J-S74016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.M.B. AND R.B.                           :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
              Appellants                  :
                                          :
                                          :
                    v.                    :
                                          :
                                          :
D.B. AND J.R.B.                           :   No. 2261 EDA 2017

                 Appeal from the Order Dated June 14, 2017
  In the Court of Common Pleas of Delaware County Domestic Relations at
                            No(s): 2017-001326


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 11, 2017

      L.M.B. and R.B. (“Paternal Grandparents”) appeal from the order,

entered in the Court of Common Pleas of Delaware County, dismissing their

complaint seeking visitation with their granddaughter, born 4/2010 (“Child”).

After our review, we affirm the trial court’s order dismissing the complaint for

lack of standing.

      Paternal Grandparents filed a complaint against D.B. and J.R.B.

(“Parents”), seeking visitation with Child. Parents are the biological parents

of Child, and their marriage is intact.

      In their complaint, Paternal Grandparents averred that they provided

care and nurturing Child for approximately 3½ years, beginning when Child

was six months old, while Parents worked. Complaint, 2/3/17, at ¶ 6. During

that time, Paternal Grandparents formed a close bond with Child.        Parents

ended Paternal Grandparents’ almost-daily contact with Child, and they aver
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that they are now both ill and “desperately want to see and spend time with

[Child] before they pass away.” Id. at ¶¶ 4, 6, 13; Appellant’s Brief, at 7.

Paternal Grandparents are no longer married, but, due to his advanced age

and health issues, Paternal Grandfather spends considerable time at Paternal

Grandmother’s home with her and her “common law” husband (“Step

Grandfather”).     Complaint, supra at ¶ 5.

        Parents   filed   preliminary     objections   to   Paternal   Grandparents’

complaint, citing legal insufficiency, as the complaint failed to plead facts

establishing standing, pursuant to 23 Pa.C.S. §§ 5325(1), (2), or (3). See

Pa.R.C.P. 1915.3(e).1 The trial court held a hearing on June 13, 2017.

        At the hearing, Parents testified that in July 2014, Child made a

complaint against Step Grandfather having inappropriate contact with her.2

____________________________________________


1   Rule 1915.3(e) states:

        A grandparent who is not in loco parentis to the child and is
        seeking physical and/or legal custody of a grandchild pursuant to
        23 Pa.C.S. § 5323 must plead . . . facts establishing standing
        under § 5324(3). A grandparent or great-grandparent seeking
        partial physical custody or supervised physical custody must plead
        . . . facts establishing standing pursuant to 23 Pa.C.S. § 5325.

Pa.R.C.P. 1915.3(e).

2 Paternal Grandparents, in accordance with Pa.R.C.P. 1915-3-2, attached a
Criminal Record/Abuse History Verification Form, indicating that Step
Grandfather had served a five-to-fifteen year sentence relating to a conviction
for rape of a minor in 1983. See Complaint, supra. In their memorandum
of law in support of their answer to Parents’ preliminary objections, Paternal
Grandparents state that the allegations against Step Grandfather with respect



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Visitation diminished shortly thereafter. At the time of the hearing, it had

been three years since Paternal Grandparents had had contact with Child.

Parents acknowledged that when Child was between the ages of six months

and four years, Paternal Grandparents babysat for Child in their home when

Parents were at work.         N.T. Hearing, 6/13/17, at 15-16, 21-24.   Mother

testified that Paternal Grandparents were “primarily our first go-to, and they

did do a wonderful job . . . and I certainly appreciated all of their help until

one day [Child] said something very inappropriate and we cut ties - . . . soon

after.” Id. at 24.

       On June 14, 2017, the court entered an order granting Parents’

preliminary objections and dismissing Paternal Grandparents’ complaint. This

appeal followed.

       Paternal Grandparents raise one issue for our review: Does 23 Pa.C.S.

§ 5325 violate procedural due process because it is under-inclusive and does

not allow Paternal Grandparents to argue their claim for visitation before the

court?




