J-A25023-15


                                  2015 PA Super 210

IN THE INTEREST OF: C.L.P., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: F.M.P. AND P.T.A.,
MATERNAL GRANDPARENTS

                                                         No. 42 EDA 2015


               Appeal from the Order Entered November 21, 2014
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): CP-51-DP-0002355-2013
                                         CP-51-FN-004529-2013


IN THE INTEREST OF: G.L.P., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: F.M.P. AND P.T.A.,
MATERNAL GRANDPARENTS

                                                         No. 43 EDA 2015


               Appeal from the Order Entered November 21, 2014
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): CP-51-DP-0002361-2013
                                         CP-51-FN-004529-2013


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

OPINION BY MUNDY, J.:                                 FILED OCTOBER 02, 2015

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      Appellants,   F.M.P.   (Maternal   Grandfather)   and   P.T.A.   (Maternal

Grandmother), (collectively, Grandparents) appeal from the November 21,

2014 order denying, inter alia, their motion to schedule a custody trial

pursuant to Pennsylvania Rule of Civil Procedure 1915.4, with respect to

their grandsons, G.L.P. and C.L.P., who are adjudicated dependent pursuant

to 42 Pa.C.S.A. § 6302.      After careful review, we reverse and remand for

further proceedings.

      The factual background of this case, as gleaned from the certified

record, is as follows. In November 2013, G.L.P., who was then five-months-

old, and C.L.P., who was then three-years-old, were removed from their

biological parents, G.P.T. (Mother) and C.L.R. (Father), and placed in the

custody of the Philadelphia Department of Human Services, Children and

Youth Division (DHS), following a non-accidental trauma suffered by G.L.P.

See Trial Court Opinion, 5/18/15, at 1-2.       A physician at the Children’s

Hospital of Philadelphia, where G.L.P. was treated, certified his injury as a

near-fatality. Id. at 2.

      On March 24, 2014, the trial court adjudicated G.L.P. and C.L.P.

dependent. In addition, the trial court issued an aggravating circumstances

order with respect to G.L.P. and C.L.P. stating that “[t]he Child or another

child of the parent has been the victim of physical abuse resulting in serious

bodily injury[,] sexual violence[,] or aggravated neglect by the parent;

proven as to Mother and Father.”          Trial Court Order, 3/24/14, at 1.


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J-A25023-15


Nevertheless, the trial court directed DHS to provide reunification services

for the family. Id. Since their placement, G.L.P. and C.L.P. have been in

foster care through Catholic Social Services.

       On June 19, 2014, Grandparents filed a complaint for custody against

Mother, Father, and DHS, wherein they asserted they had standing to seek

custody of G.L.P. and C.L.P. pursuant to Section 5324(3) of the Custody Act,

23 Pa.C.S. §§ 5321-5340. On the same date, Grandparents filed a motion

to intervene, wherein they requested that the trial court schedule a custody

hearing or, alternatively, “grant[] them permission to participate in the

dependency proceedings naming them as the care alternative which is the

least restrictive for the boys.” Motion to Intervene, 6/19/14, at ¶ 19.

       Thereafter, the certified record reveals that, by a July 30, 2014

permanency       review    order,   the    trial    court    directed   DHS   to   explore

Grandparents as possible resources, and to schedule supervised visitation

between     Grandparents,      G.L.P.,    and      C.L.P.,   upon   receipt   of   criminal

clearances for Grandparents.1         By permanency review order dated August

21, 2014, the trial court directed Grandparents to submit a brief within 30

days concerning whether the trial court has jurisdiction to hear the custody



____________________________________________


1
  By a permanency review order dated October 31, 2014, the trial court
directed the parties to arrange supervised weekly visits between
Grandparents and their grandsons.



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matter.   On October 28, 2014, Grandparents filed a motion to schedule a

custody trial pursuant to Pa.R.C.P. 1915.4.

     An oral argument on Grandparents’ motions occurred on November

21, 2014, during which counsel for DHS, Mother, Father, and Grandparents

participated, along with the Child Advocate.      Counsel for Grandparents

explained to the trial court that the motion to intervene, filed concurrently

with the custody complaint on June 19, 2014, “was nothing more than a

vehicle to request a trial date under Pennsylvania Rule of Civil Procedure

1915.4.    It [was] never intended to be a motion to intervene in

dependency.”   N.T., 11/21/14, at 11.     As such, counsel for Grandparents

acknowledged to the trial court that Grandparents do not have standing in

the dependency action. Id. at 62.

