J-S46042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    J.K.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    C.K.                                       :
                                               :
                                               :   No. 441 MDA 2017
                 v.                            :
                                               :
                                               :
    A.M.U. AND G.U.                            :
                                               :
                                               :
    APPEAL OF: J.K.                            :

                      Appeal from the Order December 5, 2016
                  in the Court of Common Pleas of Dauphin County
                      Civil Division at No(s): 2013-CV-9678-CU


BEFORE:        BOWES, OLSON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 27, 2017

           Appellant, J.K. (“Father”), files this appeal from the order entered

December 5, 2016, in the Dauphin County Court of Common Pleas, denying

his motion to dismiss the petition of intervenors, A.M.U. and G.U.

(“Grandparents”),1 in the custody matter involving his children with C.K.

(“Mother”), K.K., born in 2011, and J.K., born in 2012 (collectively, the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Notably, A.M.U. is maternal grandmother and G.U. is maternal step-
grandfather.
J-S46042-17



“Children”). After review, we affirm the trial court’s order, albeit on different

grounds.

       The trial court summarized the relevant procedural and factual history

as follows:

              Plaintiff [F]ather and [D]efendant [M]other were married in
       December 2010 and separated in October 2013. They are the
       parents of two children, one born in 2011 and the other in 2012.
       Father commenced a custody and divorce action under this
       docket in November 2013. A divorce decree was later entered
       June 5, 2015. An original custody order was issued in December
       2013 and granted the parties shared legal custody, [F]ather
       primary physical custody and [M]other supervised visitation,
       later supervised by her mother, one of the intervenors herein.
       Following a hearing, the order was modified January 6, 2015,
       granting [F]ather sole legal custody and primary physical
       custody, and granting [M]other visitation of increasing terms if
       the visitations proved successful. Father sought reconsideration
       of the order and[,] following a conference with the parents, [the
       trial court] issued an agreed order March 30, 2015[,] granting
       [F]ather sole legal and primary physical custody, and specifying
       that [M]other’s supervised visitation was to take place at the
       Harrisburg YWCA.

             On July 28, 2016, [Grandparents] filed a Petition to
       Intervene in order to seek custody and/or visitation.[2] They
       claimed two bases for standing under the Child Custody Act; that
       the parents had been separated for six months or more and that
       the parents were divorced. 23 Pa.C.S.A. § 5325(2).[3] After
____________________________________________


2
  Grandparents additionally filed a petition to modify custody. Grandparents
alleged that, despite request, Father had not let them see Children since
approximately June 4, 2016.
3
  23 Pa.C.S.A. § 5325 provides as follows as to grandparent standing in
custody matters:

       § 5325. Standing for partial physical custody and supervised
       physical custody
(Footnote Continued Next Page)


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      [F]ather answered the Petition, [the trial court] granted
      intervention by [Grandparents] since their right to standing
      under both parts of Section 5325(2) was clear from the face of
      the record.[4] The parties agreed, following a September 15,
      2016 conference, that [G]randparents could visit the children
      one Sunday in September and thereafter determine future
      visitation depending upon the success of that visit.      Both
      [M]other and [G]randparents later filed petitions in September


                       _______________________
(Footnote Continued)


             In addition to situations set forth in section 5324
             (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[3] . . . have
                       commenced and continued a proceeding
                       to dissolve their marriage; or


             (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.

(emphasis added).
4
 The trial court granted the petition to intervene by order dated August 24,
2016. Order, 8/24/16.




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       seeking to prevent [F]ather from moving to Florida.[5] Mother
       also sought to modify the March 30, 2015 custody order. [The
       trial court] later issued an order permitting [F]ather to move to
       Florida and directing that [M]other’s request to modify the
       custody terms be resolved through normal Dauphin County
       custody conciliation proceedings.[6], [7]

             On the date of the conciliation conference, October 17,
       2016, [F]ather filed his Motion to Dismiss Intervenor’s Petition
       arguing that [G]randparents’ bases for standing under Section
       5325(2) were no longer valid under the D.P. decision.[8]
       Conciliation was postponed pending resolution of [F]ather’s
       Motion to Dismiss. In their Answer, [G]randparents argue that



____________________________________________


5
   Father, who had relocated to Cumberland County, Pennsylvania, was
relocating to Florida as his new wife, T.Z. (“Stepmother”), had obtained
financially beneficial employment in Florida. Motion for Reconsideration of
September 27, 2016 Order of Court, 9/28/16, at ¶¶28-31.

