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.

OPINION BY DUBOW, J.:                               FILED AUGUST 15, 2018

      Appellants, G.P. and J.P. (“Paternal Grandparents”), appeal from the

October 10, 2017 Order, which, inter alia, dismissed Paternal Grandparents’

Petition to Intervene after the trial court concluded that Paternal Grandparents

did not have standing to pursue custody rights of their grandchild, J.P.

(“Child”). After careful review, we hold that notwithstanding a child’s custodial

situation, the Custody Act grants standing to grandparents to file for any form

of physical or legal custody when their grandchild is substantially at risk due

to the parental behaviors stated in 23 Pa.C.S. § 5324(3)(iii)(B). Accordingly,

we reverse.
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      The subject of the instant custody dispute is now 7-year-old Child, who

currently   resides     with   Appellees   S.J.   and   R.J.   (“Maternal   Great-

Grandparents”).       Child’s parents, Appellees G.A.P. (“Father”) and J.M.W.

(“Mother”), both have a history of drug abuse; Father also has a criminal

history.    Child has lived with Maternal Great-Grandparents on and off

throughout his entire life, and continuously since October 2015.

      On May 2, 2016, Father filed a Complaint for Custody. On July 26, 2016,

Mother and Father entered a Custody Consent Order, which granted shared

legal custody to both parents, primary physical custody to Mother, and partial

physical custody to Father.

      On August 1, 2016, Maternal Great-Grandparents filed a Petition for

Emergency Custody alleging that Child had been residing with them

continuously since October 2015 and that Child was not safe during periods of

partial physical custody with Father, including allegations that Child reported

inappropriate sexual acts between Father and Child.              Maternal Great-

Grandparents also filed a Petition to Intervene in Child’s custody matter.

      On the same day, the trial court granted Maternal Great-Grandparents’

Petition for Emergency Custody, awarded sole physical custody of Child to

Maternal Great-Grandparents, vacated the July 26, 2016 Custody Consent

Order, suspended Father’s partial physical custody, and scheduled a hearing.

      On August 15, 2016, per agreement of the parties, the trial court

granted Maternal Great-Grandparents’ Petition to Intervene, upheld the

August 1, 2016 Custody Order, awarded Mother supervised physical custody

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at Maternal Great-Grandparents’ discretion, and scheduled a custody

mediation conference.

      On December 19, 2016, following a custody mediation conference at

which Mother did not appear, Maternal Great-Grandparents and Father

entered a Custody Consent Order.          The Order awarded Maternal Great-

Grandparents and Father shared legal custody, Maternal Great-Grandparents

primary physical custody, and Father supervised physical custody that could

be modified by recommendation of the CARE Center, the organization that

was responsible for supervising visits.

      On May 2, 2017, Maternal Great-Grandparents filed a Petition for Special

Relief, which alleged that Father had relapsed in his drug use, requested that

Father submit to drug screens, and requested that Father’s visitation be

limited to supervised physical custody of Child.

      On May 5, 2017, the trial court suspended Father’s unsupervised partial

physical custody of Child, ordered supervised physical custody, and scheduled

a hearing.

      Most relevant to this appeal, on June 29, 2017, Paternal Grandparents

filed a Petition to Intervene requesting partial physical custody of Child. In

the Petition, Paternal Grandparents asserted that they had standing to pursue

physical custody of Child because “the child is substantially at risk due to

parental abuse, neglect, drug or alcohol abuse or incapacity” pursuant to 23

Pa.C.S. § 5324(3)(iii)(B). On July 5, 2017, Maternal Great-Grandparents filed

Preliminary Objections asserting that Paternal Grandparents did not have

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standing to pursue physical custody of Child pursuant to 23 Pa.C.S. §

5324(3)(iii)(B) because Child was not currently “substantially at risk” since

Maternal Great-Grandparents had primary physical custody of Child.