     At the conclusion of the oral argument, the trial court, on the record,

denied Grandparents’ motion to intervene, and further stated that the court

will not entertain the custody complaint or the motion to schedule a custody

trial because Grandparents do not have legal standing.     Id. at 69-70, 75.

The trial court explained on the record that Section 5324 confers legal

standing upon grandparents of dependent children “when the parents[’]

rights either [have] been terminated or the parent is deceased, or the parent

is in no position to become a parent, which is different from this case,

because … the parents right now … I believe they’re fully compliant [with

their Family Service Plan objectives.]” Id. at 29. By order dated November


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21, 2014, the trial court denied Grandparents’ motion to intervene.          In

addition, the order stated that Grandparents “were ruled out as possible

kinship parents.”2 Trial Court Order, 11/21/14, at 1.

       On December 18, 2014, Grandparents filed notices of appeal and

concise statements of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i), which this Court consolidated by stipulation of the parties.

The trial court issued a Rule 1925(a) opinion on May 18, 2015.3

       On appeal, Grandparents present three issues for our review.

              A. Whether it was an error of law for the trial court
              to refuse to schedule a trial on the Grandparents’
              Complaint      for  Custody    where     the   subject
              grandchildren had been adjudicated dependent by
              the trial court, such adjudication triggering the
              Grandparents’ standing to file a complaint for
              custody pursuant to 23 Pa.C.S.A. § 5324, and such
              filing requiring the scheduling of a trial pursuant to
              [Pa.R.C.P.] 1915.4[?]
____________________________________________


2
  During the oral argument on November 21, 2014, counsel for DHS advised
the trial court that Grandparents have been ruled out as a kinship resource
for G.L.P. and C.L.P. because of an allegation that one or both of them may
have been caring for G.L.P. at the time of his injury. See N.T., 11/21/14, at
17, 20-21.
3
  The Child Advocate argues in its appellee brief that we should dismiss this
appeal because the subject order did not dismiss or deny the custody
complaint. We reject this argument because the motion to intervene, which
the court denied, included a request to schedule a child custody hearing. In
addition, the trial court ruled on the record that it will not act on the motion
to schedule a custody trial because Grandparents do not have legal standing.
N.T., 11/21/14, at 69-70, 75. We deem this to be, in effect, a dismissal of
their custody complaint. Therefore, we conclude that this appeal is properly
before us, and we will review it on its merits.




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J-A25023-15



           B. Whether it was an error of law and abuse of
           discretion for the trial court to find that the
           Grandparents’ Complaint for Custody could not be
           heard while reunification with the parents was being
           considered via the Juvenile Act[,] 42 Pa.C.S.A.
           § 6301 et seq., which it determined to supersede the
           statutory mandate of 23 Pa.C.S.A. § 5324, when the
           plain language of 23 Pa.C.S.A. § 5324 imposes no
           such requirement, nor does case[]law interpreting
           it[?]

           C. Whether it was an error of law for the trial court
           to conclude that any grant of custody to
           Grandparents via the Custody Act, including
           temporary custody which is an option within the
           Juvenile Act[,] 42 Pa.C.S.A. § 6351(a), and the
           Custody Act, 23 Pa.C.S.A. § 5323(b), would be
           impermissible, contrary to the parents’ prima facie
           rights and frustrate the goal of family unity within
           the Juvenile Act while reunification with the parents
           is being explored[?]

Grandparents’ brief at 3-4.

     The crux of Grandparents’ arguments on appeal is that they have

standing to seek custody of their dependent grandsons pursuant to Section

5324(3) of the Custody Act, notwithstanding the permanency goals of

reunification under the Juvenile Act, 42 Pa.C.S.A. §§ 6301–6375.    Section

5324 provides as follows.

           § 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:

                                     …


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J-A25023-15


              (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:

                         (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.




