J-S06033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.B.                                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

F.W. F/K/A F.M. AND R.D.

                         Appellee

                    v.
                                                   No. 1268 MDA 2015
J.F.K. AND J.C.K.

                         Appellee


                  Appeal from the Order Entered July 2, 2015
              In the Court of Common Pleas of Columbia County
                 Civil Division at No(s): 2009-CV-0001006-CU


BEFORE: PANELLA, J., MUNDY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:              FILED FEBRUARY 23, 2016
    Appellant, C.B. (“Paternal Grandmother”), the paternal grandmother of

three minor children, B.D. (born September of 2004), R.D. (born October

2005), and M.D. (born January of 2007) (“the Children”), appeals from the

order dated July 2, 2015, denying her petition to intervene and a

counterclaim for custody. The trial court found that Paternal Grandmother

lacked standing to seek custody or visitation of the Children. We vacate the

order and remand for further proceedings consistent with this memorandum.

       F.W., f/k/a F.M., (“Mother”) and R.D. (“Father”) had the Children out

of wedlock. Mother and Father never married, but lived together in 2006 for



*Former Justice specially assigned to the Superior Court.
J-S06033-16


a short time. From January of 2010 through October of 2010, Father was

incarcerated in Columbia County, Pennsylvania.               On March 11, 2010,

Paternal Grandmother filed a petition for custody and visitation of the

Children.   Paternal Grandmother resides with her daughter, R.B.            On June

10, 2010, the trial court adopted the master’s recommendations as an order

and awarded primary physical and legal custody to Mother and partial

physical custody to Paternal Grandmother.

     On     October     18,   2010,   the   trial   court   adopted   the   master’s

recommendations as an order, under which Mother remained with primary

physical and legal custody, and Paternal Grandmother had partial custody/

visitation of the Children at or near a McDonald’s restaurant each Saturday

from 1:00 p.m. to 3:00 p.m.            On November 15, 2010, Mother filed

exceptions.   On December 16, 2010, a hearing was held.               The trial court

found Mother in contempt and fined her for failing to comply with the terms

of the order. On January 12, 2011, the trial court entered an order awarding

Mother primary physical custody with partial physical custody to Paternal

Grandmother. On January 21, 2011, Mother filed exceptions.

     On February 22, 2011, Father filed a petition to modify custody. On

March 24, 2011, the trial court entered an order awarding primary physical

custody to Mother and shared legal custody to Mother and Father. On April

2011, a Protection from Abuse (“PFA”) order was entered against Father, in

favor of Mother.      On June 27, 2011, the trial court accepted the master’s


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recommendations as an order awarding Mother primary physical custody and

shared legal custody of the Children between Mother and Father.                In

September of 2011, Mother married J.W. On October 4, 2011, the trial court

adopted the master’s recommendations as an order, awarding primary

physical custody to Mother and shared legal custody to Mother and Father.

The order further stated Paternal Grandmother had no physical custody in

her own right, but may visit the Children through Father. On October 10,

2011, Father sought review of the custody order. Father was imprisoned in

Columbia County Jail.

      On December 21, 2011, Paternal Grandmother brought a contempt

action against Mother alleging Mother had disobeyed the visitation order.

On January 13, 2012, the trial court denied the petition for contempt. On

January 18, 2012, the trial court adopted the master’s recommendations as

an order providing that Paternal Grandmother did not have independent

rights to the Children. The order further stated Paternal Grandmother may

have partial physical custody as Mother and Paternal Grandmother agree.

      On January 24, 2012, Mother sought permission to relocate to Virginia

with the Children. At that time, Mother lived in Columbia County with J.W.,

the   Children’s   maternal   grandparents,   J.F.K.   and   J.C.K.    (“Maternal

Grandparents”), and the Children.    Father was incarcerated.         On February

17, 2012, Father filed a petition to modify custody. On February 27, 2012,




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the trial court adopted the master’s recommendations as an order granting

Mother’s petition for relocation to Virginia.

      On June 25, 2012, Mother filed a petition to modify custody seeking

sole custody due to Father’s incarceration and drug trafficking charges. On

September 21, 2012, the trial court entered an order awarding primary

physical and legal custody to         Mother    and concluding that   Paternal

Grandmother lacked standing. Father was granted partial custody due to his

incarceration in Columbia County. On March 4, 2013, Paternal Grandmother

and Father filed a counter-affidavit regarding relocation. On July 24, 2013,

Paternal Grandmother filed a petition for contempt against Mother for failure

to comply with the custody order.               On August 2, 2013, Paternal

Grandmother’s petition for contempt was denied.

