J-A23012-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

J.L.B. AND S.B.,                          : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                     Appellants           :
                                          :
             v.                           :
                                          :
J.B.,                                     :
                                          :
             v.                           :
                                          :
E.K.,                                     : No. 2032 WDA 2013

              Appeal from the Order entered November 26, 2013,
                   Court of Common Pleas, Beaver County,
                       Civil Division at No. 11039 of 2012


J.L.B. AND S.J.B.,                        : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
             v.                           :
                                          :
J.B. AND E.K.,                            :
                                          :
APPEAL OF: E.K.                           : No. 14 WDA 2014

                   Appeal from the Order November 26, 2013,
                    Court of Common Pleas, Beaver County,
                       Civil Division at No. 11039 of 2012

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED SEPTEMBER 09, 2014

        J.L.B. (“Grandfather”) and S.J.B. (“Step-Grandmother”) (collectively,

“Grandparents”) appeal from the order of court awarding primary physical

and legal custody of L.B. (“Child”) to E.K. (“Father”).   Father has filed a

cross-appeal, challenging the trial court’s determination that Grandparents

have standing to seek custody of Child. For the reasons discussed herein,
J-A23012-14


we reverse the trial court’s determination that Grandparents have standing

to pursue custody of Child and vacate the November 26, 2013 order

granting them partial custody.

       The relevant background in this case, which is lengthy and abysmal, is

as follows. J.B. (“Mother”) was living in Florida when she became pregnant

with Child.1   Mother and Father, who never married, have an historically

difficult and allegedly abusive relationship. When Mother was approximately

four months pregnant, she moved into Grandparents’ home in Beaver

County.    Between the time Mother moved in with Grandparents and gave

birth to Child, she was in contact with Father via email. Father asked Mother

whether he could attend Child’s birth, but Mother refused this request based

on Father’s rancorous relationship with Grandfather. Following Child’s birth

in late 2011, Mother and Child resided in Grandparents’ home for the first

two months of Child’s life. Mother and Child then moved into the home of

Mother’s brother and his family. During this time, Step-Grandmother would

watch Child during the day while Mother worked.

       The spring after Child’s birth, Grandparents suggested that Mother

visit her other child in Florida and offered to pay for her to travel there at

the end of May. However, on May 16, 2012, Mother’s brother kicked her out

of   his   home,   having   her   removed   from   his   house   by   the police.


1
    Mother moved to Florida as a teenager. Mother and Father are the
parents to another, older child. Father and Mother’s biological mother, who
also lives in Florida, share custody of that child.


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Grandparents refused to allow Mother and Child stay in their home and

instead bought Mother a one-way bus ticket to Florida.       Mother left Child

with Grandparents and went to Florida. While she was gone, Mother called

Step-Grandmother multiple times a day to check on Child.                 Step-

Grandmother stopped answering Mother’s calls after the first week.

     On May 31, 2012, while Mother was out of state, Grandparents filed a

complaint for custody and a petition for emergency relief seeking temporary

physical and legal custody of Child. On the same day, the trial court granted

Grandparents’ petition.   The only attempt Grandparents made to serve

Mother with these documents was mailing them to the brother’s house,

where they knew Mother was not living.2 Grandparents made no attempt to

serve Father with the custody complaint at all, as they contend that they did

not know he was Child’s father at that time.

     On   or   about   June   5,   2012,   Mother   and   Father   returned   to

Pennsylvania. They went to Grandparents’ house to retrieve Child. Fearing

that there would be problems, Mother arrived with the local police.3 Step-

Grandmother refused to give Child to Mother, and for the first time, provided


2
   Grandparents claim that they could not serve Mother in Florida because
they did not know where Mother was residing. However, they admit that
they had telephone contact with Mother during this time. N.T., 9/12/12, at
55. Their assertion that they could not know where Mother was located is
utterly unsupported by the record.
3
  In acknowledgment of his strained relationship with Grandfather, Father
did not approach the house but remained in a location down the road while
Mother attempted to obtain Child.


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her with the emergency custody order.       Mother and Father returned to

Florida without Child.

      On June 22, 2012, Father filed a motion to join Grandparents’ custody

action as an additional defendant and included a counterclaim for primary

legal and physical custody of Child. He also filed preliminary objections to

Grandparents’ complaint, arguing that it must be dismissed because, inter

alia, they lacked standing to seek custody of Child.   The trial court joined

Father as an additional defendant and, following a hearing, determined that

Grandparents stood in loco parentis to Child and therefore that they could

pursue custody pursuant to 23 Pa.C.S.A. § 5324.            Subsequently, on

November 26, 2013, at the conclusion of a two-day custody trial, the trial

court awarded Father primary physical and legal custody of Child. The trial

court designed the transfer of custody such that the Child would spend

increasingly longer periods with Father over a period of approximately six

months, in order to ease the transition on Child, with the transfer of custody

being complete by May 23, 2014.         Grandparents were awarded partial

custody of Child in the form of one weekend per month with additional time

over some holidays and the summer. See Trial Court Order, 11/26/13.

