J-S08044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.B.,                                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                    Appellant

                          v.

L.L.D., D.A.L., AND E.D.,

                    Appellees                     No. 2810 EDA 2014


                  Appeal from the Order entered July 15, 2014,
             in the Court of Common Pleas of Montgomery County,
                      Civil Division, at No(s): 2014-17859

BEFORE: DONOHUE, WECHT, AND JENKINS, JJ.

MEMORANDUM BY JENKINS, J.:                            FILED MARCH 30, 2015

        Appellant, C.B., (“Plaintiff”) appeals from the order entered on July 15,

2014, finding that she lacked third-party standing to file a custody

complaint, against L.D. (“Mother”), D.L. (“Father”), and E.D. (hereinafter

“Maternal Grandfather”), regarding Mother’s and Father’s son, I.L. (“Child”)

(born in August of 2010), and dismissing C.B.’s complaint for custody and

petition for special relief under the Child Custody Act, (“the Act”), 23

Pa.C.S.A. §§ 5321 to 5340. The order also dismissed, as moot, the petition

to intervene filed by Maternal Grandfather. We affirm.

        The trial court set forth the factual background and procedural history

of this appeal as follows.

        Defendant/Appellee     [L.L.D.]  (hereinafter “Mother”),   and
        Defendant/Appellee [D.D.L.] (“hereinafter “Father”) are the
        parents of I.J.L[.], [born in August of 2010] (hereinafter “the
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      child”). On June 16, 2014, Plaintiff/Appellant [C.B.] (hereinafter
      “Plaintiff”), a third party, filed a Complaint for Legal and Physical
      Custody of the child against Mother and Father. At the time the
      petition was filed, Mother and Father lived in Miami, Florida. On
      June 23, 2014, Plaintiff filed an Emergency Motion for Special
      Relief against Mother and Father, and added the child’s maternal
      grandfather, [E.D.] (hereinafter “Maternal Grandfather”), as a
      third defendant. On June 25, 2014, the court scheduled a
      hearing on the issue of standing only for July 2, 2014. On July
      1, 2014, Maternal Grandfather filed a Petition to Intervene in
      Custody.

Trial Court Opinion, 10/16/14, at 1.

      On July 2, 2014, the trial court held a hearing on the issue of C.B.’s

standing in the custody matter.        C.B. appeared, along with her counsel,

Attorney Enrico Paganelli. E.D. appeared pro se. Mother and Father did not

appear, nor did any counsel appear on their behalf.

      The trial court found that the witnesses testified as follows.

              At the July 2, 2014 hearing, Plaintiff testified that she met
      Maternal Grandfather “at the Borgata in Atlantic City at the end
      of May of 2012 . . . and we started dating.” N.T. July 2, 2014 at
      8. Plaintiff testified that they moved in together at her residence
      “. . . by the end of July, the beginning of August of that year. . .”
      N.T. at 8.       Plaintiff testified that when she met Maternal
      Grandfather, the child was living with his [m]other in Miami,
      Florida.

             Plaintiff testified that in June, 2013, Maternal Grandfather
      went to Miami to see Mother and the child. On June 24, 2013,
      Maternal Grandfather brought the child back with him from
      Miami to Pennsylvania. N.T. at 16-17. Plaintiff entered into
      evidence a letter from Mother which stated that she was giving
      “temporary custody” of the child to Maternal Grandfather, who
      would return the child to Mother in Miami once Mother found a
      place to live and obtained a job.[ ] Trial Exhibit P-2. Plaintiff
      testified that while the child lived with her and Maternal
      Grandfather, she “bought him clothes, bought him toys. . . spent
      a couple of days with him. . .” N.T. at 20. Plaintiff testified that

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     she put the child was [sic] in summer camp, hired a babysitter
     to pick him up after school, and placed him in daycare. N.T. at
     20-21. Plaintiff also testified that she paid for the child to have
     health insurance in Pennsylvania. N.T. at 27. Plaintiff testified
     that while the child was living with her and Maternal
     Grandfather, Mother “reached out” to the child “. . . if it wasn’t
     every other day sometimes it was every day.” N.T. at 31. When
     asked by counsel if Mother consented to “Well, she consented
     that [Maternal Grandfather] could bring him. And she knew that
     her father lived with me . . . so, yes.” N.T. at 32.

