J. S14031/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

S.O.,                                       :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                          Appellant         :
                                            :
                     v.                     :         No. 2871 EDA 2019
                                            :
D.W. AND F.W.                               :


              Appeal from the Order Entered September 11, 2019,
               in the Court of Common Pleas of Delaware County
                      Civil Division at No. CV-2018-001256


BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED APRIL 08, 2020

        S.O. appeals from the September 11, 2019 order entered in the Court

of Common Pleas of Delaware County that denied her emergency petition for

legal and physical custody of J.W., female child born in March 2008

(the “Child”), for want of standing. We affirm.

        The trial court set forth the following:

              After the filing of an Emergency Custody Petition in
              this matter, the [trial] court ordered an investigation
              by Delaware County Children and Youth Services
              (CYS). As a result of the investigation, at a hearing
              held October 4, 2018, the court barred [appellant]
              from having any contact with [the Child].

              At the [trial] court’s March 27, 2019 hearing on
              [a]ppellant’s standing to pursue legal and physical
              custody of the [Child], the [trial] court heard
              testimony from Ms. Maura Gray, a supervisor at CYS.
              Ms. Gray had conducted a forensic interview of [the
              Child] and determined that it “was not in [the Child’s]
J. S14031/20


          best interest to see [appellant].” There was concern
          regarding the relationship between [the Child and
          appellant] because [appellant] had taken the [C]hild
          on trips to Florida without her parents’ knowledge. In
          addition, [the Child] reported that she would often go
          to one of [appellant’s] friend’s home[s] who was
          subsequently convicted of sexual abuse of children.
          [The Child] would have sleepovers there. The friend
          had a daughter [the Child’s] age. [The Child] did not
          report any abuse that occurred in the home. In
          addition, [the Child] reported that she often slept with
          [appellant] and missed cuddling with her. Ms. Gray
          testified: “. . . it was, you know a little bit alarming
          coming from a 10-year-old. . . [.]” It was also placed
          on the record that there was a letter sent to the [trial]
          court in September of 2018 indicating that [appellant]
          had made a statement to a police officer in response
          to something that he told her regarding the [C]hild
          stating, “I guess this is why people kidnap kids.”

          [D.W. (“Mother”) and F.W. (“Father”)] are married
          and reside [in] Delaware County, Pennsylvania. They
          are the parents of six children all of whom currently
          live with them. [The Child] is the fourth of their
          six children. [The Child] was born [in] March [of]
          2008 and is currently 11 years old and in the
          fifth grade.   The family moved to [their current
          residence with Mother’s mother] when [the Child] was
          approximately one year old.

          At the time of the June 5, 2019 hearing in this matter,
          [a]ppellant testified that she was the 28-year-old
          neighbor of [Mother and Father].            Appellant’s
          residence had three bedrooms and the residents
          included her mother, her sister, and herself. There
          was no designated bedroom for [the Child] but there
          was a finished basement with designated space for
          [the Child]. Appellant testified: “she would sleep with
          me often at nights, but she did have her own bed.”

          At the June evidentiary hearing, there were significant
          differences between the parties’ testimony on many
          issues including the length of time that [the Child]
          stayed with [a]ppellant. Appellant testified that in the


                                    -2-
J. S14031/20


          beginning, “[I]t was more so they asked me to take
          her to help them out. It wasn’t like can you take her
          for this amount of time or that amount of time.” The
          parties had vastly different testimony as to the length
          of time [appellant] cared for [the Child]. [Mother]
          testified that [appellant] overestimated the time [the
          Child] stayed with [appellant].

          [Mother] testified that although [appellant] was
          buying school supplies and school clothes for [the
          Child,] there was no need for her to do so because
          [Mother] always had supplies and clothing for her at
          her home. [The Child] “wanted to use the pretty frilly
          things that [appellant] bought her and not the stuff
          that [Mother] bought her or she would use both.”

          [Father] testified that he attended almost all of [the
          Child’s] doctors’ appointments, from the time that
          [the Child] was 4-9 years old. When [Father] was
          asked whether over the years, that [the Child] stayed
          and lived with [appellant] was that with his
          permission, he responded “No.” He testified that he
          and [Mother] scheduled doctor and dentist
          appointments and then permitted [appellant] to take
          [the Child] to the doctor visits. When asked on
          cross-examination whether [appellant] was acting in
          a parental role, he responded: “[N]o, I seen [sic] it
          as a friend, I didn’t -- we were her parents. I did not
          expect or see any of that coming my way. No, I did
          not.”

          [Appellant] testified at length as to the close
          relationship she had with [the Child]. She testified on
          direct that she financially supported the [C]hild. On
          cross-examination, she testified that the only request
          for monies she made of [Mother and Father] was for
          reimbursement of camp.           In direct testimony,
          [appellant] testified that the doctors of CHOP knew
          her to be the [C]hild’s parent. On cross-examination,
          [appellant] testified that they knew she was a family
          friend. [Appellant] testified that she never had a
          physical health insurance card for [the Child] but she
          had a picture of the card. [Appellant] testified that
          [the Child] “would sleep with me often at nights, but


                                   -3-
J. S14031/20


                she did have her own bed . . . [s]he would be scared
                to sleep by herself, having bad dreams or scared.”
                [Appellant] testified that [the Child] slept with her in
                the same bed until she was nine years old.

Trial court opinion, 11/25/19 at 2-5 (record citations omitted; some brackets

in original).

