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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


A.M.H.                                     :     IN THE SUPERIOR COURT OF
     APPELLANT                             :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
J.K., M.K., JR., J.E. AND P.E.             :
                                           :
                                           :
                                           :     No. 951 MDA 2016

                   Appeal from the Order Entered May 12, 2016
              In the Court of Common Pleas of Susquehanna County
                       Civil Division at No(s): 2014-00115

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                        FILED NOVEMBER 09, 2016

         Appellant, A.M.H., appeals from the May 12, 2016 Order denying her

Petition to Modify Custody and Petition for Special Relief with respect to her

daughter, five-year-old A.K. (“Child”). We remand for further proceedings.

         Child’s biological parents are both deceased; and A.M.H. is Child’s

biological paternal aunt who later adopted Child. On May 1, 2014, prior to

A.M.H. adopting Child, A.M.H., Child’s paternal grandparents, J.K. and M.K.,

Jr. (“Paternal Grandparents”), and Child’s maternal grandparents, J.E. and

P.E. (“Maternal Grandparents”) entered into a custody agreement whereby

A.M.H. was awarded primary physical custody and sole legal custody of

Child.      Maternal Grandparents and Paternal Grandparents were both

*
    Retired Senior Judge assigned to the Superior Court.
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awarded periods of partial physical custody.          On May 14, 2014, by

stipulation of all parties, the custody agreement was made an Order of

court.

         A.M.H. subsequently adopted Child.     N.T., 9/21/15, at 17.       Most

relevant to this appeal, the trial court states in its Opinion that “[i]n October

of 2014 [A.M.H.] and her husband, who are now separated, filed a petition

for Adoption of [Child].    The adoption was final on December [ ], 2014.”

Trial Court Opinion, dated 11/30/15, at 2 (unpaginated).           The certified

record does not indicate when exactly the adoption occurred and whether

A.M.H.’s then-estranged husband, J.H., was a final party to the adoption.

         On July 21, 2015, A.M.H. filed a Petition to Modify Custody Order, in

which she sought to eliminate Maternal Grandparents’ partial physical

custody or, in the alternative, to allow them to exercise partial physical

custody on a supervised basis only. On the same day, A.M.H. also filed a

Petition for Special Relief, in which she requested Maternal Grandparent’s

partial physical custody be immediately ended pending further order of the

court.

         On September 21, 2015, following an evidentiary hearing, the trial

court denied A.M.H.’s Petitions and instructed the parties to comply with the

prior Custody Order of May 14, 2014. A.M.H. filed a timely notice of appeal

and complied with Pa.R.A.P. 1925. On April 18, 2016, this Court vacated the

September 21, 2015 Custody Order and remanded the case with instructions



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for the trial court to consider custody factors provided in 23 Pa.C.S. §

5328(a). A.M.H. v. J.K. et al., 1842 MDA 2015 (Pa. Super. filed Apr. 18,

2016).

      In a Supplemental Opinion and Order filed May 12, 2016, the trial

court addressed Section 5328 custody factors and reaffirmed its September

21, 2015 Custody Order.

      A.M.H. timely appealed and complied with Pa.R.A.P. 1925, raising six

issues, including the following threshold issue:

         Whether the trial court committed an abuse of discretion and
         erred as matter of law by failing to [o]rder that the
         indispensable party [J.H.], adoptive father of the minor child,
         be joined in the proceedings below?

Appellant’s Brief at 3.

      An indispensable party is one who has rights so directly connected with

and affected by the litigation that he must be a party to protect such rights.

Columbia Gas Transmission Corporation v. Diamond Fuel Company,

346 A.2d 788, 379 (Pa. 1975).      His or her “absence renders any order or

decree of court null and void for want of jurisdiction.” Id. The issue of lack

of subject matter jurisdiction may be raised at any time, even for the first

time on appeal. In re Patterson's Estate, 19 A.2d 165, 166 (Pa. 1941).

      Our rules of civil procedure provide, in relevant part, that “[i]f the

court learns from the pleadings or any other source that a parent . . . is not

a party to the action, it shall order that the person be joined as a party.”

Pa.R.C.P. 1915.6(a)(1).     The explanatory comment clarifies that “[t]he


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position taken by the rules is that a person in physical custody of the child

and a parent . . . are necessary parties to a custody determination.”

Pa.R.C.P. 1915.6 cmt.

      As stated above, the certified record is devoid of information relating

to Child’s adoption. If J.H. is, in fact, Child’s adoptive father then he would

be a necessary party to this custody proceeding pursuant to Pa.R.C.P.

1915.6.   We are unable to conduct meaningful appellate review without

additional information.   As such, we are remanding this case for the trial

court to conduct an evidentiary hearing within 30 days to determine whether

J.H. is Child’s adoptive father. After hearing, trial court is to file a Pa.R.A.P.

1925(a) Opinion within 20 days addressing all of the issues raised in

A.M.H.’s Pa.R.A.P. 1925(b) Statement.

      Case remanded with instructions. Jurisdiction retained.

      Judge Strassburger joins the memorandum.

      President Judge Gantman concurs in result.




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