____________________________________________


to Child were determined to be unfounded after investigation by the Ridley
Police Department, the Delaware County Criminal Investigation Detectives,
the Delaware County District Attorney’s Office, and the Pennsylvania
Department of Humans Services of Delaware County. The administrative
action brought by Childline was dismissed. See Answer to Preliminary
Objections, 4/4/17, at 2.



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       Section 5325 of the Domestic Relations Code explicitly permits a

grandparent to seek “visitation.” R.M. v. J.S., 20 A.3d 496, 510 n.12 (Pa.

Super. 2011). Section 5325 provides:


       § 5325. Standing for partial physical custody and supervised
               physical custody

       In addition to situations set forth in section 5324[3] (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:

          (1)    where the parent of the child is deceased, a parent or
                 grandparent of the deceased parent may file an action
                 under this section.

          (2)    where the parents of the child [4] have commenced
                 and continued a proceeding to dissolve their
                 marriage; or


____________________________________________


3  Section 5324 gives grandparents standing to seek custody in various
situations not implicated here, such as where a child has been adjudicated
dependent or is at substantial risk of harm from the parents. See 23 Pa.C.S.
§ 5324(3).

4 We have omitted from this quotation a portion of Section 5325(2) that our
Supreme Court held unconstitutional in D.P. v. G.J.P., 146 A.3d 204 (Pa.
2016). In D.P., supra, the Court found unconstitutional the provision of
section 5325(2) that applied to parents who were separated for at least six
months, but left intact that portion as to parents who had commenced and
continued proceedings to dissolve their marriage. The Court stated that “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 217.




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          (3)    when the child has, for a period of at least 12
                 consecutive months, resided with the grandparent or
                 great-grandparent,     excluding  brief   temporary
                 absences of the child from the home, and is removed
                 from the home by the parents, an action must be
                 filed within six months after the removal of the
                 child from the home.

23 Pa.C.S. § 5325 (emphasis added).              We agree with the trial court that

Paternal Grandparents have no standing under the statute as none of these

situations is applicable here.5        In fact, Paternal Grandparents concede as

much. They claim, however, that section 5325 violates their constitutional

right to procedural due process as it is under-inclusive. Paternal Grandparents

argue that their circumstance is not recognized, but should be, to enable their

claim to move forward. They assert that section 5325(3) violates their due


____________________________________________


5 Here, Paternal Grandparents seek to have the court direct Parents, both of
whom have chosen not to have Child visit with the Paternal Grandparents, to
permit such visitation. “Nothing in the case or statutory law legitimizes such
an intrusion by the courts into family life.” Herron v. Seizak, 468 A.2d 803,
805 (Pa. Super. 1983). This Court will not direct parents, who are living
together as an intact family, to allow visitation when they otherwise would not
choose to do so. Herron, 468 A.2d at 805. The legislature has limited the
means for grandparents or great-grandparents “on the non-custodial side to
guard against potential estrangement” that might occur after one parent dies,
or the parents are divorced, or after the child has lived with the grandparents
for a significant period of time and is then removed by the parents. Gradwell
v. Strausser, 610 A.2d 999, 1004 (Pa. Super. 1992). “Unless dependency
proceedings are initiated, 42 Pa.C.S. §§ 6351, 6352, or the parents’ rights are
involuntarily terminated, 23 Pa.C.S. § 2511, or the child is abused, 23 Pa.C.S.
§ 6301 et seq., or the grandparents are seeking partial custody or visitation
rights and meet the statutory requirements of 23 Pa.C.S. §§ 5311–5313
[repealed, now covered by 23 Pa.C.S. §§ 5324, 5325 and 5328], we are
powerless to interfere with this intact family.” Gradwell, 610 A.2d at 1004-
1005.


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process rights (and those of similarly situated grandparents) as it is

“fundamentally inadequate to vindicate liberty interests” because it limits

“avenues to regain wrongfully denied visiting privileges to grandparents[.]”

