J-A11031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.C. AND V.C.                                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                      v.

L.A.

APPEAL OF: D.M. AND L.N.
                                                        No. 499 EDA 2015


                     Appeal from the Order January 2, 2015
       in the Court of Common Pleas of Lehigh County Domestic Relations
                          at No(s): No. 2013-FC-0708

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED JULY 15, 2016

        Appellants, D.M. and L.N., appeal from the order entered in the Lehigh

County Court of Common Pleas denying their petition to intervene in a

custody     action   between   K.C.   and   V.C.   (“Grandparents”)1    and   L.A.

(“Mother”).2 Appellants argue the trial court erred by denying their petition

to intervene based on Appellants’ status as foster parents and prohibiting

Appellants from introducing evidence of their efforts to encourage a

relationship between Child and her sibling. We reverse.

        We glean the underlying facts from the certified record.        Child was

born on December 9, 2011, to Mother and Q.M. (“Father”).               Mother and

*
    Former Justice specially assigned to the Superior Court.
1
  V.C. is Father’s mother, and K.C. is V.C.’s husband, Father’s step-father.
For convenience, we refer to them collectively as “Grandparents.”
2
    Mother did not participate in the appeal.
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Father were not married. When Child was two months old, the Northampton

County Children and Youth Services Agency (“CYS”) filed an emergency

application seeking to remove Child from Mother’s custody citing, inter alia,

Mother’s failure to take Child to her follow-up doctor’s visits, refusal to

engage in mental health treatment, and housing instability. Order, 2/9/12,

at 1.3    On February 9, 2012, the juvenile division granted the application,

adjudicated Child dependent, and transferred legal and physical custody of

Child to Northampton County CYS. Id. at 2-3. CYS placed Child in foster

care in the home of Mother’s sister, D.M., and D.M.’s roommate, L.N;

residents of Lehigh County. On September 20, 2012, the juvenile division

continued Child’s adjudication; however, it granted shared legal and physical

custody of Child to Father and D.M. and L.N.          Permanency Plan/Interim

Order, 9/20/12.4      At all relevant times, Father resided in the home of

Grandparents in Lehigh County.5        On April 4, 2013, the juvenile division

vacated Child’s adjudication of dependency.           Permanency Plan/Interim

Order, 4/4/13.6     Sole legal and primary physical custody was awarded to


3
  The order of the juvenile court is appended to Appellants’ petition to
intervene as Exhibit A. Appellants and Grandparents stipulated to the
exhibits appended to the petition. N.T., 9/19/14, at 7-8.
4
    The order is appended to Appellants’ petition to intervene as Exhibit B.
5
  Specifically, Father moved into Grandparents’ home in September 2012.
N.T. at 84.
6
    The order is appended to Appellants’ petition to intervene as Exhibit C.



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Father, and D.M. and L.N. were awarded “periods of partial custody every

other weekend from Saturday morning at 10:00 a.m. through Monday

morning at 9:00 a.m.” Id. The order further directed that “Father shall be

flexible with [D.M.], Aunt, in her requests for visitation. Any further actions

regarding child’s custody shall be filed in Lehigh County.”7 Id.

      On June 6, 2013, Father passed away.              On June 13, 2013,

Grandparents filed a complaint for custody in Lehigh County. 8 On June 25,

2013, Appellants filed a petition for intervention in the custody proceeding

and emergency relief in the form of custody of Child until further order of

court. Pet. to Intervene, 6/25/13, at 6-11. Grandparents filed an answer

and new matter to Appellants’ petition on July 31, 2013, seeking, inter alia,

dismissal of Appellants’ petition.   Grandparents’ Answer and New Matter,

7/31/13, at 9. Appellants filed a response on August 27, 2013. Appellants

filed an amended new matter on July 29, 2014, asserting K.C. does not have


7
  Review of the record indicates Mother resided in Northampton County. We
further note that due to Mother’s deliberate evasive efforts, the complaint
for custody had to be reinstated numerous times, delaying the matter.
Service was eventually effected on Mother in the Northampton County
Prison. Affidavit of Service, 3/27/14, at 1-2. Prior to her incarceration, the
record indicates attempts at service failed because Mother refused to answer
the door or otherwise evaded service.
8
   On June 27, 2013, the parties stipulated to an interim custody
arrangement providing, in part, “[D.M.], Interested Party, shall have partial
physical custody of the minor child on alternating weekends from Saturday
at 9:00 a.m. until Monday at 9:00 a.m. beginning Saturday, June 29, 2013.”
Interim Stipulation, 6/27/13, at 1 (unnumbered); see Trial Ct. Order,
6/27/13.



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standing to seek custody. Am. New Matter, 7/29/14, at 1-2 (unnumbered).