      On May 21, 2014, Paternal Grandmother filed a petition to modify the

custody order seeking visitation rights with the Children. On June 20, 2014,

the trial court entered an order dismissing Paternal Grandmother’s petition

for lack of standing.

      On January 16, 2015, Maternal Grandparents filed a petition to modify

custody seeking primary physical and legal custody of the Children because

the Children had been living with them since January of 2012. On March 6,

2015, Paternal Grandmother filed a petition to intervene in the custody

action and a counterclaim for custody. On March 20, 2015, the trial court

entered an order that adopted the master’s recommendations, awarding


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primary physical and legal custody of the Children to Maternal Grandparents

and periods of partial physical custody to Mother.      On March 23, 2015,

Maternal Grandparents filed a response and a motion to show cause why the

court should not grant Paternal Grandmother her requested relief, and a

motion to dismiss the counterclaim.

       On July 2, 2015, the trial court held a hearing to determine whether

Paternal Grandmother had standing to intervene in the custody proceedings.

Following the hearing, the trial court found Paternal Grandmother lacked

standing. On July 22, 2015, Paternal Grandmother filed a notice of appeal

from the order, along with a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).1

       On appeal, Paternal Grandmother raises the following issues:

       1. Whether [Paternal Grandmother] can intervene in the custody
          action filed [?]

____________________________________________


1
  Paternal Grandmother did not file a Statement of Errors Complained of on
Appeal with her notice of appeal, as required by Pa.R.A.P. 1925(a)(2) in this
Children’s Fast Track appeal. On August 7, 2015, this Court directed
Paternal Grandmother to file such Statement in the trial court, to serve the
Statement on the trial judge and other parties, and to file a copy of the
Statement with the Prothonotary of the Superior Court by August 17, 2015.
This Court has received a copy of her Statement, filed on August 14, 2015.
Because Paternal Grandmother timely complied with this Court’s order, and
no party claims prejudice as a result of Paternal Grandmother’s procedural
error, we will not quash or dismiss this appeal. See In re K.T.E.L., 983
A.2d 745 (Pa.Super. 2009); cf. J.P. v. S.P., 991 A.2d 904 (Pa.Super. 2010)
(appellant waived all issues by failing to timely comply with the trial court’s
direct order to file a concise statement).



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      2. Whether   [Paternal    Grandmother]         should    be     given
         grandparent rights [?]

Paternal Grandmother’s Brief at 5.

      A trial court’s determination regarding standing will not be disturbed

absent an abuse of discretion.         Butler v. Illes, 747 A.2d 943, 944

(Pa.Super. 2000).

      In custody cases, our standard of review is as follows:

      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 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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted).

      This Court has stated: “[a]n abuse of discretion is not merely an error

of judgment; if, in reaching a conclusion, the court overrides or misapplies

the law, or the judgment exercised is shown by the record to be either

manifestly unreasonable or the product of partiality, prejudice, bias or ill will,

discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111

(Pa.Super. 2007) (quotation omitted).

      Section 5324 of the Child Custody Act provides as follows:


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     § 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:

              (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.A. § 5324.

     Section 5325 of the Child Custody Act provides as follows:




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     § 5325.     Standing for partial physical custody and
     supervised physical custody

           In addition to situations set forth in section 5324 (relating
     to standing in any form of physical custody or legal custody),
     grandparents and great-grandparents may file an action under
     this chapter for partial physical custody or supervised physical
     custody in the following situations:

         (1) where the parent of the child is deceased, a parent or
         grandparent of the deceased parent may file an action
         under this section;

         (2) where the parents of the child have been separated
         for a period of at least six months or have commenced
         and continued a proceeding to dissolve their marriage; or

         (3) when the child has, for a period of at least 12
         consecutive months, resided with the grandparent or
         great-grandparent, excluding brief temporary absences of
         the child from the home, and is removed from the home
         by the parents, an action must be filed within six months
         after the removal of the child from the home.

23 Pa.C.S.A. § 5325.

     Although not explicitly stated in Paternal Grandmother’s petition to

intervene and petition for child custody, Paternal Grandmother made it clear

at the July 2, 2015, hearing that she brought her claim of standing to seek

partial custody of the Children pursuant to our grandparent visitation and

custody statute at section 5325. Indeed, the court recognized this fact:

     THE COURT:          [i]t looks like it’s [Paternal Grandmother’s
     claim] for partial custody and visitation. It [section 5325] says if
     an unmarried child [sic]—which this would be—has resided with
     their grandparents or great-grandparents for a period of 12
     months or more and is subsequently removed from the home by
     his parents, which would be the children, the grandparents may
     petition the Court for an Order granting them reasonable partial
     custody, if it finds that visitation would bein the best interest of

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        the children and would not interfere with the parent/child
        relationships.
               So, before I get – it seems like I have to have a hearing on
        that latter part if the first part was met ‘cause I don’t think we’re
        looking for a petition for total physical custody.

