J-S52031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    G.M.H.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellant              :
                                               :
                                               :
                  v.                           :
                                               :
                                               :
    K.Y.                                       :   No. 1622 EDA 2019

                   Appeal from the Order Entered May 6, 2019
     In the Court of Common Pleas of Wayne County Civil Division at No(s):
                                 253-DR-2016


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED NOVEMBER 07, 2019

           G.M.H. (“Grandmother”) appeals from the order granting the Exceptions

to the Master’s Report and Recommendation filed by K.Y. (“Mother”) and

dismissing Grandmother’s Complaint in Custody, which sought partial custody

of A.K. (“Child”), for a lack of standing. We affirm.

           In June 2016, Grandmother1 filed a Complaint in Custody for

Grandparent Rights against Mother seeking partial physical custody of Child.

On November 15, 2016, the trial court dismissed the Complaint for lack of

standing. Grandmother did not appeal.

           Subsequent to the filing of the first Complaint, a separate dependency

proceeding commenced, and a separate third party had custody of Child. It


____________________________________________


1 Grandmother is Child’s paternal grandmother. Child’s father has partial
custody of Child through an informal agreement with Mother.
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appears Grandmother did not have visitation with Child during the dependency

proceeding. Mother regained custody following the dependency proceeding.

       In April 2018, Grandmother filed a second Complaint in Custody for

Grandparent Rights at the same docket number as the first Complaint.

Although the Complaint was docketed with the trial court on April 12, 2018,

Grandmother did not affect service on Mother until April 25, 2018. Mother filed

a pro se Answer on May 7, 2018, in which she challenged Grandmother’s

standing. The parties entered into an Interim Agreement in which they agreed

that, among other things, Grandmother would have weekly visits with Child

on Saturday from 1:00 p.m. to 5:00 p.m. The parties agreed that there would

be a hearing or conference in the matter in three months.

       Mother did not bring Child to the first five visits. Mother filed a Petition

for Modification. Grandmother filed a Petition for Contempt and Special Relief

in Custody2 and a Counter Petition for Modification of Custody, in which she

sought overnight visits with Child.

       A Master held a hearing on the petitions and filed a Report and

Recommendation, in which he recommended that Grandmother continue to

have weekly visits with Child. The Master did not address standing.

       Mother filed Exceptions to the Report and Recommendation, including a

claim that the Master erred in failing to determine whether Grandmother had

standing. In May 2019, the trial court granted Mother’s exceptions and
____________________________________________


2 The parties stipulated to add an additional hour to Grandmother’s weekly
visits to resolve the contempt petition. Stipulation, filed Sept. 7, 2018.

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dismissed    Grandmother’s    custody    Complaint    for   lack   of   standing.

Grandmother filed a timely Notice of Appeal.

       Grandmother raises the following issues:

         1. Did the trial court err as a matter of law in concluding
         that a grandmother was divested of standing as a result of
         the repeal of 23 Pa.C.S.A. § 5325(2) when the grandmother
         had standing when she initiated the custody action in June
         of 2016 pursuant to 23 Pa.C.S.A. § 5325(2) and the child’s
         mother did not object to the grandmother’s standing at that
         time or to the constitutionality of 23 Pa.C.S.A. § 5325(2)?

         2. Did the trial court err as a matter of law in concluding
         that a grandmother lacked standing to seek partial physical
         custody when the child’s mother waived the issue of the
         grandmother’s standing by failing to object to her standing
         after she filed her initial custody complaint, failing to file
         preliminary objections to the grandmother’s most recent
         custody complaint, entering into agreements with the
         grandmother by which the grandmother was granted partial
         physical custody of the child, and failing to object to the
         grandmother’s standing to file the counterpetition for
         modification before the trial court?

Grandmother’s Br. at 4.

       Grandmother first argues that she had standing under the version of 23

Pa.C.S.A. § 5325(2) that existed when she filed her first custody complaint in

2016 and her standing cannot be overcome by a subsequent change in the

law.

       When Grandmother filed her first complaint, the grandparent custody

statute allowed grandparents to seek custody where the “parents of the child

have been separated for a period of at least six months.” 23 Pa.C.S.A. §




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5325(2). In September 2016, the Pennsylvania Supreme Court found this

provision to be unconstitutional. D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016).3

       Grandmother cites to M.G. v. L.D. There, this Court found we did not

need to address whether D.P. applied. M.G. v. L.D., 155 A.3d 1083, 1087 at

n.5 (Pa.Super. 2017). We reasoned that although “we have re-evaluated a

party’s standing following a factual change in circumstances, . . . our review

of Pennsylvania jurisprudence does not support . . . re-evaluation of standing

. . . absent a determination that the change in law applied retroactively.” Id.