The trial court held a hearing on September 19, 2014.

     D.M. testified she accompanied Mother to the hospital and was present

in the room when Child was born. N.T., 9/19/14, at 14-16. She continued

to have contact with Child following her birth. Id. at 16. In February 2012,

she and L.N. were contacted by CYS regarding Child.       Id.   She described

L.N. as her “roommate and she has been a family friend for many years.

She also used to be very good friends with [Mother] as well.” Id.

     From February 9, 2012, until October 2012, Child spent every night

with Appellants, either in their home or on family camping trips. 9 Id. at 18.

Appellants received financial support initially from CYS for Child’s care and

later from Father pursuant to court order, but they expended additional

resources in excess of what they received for Child’s care. Id. at 19, 28-29.

Appellants integrated Child into their families and admitted pictures into

evidence of Child on outings, with members of Appellants’ families, and

eating her first foods. See id. at 19; Appellants’ Ex. “P-2.” In the fall of

2012, Father began having overnight visits with Child, which “started out as

one night and then quickly to two nights a week.” Id. at 35. Appellants and

Father began sharing time “more equally” in December 2012. Id. at 36-37.




9
  On cross-examination, D.M. conceded overnight visits with Father could
have begun in late September or early October 2012. N.T. at 44.



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D.M. also named Child and Child’s sister as beneficiaries to her life insurance

policy. Id. at 37.

         L.N. testified that she and D.M. had “been working together as co-

parents for the past four years” to another child.      Id. at 55.    She knew

Mother “since 8th grade” and was at the hospital at one point during Child’s

birth.    Id. at 55.   She saw Child on a few occasions, including her first

Christmas, prior to Child’s placement with Appellants.       Id. at 56.      She

detailed the frequent doctor’s visits and extra nutritional considerations that

Child required- which Appellants ensured were provided- because Child had

been malnourished while in Mother’s care and was underweight when she

was placed with Appellants.      Id. at 54-61.   With regard to Mother, L.N.

testified, “[w]hen [Child] was first taken, she did have some visits with

[Mother].” Id. at 65. However, Mother stopped attending scheduled visits

and “[s]he only had, maybe, two visits that she showed up for.” Id.

         V.C. testified regarding the time periods of Child’s visitation with

Father and that Child has been living in her home since Father’s death, with

every other weekend visitation with Appellants. See id. at 80-89. K.C. did

not testify, and no evidence or testimony was elicited relative to the issue of

K.C.’s standing to seek custody.

         On January 2, 2015, the trial court denied Appellants’ petition.    The

trial court reasoned: “relationships which are based on foster care do not

give rise to in loco parentis status for purposes of custody.”   Trial Ct. Order,



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1/2/15, n. 1 (citing In re G.C., 735 A.2d 1226 (Pa. 1999), and In re N.S.,

845 A.2d 884 (Pa. Super. 2004)).        Appellants filed a timely notice of

appeal10 and a Pa.R.A.P. 1925 statement11 on January 30, 2015. The trial

court authored a responsive opinion. Relying on In re G.C. and In re N.S.,

the trial court concluded that because “the relationship of the [Appellants]

with the child developed under the aegis of the kinship care placement by

Northampton County Human Services, Children, Youth & Families Division,

who stood in loco parentis to the child, we ruled that [Appellants] do not

have standing to pursue a custody action.” Trial Ct. Op., 3/3/15, at 4.

     On appeal, Appellants raise the following issues for our consideration:

        1. Whether the trial court committed an error of law by
        denying a petition to intervene in a custody proceeding of
        a maternal aunt and caregiver of a minor child on the basis
        that the maternal aunt and caregiver were foster parents
        when the evidence established the maternal aunt and
        caregiver established they stood in loco parentis to the
        minor child outside the foster care relationship and that


10
   We note this Court initially quashed Appellants’ appeal as we concluded
the order was not a final, appealable order. See K.C. v. L.A., 128 A.3d 774,
776 (Pa. 2015). Appellants sought allowance of appeal in the Pennsylvania
Supreme Court, and the Court reversed reasoning that “the order denying
intervention is an appealable collateral order as of right under
[Pennsylvania] Rule [of Appellate Procedure] 313[.]” Id. at 781.
11
   Appellants purport to file their statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Pa.R.A.P. 1925 Statement, 1/30/15,
at 1 (unpaginated). Rule 1925(b) requires the party on appeal to file a
statement of errors upon the trial court’s direction. Pa.R.A.P. 1925(b). Rule
1925(a)(2) governs children’s fast track appeals and requires the 1925
statement to be filed with the notice of appeal. Pa.R.A.P. 1925(a)(2)(i).
Here, Appellants complied with Rule 1925(a)(2)(i).



