J-A09028-18

                             2018 PA Super 229


 G.A.P.                                   :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 J.M.W.                                   :
                                          :
                                          :   No. 1694 WDA 2017
              v.                          :
                                          :
                                          :
 S.J. AND R.J.                            :
                                          :
                                          :
 APPEAL OF: G.P. AND J.P.,                :
 PATERNAL GRANDPARENTS                    :

             Appeal from the Order Entered October 10, 2017
  In the Court of Common Pleas of Indiana County Civil Division at No(s):
                          No. 10862 C.D. 2016


BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

CONCURRING OPINION BY BOWES, J.:           FILED: August 15, 2018

      My colleagues present a cogent expression of rationale which interprets

the statutory framework as resolving the question of a grandparent’s standing

to pursue any form of physical or legal custody pursuant to 23 Pa.C.S §

5324(3), as a matter of fairness between the rights of the litigants, S.J. and

R.J. (“Maternal Great-Grandparents”), and potential interveners, G.P. and J.P.

(“Paternal   Grandparents”    or   “Appellants”),   respectively.     However,

approaching this case from the perspective of promoting the interest of the

child, J.P., rather than evenhandedness between third-party litigants, I agree

with the trial court’s finding that Appellants failed to establish that J.P. was
J-A09028-18



“substantially at risk due to parental abuse, neglect, drug or alcohol abuse or

incapacity,” as required by the statute, when they sought to intervene in the

custody dispute. See 23 Pa.C.S. § 5324(3)(iii)(B). Specifically, contrary to

the majority, I believe that the statute requires an actual risk of harm rather

than an amorphous “ongoing” harm associated with the fact that Father

retained his parental rights.

       Notwithstanding my perspective            of the   conditional   language   in

subsection 5324(3)(iii)(B), as I discuss infra, I observe that Appellants have

standing to pursue custody under the newly-fashioned provisions that were

recently added to the Child Custody Law at subsection 5324(4).1 Accordingly,

while I respectfully disagree with the majority’s legal analysis, I concur with

the learned majority’s decision to reverse the order dismissing Appellants’

petition to intervene.

       J.P. was born during 2010, and he lived with Mother at Maternal Great-

Grandparents’ home recurrently throughout his life. As of October 2015, J.P.

resided at Maternal Great-Grandparents’ home exclusively. Father initiated

this custody case during May 2016, by filing a complaint against Mother for

partial physical custody.       On July 26, 2016, Mother and Father entered a


____________________________________________


1 As the new provision became effective on July 3, 2018, Appellants did not
have the opportunity to raise it in their brief or during the oral argument before
this Court. Nevertheless, I observe that standing in a child custody case is
variable, and the revised statute categorically provides Appellants a viable
pathway to achieve standing in this dispute.


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J-A09028-18


consent decree dividing the physical custody between them. However, four

days later, Maternal Great-Grandparents filed a petition for emergency

custody and a petition to intervene.    They invoked standing pursuant to

§ 5324(3)(iii)(B), in order to protect their great-grandson from the tangible

risk of harm stemming from Father’s inappropriate sexual behavior with the

child.    The trial court vacated the July 2016 consent decree and awarded

emergency custody to Maternal Great-Grandparents without a hearing.

Appellants did not invoke standing under § 5324 at that time or seek to

intervene in the ensuing custody proceedings between their son and Maternal

Great-Grandparents.

         In August 2016, the trial court expressly granted Maternal Great-

Grandparents’ petition to intervene in the custody litigation.    Following a

December 2016 mediation conference, Maternal Great-Grandparents and

Father entered a consent order that granted Maternal Great-Grandparents

primary physical custody of J.P. and permitted Father to exercise one-hour of

supervised physical custody per week at a facility operated by the CARE Center

of Indiana County (“CARE”).     The consent order provided that, after five

successful visits, CARE could elect to remove the supervision requirement,

and Father would exercise overnight custody on alternating weekends. While

it is not documented in the certified record, CARE seemingly relaxed the

supervision requirement.     Appellants did not seek to participate in the

conference and they were not parties to the consent decree.