      On September 11, 2019, the trial court entered the order denying

appellant’s emergency petition for legal and physical custody of the Child for

want of standing. Appellant filed a timely notice of appeal on October 4, 2019,

but failed to simultaneously file and serve a concise statement of errors

complained of on appeal as required by Pa.R.A.P. 1925(a)(2)(i).                See

Pa.R.A.P. 1925(a)(2)(i) (requiring concise statement be filed and served with

notice of appeal in children’s fast track appeals). On October 9, 2019, the

trial court then ordered appellant to file a concise statement. Appellant filed

her concise statement on October 23, 2019.            The trial court then filed an

opinion.

      At the outset, we note that this court has recognized that the failure to

file a Rule 1925(a)(2)(i) concise statement contemporaneously with the notice

of appeal constitutes a defective notice of appeal to be disposed of on a

case-by-case basis. In re K.T.E.L., 983 A.2d 745, 747 (Pa.Super. 2009).

Where there has been substantial compliance with the rules and where there

is no allegation of prejudice, dismissal is not appropriate.        See id.   Here,

despite filing a defective notice of appeal, appellant has substantially complied




                                         -4-
J. S14031/20

with the rules.    Additionally, Mother and Father do not allege prejudice.

Therefore, we will not dismiss this appeal

      Appellant raises the following issue for our review:

            Did the trial court abuse its discretion and err as a
            matter of law in determining that there was
            insufficient evidence or that the evidence presented at
            the hearing on June 5, 2019 was not clear and
            convincing to establish in loco parentis standing for
            [a]ppellant, pursuant to 23 Pa.[C.S.A.] § 5324(2)[?]

Appellant’s brief at 3.

            Threshold issues of standing are questions of law;
            thus, our standard of review is de novo and our scope
            of review is plenary. K.W. v. S.L., 157 A.3d 498, 504
            (Pa. Super. 2017). The concept of standing is vital in
            ensuring that cases are presented to the court by an
            individual who has a genuine, and not merely a
            theoretical, interest in the matter.        Thus, the
            traditional test for standing is that the proponent of
            the action must have a direct, substantial and
            immediate interest in 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), our Court
            emphasized:

                   In the area of child custody, principles of
                   standing have been applied with particular
                   scrupulousness because they serve a dual
                   purpose: not only to protect the interest
                   of 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).

M.S. v. J.D., 215 A.3d 295, 598 (Pa.Super. 2019) (parallel citations omitted).



                                      -5-
J. S14031/20

     “Generally, the Child Custody Act does not permit third parties to seek

custody of a child contrary to the wishes of that child’s parents.”   Id. at

598-599.   The Act, however, permits certain individuals to file a custody

action, including “[a] person who stands in loco parentis to the child.”

23 Pa.C.S.A. § 5324(2). Our supreme court has explained that:

           In loco parentis is a legal status and proof of
           essential facts is required to support a conclusion that
           such a relationship exists. . . .

           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.     The status of in loco parentis
           embodies two ideas; first, the assumption of a
           parental status, and second, the discharge of parental
           duties. The rights and liabilities arising out of an
           in loco parentis relationship are, as the words imply,
           exactly the same as between parent and child. The
           third party in this type of relationship, however, can
           not place himself in loco parentis in defiance of the
           parents’ wishes and the parent/child relationship.

C.G. v. J.H., 193 A.3d 891, 907 (Pa. 2018), quoting T.B. v. L.R.M., 786 A.2d

913, 916-917 (Pa. 2001).

           In T.B., our Supreme Court instructed:

                 The scope of review applied by an
                 appellate court to 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 is not
                 supported    by    competent     evidence.
                 However, this broad scope of review does
                 not vest an appellate court with the duty


                                    -6-
J. S14031/20


                  or   privilege    of   making    its   own
                  independent determination. An appellate
                  court may not interfere with the trial
                  court’s factual conclusions unless they are
                  unreasonable in view of the trial court’s
                  factual findings and thus represent an
                  abuse of discretion.

            786 A.2d at 916 (citations omitted). This scope of
            review applies to trial court decisions regarding
            standing. See id.; J.F. v. D.B., 897 A.2d 1261, 1273
            (Pa.Super.), appeal denied, 909 A.2d 1290 (Pa.
            2006); see also Silfies v. Webster, 713 A.2d 639,
            642 (Pa.Super. 1998); J.A.L., 682 A.2d at 1318. In
            this connection, we note that, “[o]n factual matters,
            the hearing judge is far better able to assess
            credibility and weight of testimony than” an appellate
            court. Reilly v. Reilly, 280 A.2d 639, 640 (Pa Super.
            1971). “[T]he ultimate test is ‘whether the trial
            court’s conclusions are unreasonable as shown by the
            evidence of record.’”      Silfies, 713 A.2d at 642
            (quoting Moore v. Moore, 634 A.2d 163, 168 n.4 (Pa.
            1993)).

C.G. v. J.H., 172 A.3d 43, 52 (Pa.Super. 2017) (parallel citations omitted).

      Here, appellant claims that the trial court “disregarded testimony and

evidence presented at the hearing” and “selected discrete portions of

testimony” to conclude that she lacked standing. (Appellant’s brief at 6-7.)

Appellant then sets forth her selected discrete portions of testimony in an

effort to persuade this court to reach a different result. We decline to do so.

It was for the trial court to assess credibility and weigh the evidence.

See C.G., 172 A.3d at 52.      In its opinion, the trial court stated that the

testimony of the parties conflicted and it found that Mother and Father testified

credibly. (Trial court opinion, 11/25/19 at 10-12.) Our review of the record



                                      -7-
J. S14031/20

demonstrates that the trial court’s conclusions are reasonable as shown by

the evidence of record.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/8/20




                                  -8-