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         the relationship was not solely based on a foster parent
         relationship?

         2. Whether the trial court erroneously prohibited a
         maternal aunt and caregiver of a minor child from
         introducing evidence of efforts to encourage a relationship
         between the minor child and a sibling when it is relevant to
         the in loco parentis inquiry?

Appellants’ Brief at 3.

      Appellants first contend the trial court erred by denying their petition

to intervene based on their status as foster parents to Child.        Id. at 12.

They argue there is no evidence of Father’s objection to their custody of

Child, and the fact that they were a “kinship care” 12 resource distinguishes

them from foster parents whose relationship with children “began with the

foster care placement.” Id. at 19-20. We agree.

            [T]he 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 the trial court’s factual


12
  See 62 P.S. § 1303(b) (providing “[i]f a child has been removed from the
child’s home under a voluntary placement agreement or is in the legal
custody of the county agency, the county agency shall give first
consideration to placement with relatives or kin.”).



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          findings and thus, represent a gross abuse of
          discretion.

       The concept of standing, an element of justiciability, is a
       fundamental one in our jurisprudence: no matter will be
       adjudicated by our courts unless it is brought by a party
       aggrieved in that his or her rights have been invaded or
       infringed by the matter complained of. The purpose of this
       rule is to ensure that cases are presented to the court by
       one having 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.

       Moreover:

          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.

       The Child Custody Act (Act), lists persons who have
       standing to seek child custody:

          § 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:

          (1) A parent of the child.

          (2) A person who stands in loco parentis to the child.

          (3) A grandparent of the child who is not in loco
          parentis to the child:

                                *      *   *


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       23 Pa.C.S.A. § 5324.

       . . . [T]he phrase ‘in loco parentis’ refers to a person who
       puts himself [/herself] in the situation of assuming the
       obligation 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, cannot place
       himself in loco parentis in defiance of the parents’ wishes
       and the parent/child relationship.

       Our Supreme Court has explained in loco parentis status
       as follows:

          The in loco parentis basis for standing recognizes
          that the need to guard the family from intrusions by
          third parties and to protect the rights of the natural
          parent must be tempered by the paramount need to
          protect the child’s best interest. Thus, while it is
          presumed that a child’s best interest is served by
          maintaining the family’s privacy and autonomy, the
          presumption must give way where the child has
          established strong psychological bonds with a person
          who, although not a biological parent, has lived with
          the child and provided care, nurture, and affection,
          assuming in the child’s eye a stature like that of a
          parent. Where such a relationship is shown, our
          courts recognize that the child’s best interest
          requires that the third party be granted standing so
          as to have the opportunity to litigate fully the issue
          of whether that relationship should be maintained
          over a natural parent’s objections.

       T.B. v. L.R.M., . . . 786 A.2d 913, 917 ([Pa.] 2001).

                               *    *    *

       Close relatives who assume parenting responsibilities in a
       time of need can also stand in loco parentis to a child. In


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        McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000), this
        Court concluded that a child’s maternal aunt and uncle had
        standing to seek custody. The child’s father had limited
        contact with the child during the first several years of her
        life, and even challenged paternity. Id. at 1103. The
        child’s mother suffered from mental illness and died from
        injuries she sustained when she attempted to hang herself.
        Id. The Child stayed with her aunt and uncle for long
        periods of time, during which they performed duties
        attendant to parenting, such as enrolling the child in school
        and taking her to the doctor when necessary. Id. at 1105-
        06. Before the natural mother died, she signed a power of
        attorney granting the aunt in loco parentis powers for the
        child. Id. This Court concluded the aunt and uncle had
        standing to sue for custody of the child.

D.G. v. D.B., 91 A.3d 706, 707-10 (Pa. Super. 2014) (quotation marks and

some citations omitted).

     In In re N.S., this Court concluded the trial court did not err or abuse

its discretion when it found a former foster mother did not have standing to

sue for custody or visitation of her former foster children, after they were

removed from the licensed foster home following allegations of abuse. In re

N.S., 845 A.2d at 888. Our reasoning follows:

            We likewise find unconvincing appellant’s argument that
        she stood in loco parentis and therefore had standing to
        pursue her petition. In In re Adoption of Crystal D.R.,
        . . . 480 A.2d 1146 ([Pa. Super.] 1984), wherein the foster
        parents sought termination of the parental rights of the
        children for whom they cared, the Court considered their
        argument that as caregivers they stood in loco parentis,
        but nonetheless concluded they lacked standing to bring
        suit. The Court reasoned the foster parents did not stand
        in loco parentis to the child because the state agency
        involved had responsibility for the actual care and custody
        of the child. The foster parents’ rights were subordinate to
        those of the birth parents and those of the state agency
        that awarded foster care of the children to the appellants.


