, third party standing isn’t premised on a best interest standard. The concept of standingis vital in ensuring that cases are presented to the court by an individual who has a genuine,and not merely a theoretical,interestin the matter. Thus, the traditional test forstanding is that the proponent of the action must have a direct, substantial and immediateinterestin the matter at hand.D.G. v. D.B.,91 A.3d 706 (Pa. Super. 2014). In M.W. v. S.T.,196 A.3d 1065 (Pa. Super. 2018), the Pennsylvania SuperiorCourt emphasized: 6 In the area of child custody, principles of standinghave been applied with particular scrupulousness because they serve a dual purpose: not only to protect theinterestof 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. Id. at 1069 (citation omitted). Standing isa 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 interests. C.G. v. J.H., 193 A.3d 891, 898 (Pa. 2018). Plaintiffs have not met their burden of establishing that they stood in loco parentis to D.J.R. While Maternal Grandmother has occasionally provided shelter, transportation to and from medical appointments, and general care to the child, at the time the Complaint was filed, D.J.R. had spent the majority of her life residing with one of her parents in homes of her maternal (biological) grandfather or paternal grandmother. Maternal Grandmother’s conduct from April 2020 – January 2021 is commendable and surely out of love for her daughter and granddaughter, but she was simply assisting her daughter who was in need of the support of her parents as she began her motherhood journey. Maternal Grandmother’s conduct did not demonstrate that she had assumed all rights and responsibilities of parenthoodover D.J.R. See D.G. v. D.B., 91 A.3d 706, 711–12 (Pa. Super. 2014). In addition, Plaintiffs have also failed to demonstrate standing under 5324(3) as they did not prove that D.J.R. is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity. 23 Pa.C.S. § 5324(3)(iii)(B). In fact, there was little risk shown as it relates specifically to D.J.R., let alone “substantial” risk. While there was evidence that Father utilizes marijuana without a proper prescription, there was no credible evidence that he does so while he is in the primary caretaking role of the child. The January 2021 incident that led to an altercation 7 between the parents and a PFA being filed and granted against the Mother occurred at a time that the child was not present. The parents are now a year older since that domestic incident and appeared sincere that they are committed to working together to co-parent their child. There is no current involvement with any child welfare agencies and any referrals made were investigated and unfounded. The parents have ensured that D.J.R. has appropriate housing, clothing and her physical needs are being met. The maternal (biological) grandfather and paternal grandmother both testified that they would continue to support the Mother and Father and assist the parents to properly care for D.J.R. as her primary caretakers. Therefore, it has not been shown that D.J.R. is substantially at risk due to ongoing parental behaviors. Following careful analysis of 23 Pa.C.S. § 5324, and the record in its entirety, Plaintiffs have failed to meet their burden on proving standing and the following Order is entered: ORDER th And now, this 26day of January, 2022, following an evidentiary hearing and argument on October 25, 2021, Defendant, Jaden Ross’s Preliminary Objection to Standing is GRANTED and the Complaintis Dismissed. The Preliminary Objection to Improper Venue is MOOT as the action in Cumberland County is null and void. BY THE COURT: Carrie E. Hyams, J. 8 Distribution: Jeanné Costopoulos, Esq. Po Box 22018 Sarasota, Fl 34276 jbclegal@gmail.com Desiree Mora 3315 Trinity Rd. Harrisburg, PA 17109 desireemmora@yahoo.com Kelli Statt, Esq. 4800 Linglestown Rd. Suite 104 Harrisburg, PA 17112 United States kstatt@jasoncarpenterlaw.com 9