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J-A25023-15


23 Pa.C.S.A. § 5324(3).         Specifically, Grandparents assert that they have

standing to seek custody of G.L.P. and C.L.P. pursuant to Section

5324(3)(iii)(A).4

       We begin by observing that “the interpretation and application of a

statute is a question of law that compels plenary review to determine

whether the court committed an error of law. As with all questions of law,

the appellate standard of review is de novo and the appellate scope of

review is plenary.” B.K.M. v. J.A.M., 50 A.3d 168, 172 (Pa. Super. 2012)

(citations and internal quotation marks omitted).

              “The object of all interpretation and construction of
              statutes is to ascertain and effectuate the intention
              of the General Assembly. Every statute shall be
              construed, if possible, to give effect to all its
____________________________________________


4
  Neither DHS, Mother, nor Father filed an appellee brief in this appeal. The
Child Advocate asserts in its brief that the trial court did not commit an error
of law. The Child Advocate asserts that Grandparents do not have standing
to intervene in the dependency matter pursuant to the Juvenile Act. We
deem this argument irrelevant because the issue in this case is whether
Grandparents may file a child custody action concurrent to the dependency
actions pending with respect to their grandsons. Indeed, Grandparents
expressly stated that they are not seeking to intervene in the dependency
matters, as they agree they do not have standing to intervene under the
Juvenile Act. See N.T., 11/21/14, at 11, 62. Next, the Child Advocate
asserts that Section 5324 “appears to give the grandparents the right to file
a petition for custody when their grandchildren have been adjudicated
dependent, [but] it does not indicate how and when that petition should be
heard in light of Juvenile Act’s hierarchy of permanency goals.” Child
Advocate Brief at 24. The Child Advocate then asserts that the trial court
found it premature to list the custody complaint for trial because the
permanency goals for the family remained reunification, and, in so doing,
the court gave effect to both the Custody Act and the Juvenile Act. We
reject this argument for reasons explained fully below.



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J-A25023-15


            provisions.”   1 Pa.C.S. § 1921(a).      The plain
            language of the statute is generally the best
            indicator of legislative intent, Commonwealth v.
            McCoy, 962 A.2d 1160, 1166 (Pa. 2009), and the
            words of a statute “shall be construed according to
            rules of grammar and according to their common
            and approved usage ….” 1 Pa.C.S. § 1903(a). We
            generally look beyond the plain language of the
            statute only where the words are unclear or
            ambiguous, or the plain meaning would lead to “a
            result that is absurd, impossible of execution or
            unreasonable.”      1 Pa.C.S. § 1922; see also
            Commonwealth v. Diodoro, 970 A.2d 1100, 1106
            (Pa. 2009).

Commonwealth v. Garzone, 34 A.3d 67, 75 (Pa. 2012) (parallel citations

omitted).

      Instantly, in its Rule 1925(a) opinion, the trial court reasoned as
follows.

            [O]nly in exceptional cases has Pennsylvania case
            law recognized grandparents’ standing in custody
            actions in the Domestic Relations Court when
            grandchildren have been adjudicated dependent by a
            court in a dependency action. Specifically only in
            cases, [sic] family’s unity preservation is not viable.
            Namely, when the permanency goal has been
            changed to adoption or parental rights have been
            terminated. In In re Ado[p]tion of Hess, 608 A.2d
            [12] (Pa. 1992), the Pennsylvania Supreme Court
            recognized standing to grandparents that filed a
            custody complaint at the adoption proceeding after
            the parents voluntarily relinquished their parental
            rights. [ ] In R.M. v. Baxter, 777 A.2d 446 (Pa.
            1999), the paternal grandmother had standing to file
            a custody action after the child was adjudicated
            dependent and the permanency goal was changed to
            adoption. ….

            [In this case,] [t]he FSP [Family Service Plan] goal
            for both parents is still reunification, and parents
            have been fully compliant with their FSP goals …,

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J-A25023-15


            and despite the trial court finding of aggravated
            circumstances, DHS was ordered to continue with
            reasonable efforts for [G.L.P.’s and C.L.P.’s]
            reunification with their parents…. The Grandparents’
            rights under the Custody Act cannot trump the
            status of [G.L.P.’s and C.L.P.’s] biological parents,
            who have a prima facie right to custody. Parents’
            rights have not been terminated and are fully
            compliant.    The Grandparents also admitted that
            they do not have standing to participate in the
            dependency action; therefore, their Motion to
            Intervene had to be denied. Consequently, the trial
            court did not have to hear the custody petition filed
            by Grandparents.