Memorandum of Law, Answer to Preliminary Objections, 4/4/17, at 4;

Appellants’ Brief, at 13.      Specifically, Paternal Grandparents claim that the

six-month deadline in the statute does “not comport with the realities of

modern life[, as] illness, litigation and other circumstances may render the

six-month time limit impossible or impractical.” Memorandum of Law, supra

at 5-6; Appellants’ Brief, at 14. Due to their illnesses and the time it took to

investigate the sexual abuse allegations (which Paternal Grandparents classify

as litigation), Paternal Grandparents argue this unrealistic time frame denies

them access to pursue their claim for visitation. Paternal Grandparents also

raise an equal protection argument, claiming that section 5325 affords

“[g]randparents of children whose parents are divorced . . . or deceased”

greater access to the courts.” Appellants’ Brief, at 16.6

       Prior to reaching the merits of this claim, however, we must first

determine whether Paternal Grandparents have properly preserved it for our

review. With respect to a constitutional challenge to a statute, Pennsylvania

Rule of Civil Procedure 235 provides:

       In any proceeding in a court subject to [the Pennsylvania Rules of
       Civil Procedure] in which an Act of Assembly is alleged to be
____________________________________________


6 Since Paternal Grandparents challenge the wording of section 5325(3), we
view this as a facial challenge to the constitutionality of statute. See Potts
v. Step By Step, 26 A.3d 1115, 1123 (Pa. Super. 2011).

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      unconstitutional ... and the Commonwealth is not a party, the
      party raising the question of constitutionality ... shall promptly
      give notice thereof by registered mail to the Attorney General of
      Pennsylvania together with a copy of the pleading or other portion
      of the record raising the issue and shall file proof of the giving of
      the notice.

Pa.R.C.P. 235 (emphasis added). See also Pa.R.A.P. 521 (“It shall be the

duty of a party who draw in question the constitutionality of any statute in

any matter in an appellate court to which the Commonwealth or any officer

thereof, acting in his official capacity, is not a party, upon the filing of the

record, or as soon thereafter as the question is raised in the appellate court,

to give immediate notice in writing to the Attorney General of Pennsylvania of

the existence of the question; together with a copy of the pleadings or other

portion of the record raising the issue, and to file proof of service of such

notice.”) (emphasis added).    Moreover, decisional law of this Commonwealth

has recognized that “[f]ailure to provide such notice in a case where the

Commonwealth is not a party results in waiver of the constitutional issues.”

Potts v. Step By Step, Inc., 26 A.3d at 1122 (citing Adelphia Cablevision

Assoc. of Radnor, L.P. v. University City Housing Co., 755 A.2d 703, 709

(Pa. Super. 2000)); Kepple v. Fairman Drilling Co., 615 A.2d 1298, 1303

(Pa. 1992).

      After reviewing the record, we find no indication that notice has ever

been given to the Attorney General of Pennsylvania, as is required by




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Pa.R.C.P. 235 and Pa.R.A.P. 521.7              We conclude, therefore, that Paternal

Grandparents’ have waived their constitutional challenge. See Hill v.

Divechhio, 625 A.2d 642 (Pa. Super. 1993) (mother waived review of

constitutional challenges to Grandparent Visitation Act by failing to comply

with requirements for challenging constitutionality of statutes in civil case).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2017




____________________________________________


7  The purpose of this requirement is to give the Attorney General the
opportunity to intervene or be heard and place the Commonwealth in a
position to obtain review in the Supreme Court of Pennsylvania or the United
States Supreme Court. See Pa.R.A.P. 521-Note. As such, the fact that the
trial court made no mention of the lack of notice to the Attorney General and
addressed the claim does not remedy this omission. Moreover, we note that
in resolving this claim, the court determined that the protected liberty interest
at issue belonged to Parents, not Paternal Grandparents. See Trial Court
Opinion, supra at 9. Even had Paternal Grandparents’ properly preserved
their constitutional challenges, we would find them meritless. We agree that
the protected liberty interest belongs to parents, hence the need for standing
statutes for grandparents, 23 Pa.C.S. § 5325, and other third parties. 23
Pa.C.S. § 5324. See In re Custody of Hernandez, 376 A.2d 648 (Pa. Super.
1977) (persons other than natural parents are “third parties” for purposes of
custody dispute).

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