       Here, although Grandmother filed a Complaint in Custody in 2016, that

is not the complaint that was before the trial court. Rather, the court dismissed

that Complaint for lack of standing. Further, following that Complaint, there

was a dependency proceeding, which was resolved when Mother regained

physical and legal custody of Child. Grandmother filed the Complaint at issue

in 2018, after the dependency proceeding. Therefore, whether Grandmother

had standing when she filed her 2016 Complaint is irrelevant. See M.W. v.

S.T., 196 A.3d 1065, 1071 (Pa.Super. 2018) (concluding “Children’s change

in status from dependent to not dependent, and reunification with Parents,

are relevant changes in circumstances that permit the re-evaluation of

standing upon motion by a party”).

       Grandmother next argues that Mother failed to preserve her objection

to standing because Mother did not file preliminary objections within 20 days
____________________________________________


3In May 2018, the Pennsylvania General Assembly amended the statute. The
amended statute became effective in July 2018. 23 Pa.C.S.A. § 5325.

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of the filing of Grandmother’s 2018 Complaint. Grandmother argues that

Mother’s denial of Grandmother’s standing in the Answer to the Complaint is

not sufficient to preserve the claim.4

       The trial court concluded:

          The Rules of Civil Procedure state that “[a] party must raise
          any question of jurisdiction of the person or venue, and may
          raise any question of standing, by preliminary objection filed
          within twenty days of service of the pleading to which
          objection is made or at the time of hearing, whichever first
          occurs.” Pa. R. Civ. Pro. 1915.5(a) (emphasis added). Since
          resolution of a standing issue has the potential to control
          the outcome of the entire case without the court ever
          reaching the merits, it is important that the issue be raised
          as early as possible. A party, however, is not required under
          Rule 1915.5(a) to raise a question of standing by
          preliminary     objection.     Here,    [Mother]     provided
          [Grandmother] with notice of her intention to object to
          standing in her pro se Answer . . . . The Master failed to
          address the issue of standing in the Report and
          Recommendation that was filed on January 18, 2019 to the
          incorrect docket number, 167-2014-dr. The Master’s failure
          to address the issue caused [Mother] to file an exception on
          the matter. Thus, this Court did not err by dismissing
          [Grandmother’s] Custody Complaint for lack of standing.

                                           ...

          [Mother] filed a pro se Answer to [Grandmother’s]
          Complaint on May 7, 2018. [Mother’s] Answer provided
          [Grandmother] with notice of her intention to object to
          standing. On August 6, 2018, the parties voluntarily entered
          into an Interim Agreement. Nowhere within the Agreement
          do the parties address the issue of standing. It is unclear to
          this Court how entering into an interim agreement waives
____________________________________________


4 Grandmother claims that Mother filed her Answer 25 days after the
Complaint. However, although the Complaint was filed on April 12, 2018, it
was not served on Mother until April 25, 2018. She filed her pro se answer on
May 7, 2018, which was within 20 days of service.

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          outstanding issues that are to be determined by the court.
          [Grandmother] failed to provide this Court with legal
          argument that would support such a claim. Thus, this Court
          did not err in dismissing [Grandmother’s] Custody
          Complaint for lack of standing.

Trial Court Opinion, filed June 27, 2019, at 2-3.

       We agree with the trial court. Mother filed a pro se Answer, raising the

issue of standing and entered an Interim Agreement, knowing that a hearing

would be held on the issues raised in the Complaint and Answer, including

whether Grandmother had standing. Further, after the Master issued a Report

and Recommendation that did not address whether Grandmother had

standing, Mother filed Exceptions, again asserting that Grandmother lacked

standing. We decline to find waiver under these circumstances.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/19




____________________________________________


5 We further note that Mother and Father are in agreement that Grandmother
should not have custody of Child. Father testified that Grandmother could
come to Father’s house to visit Child, but that “this is not the way” to see
Child. N.T., 1/8/19/, at 40. When asked if Grandmother should have overnight
visits, Father responded “[a]bsolutely not.” Id. at 41.

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