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      In May 2017, Maternal Great-Grandparents filed a petition for special

relief seeking to impose a requirement that Father submit to drug screens and

requesting that Father’s interactions with J.P. be limited to supervised

visitations.   The custody court entered an interim order that suspended

Father’s periods of unsupervised custody and directed that a family member

supervise Father’s custodial periods pending the evidentiary hearing. After

Father failed to appear at the ensuing hearing, the trial court entered an order

continuing the force and effect of the interim order “until further Order of

Court.” Trial Court Opinion, 10/10/17, at 2.

      On June 28, 2017, almost one year after Maternal Great-Grandparents

first reacted to Father’s alleged sexual behaviors toward J.P. by petitioning to

intervene pursuant to § 5324(3)(iii)(B), and subsequently alleviating that risk

by exercising primary physical custody for six months, and approximately two

months after Maternal Great-Grandparents renewed their alarm following

discovery of Father’s substance abuse, Appellants filed a petition to intervene

pursuant to § 5324(3)(iii)(B). Appellants requested partial physical custody

of J.P., shared legal custody, and the authority to oversee any periods of

supervised visitation Father could receive in the future.      Maternal Great-

Grandparents filed preliminary objections to Appellants’ petitions, which the

trial court sustained without a hearing. This appeal followed.

      As this Court previously explained,

      In the area of child custody, principles of standing have been
      applied with particular scrupulousness because they serve a dual

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J-A09028-18


      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.

D.G. v. D.B., 91 A.3d 706, 708 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H.,

682 A.2d 1314, 1318 (Pa.Super. 1996)). Standing in child custody cases is

fluid and, in some circumstances, it may be revisited as the facts of the case

evolve throughout the litigation.   M.G. v. L.D., 155 A.3d 1083, 1087 n.5

(Pa.Super. 2017); see e.g., In re D.M., 995 A.2d 371, 375-76 (Pa.Super.

2010) (mother whose parental rights had been terminated could have

standing as third-party to seek custody); Morgan v. Weiser, 932 A.2d 1183,

1186-87 (Pa.Super. 2007) (biological father whose parental rights had been

terminated could only seek custody or visitation if he could establish standing

as a third-party); McNamara v. Thomas, 741 A.2d 778, 781 (Pa.Super.

1999) (biological mother could attempt to demonstrate third-party standing

after death of adoptive parent).

      At the time that Appellants filed their petition to intervene, the Child

Custody Law extended standing to pursue any form of physical or legal

custody to :

      (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:

         (i) whose relationship with the child began either with the
         consent of a parent of the child or under a court order;

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J-A09028-18



           (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.

23 Pa.C.S. § 5324.

       Thus, the question before us is whether Appellants had standing to

pursue physical custody of J.P. pursuant to § 5324(3)(iii)(B) based upon the

factual scenario at the time they filed their petition to intervene, i.e., whether

“the child is substantially at risk due to parental abuse, neglect, drug or alcohol

abuse or incapacity.”2 Id.

       In my view, Appellants failed to demonstrate the requirements for

standing pursuant to 23 Pa.C.S. § 5324(3)(iii)(B), inasmuch as they did not

attempt to assume responsibility for J.P. until after Maternal Great-

Grandparents had filled the parental void and alleviated the substantial risk of



____________________________________________


2The parties agree that Appellants established the threshold requirements
under § 5324(3)(i) and (ii).

                                           -6-
J-A09028-18


harm that is the sine qua non of standing under this subparagraph. Stated

plainly, thanks to Maternal Great-Grandparents’ quick intervention, J.P. is no

longer substantially at risk due to parental abuse, neglect, drug or alcohol

abuse or incapacity.