Trial Court Opinion, 5/18/15, at 8-9. We conclude the trial court erred for

the following reasons.

      The case authority cited by the trial court is inapposite to this matter.

First, in Hess, our Supreme Court interpreted the Adoption Act, 23 Pa.C.S.

§§ 2101 et seq., to permit grandparents to intervene in their grandchildren’s

adoption proceedings after the parental rights of the children’s mother and

father were terminated.     In this case, Grandparents are not seeking to

intervene in adoption proceedings.        Indeed, the certified record indicates

that there are no pending adoption proceedings as the parental rights of

Mother and Father have not been terminated. Rather, Grandparents seek a

hearing on their concurrent custody action under the Custody Act with

respect to their dependent grandsons.       As such, the Custody Act, and not

the Adoption Act, is applicable in this case.      Therefore, we conclude that

Hess is not controlling in this matter.




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J-A25023-15


       Second, in R.M., our Supreme Court held that 23 Pa.C.S.A. § 5313(b),

the predecessor to Section 5324(3)(iii), conferred automatic standing upon a

grandparent to seek physical and legal custody of a grandchild after the child

has    been    adjudicated     dependent.          However,   Section   5313(b)   was

superseded by Section 5324(3)(iii) on January 24, 2011.                 This provision

provides that, to have standing to seek physical and legal custody, a

grandparent who is not in loco parentis to the child5 must establish one of

the three circumstances set forth in Section 5324(3)(iii)(A)-(C). See D.G.

v.    D.B.,   91   A.3d    706,    712    (Pa.   Super.   2014)   (stating,   “[u]nder

§ 5324(3)(iii), a grandparent must establish one of the three circumstances

set forth in subsections (A) through (C) in order to have standing to seek

custody”) (emphasis omitted).              Therefore, unlike the former Section

5313(b), Section 5324(3)(iii) does not confer automatic standing upon a

grandparent to seek physical and legal custody of a grandchild.

       Section 5324(3)(iii)(A) confers standing upon grandparents in cases

where “the child has been determined to be a dependent child under 42

Pa.C.S. Ch. 63 (relating to juvenile matters),” when the requirements of



____________________________________________


5
  “The phrase ‘in loco parentis’ refers to a person who puts oneself in the
situation of a lawful parent by assuming the obligations incident to the
parental relationship without going through the formality of a legal
adoption.” T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001).




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J-A25023-15


Section 5324(3)(i) and (ii) are also met.6 23 Pa.C.S. § 5324(3)(iii)(A). The

words of this provision are clear and unambiguous, and they do not impose

the limitation construed by the trial court. Thus, we reject the trial court’s

conclusion that “the Custody Act cannot trump the status of [G.L.P.’s and

C.L.P.’s] biological parents, who have a prima facie right to custody.” Trial

Court Opinion, 5/18/15, at 9.          Such an interpretation, that a grandparent

does not have standing to seek custody of a grandchild determined to be a

dependent and having a goal of reunification with his biological parents

under the Juvenile Act, is contrary to the plain language of Section

5324(3)(iii)(A), by which we are to ascertain our General Assembly’s intent.7

See Garzone, supra.

       Therefore, the Custody Act grants standing to grandparents to file for

any form of physical or legal custody when their grandchild has been

adjudicated dependent notwithstanding a permanency goal of reunification.

As such, we conclude that the trial court erred as a matter of law in failing to

list Grandparents’ custody action for a hearing pursuant to Grandparents’
____________________________________________


6
  In this case, it is undisputed that Grandparents’ relationship with G.L.P.
and C.L.P. began with the consent of the parents, and that Grandparents are
willing to assume responsibility for their dependent grandsons. See 23
Pa.C.S. § 5324(3)(i)-(ii).
7
  Any implications concerning the children’s reunification goals could pertain
to the merits of the instant custody complaint, upon which we express no
opinion. However, they do not negate the Grandparents’ standing, which, as
we have explained, is controlled by the plain text of Section 5324(3)(iii)(A)
in this case.



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request based on its conclusion that Grandparents did not have standing.

Accordingly, the trial court’s November 21, 2014 order is reversed and the

case is remanded for the trial court to promptly list Grandparents’ custody

action for a hearing on the merits.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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