J-A04044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.S. AND D.S.,                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
        Appellants

                     v.

S.D. AND M.S.
                     v.
G.L.S., II
                     v.
S.D.
                     v.
M.S.,
        Appellees                                     No. 1480 WDA 2013


                Appeal from the Order entered August 16, 2013
               In the Court of Common Pleas of Clearfield County
                       Civil Division at No: 2012-309-CD

BEFORE: BOWES, WECHT, AND STABILE, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:             FILED FEBRUARY 12, 2015


        I must respectfully dissent from the learned Majority’s decision for two

principal reasons. First, I believe the Majority has exceeded our standard of

review1 by finding facts and addressing issues not raised before this Court.


1
  In McMillen v. McMillen, 602 A.2d 845 (Pa. 1992), our Supreme Court
explained an appellate court’s scope of review in child custody matters:
        The scope of review of an appellate court reviewing a child
        custody order is of the broadest type; the appellate court is not
        bound by the deductions or inferences made by the trial court
        from its findings of fact, nor must the reviewing court accept a
        finding that has no competent evidence to support it. However,
        this broad scope of review does not vest in the reviewing court
        the duty or the privilege of making its own independent
        determination.    Thus, an appellate court is empowered to
        determine whether the trial court’s incontrovertible factual
        findings support its factual conclusions, but it may not interfere
        with those conclusions unless they are unreasonable in view of
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Second, to my knowledge, the Majority essentially has recognized for the

first time grandpaternity by estoppel as a judicial doctrine in this

Commonwealth.     No such doctrine ever has been recognized in our law.

Nonetheless, even if such a doctrine were to be recognized, I would not find

circumstances present here for its application.

      The sole issue properly2 before this Court is whether the trial court

erred when it failed to equitably estop Mother from terminating the visitation

and custody rights of Appellants, putative grandparents, after the results of

a paternity test established that Appellants’ son was not the biological father

of Mother’s child, C.S. (“Child”). After a hearing, the trial court dismissed

Appellants’ complaint on the basis that Appellants did not have standing

under 23 Pa.C.S.A. § 5324 (sole physical custody) to sue for custody of

Child, because Appellants were not Child’s grandparents.

      Instead of restricting our review in this matter to the equitable

estoppel issue raised and decided by the trial court, the learned Majority sua

sponte has raised and decided the non-jurisdictional issue of whether Mother

waived her right to challenge standing for failure to raise this issue at an

earlier opportunity.   The Majority, acting as a fact-finder, finds waiver



      the trial court’s factual findings; and thus, represent a gross
      abuse of discretion.
Id. at 847 (citations omitted).
2
  Appellants also argue whether the trial court erred by not finding that
continued custody by Appellants was in the best interest of Child. Because I
would not find error with the trial court dismissing this action for lack of
standing, I would not address the best interest issue.
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without the benefit of an evidentiary hearing, or notice and opportunity for

Mother to address this waiver issue or to explain the timing of her actions.

Having determined the challenge to standing as waived, the Majority

concludes, after detailed fact-finding ab initio from its review of the record,

that Mother is equitably estopped from challenging Appellants’ status as

grandparents to Child.    The Majority finds equitable estoppel without any

evidence in the record to support the essential ingredient of detrimental

reliance to equitable estoppel.

      With standing and equitable estoppel decided by sua sponte raising

issues and finding facts, the Majority compounds these errors by again sua

sponte raising and concluding that Appellants, alternatively, have standing

for partial custody of Child.     The Majority accomplishes this feat by

disregarding the complaint filed for full custody and by treating Appellants’

complaint as if it were filed for partial custody under 23 Pa.C.S.A. § 5325.

The Majority again does so without the benefit of any findings by the trial

court or an opportunity by the parties to be heard on this issue.