            On cross-examination, Plaintiff testified that she and
     Maternal Grandfather shared in the daily care of the child, and
     she was not the only one who cared for the child while he was in
     Pennsylvania. N.T. at 43-44. Plaintiff testified that “the intent
     originally was that the child was going to stay until [Mother] got
     her life together . . . originally we thought maybe that would
     take a couple of months. Until it went on, we realized the
     problem was bigger than what was originally anticipated. So the
     summer vacation became a year.” N.T. at 47.

            During redirect examination, Maternal Grandfather stated
     to Plaintiff[,] “I was asked to take care of the grandchild, not
     you. . .” N.T. at 49. On his direct examination, Maternal
     Grandfather testified that when he went to Miami to visit Mother
     and the child in June, 2013, he stated to Mother that he could
     help her by taking the child back to Pennsylvania for a “summer
     vacation.” N.T. at 63. Maternal Grandfather testified that “on
     many occasions,” Plaintiff told him that she wanted a child, “and
     I told her look, if you want a kid, you might want to adopt one,
     you can’t keep my daughter’s son.” N.T. at 65.

             Maternal Grandfather testified that, eventually, Mother
     intended to come and get the child and take him back to Miami
     “. . . [Plaintiff] kept telling her no, you can’t come to my house.”
     N.T. at 71. Maternal Grandfather testified that Plaintiff went
     behind his back and behind Mother’s back “and filed for custody
     without telling us” in June, 2014. N.T. at 71. When asked by
     the court if Plaintiff was responsible for all of the child’s care,
     Maternal Grandfather replied: “. . . I had everything to do with
     his care. I was living there, I was working, I was buying food. I
     was bathing him, taking him to the doctor’s, taking him to the
     daycare . . . doing everything. . .” N.T. at 79.


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Trial Court Opinion, 10/16/14, at 1-5.

      On July 15, 2014, the trial court entered an order finding that C.B.

lacked third-party standing to participate in custody proceedings, and

dismissed her complaint for custody and petition for special relief. The court

further dismissed as moot the petition to intervene filed by Maternal

Grandfather, as his petition to intervene stated, “I only want [Mother] to

have custody,” and C.B.’s complaint had been dismissed.         See Petition to

Intervene in Custody at 4.      On July 18, 2014, C.B. filed a motion for

reconsideration of the July 15, 2014 order.           The trial court denied

reconsideration on July 30, 2014, and issued Pa.R.C.P. 236 notice of the

order on August 1, 2014.

      On August 13, 2014, C.B. timely filed a notice of appeal from the July

15, 2014 order, along with a concise statement of errors complained of on

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

      On appeal, C.B. raises one issue, as follows:

      Whether the trial court erred in failing to grant Appellant in loco
      parentis standing to sue for legal and physical custody of the
      subject minor child pursuant to 23 Pa.C.S. § 5324(b)?

C.B.’s Brief, at 5.

      A trial court’s determination regarding in loco parentis 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:


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      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).

      C.B. argues that the trial court erred in ruling that she lacked

standing, in loco parentis, to seek custody of Child.      C.B. asserts that the

court failed to recognize Mother’s consent to her assumption of ongoing

parental duties, both by way of a letter from Mother, and Mother’s action

over the course of the year that Child lived with C.B. C.B. also contends that

the trial court failed to consider discrepancies in Maternal Grandfather’s

testimony, and relied too heavily on assertions that he made without any



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evidence or proof. She seeks for this Court to vacate the trial court’s order,

and remand the matter to the trial court for further proceedings.

      Pursuant to section 5324 of the Act, “A person who stands in loco

parentis to the child” may file an action for any form of physical or legal

custody.     In Peters v. Costello, 586 Pa. 102, 891 A.2d 705 (2005), our

Supreme Court outlined the relevant principles as follows:

      The term in loco parentis literally means “in the place of a
      parent.” Black's Law Dictionary (7th Ed. 1991), 791.