      Unlike my colleagues, I would not characterize the present factual

scenario as a zero-sum race between the parties to file for standing first, i.e.,

a situation where a win for one side necessarily entails a corresponding loss

for the other side.    It is axiomatic that the haste to file is not to bar an

opponent’s participation; rather, it is to ensure the child’s best interests by

alleviating the risk of harm at the earliest possible stage. Indeed, Appellants

could have, but neglected to, file a petition to intervene in the underlying

custody litigation at the outset, when Maternal Great-Grandparents first

identified the safety concerns contemplated in § 5324(3)(iii)(B).          They

declined to intervene at the critical juncture when J.P.’s safety was in the

balance.   Instead, Appellants waited for Maternal Great-Grandparents to

intercede and provide the safety net that the statute was intended to create.

Only after the tangible and identifiable risks were removed did Appellants seek

to intervene. Stated another way, Appellants were not barred by Maternal

Great-Grandparents’ swift response to the obvious risk of harm; they were

barred because the risk had subsided when they eventually acted.

      Essentially, I disagree with the majority’s reliance upon Martinez v.

Baxter, 725 A.2d 775 (Pa.Super. 1999) for the proposition that the


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J-A09028-18


“substantial risk of parental abuse” condition includes theoretical future harms

associated with a parent’s retention of parental rights.          As the majority

phrases its holding, “Since parental rights have not been terminated or

relinquished, it is possible for either parent to seek custody of Child. This

possibility creates an ongoing risk to Child.” Majority Opinion at 9. However,

from my perspective, what may or may not happen between J.P. and Father

at some unidentified point in the future is of no import to the determination

of whether Paternal Grandparents can satisfy the statutory grounds for

standing at this juncture.

        In Martinez, supra, the trial court granted the preliminary objections

filed by Children and Youth Services (“CYS") that challenged a grandmother’s

standing to petition for custody of her dependent grandson. The grandmother

sought standing pursuant to § 5313(b), the predecessor to § 5324(3). The

trial court sustained CYS’s preliminary objections, concluding that the

grandmother failed to plead the existence of one of the three sets of

circumstances set forth in § 5313(b)(3).3 As it relates to the issue in the case

____________________________________________


3   Section 5313(b) provided:

        (b) Physical and legal custody.--A grandparent has standing
        to bring a petition for physical and legal custody of a grandchild.
        If it is in the best interest of the child not to be in the custody of
        either parent and if it is in the best interest of the child to be in
        the custody of the grandparent, the court may award physical and
        legal custody to the grandparent. This subsection applies to a
        grandparent:



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J-A09028-18


at bar, the trial court determined that the child was not “substantially at risk”

under § 5313(b)(3), because he had been adjudicated dependent and placed

in CYS’s protective custody.

       We reversed, and focusing on the provision’s opening statement, “A

grandparent has standing to bring a petition for physical and legal custody of

a grandchild,” we held that § 5313(b) conferred “automatic standing” on

grandparents to petition for physical custody by virtue of their familial

relationship to the child. Id. at 778. The Martinez Court reasoned that even

though CYS had custody pursuant to a protective order, that fact did not

deprive the grandmother of her automatic standing under § 5313(b). We

explained,

       This subsection is a clear mandate which allows a grandparent to
       seek custody, indeed to have standing to do so, over the status of
       third parties who have no familial relationship with a child. We
____________________________________________




         (1) who has genuine care and concern for the child;

         (2) whose relationship with the child began with the consent of
         a parent of the child or pursuant to an order of court; and

         (3) who for 12 months has assumed the role and responsibilities
         of the child’s parent, providing for the physical, emotional and
         social needs of the child, or who assumes the responsibility for
         a child who has been determined to be a dependent child
         pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters) or
         who assumes or deems it necessary to assume responsibility
         for a child who is substantially at risk due to parental abuse,
         neglect, drug or alcohol abuse or mental illness. The court may
         issue a temporary order pursuant to this section.