        COUNSEL:          No, [Paternal Grandmother] just want[s] to
        see [the Children].

N.T., 7/2.15 at 18.2       Thereafter, the court also appeared to take judicial

notice of Paternal Grandmother’s standing under section 5325(2) in light of

our jurisprudence construing the statute to apply with equal force to cases

where parents were never married.3 See N.T. at 21, 24.

        Nevertheless, the court viewed Paternal Grandmother’s failure to

appeal from previous orders pronouncing her lack of standing as a bar to

claiming standing in the present matter. For reasons that remain unclear,

the court also suggested that proof of facts establishing standing under

section 5325(3) represented the sole means by which to surmount this bar,

but it discerned no such offer of proof in Paternal Grandmother’s case:

        THE COURT:        Yes, and it’s a leap in a way [referring to the
        court’s previous comment interpreting the 2012 Master’s report
        as making a best interests determination against Paternal
        Grandmother obtaining custody], but the fact still remains that
____________________________________________


2
  Throughout the July 2, 2015 hearing, the trial court refers to section 5313
as governing authority. The General Assembly, however, adopted an act
that repealed section 5313 and replaced it with sections 5324 and 5325.
See Act of 2010, Nov. 23, P.L. 1106, No. 112, § 1, effective in 60 days [Jan.
24, 2011]. Accordingly, we replace all trial court references to repealed
section 5313 with references to section 5325.
3
    See L.A.L. v. V.D., 72 A.3d 690, 694-95 (Pa.Super. 2013).



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     in order to secure standing back then both prongs [standing and
     best interests of the children] of the test would have to have
     been met. When the Court said no standing three times the
     Court said no standing that meant the test had not been met
     and it was either the 12 months and/or the second prong of best
     interest. So it wasn’t appealed.

     ***
     [A]nd, I mean, she hasn’t had any significant contact with these
     kids, let’s just say, for three years in 2012, probably well before
     that, according to [Mother] here. I just don’t think that fits
     under the spirit or certainly the letter of [section 5325].

     ***
     [T]hat’s just the way it goes in these cases [to counsel’s
     protestation that Mother prevented Paternal Grandmother from
     seeing the Children]. I mean, she doesn’t have standing. . . .
     And we laid out the rules in 2010 so that they would be fairly
     clear and in this one she just doesn’t fit the mold.

     ***
     I don’t think you meet prong number one [section 5325
     standing]. Even by – I mean, [Mother] here said possibly a year
     and a half . . . back in 2006 or seven, but since then it’s
     determined by the Court there’s no standing and that prong
     hasn’t been reestablished. And I think based upon my reading
     of this, you have to have residence with the grandparents for 12
     months or more to establish standing and the 12 months, given
     this fact situation, would have to start some time after 2012 if
     not ’13 and ’14.

     ***
     I think once standing is out, then you got to [sic] reestablish
     standing. So I will do this.
           AND NOW, this date, Petitioner’s objections to the
           petition to intervene are granted. The Court finds
           that the proposed intervenor [Paternal Grandmother]
           . . . . does not have standing under 23 Pa.C.S.
           Section [5325] in that the Court specifically finds
           that the minor children did not reside with [Paternal
           Grandmother]. . . for a period of 12 months or more
           since it was first determined by Court Order of 2012
           which was un-appealed that she did not have
           standing. The Court notes that her lack of standing

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              was subsequently affirmed by Court Orders in 2013
              and 2014, both of which Orders were not appealed.

N.T. at 25-26, 28-29, 29-30, 32, 33.

       Paternal Grandmother maintains the position she took at the hearing,

namely, that she only wants to visit her grandchildren, not take custody

away from Mother.         Paternal Grandmother’s brief at 6.      In its Pa.R.A.P.

1925(a) opinion explaining its reasons for rejecting Paternal Grandmother’s

position, the trial court provides the following analysis:

       Paternal Grandmother relinquished any standing that she may
       have had. Moreover, she does not meet the requirements for
       custody since there are no allegations of in loco parentis,
       dependency, abuse or residing in the home for twelve months
       recently. Additionally, Paternal Grandmother does not have
       standing for partial custody or supervised custody since no
       parent is deceased, the Children’s parents were not married, and
       the Children have not resided with Paternal Grandmother
       recently.

Trial Court Opinion, at 5 (emphasis added).4.       Neither governing authority

nor the facts of this case supports the trial court’s analysis.