      I now set forth the reasons for my dissent. At the outset, the Majority

acknowledges the central issue on appeal is whether Mother should be

estopped equitably from challenging Appellants’ standing (as grandparents)

to dismiss Appellants’ underlying custody complaint and related custody

orders.   Yet, despite this acknowledgment, the learned Majority takes it

upon itself to circumvent this central issue by disposing of this case based on

a waiver of standing claim—an issue Appellants failed to raise and preserve

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below or address in their appellate brief.        The Majority attempts to

rationalize its sua sponte consideration of this waiver issue by reasoning this

issue is an innate component of Appellants’ estoppel claim because Mother’s

ten-month delay in raising standing is subsumed in Appellants’ estoppel

argument.

      My review of the record reveals that Appellants did not assert waiver

as a defense to Mother’s standing challenge at any time before the trial court

or this Court. It is well established that issues not raised in the lower court

are waived and cannot be raised for the first time on appeal. See Pa.R.A.P.

302(a); see also Green v. Green, 69 A.3d 282, 287 (Pa. Super. 2013)

(concluding that an issue cannot be raised for the first time on appeal).

Because it was this Court that raised the waiver issue, not surprisingly, this

issue of waiver also is not presented in Appellants’ 1925(b) statement of

issues for appeal. This absence provides a second basis for waiver of this

issue on appeal to this Court. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement . . . are waived.”). The issue of waiver also does

not appear in any of Appellants’ statement of questions in their brief to this

Court. The issue again is waived. See Pa.R.A.P. 2116(a) (“The statement

of the questions involved must state concisely the issues to be resolved,

expressed in terms and circumstances of the case[.]”).      Even if this issue

were not expressly stated in the questions presented, this Court still would

not be justified in addressing this claim because it is entirely absent from

any briefing submitted by Appellants to this Court. See Pa.R.A.P. 2119(a);

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see also Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675 (Pa. Super.

2007) (the failure to develop an argument with citation to and analysis of

relevant authority waives the issue on appeal).3

      With specific reference to the issue of standing, our Supreme Court

further has explained, courts are “prohibited from raising the issue of

standing sua sponte. ‘Whether a party has standing to maintain an action is

not a jurisdictional question.’”   In re Nomination Petition of deYoung,

903 A.2d 1164, 1168 (Pa. 2006).           In deYoung, our Supreme Court

expressly rejected the notion that “standing can be raised by [a] court sua

sponte” because it is intertwined with subject matter jurisdiction.      Id. at

1167-68. Hence, if courts are prohibited from raising the issue of standing

on their own accord, then, by that same logic, the issue of waiver of a

standing challenge likewise, cannot be raised sua sponte in this case.

      To the extent the Majority states it may raise the issue of waiver of

standing sua sponte because the issue is subsumed by Appellants’ estoppel

argument, I strongly disagree.4      The doctrine of equitable estoppel, as

discussed infra, requires proof of an inducement relied upon by another to


3
   It is likely unfair to speak in terms of Appellants waiving this issue, as it
suggests some fault on the part of Appellants. This Court has raised the
issue. Appellants never have urged the trial court or this court to consider
the issue of waiver.
4
   Although the Majority does not cite any rule of appellate procedure
regarding equitable estoppel subsuming a standing waiver, I presume it
refers to the “fairly suggested” language of Pa.R.A.P. 2116 (“[T]he
statement of question will be deemed to include every subsidiary question
fairly comprised therein.”).
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their detriment.   The issue of waiver, as raised by the Majority, concerns

whether Mother had the right even to raise her challenge to standing based

upon unreasonable delay in raising the issue.     The timing consideration in

the standing waiver issue exists wholly apart from any consideration

regarding the elements of equitable estoppel. Simply stated, the substance

of an equitable estoppel claim does not subsume the procedural question of

whether a challenge to standing has been raised timely.