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        In its supplemental Opinion, the trial court herein
        addressed in detail the status of in loco parentis and its
        relations to appellant’s demonstrated intent concerning
        adoption of the children.

           Having reviewed the Proposed Statement of Facts
           and Stipulations by both parties, made part of this
           record, we conclude that Petitioners were never
           more than foster parents. There is no question
           that the [petitioners] were interested in pursuing
           adoption. There is also no question that the Children
           & Youth Agency considered changing the goal to
           adoption.

                                 *     *      *

           We cannot over-emphasize the significance of the
           fact that the Children and Youth Agency was granted
           custody of all three children . . . such that the
           Children and Youth Agency stands in loco parentis to
           all children.      There is no question that the
           [petitioners] discharged parental duties as foster
           parents, but they never assumed the obligations
           incident to a parental relationship. While they had
           physical possession of the children and therefore
           discharged duties as to the children’s day-to-day
           needs, it does not follow that they are in loco
           parentis or have undertaken the rights and
           responsibilities that exist between parent and child.

        Trial Court Opinion Hoover, J., at 4-5.

Id. at 887-88 (footnote omitted and emphasis added).

     Instantly, the particular facts of this case demonstrate that Appellants

have a direct, substantial, and immediate interest in the custody of Child

and are appropriate parties to the underlying custody action. See D.G., 91

A.3d at 708. Unlike the foster mother/appellant in In Re N.S., Appellants

had a relationship with Child preceding her placement in their home and



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continuing after Child’s dependency and custody under CYS ceased. D.M. is

Mother’s sister, accompanied Mother on her way to give birth to Child, and

was present at the time Child was born.           N.T. at 14-16.    L.N. has known

Mother since they were children, was present on the day of Child’s birth, and

saw Child on her first Christmas and on other occasions, prior to her

placement with Appellants when Child was two months old.                 Id. at 55-56.

Appellants share a home, and their relationship is that of “co-parents.” Id.

at 55.   The unrebutted testimony established that during the time Child

resided exclusively with Appellants, i.e., from February 9, 2012 to

September 20, 2012, Appellants fully integrated Child into their family unit.

See generally id. at 16-76; see also Trial Ct. Op., 3/3/15, at 2 (“There is

ample testimony to demonstrate [D.M.] and [L.N.] took care of [Child]

during that period[.]”).      Although Child was still adjudicated dependent,

Father and Appellants were granted shared legal and physical custody of

Child. Order, 9/20/12; see N.T. at 35-37. Significantly, Child’s adjudication

of dependency was vacated on April 4, 2013, and Appellants continued to

exercise periods of partial custody, although Father had sole legal and

primary physical custody. Order, 4/4/13.

     Appellants’ relationship pre-dated Child’s placement in their home by

CYS. Moreover, Appellants not only assumed and discharged the obligations

incident to a parental relationship while serving as a foster placement, they

continued     to   exercise   partial   custody   while   Child    was    no   longer



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dependent. See D.G., 91 A.3d at 708-09. Nothing in the record suggests

that Appellants’ continued involvement with Child and periods of partial

custody, after CYS’s involvement ceased, was in defiance of the parents’

wishes and the parent/child relationship. See id. at 709. Of note, Mother

has actively avoided participation in the custody matter of Child and Father

is deceased. We are not presented with a case where parties seek in loco

parentis status over a natural parent’s objection. See id. Appellants have

demonstrated that the relationship they have with Child is not and was not

based on their status as foster parents, as it existed before and after CYS’

involvement and Child’s adjudication of dependency.        Cf. In re N.S., 845

A.2d at 888-89. We conclude the Appellants demonstrated they assumed in

Child’s eye a parent-like stature, and the best interest of Child requires

affording them the opportunity to fully litigate the underlying custody

matter. See D.G., 91 A.3d at 709. Therefore, we reverse the trial court’s

order13 denying Appellants’ petition for intervention.14

      Order reversed. Case remanded. Jurisdiction relinquished.



13
  As noted supra, the trial court relied, in part, on the “holding” of In re
G.C. Trial Ct. Order, 1/2/15, at 1, n.1; Trial Ct. Op., 3/3/15, at 4. The
decision in In re G.C. was affirmed by an equally divided Court and, as
such, holds no precedential value. See Weiley v. Albert Einstien Med.
Ctr., 51 A.3d 202, 217 n.16 (Pa. Super. 2012) (noting an affirmance by an
equally divided Supreme Court does not have precedential value).
14
  Based on our resolution of Appellants’ first issue, we need not address the
remaining issue.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/15/2016




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