23 Pa.C.S. § 5313(b) (repealed effective January 24, 2011).

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J-A09028-18


       will not interpret this statute to deprive grandparents of this
       privileged status merely because CYS has stepped in before the
       grandparent has had an opportunity to assert her interest in
       raising her grandchild.

Martinez, supra at 778. Significantly, we specifically declined to interpret

the ostensibly qualifying language in subparagraphs (1), (2), and (3) as

conditions precedent to standing. Instead, we reasoned that the situations

enumerated in those subparagraphs were merely factors for the fact-finder to

consider in addressing the merits of the grandparent’s custody claim, i.e., “to

determine ‘If it is the best interest of the child not to be in the custody of

either parent and if it is in the best interest of the child to be in the custody

of the grandparent[.]’”4        Id.    Thus, having found the grandparent had

automatic standing, to the extent that the Martinez Court interpreted the

statute’s reference to a child who is “substantially at risk due to parental



____________________________________________


4  Our High Court affirmed our order, utilizing identical reasoning that
§ 5313(b) conferred automatic standing to grandparents by virtue of their
familial relationship notwithstanding the statute’s conditional language. R.M.
v. Baxter ex rel. T.M., 777 A.2d 446, 451 (Pa. 2001) (unqualified language
of statute provides that grandparent has standing to bring petition for physical
and legal custody of grandchild).

      In enacting § 5325 of the Child Custody Law, the legislature corrected
the courts’ interpretation of the prior statute as conveying “automatic
standing” and expressly conditioned grandparent standing on the
prerequisites outlined in the statute. Significantly, § 5325(3)(A) of the new
statute addressed the factual scenario at issue in Martinez by expressly
extending custody to grandparents of children who have been adjudicated
dependent. Thus, it alleviated the Martinez Court’s noted concern, that
“anytime CYS sought dependent status for a child, a grandparent’s ability to
seek custody of his grandchild would be negated[.]” Martinez, supra at 778.

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J-A09028-18


abuse” in relation to whether a grandparent has standing, that discussion is

dicta.

         Furthermore, while the language in the current statute tracks the earlier

enactment, the Martinez Court’s dicta was non-persuasive. Specifically, in

my view, the majority’s invocation of an “ongoing” harm based upon

speculation that Father might place J.P. at risk in the future is unconvincing.

Unlike the majority, I believe that the fact that either parent retained his or

her parental rights is of no consequence to the determination regarding

whether either parent presents a substantial risk to the child’s wellbeing.

Moreover, while my colleagues discount the fact that J.P. currently is not at a

substantial risk of any harm, much less a speculative harm resulting from the

possibility of future parental abuse, neglect, substance abuse, or incapacity

because Father’s rights have not been terminated, I would find that inquiry to

be the most relevant determination.5 My perspective is comparable to the

position the dissent articulated in Martinez, i.e., “because the child was




____________________________________________


5 In this vein, the majority’s preoccupation with Father’s retention of his
parental rights is misplaced. As a dependency-related custody case that pitted
family members against a government agency, it was necessary for the
Martinez Court to consider the potential dispositions available to the juvenile
court in the child-welfare proceedings. The countervailing possibilities of
either reunification under the Juvenile Act or the termination of parental rights
under the Adoption Act were particularly relevant to how the custody case
would proceed in family division. However, in a non-dependency custody case
between two sets of relatives, like the case at bar, there is no superseding
concern regarding the ultimate disposition of the governmental action.

                                          - 11 -
J-A09028-18


already taken out of the parents’ home, the child was no longer at risk.”

Martinez, supra at 779 (Joyce, J. dissenting).

      Thus, for all of the foregoing reasons, I would affirm the trial court’s

finding that Appellants failed to establish that they had standing pursuant to

23 Pa.C.S. § 5324(3)(iii)(B). In sum, notwithstanding any of the theoretical

harms that may or may not occasion a parent’s future actions, I agree with

the trial court’s finding that J.P. currently is not “substantially at risk due to

parental     abuse,   neglect,   drug    or      alcohol   abuse   or   incapacity[.]”