      Having determined that the issue of standing waiver was properly

before this Court, the Majority, relying principally upon Kellogg v. Kellogg,

646 A.2d 1246 (Pa. Super. 1994), concludes that Mother waived any right to

challenge standing by not raising this issue at an earlier time. Although the

Majority relies upon Kellogg, I am not convinced Kellogg was properly

decided.   With respect to custody actions, Pa.R.C.P. No. 1915.5(a) quite

clearly requires that a person raise only issues of “jurisdiction of the person”

or “venue” by way of preliminary objection within twenty days of service of

the pleading to which they object.     Preliminary objections to civil actions

similarly are limited. See Pa.R.C.P. No. 1028(a)(1). Standing is not among

the defenses that must be raised preliminarily. Yet, the Kellogg court re-

wrote Rule 1915.5(a) through case law to include standing as a third

defense that must be preliminarily raised within twenty days when

responding to a custody complaint.5       In my view, the Majority correctly

5
  By including standing as a part of Rule 1915.5(a) through case law, the
court creates a trap for practitioners who rely upon the clear and
unequivocal language of the rule for guidance. Kellogg was decided some
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moves away from the mechanical inclusion of standing within the strict time

constraints of Rule 1915.5(a), recognizing the issue of standing can be fluid

in custody cases. Because Rule 1915.5(a) does not include standing among

the defenses that must be preliminarily raised, it is my view standing should

be treated like any other defense not subject to waiver if not raised within a

prescribed time under our rules.

     Regardless of whether standing is to be properly pled under Rule

1915.5(a), I nonetheless, on the merits of this issue, cannot conclude that

Mother waived her right to raise the issue of Appellants’ standing.       The

record is devoid of any hearing, evidence, or any fact-finding by the trial

court on this timeliness issue (because it was not raised by Appellants). The

only issue heard by the trial court prefatory to this appeal was Appellants’

estoppel argument. There was no hearing or determination by the trial court

as to whether Mother was entitled to raise her standing challenge.

Nonetheless, the Majority renders its own factual findings contrary to our

standard of review by stating:

     Mother claimed that she suspected that Putative Father was not
     C.S.’s birth father and that she advised him of her doubts. While
     Mother could not prove her suspicions that Appellants were not
     genetic relatives of C.S. until she obtained the results of [the]
     DNA testing, that does not excuse Mother’s protracted delay
     once she acquired the DNA results during the ongoing custody
     proceedings. Mother obtained the results of a private DNA test
     during June 2012; however, she did not assert her standing
     challenge until April 2013, ten months later. Rather than assert a


20 years ago. If standing is to be included in the required defenses that
must be raised preliminarily to a custody complaint, the rule should be
properly amended so as not to prejudice practitioners admitted after 1994
not entirely familiar with historical case law.
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         standing challenge immediately after receiving confirmation,
         Mother filed additional pleadings seeking to reduce Appellants’
         custodial rights for various reasons unrelated to standing.

Maj. Mem. at 12 (emphasis added). The Majority concludes although Mother

was not required to raise a standing challenge at the outset of the case, she

certainly was required to do so as soon as she had tangible confirmation that

Appellants were not genetically related to Child. The Majority makes these

findings without an evidentiary record that would have provided Mother an

opportunity to explain the timing of her actions, assuming timeliness may be

dispositive of her standing challenge.

         There is no evidence of record to suggest that Mother in fact knew of

Child’s biological father until DNA testing was accomplished.     The Majority

treats prior knowledge as a fait accompli without any findings by the trial

court.     No doubt, Mother thought to pursue this issue after experiencing

numerous acrimonious and contentious court proceedings with putative

grandparents for custody of Child. Mother’s timing also may be explained by

the fact that counsel did not represent her until the filing of her standing

challenge, a possible change of circumstance in her case. In all likelihood,

Mother’s standing challenge was the result of counsel’s legal review of the

proceedings, a task probably beyond Mother’s capabilities. I, however, like

the Majority, am in no position to make findings of fact in this regard.

         The point I wish to make clear is that Mother may very well have

explained satisfactorily her timing on this standing issue if given the

opportunity to do so, and if the issue of waiver was properly raised before


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the trial court. The Majority impermissibly engages in fact-finding to reach

its conclusion without the benefit of any record or fact-finding by the trial

court, and without any ability to weigh the testimony or credibility of the

parties.

      [U]nlike trial courts, appellate courts are not equipped to make
      the fact-specific determinations on a cold record, where the trial
      judges are observing the parties during the relevant hearing and
      often presiding over numerous other hearings regarding the child
      and parents. Therefore, even where the facts could support an
      opposite result, . . . an appellate court must resist the urge to
      second guess the trial court and impose its own credibility
      determinations and judgment; instead we must defer to the trial
      judges so long as the factual findings are supported by the
      record and the court’s legal conclusions are not the result of an
      error of law or an abuse of discretion.