       On October 10, 2017, the trial court sustained Maternal Great-

Grandparents’ Preliminary Objections and dismissed Paternal Grandparents’

Petition to Intervene for lack of standing.

       Paternal Grandparents timely appealed.1 Paternal Grandparents and the

trial court complied with Pa.R.A.P. 1925.

       Paternal Grandparents raise the following issue on appeal: “Whether

the [t]rial [c]ourt erred in denying Petitioners, Paternal Grandparents,

standing to pursue custody rights of [Child].” Paternal Grandparents’ Brief at

7.
       An issue regarding standing is a threshold issue that is a question of

law.   K.W. v. S.L., 157 A.3d 498, 504 (Pa. Super. 2017).      Moreover, the

interpretation and application of a statute is also a question of law. C.B. v.

J.B., 65 A.3d 946, 951 (Pa. Super. 2013). As with all questions of law, we

must employ a de novo standard of review and a plenary scope of review to

determine whether the court committed an error of law. Id.




____________________________________________


1 The trial court’s October 10, 2017 Order is an appealable collateral order
pursuant to Pa.R.A.P. 313. See K.C. v. L.A., 128 A.3d 774, 778-81 (Pa. 2015)
(holding that an order denying intervention in a child custody case due to a
lack of standing meets all three prongs of the collateral order doctrine).


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      When interpreting a statute, this court is constrained by the rules of the

Statutory Construction Act of 1972 (the “Act”). 1 Pa.C.S. §§ 1501-1991. The

Act makes clear that the goal in interpreting any statute is to ascertain and

effectuate the intention of the General Assembly while construing the statute

in a manner that gives effect to all its provisions. See 1 Pa.C.S. § 1921(a).

The Act provides: “[w]hen the words of a statute are clear and free from all

ambiguity, the letter of it is not to be disregarded under the pretext of

pursuing its spirit.” 1 Pa.C.S. § 1921(b). Moreover, it is well settled that “the

best indication of the General Assembly's intent may be found in a statute's

plain language.” Cagey v. Commonwealth, 179 A.3d 458, 462 (Pa. 2018).

Additionally, we must presume that the General Assembly does not intend a

result that is absurd, impossible of execution, or unreasonable and does

intend to favor the public interest over any private interest. See 1 Pa.C.S. §

1922(1) and (5) (emphasis added).

      Instantly, this court must interpret a section of the Child Custody Act,

23 Pa.C.S. §§ 5321-5340, which governs all custody proceedings commenced

after January 24, 2011. E.D. v. M.P., 33 A.3d 73, 77 (Pa. Super. 2011). The

Child Custody Act provides standing to third parties seeking custody under

certain circumstances. See 23 Pa.C.S. § 5324 (effective July 3, 2018). At

issue in this appeal is Section 5324(3) pertaining to grandparents, great-




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grandparents, and persons “in loco parentis.”2 See 23 Pa.C.S. § 5324(3); 23

Pa.C.S. § 5325. Section 5324(3) provides standing to 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.

23 Pa.C.S. § 5324(3).


____________________________________________


2 “The term in loco parentis literally means ‘in the place of a parent.’ A person
stands in loco parentis with respect to a child when he or she assumes 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.” K.W., supra at 504-05 (internal citations and quotation
marks omitted).



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         Instantly,   Maternal   Great-Grandparents      concede     that   Paternal

Grandparents are the grandparents of Child, have a relationship with Child

that began with the consent of a parent, and are willing to assume

responsibility for Child pursuant to 23 Pa.C.S. § 5324(3)(i) and (ii).          See

Preliminary Objections, dated July 5, 2017. Therefore, the only question is

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

or alcohol abuse or incapacity” pursuant to 23 Pa.C.S. § 5324(3)(iii)(B).