      The parties subsequently filed the present appeal and cross-appeal.

We begin by acknowledging our scope and standard of review:

            In reviewing a custody order, our scope is of the
            broadest type and our standard is abuse of
            discretion. We must accept findings of the trial court



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            that are supported by competent evidence of record,
            as our role does not include making independent
            factual determinations. In addition, with regard to
            issues of credibility and weight of the evidence, we
            must defer to the presiding trial judge who viewed
            and assessed the witnesses first-hand. However, we
            are not bound by the trial court’s deductions or
            inferences from its factual findings. Ultimately, the
            test is whether the trial court’s conclusions are
            unreasonable as shown by the evidence of record.
            We may reject the conclusions of the trial court only
            if they involve an error of law, or are unreasonable in
            light of the sustainable findings of the trial court.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011).

     Because it is dispositive, we begin with the issue raised by Father in

his cross appeal. Father argues that the trial court erred in determining that

Grandparents had standing to seek custody of Child. Appellant’s Brief at 12.

            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[,] [i]n 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.




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D.G. v. D.B., 91 A.3d 706, 708 (Pa. Super. 2014) (citations omitted).

Section 5324 of the Custody Act governs who may pursue custody of a child.

It provides as follows:

            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:

              (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.




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23 Pa.C.S.A. § 5324.      It must be recognized, however, that “standing

established by virtue of in loco parentis status does not elevate a third party

to parity with a natural parent in determining the merits of custody dispute.”

Jacob v. Shultz-Jacob, 923 A.2d 473, 477 (Pa. Super. 2007). Rather,

            the natural parent has a prima facie right to custody,
            which will be forfeited only if clear and convincing
            reasons appear that the child’s best interest will be
            served by an award to the third party. Thus, even
            before the proceedings start, the evidentiary scale is
            tipped, and tipped hard to the biological parents’
            side.

J.F. v. D.B., 897 A.2d 1261, 1273 (Pa. Super. 2006)(citation omitted).

      In the present case, the trial court found that Grandparents attained in

loco parentis status when Mother left Child with them and went to Florida in

May 2012.     Trial Court Opinion, 1/30/14, at 4-6.    “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.” D.G., 91 A.3d at 708-09 (citation omitted).

However, it is well established that “a third party … cannot place himself in

loco parentis in defiance of the parents’ wishes and the parent/child

relationship.” Id. at 709. Furthermore,

            [t]he requirement of a natural parent's participation
            and acquiescence is critical to the determination of
            whether to accord a third party in loco parentis
            status. See McDonel v. Sohn, 762 A.2d [1101,]
            1106 (Pa. Super. 2000)] (recognizing that there can



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            be no in loco parentis status for a third party if the
            natural parent’s actions conflict with such a finding).
            The law simply cannot permit a third party to act
            contrary to the natural parent’s wishes in obtaining
            custody and then benefit from that defiant conduct in
            a subsequent custody action.

J.F. at 1275-76. Quite simply, a third party may not assume in loco parentis

status when either natural parent opposes it.     Id. at 1274 (citing B.A. v.

E.E., 741 A.2d 1227, 1229 (Pa. 1999)).4

      We find J.F. instructive to the situation we face in the present case.

J.F. involved a gestational carrier who was not biologically related to the

triplets she carried for the father, J.F., and his wife.5   Shortly after giving

birth to the triplets, the gestational carrier decided that J.F. and his wife

would not be fit parents and so she absconded from the hospital with the

babies and refused to return them to J.F. As soon as J.F. learned that this

had occurred, he filed a complaint for custody, naming the carrier as the

defendant. When the gestational carrier responded by filing a counter-claim

for custody, Father challenged her standing. The trial court found that the

gestational carrier stood in loco parentis to the children, but this Court

disagreed. We hewed to the well-settled principle that “that there can be no



4
  As Justice Nigro eloquently stated in his concurring opinion in B.A., “The
stakes are simply too high and the rights of the non-consenting parent too
substantial to allow one parent to confer in loco parentis status on a third
party.” B.A., 741 A.2d at 1229 (Nigro, J. concurring).
5
  J.F.’s wife was not biologically related to the triplets, as they were
conceived in vitro with J.F.’s sperm and ovum from an egg donor.


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J-A23012-14


finding of in loco parentis status where the third party obtains her status in

defiance of the natural parent’s wishes” and determined that the trial court

erred in concluding that the gestational carrier had in loco parentis status.

Id. at 1276. Of importance, we note that J.F. made his opposition to the

gestational carrier’s relationship with the children known immediately upon

becoming aware that she had taken them home with her and refused to

return them to him.