            The phrase “in loco parentis” refers to a person who puts
            oneself [sic] in the situation of a lawful parent by
            assuming 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. . . . 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.

Peters v. Costello, 586 Pa. at 111, 891 A.2d at 710 (citation and footnote

omitted).

      This Court has stated that a third party cannot place himself or herself

in loco parentis status in defiance of the parents’ wishes, and the

parent/child relationship. Gradwell v. Strausser, 610 A.2d 999, 1003 (Pa.

Super. 1992). See E.W. v. T.S., 916 A.2d 1197, 1205 (Pa. Super. 2007)

(stating, “the law provides that in loco parentis status cannot be achieved

without the consent and knowledge of, and in disregard of the wishes of a

parent”).    The frequency of a caretaker’s services does not confer in loco


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parentis status.    Argenio v. Fenton, 703 A.2d 1042, 1044 (Pa. Super.

1997) (holding that grandmother’s serving as child’s frequent caretaker was

insufficient to confer on grandmother standing to file custody dispute against

child’s birth father).

      Here, the trial court found as follows.

             Based on the evidence presented at the July 2, 2014
      hearing, Plaintiff did not prove that she stands “in loco parentis”
      to the child. Plaintiff did not “live with the child and the natural
      parent in a family setting” and did not develop “a relationship
      with the child as a result of the participation and acquiescence of
      the natural parent.” Morgan v. Weiser, 923 A.2d 1183 (2007).
      Plaintiff was the girlfriend of Maternal Grandfather at the time
      when the child came to temporarily live with Maternal
      Grandfather in Pennsylvania.         There was no evidence that
      Mother, or for that matter Father, consented to Plaintiff having a
      parental role in the child’s life. In fact, Maternal Grandfather
      testified that[,] while the child was in Pennsylvania, Mother
      “repeatedly called me and said Dad, why doesn’t [Plaintiff] let
      me come visit my son.” N.T. at 64. Plaintiff herself testified that
      she was worried what would happen when Mother told the child’s
      [f]ather that Plaintiff had filed for custody. The evidence does
      not support a finding that Plaintiff developed a relationship with
      the child with the consent and support of either Mother or
      Father. As previously stated, Plaintiff cannot stand in loco
      parentis to the child in defiance of the natural parent’s wishes
      and the parent/child relationship.

             Maternal Grandfather testified that the child’s stay in
      Pennsylvania was temporary until Mother could find a job and a
      place to live, and was not intended to be a permanent transfer of
      custody of the child to anyone. Furthermore, during the child’s
      stay in Pennsylvania, Plaintiff was not the sole caretaker of the
      child. Maternal Grandfather testified that he provided for the
      day[-]to[-]day care of the child along with Plaintiff. There was
      no evidence that Plaintiff solely assumed the obligation incident
      to the parental relationship without “going through the formality
      of a legal adoption”. D.G. and D.G. v. D.B. and G.V., 91 A.3d
      706, [708 (Pa. Super. 2014)].


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              Plaintiff is not related to the child either through blood or
      marriage.       Her only status was as a girlfriend to Maternal
      Grandfather, and[,] in fact, Plaintiff testified that as of August
      2013, she was “basically just co-habitating” with Maternal
      Grandfather.         At the time of the hearing, as Maternal
      Grandfather stated in his closing argument, she was “just an ex-
      girlfriend.” N.T. at 98.

             There was no evidence presented at the hearing that
      Plaintiff stands in loco parentis to the child.

Trial Court Opinion, 10/16/14, at 7-8.

      The trial court found that Mother and Father had not consented to C.B.

having a parental role in Child’s life, and that the actions of Mother preclude

C.B. from attaining in loco parentis status. While C.B. argues that the trial

court placed excessive weight on the testimony of Maternal Grandfather in

finding the lack of consent to C.B. having a parental role in Child’s life, we

find that there was competent evidence in the record to support the trial

court’s credibility and weight determinations.      Thus, we will not disturb

them. C.R.F., at 443. Accordingly, we find that the trial court did not abuse

its discretion in denying C.B. third-party standing, and dismissing her

complaint for custody and petition for special relief.     See Gradwell; and

Argenio, supra.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2015




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