         In their Brief, Paternal Grandparents aver that the trial court erred in its

interpretation of the statute. They disagree with the trial court’s conclusion

that Child is not “substantially at risk” because Maternal Great-Grandparents

have physical custody of Child, and argue that the plain language of Section

5324 specifically refers to risks “due to parental abuse, neglect, drug or

alcohol abuse or incapacity” without reference to the custodial situation of

Child.    Paternal Grandparents’ Brief at 15-16 (emphasis added).           Paternal

Grandparents also argue that the purpose of the statute is to grant

grandparents standing in custody matters, not “to create a situation where

grandparents are essentially in a race to file to receive standing” because the

grandparent who files first is the only one able to obtain standing in a custody

matter. Id. at 11. We agree.

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

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

or alcohol abuse or incapacity,” when the requirements of Section 5324(3)(i)

and (ii) are also met. 23 Pa.C.S. § 5324(3)(iii)(B) (emphasis added). The

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J-A09028-18



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

exception for the custodial situation of a child. Simply, the plain language of

the statute confers standing to grandparents when a child is substantially at

risk due to ongoing parental behaviors.

      In this case, the trial court previously determined that the conditions

necessary under Section 5324(3)(iii)(B), namely ongoing parental behaviors

that would put Child at substantial risk, were present in order to grant standing

to Maternal Great-Grandparents. Paternal Grandparents’ Brief at 19. Since

that determination, there has been no change in the substantial risk that the

parents created.

      In an analogous case, Martinez v. Baxter, 725 A.2d 775, 778 (Pa.

Super. 1999), aff’d sub nom. R.M. v. Baxter ex rel. T.M., 777 A.2d 446

(Pa. 2001), this Court interpreted a previous version of the statute, which

provided a grandparent standing to pursue custody if that grandparent

“deem[ed] 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.”

This Court held that the fact that a child had been declared dependent and

placed in custody of the state, thus alleviating immediate safety concerns, did

not negate the grandmother’s standing to seek custody.         Id. at 778.   We

concluded that it was “of no moment” that child had only been adjudicated

dependent and parental rights were not terminated or relinquished because it

was still possible for a parent to seek reunification with the child. Id. As a




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J-A09028-18



result, the parents still created an ongoing risk to the child and the

grandmother had standing. Id.

      Applying this Court’s reasoning in Martinez, supra, to the instant case,

it is irrelevant for purposes of standing that the trial court has already granted

custody to Maternal Great-Grandparents. 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. See Martinez, supra,

at 778.

      Moreover, we must presume that the General Assembly does not intend

a result that is absurd, impossible of execution, or unreasonable and does

intend to favor the public interest over any private interest. See 1 Pa.C.S. §

1922(1) and (5).     It would most certainly be absurd, unreasonable, and

against public interest to create a race to file a custody petition and divest one

grandparent of his or her right to custody because another grandparent filed

a petition first.   Rather, the trial court should have the opportunity to

determine which grandparent can best serve the child’s needs. The trial court

must consider in its analysis many custodial factors, including the impact of

moving the child from one grandparent to another one.            The trial court,

however, should have the opportunity to consider all custodial options for the

child and this interpretation of the statute gives the trial court the discretion

to place the child with the grandparent best suited to care for the child and

does not limit the trial court’s decision to the grandparent who filed first.




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J-A09028-18



      Therefore, we conclude that regardless of a child’s custody status, the

Custody Act grants standing to grandparents to file for any form of physical

or legal custody when their grandchild is substantially at risk due to “parental

abuse, neglect, drug or alcohol abuse or incapacity” pursuant to 23 Pa.C.S. §

5324(3)(iii)(B). Thus, the trial court erred as a matter of law in sustaining

Maternal     Great-Grandparents’   Preliminary   Objections,   concluding   that

Paternal Grandparents did not have standing to pursue custody of Child, and

dismissing Paternal Grandparents’ Petition to Intervene.       Accordingly, we

reverse the trial court’s October 10, 2017 Order and remand this case for the

trial court to promptly hold a hearing on Paternal Grandparents’ Petition to

Intervene.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Murray joins the opinion.

      Judge Bowes files a concurring opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2018




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