6
  In addition, Grandparents were granted weekly Skype calls with the
Children. Order, 9/27/16. Along with Grandparents’ and Mother’s petitions,
Father also filed a petition for contempt/modification.        Petition for
Contempt/Modification of Partial Custody or Visitation Order Pursuant to 23
Pa.C.S. [§] 5310, 9/28/16.
7
  Father and Stepmother filed a petition for involuntary termination of
Mother’s parental rights and adoption on April 28, 2016 in Cumberland
County, Pennsylvania. Mother’s parental rights to Children were ultimately
terminated on January 4, 2017 with her consent. Stepmother’s adoption of
Children was subsequently finalized on February 14, 2017. The termination
of Mother’s parental rights does not serve to bar Grandparents’ standing.
Rigler v. Treen, 660 A.2d 111 (Pa.Super. 1995).
8
  D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016) was decided on September 9,
2016. Notably, D.P. 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.




                                           -4-
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       D.P. only found as unconstitutional one of the two grounds they
       claimed for standing and that the other is still valid.[9]

Trial Court Opinion, 12/5/16, at 1-2.

       By order entered December 5, 2016, the trial court denied Father’s

motion to dismiss Grandparents’ petition. The court additionally entered an

opinion along with the December 5th order addressing the rationale for its

decision.10 Subsequent to Father’s motion to certify interlocutory order for

appeal, on January 5, 2017, the trial court entered an amended order, again

denying Father’s motion to dismiss, and finding that the order “involves a

controlling question of law as to which there is substantial ground for

difference of opinion, such that an immediate appeal may materially advance

the ultimate termination of the matter.”         Order, 1/5/17.   Thereafter, on

February 3, 2017, Father filed a timely Petition for Permission to Appeal with

this Court docketed at 9 MDM 2017. Pursuant to order of March 13, 2017,

Father’s petition was granted.11, 12
____________________________________________


9
  By order dated November 9, 2016, as the parties “agreed” to maintain the
status quo pending resolution of the motion to dismiss, Grandparents were
awarded periods of partial physical custody as the parties agree and weekly
Skype calls. Order, 11/9/16.
10
   The court did not enter another opinion subsequent to the granting of
permission to appeal.    The court instead relied on its prior opinion.
Pa.R.A.P. 1925(a) Statement, 3/31/17.
11
   While Father references the January 5, 2017 order as the order on appeal,
Father’s Brief at 2, we note that the order granting Father’s petition to
appeal indicates that the matter is to “proceed before this court as an appeal
from the order entered December 5, 2016.” Per Curiam Order, 3/13/17.
(Footnote Continued Next Page)


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      By order dated March 27, 2017, this Court required Father to file and

serve a statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925 by April 6, 2017. Father filed a statement of errors complained of on

appeal on March 24, 2017.13

                       _______________________
(Footnote Continued)


12
   We likewise recognize that our Supreme Court has deemed orders as to
petitions to intervene in custody matters as collateral and, therefore,
appealable. K.C. & V.C. v. L.A., 128 A.3d 774, 781 (Pa. 2015) (trial court's
order denying intervention of former foster parents in custody matter due to
lack of standing an appealable collateral order as of right pursuant to
Pa.R.A.P. 313(b)). Moreover, the Court has noted the importance of the
bifurcation afforded by seeking dismissal for lack of standing.        Such
bifurcation provides for resolution prior to the court reaching the merits.
D.P., 146 A.3d at 213. As stated in D.P.,

      Therefore, as illustrated presently, whenever there are contested
      issues related to standing, the chapter gives the parents the
      ability to bifurcate the proceedings by seeking dismissal for lack
      of standing, thereby requiring that any such preliminary
      questions be resolved before the complaint’s merits are reached.

Id. (emphasis added).
13
   Father’s statement of errors complained of on appeal is noted on this
Court’s docket on March 30, 2017. Father suggests in his brief that no order
was entered by the trial court directing that he file a statement of errors
complained of on appeal. Father’s Brief at 4. We, however, note that in
children’s fast track matters, such as this matter, a statement of errors
complained of on appeal is required to be submitted with the notice of
appeal. A trial judge is not required to issue an order for such a statement.
Pa.R.A.P. 1925(a)(2)(i).

As Father ultimately filed a statement of errors complained of on appeal and
there is no claim of prejudice, we do not penalize Father. See In re
K.T.E.L., 983 A.2d 745 (Pa.Super. 2009) (failure to file a 1925(b)
concurrently with a children’s fast track appeal is considered a defective
notice of appeal, to be disposed of on a case by case basis, and will not be
(Footnote Continued Next Page)


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      On appeal, Father raises the following issue for our review:

      A. Whether 23 Pa.C.S.A. § 5325(2) is unconstitutional such that
         Grandparents do not have standing to sue for custody when
         the sole basis for suing for custody is that the mother and
         father of the child have not only separated, but also
         ”commenced and continued a proceeding to dissolve their
         marriage[?]”14

Father’s Brief at 4.

      At the outset, Grandparents initially argue in their brief that Father’s

appeal should be dismissed because he failed to file a timely appeal of the

initial August 24, 2016, order granting Grandparents’ petition to intervene.

Grandparents’ Brief at 18-21. Father, however, argues that the August 24th

order was not a final order that was appealable. Father’s Reply Brief at 2.