See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations

omitted); see also D.G. v. D.B., 91 A.3d 706, 707 (Pa. Super. 2014)

(noting that a reviewing court’s standard of review “does not vest in the

reviewing court the duty or the privilege of making its own independent

determination”).

      Having dispatched Mother’s standing issue on the basis of waiver, the

Majority proceeds next to address the issue of equitable estoppel, the only

issue properly before this Court.    See Maj. Mem. at 13.       The Majority

concludes that Appellants met their burden of proof with respect to equitably

estopping Mother from challenging their status as Child’s grandparents. The

doctrine of “equitable estoppel” is one of fundamental fairness, designed to

preclude a party from depriving another of a reasonable expectation when

the party inducing the expectation, albeit gratuitously, knew or should have


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known that the other party would rely on that conduct to his detriment. See

Jacob v. Shultz-Jacob, 923 A.2d 473, 480 (Pa. Super. 2007).

     In this regard, acting again impermissibly as a trial court, the Majority

finds and then concludes:

     [O]ur review of the case law did not reveal a single case that
     addressed a non-biological grandparent’s ability to invoke
     equitable estoppel against a birth parent[, like Mother,] who not
     only actively misled them to believe the child was their
     grandchild, but also consented to [their] exercise of custodial
     rights.

       ....
     Mother represented over a two-year period that Appellants were
     C.S.’s birth grandparents. Although Mother suspected from the
     outset that Putative Father was not C.S.’s birth parent, she
     identified him as the father on the child’s birth certificate and
     executed an acknowledgment of paternity that identified him as
     C.S.’s father. Similarly, her actions encouraged Appellants to
     fashion and maintain a grandparent-child relationship with C.S.
       . . . . [Mother] mounted a largely unsuccessful campaign to
     erode the terms of the custody arrangement [with Appellants].
       ....
            The trial court ignores Mother’s inaction and consent to
     Appellants’ custody rights in declining to apply equitable estoppel
     to prevent Mother from invoking the results of a paternity test to
     strip Appellants of their custody rights. Appellants have always
     held themselves out as grandparents, and with Mother’s express
     consent and endorsement, they have exercised legitimate, court-
     ordered custodial rights as C.S.’s grandparents since May 2012.
            Mother’s actions and representations regarding C.S.’s
     parentage for the first two years of the child’s life and her silence
     in agreeing to the initial custody order induced Appellants to
     believe that C.S. was their grandchild. Appellants relied upon
     Mother’s representations and omissions to their detriment, and
     would be severely prejudiced if Mother were permitted to invoke
     the results of the genetic testing at this point in order to deny
     their beneficial relationship with C.S. Thus, we conclude that the
     trial court erred in holding that equitable estoppel was
     inapplicable.

Maj. Mem. at 16-19 (emphasis added).



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         I disagree with the Majority’s conclusion that Appellants met their

burden of proof to establish detrimental reliance on their equitable estoppel

claim based upon Mother’s misrepresentations regarding their genetic ties to

Child.     At the hearing on Mother’s motion to dismiss/vacate, Appellants

testified on their own behalf and offered the testimony of their son, putative

father.    The Majority finds detrimental reliance, in sum, based on the fact

Appellants operated under the assumption created by Mother that they were

the biological grandparents to Child.      Beyond this, neither the Majority’s

memorandum, nor my review of the record, yields any evidence that would

support the conclusion that Appellants suffered any detriment sufficient to

support an equitable estoppel claim, nonetheless substantial prejudice as

claimed by the Majority. The Majority’s cumulative and repeated references

to Mother’s actions does not establish or answer whether Appellants suffered

any detrimental reliance.