       The first sentence of the Pa.R.A.P. 1925(a) opinion excerpt reflects the

rationale expressed at the July hearing that Paternal Grandmother had no

standing to pursue her petition to intervene because she failed to appeal the

court’s previous custody orders denying her claim of standing—specifically,
____________________________________________


4
  We find no error of law or abuse of discretion on the part of the trial court
in concluding that Paternal Grandmother is not the parent of the Child, does
not stand in loco parentis, and the Children have not resided with Paternal
Grandmother for at least twelve consecutive months to pursue primary
physical custody in this matter. See Butler, 747 A.2d at 944.



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its orders entered on October 4, 2011, September 21, 2012, and June 20,

2014.     See Trial Court Opinion, 9/10/15, at 3, 5.     This Court has held,

however, that standing is a jurisdictional prerequisite in a grandparent

visitation action and may be raised any time, by any party, or by the court

sua sponte. See R.M. v. J.S., 20 A.3d 496 (Pa.Super. 2011). In light of

this jurisprudence, we decline to uphold the trial court’s application of waiver

doctrine to bar Paternal Grandmother’s ability to claim standing.

        The trial court also seems to have deemed section 5325(2) standing

either unavailing in light of the perceived waiver bar or, instead, inapplicable

because the Children’s parents were never married.5         Regardless of the

confounding nature of the record on this point, we reject the trial court’s

position in either case, as no waiver bar applied, and our decision in L.A.L.,

supra, construed section 5325(2) to grant standing even if parents had

never married.      Consequently, because Paternal Grandmother established

that the Children’s parents had been separated for at least six months as

required by the statute, the trial court committed an error of law in

concluding that Paternal Grandmother lacked standing to press her claim for

partial custody or supervised custody.



____________________________________________


5
  In this regard, the trial court’s Pa.R.A.P. 1925(a) opinion predicating
section 5325(2) eligibility on parents’ wedlock does not align with its
acknowledgment of L.A.L. during the custody hearing.



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      Having disposed of the present matter for lack of standing, the trial

court did not review the evidence necessary to evaluate whether granting

Paternal Grandmother’s petition would be in the best interests of the

Children.   Section 5328(c)(1) of the Child Custody Act requires a court to

consider the following factors when making any order of custody involving

grandparents and great-grandparents:

      (i) the amount of personal contact between the child and the
      party prior to the filing of the action;

      (ii) whether the      award    interferes   with   any   parent-child
      relationship; and

      (iii) whether the award is in the best interest of the child.

23 Pa.C.S. § 5328(c)(1)(i)-(iii). Section 5328(a) provides a non-exhaustive

list of factors that courts must consider when determining the best interest

of the child, including:

      (1) Which party is more likely to encourage and permit frequent
      and continuing contact between the child and another party.

      (2) The present and past abuse committed by a party or
      member of the party’s household, whether there is a continued
      risk of harm to the child or an abused party and which party can
      better provide adequate physical safeguards and supervision of
      the child.

      (2.1) The information set forth in section 5329.1(a) (relating to
      consideration of child abuse and involvement with protective
      services).

      (3) The parental duties performed by each party on behalf of the
      child.

      (4) The need for stability and continuity in the child’s education,
      family life and community life.

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     (5) The availability of extended family.

     (6) The child’s sibling relationships.

     (7) The well-reasoned preference of the child, based on the
     child’s maturity and judgment.

     (8) The attempts of a parent to turn the child against the other
     parent, except in cases of domestic violence where reasonable
     safety measures are necessary to protect the child from harm.

     (9) Which party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the child adequate for
     the child’s emotional needs.

     (10) Which party is more likely to attend to the daily physical,
     emotional, developmental, educational and special needs of the
     child.

     (11) The proximity of the residences of the parties.

     (12) Each party’s availability to care for the child or ability to
     make appropriate child-care arrangements.

     (13) The level of conflict between the parties and the willingness
     and ability of the parties to cooperate with one another. A
     party’s effort to protect a child from abuse by another party is
     not evidence of unwillingness or inability to cooperate with that
     party.

     (14) The history of drug or alcohol abuse of a party or member
     of a party’s household.

     (15) The mental and physical condition of a party or member of
     a party’s household.

     (16) Any other relevant factor.

23 Pa.C.S. § 5328(a)(1)-(16).

     Because the present record does not evidence a thorough analysis of

all relevant factors, we cannot conclude that the trial court properly

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considered the Children’s best interests.6         Therefore, we vacate the order

dismissing Paternal Grandmother’s petition and remand this case for a

hearing to decide Paternal Grandmother’s petition in light of the foregoing

standards.

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2016




____________________________________________


6
  The trial court’s passing reference to a 2012 Master’s report regarding best
interests, noted supra, cannot pass for the searching inquiry mandated
under section 5328.



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