Father further contends that a motion to dismiss may be filed at any time

and that there is no requirement that a challenge to standing be filed within

30 days after a change in circumstances. Id. at 4. Moreover, Father asserts

he acted diligently with regard to his position as to Grandparents’ standing.

Id. at 5-6. We find Grandparents’ argument lacks merit.


                       _______________________
(Footnote Continued)

dismissed since failure to file the statement is a violation of a procedural
rule); Cf. Mudge v. Mudge, 6 A.3d 1031 (Pa.Super. 2011) and J.M.R. v.
J.M., 1 A.3d 902 (Pa.Super. 2010) (failure to file a Rule 1925(b) statement
of errors complained of on appeal, when ordered by the Superior Court, will
result in a waiver of all issues on appeal).
14
   We observe that, in his brief, Father stated his issues on appeal somewhat
differently from his Rule 1925(b) Statement. We, nevertheless, decline to
find that Father has failed to preserve his challenge on this basis.



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      The record reveals that, in the case sub judice, Father filed a timely

appeal of the order disposing of the motion to dismiss Grandparents’ petition

to intervene. See Pa.R.A.P. 1311(b) (“An application for an amendment of

an interlocutory order to set forth expressly the statement specified in 42

Pa. C.S.[A.] § 702(b) shall be filed with the lower court . . . within 30 days

after the entry of such interlocutory order and permission to appeal may be

sought within 30 days after the entry of the order as amended.”). Moreover,

we observe that Father acted diligently in that his motion to dismiss was

filed just over a month after our Supreme Court’s decision in D.P. and not

yet three months after Grandparents’ petition to intervene, to which he

clearly objected.   In addition, the court had yet to reach Grandparents’

petition on the merits. Hence, Grandparents’ argument fails.

      We, thus, proceed to Father’s challenge to the constitutionality of the

second portion of Section 5325(2). Regarding the constitutionality of a

statute, our Supreme Court has stated:

      As the constitutionality of statute presents a question of law, our
      review is plenary.      A statute duly enacted by the General
      Assembly is presumed valid and will not be declared
      unconstitutional unless it “clearly, palpably and plainly violates
      the Constitution.”       The party seeking to overcome the
      presumption of validity bears a heavy burden of persuasion.

Schmehl v. Weglin, 927 A.2d 183, 186 (Pa. 2007) (citations omitted).

      Prior to reaching the merits of Father’s argument, however, we must

first “determine whether [he] has properly preserved [it] for our review.”

See Commonwealth v. Richard, 150 A.3d 504, 517 (Pa.Super. 2016).


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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
       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).

       Decisional law of this Commonwealth, moreover, 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 1115, 1122 (Pa.Super. 2011) (citing Adelphia Cablevision

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

709 (Pa.Super. 2000); see also Kepple v. Fairman Drilling Co., 615 A.2d

1298, 1303 (Pa. 1992) (citations omitted); Matter of Adoption of

Christopher P., 389 A.2d 94, 100 (Pa. 1978); Hill v. Divecchio, 625 A.2d

642, 648 (Pa.Super. 1993) (citations omitted); Spidle v. Livingston Const.

Co., Inc., 457 A.2d 565, 567 (Pa.Super. 1983); Irrera v. Southeastern

Pennsylvania Transp. Authority, 331 A.2d 705, 708 (Pa.Super. 1974)

(citation omitted).15

____________________________________________


15
   In D.P., our Supreme Court deemed it improper to address the
constitutionality of the second half of Section 5325(2), relating to parents
(Footnote Continued Next Page)


                                           -9-
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      Instantly, Father failed to notify the Attorney General of Pennsylvania

of his challenge to the constitutionality of the remaining portion of Section

5325(2). Accordingly, we find that Father’s claim is waived.

      For the foregoing reasons, we affirm the order of the trial court, albeit

on different grounds.

      Order affirmed.




                       _______________________
(Footnote Continued)

who have commenced and continued a proceeding to dissolve their
marriage, where, inter alia, the Attorney General had been deprived of the
opportunity to defend that part of the statute:

      As concerns the second half of paragraph (2) in particular,
      invalidating it . . .would require reaching beyond the bounds of
      this dispute and declaring Section 5325 unconstitutional more
      broadly than is necessary to resolve the appeal. It would be
      premature—and thus improper—to make a wide-reaching
      constitutional declaration along these lines in the present context
      in which no challenge to the standing requirements relative to
      divorced parents has been raised or briefed. We thus differ with
      any suggestion that we are somehow “avoiding” this issue.

      . . .As a result, and as already suggested, any such
      judgment should be left for a future controversy in which
      the issue is squarely presented, the Court has the benefit
      of focused adversarial briefing, and the Attorney General
      is apprised that the constitutional validity of the second
      half of Section 5325(2) has been called into question and
      is given an opportunity to defend it. . . .

Id. at 217 (citations omitted) (emphasis added).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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