23 Pa.C.S. § 5324(3)(iii)(B).

      However, as I noted at the outset, since I believe that Appellants would

have standing to pursue any form of physical custody or legal custody of J.P.

under the recently enacted § 5324(4) effective, July 3, 2018, I agree with the

result reached in this case. As revised to include an additional ground for

standing in custody disputes between third parties, § 5324(4) now extends

standing to:

      (4) Subject to paragraph (5) [which applies to children involved
      in dependency proceedings], an individual who establishes by
      clear and convincing evidence all of the following:

           (i) The individual has assumed or is willing to assume
           responsibility for the child.

           (ii) The individual has a sustained, substantial and sincere
           interest in the welfare of the child. In determining whether the
           individual meets the requirements of this subparagraph, the
           court may consider, among other factors, the nature, quality,
           extent and length of the involvement by the individual in the
           child’s life.


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J-A09028-18


        (iii) Neither parent has any form of care and control of the child.

23 Pa.C.S. § 5324(4).

      By invoking the requirement that a third party demonstrate “a

sustained, substantial and sincere interest in the welfare of the child,” §

5324(4)(ii) effectively codified our holding in Kellogg, supra, a case of first

impression that addressed “the requirements for standing of a non-custodial

third party vis-a-vis other third parties who have legal and physical custody

of the children.” Id. at 584.

      In Kellogg, we were tasked with determining whether Debra Kellogg, a

deceased father’s first wife, had standing to pursue custody of the two young

sons he had with his second wife, who had been sentenced to twenty-five

years to life imprisonment for her role in the father’s murder. The children,

then ages four and five, spent significant time with their older half-siblings

from the father’s prior union with Debra. Following her arrest, the second wife

agreed to award physical and legal custody of the children to her mother and

stepfather, the Francises. Thereafter, Debra filed a custody complaint against

the Francises seeking custody of the two young children.         The trial court

awarded Debra visitation, which the current law refers to as partial physical

custody.

      On appeal, we upheld the trial court’s implicit determination that Debra

had standing to pursue custody against the Francises. In light of the dearth

of applicable precedent at that stage of our jurisprudence, we fashioned a test

that required third parties seeking standing in a custody action against a non-


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J-A09028-18



parent to “prove by clear and convincing evidence that he or she has shown a

sustained, substantial and sincere interest in the welfare of the child.” Id. at

588. Ultimately, we held that Debra had standing based upon the “clear and

convincing evidence that she has always shown and continues to show a

genuine interest in the welfare of these children.” Id. at 590.

      Instantly, while Appellants did not act to alleviate the substantial risk of

harm implicated in § 5324(3)(iii)(B), they have always maintained a healthy

relationship with J.P., including their supervision of Father’s periods of partial

physical custody. Indeed, Maternal Great-Grandparents, who exercise legal

and physical custody of J.P., concede Appellants’ relationship with J.P. and

note that Appellants are willing to assume responsibility of their grandson.

Hence, although Appellants failed to satisfy the conditions of standing under

§ 5324(3), the certified record bears out that Appellants have standing

pursuant to § 5324(4).

      Thus, in light of the new provisions of the Child Custody Law that afford

standing to third parties upon clear and convincing evidence of sustained,

substantial and sincere interest in the welfare of the child where, as here, a

third party is currently exercising primary custody, Appellants would have

standing to pursue any form of physical custody or legal custody of J.P. at this

juncture pursuant to § 5324(4). Hence, notwithstanding my disagreement

with the learned majority’s interpretation of the “substantially at risk”

condition outlined in § 5324(3)(iii)(B), I concur in the result of the decision to

reverse the trial court order dismissing Appellants’ petition to intervene.

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