     Similarly, it is without question that Father has opposed Grandparents’

assumption of parental duties for Child and their attempt to obtain custody

of Child from the moment he learned of their efforts. As noted above, the

trial court determined that Grandparents assumed all parental duties for

Child when Mother left him in their care and went to Florida.      Trial Court

Opinion, 1/30/14, at 4-6. The trial court discredited Mother’s testimony that

she intended to return to Pennsylvania, and that is a determination that this

Court cannot disturb.   See Busse v. Busse, 921 A.2d 1248, 1256 (Pa.

Super. 2007) (holding that this Court “do[es] not reverse credibility

determinations on appeal.”).   However, this does not account for the fact

that Father has never consented to Grandparents’ assertion of in loco

parentis status. The record does not reveal when, precisely, Father became

aware that Mother left Child in Grandparents’ care, but it clear that within

approximately two weeks, Father attempted to take Child home with him

and out of Grandparents’ care. When Grandparents refused to return Child



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to him, Father promptly sought to be joined in this matter, sought primary

custody of Child and challenged Grandparents’ standing.               From these

actions, it is eminently clear that Father did not consent to Grandparents’

assumption of parental duties for Child; therefore, they could not have

attained in loco parentis status. As such, the trial court erred as a matter of

law in its conclusion otherwise.

      The   trial   court   finds   that   Father   gave   “implied   consent”   to

Grandparents’ in loco parentis status because he “did nothing to exercise his

parental rights for the first five and one-half months of [Child’s] life.” Trial

Court Opinion, 1/30/14, at 3. This reasoning is flawed, as Father’s failure to

fulfill parental duties for the first five months’ of Child life, while Child was in

Mother’s custody in a distant state, is irrelevant to whether he consents to a

third party assuming parental duties for Child.        Moreover, given the very

young age of Child, the distance between Father and Mother’s residences,

and the fact that Father and Grandfather – with whom Mother and Child

were living for the first months of Child’s life – had such a horrendous

relationship that Father could not be present for the birth of Child, Father’s

failure to have acted sooner to become involved in Child’s life cannot trump

his status as Child’s biological parent, who has a prima facie right to

custody. See J.F., 891 A.2d at 1273. As stated multiple times above, when

a biological parent does not consent, a third party cannot obtain in loco

parentis status.    Father made his opposition to Grandparents’ attempts to



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assume in loco parentis status known, if in no other way, by the filing of his

claim for primary custody and preliminary objections challenging their

standing.   Father filed these documents just over one month after Mother

left Child with Grandparents (which the trial court has determined to be the

date Grandparents assumed in loco parentis status) and approximately two

weeks after finding out that Grandparents were attempting to obtain custody

of his son. We find this to be prompt and unequivocal refusal of consent to

Grandparents obtaining in loco parentis status. Any delay in action should

not be charged against Father, as Grandparents made no effort to serve him

with their custody complaint, intentionally keeping him in the dark as to

their maneuverings. In the context of the facts of this case, it was error for

the trial court to rely on what it viewed as “implied consent” when Father, at

the first opportunity, immediately voiced his objection to Grandparents’ in

loco parentis status.

      We    note   that   in   response   to   Father’s   preliminary   objections,

Grandparents asserted not only that they stood in loco parentis, but also

that they had standing by virtue of Section 5324(3). Brief in Opposition to

Additional Defendant’s Preliminary Objections, 7/31/12, at 6-7.          Although

set forth above, we reiterate that this subsection provides that a

grandparent who does not stand in loco parentis may have standing to

pursue custody if the “relationship with the child began either with the

consent of a parent of the child or under a court order;” the grandparent



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“assumes or is willing to assume responsibility for the child” and 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.A. § 5324(3).

      The trial court did not address this provision in its opinion, but our

review of the record reveals that Grandparents have failed to establish that

they satisfy its criteria.   While there is evidence to support findings that

Grandparents’ relationship with Child started with Mother’s consent and that

they are willing to assume responsibility for Child, there is no evidence of

record that Child has been declared dependent; that Child is substantially at

risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity;6 or



6
   There was testimony providing that Mother and Father have had a
physically abusive relationship, but no evidence of abuse of Child or any
other child by Mother or Father. Both Mother and Father denied drug or
alcohol abuse and submitted to drug tests during the course of these
proceedings. Both were found to be clean of illegal substances. Mother


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that Child resided with Grandparents for 12 consecutive months before being

removed by a parent. Grandparents could not successfully assert standing

under this subsection.

     In conclusion, the trial court erred in concluding that Grandparents had

standing pursuant to § 5324. Because Grandparents did not have standing,

we do not reach the issues raised in their appeal, which challenge the trial

court’s failure to award them primary custody of Child. See J.F., 897 A.2d

at 1273 (holding that upon conclusion that gestational carrier had no

standing to pursue custody, sole custody would vest in biological parent and

this Court need not reach challenge to trial court’s award of custody).

Accordingly, we reverse the trial court’s determination that Grandparents

have standing to pursue custody of Child and vacate the November 26, 2013

order granting them partial custody.

     Order vacated. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2014




admits that she is on medication for mental health issues, and this was the
only drug found in her drug screen.


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