         Appellants enjoyed the benefit of acting as grandparents to Child, but

the loss of this benefit to which they were not entitled, alone, does not

establish detrimental reliance. The record does not demonstrate Appellants

are in any worse position now than they would have been if originally

advised they were not Child’s grandparents. See Card v. Commonwealth

of Pennsylvania, Pennsylvania School Employes' Retirement Bd., 478

A.2d 510, 514 (Pa. Cmwlth. 1984) (noting that petitioner, despite repeatedly

being advised of eligibility to purchase pension credits, could not claim

equitable estoppel as record did not demonstrate her position was

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detrimentally changed, since she was in no worse position than she would

have been had she initially been informed correctly of her ineligibility).

Appellants have not produced any evidence of a detrimental change in

position to support their claim.       Equitable estoppel always must be

predicated upon some detrimental reliance.      See id.   If the modicum of

evidence offered by Appellants here was all that was necessary to claim

grandparent status by equitable estoppel, there virtually would be no case in

which parentage is disputed where third parties would not be able to

establish standing on an equitable estoppel claim.

      Moreover, I disagree with the Majority’s finding of equitable estoppel

and hence, reinstating custody in Appellants, on a more fundamental level.

The focus in an equitable estoppel claim is upon the expectation created and

the detrimental reliance upon that expectation.      Here, Appellants assert

equitable estoppel against Mother to gain grandparent status in order to

seek custody of Child.   Invocation of the doctrine was for the benefit of

Appellants. In every custody matter, however, the paramount focus is upon

the best interests of the child.   See 23 Pa.C.S.A. § 5328(a).    Nowhere in

Appellants’ equitable estoppel claim, or as found by the Majority, is the best

interests of Child considered before conferring non-biological grandparent

status upon Appellants so they can continue to seek custody of Child. This

no doubt, is because the “best interests” of a child is not an element of an

equitable estoppel claim. Therefore, I am in agreement with the trial court



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that considerations underlying the doctrine of paternity by estoppel6 do not

apply to grandparents.   This is buttressed by the fact that our Legislature

has seen fit to codify paternity by estoppel, but has not done so similarly for

grandparents.   See 23 Pa.C.S.A. § 5102.       Succinctly stated, there is no

grandpaternity by estoppel in Pennsylvania.

      Next, in determining that the doctrine of equitable estoppel would

apply instantly, the Majority “observe[s] that Appellants attained standing to

pursue partial custody of C.S. pursuant to 23 Pa.C.S.[A.] § 5325(2), relating

to grandparent’s standing for partial custody[.]”    Maj. Mem. at 19.      The

parties here do not dispute the fact Appellants initiated their custody action

under 23 Pa.C.S.A. § 5324, for sole physical custody of Child. The Majority,

by invoking Section 5325, essentially amends Appellants’ custody complaint

sua sponte from one seeking full custody to partial custody of Child.

Because partial custody was not the relief sought in Appellants’ pleadings, I

disagree with the Majority’s invocation of Section 5325.7



6
  “[P]aternity by estoppel continues to pertain in Pennsylvania , but it will
apply only where it can be shown, on a developed record, that it is in the
best interests of the involved child.” K.E.M. v. P.C.S., 38 A.3d 798, 810
(Pa. 2012).
7
  Even were we to assume Appellants are the grandparents of Child for
purposes of this appeal, they still would be unable to assert standing under
Section 5324 of the Act to seek custody of Child. It is undisputed that
Appellants are not the parents of Child, do not stand in loco parentis to him,
and Child has not resided with Appellants for at least 12 consecutive
months. Therefore, Appellants would be unable to assert standing under
Section 5324 of the Act to seek custody of Child even if they were
considered grandparents for purposes of this custody action.
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     I am not without sympathy for Appellants’ situation, i.e., loving and

caring for a child as one’s own grandchild only to discover later the lack of

any genetic link. I have no doubt Appellants feel a bond with Child and are

angered at Mother.       Nonetheless, for the reasons set forth above, I

respectfully dissent from the Majority’s decision to find Mother’s standing

challenge to be waived, to confer grandparent status upon Appellants

premised upon equitable estoppel, to convert Appellants’ claim for custody

to one for partial custody, and to reinstate the March 11, 2013 order

granting Appellants partial custody subject to a best interest analysis

pursuant to § 5328(a).

     For all the foregoing reasons, I respectfully dissent.




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