J-A23022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.S. AND L.S.,                                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                   Appellants

                         v.

J.S. AND R.L.S.,

                   Appellees                   No. 301 WDA 2014


                Appeal from the Order entered February 7, 2014,
                 in the Court of Common Pleas of Butler County,
                       Civil Division, at No(s): 09-90120-C2

BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED OCTOBER 30, 2014

      D.S. and L.S. (“Grandparents”) appeal from the order which, inter alia,

dismissed their Petition for Reinstatement of Custody Action and for

Modification.     In their petition, Grandparents requested that they be

awarded custodial time with their minor grandson, S.S., born in June of

2006 (“Child”). We affirm.

      The trial court summarized the relevant factual and procedural history

as follows.

            [J.S.] (hereinafter “Father”) and [R.S.] (hereinafter
      “Adoptive Mother”) are the parents of the minor child in the
      herein custody matter, [Child]. Father and Adoptive Mother are
      married and live as an intact family with [Child]. [Grandparents]
      are the paternal grandparents of the child. [J.S.] (hereinafter
      “Natural Mother”) is the child’s biological mother.

           The initial Complaint for Custody in this matter was filed
      by Father against Natural Mother in 2009. Following a Custody
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     Conciliation it was Ordered that primary physical custody of the
     child would remain with Father. It was further Ordered that
     Natural Mother would be entitled to have contact with the child
     as the parties agree.

           On September 16, 2011, Grandparents filed a Custody
     Complaint against Father. At that time Grandparents asserted
     standing to file the custody action pursuant to 23 Pa.C.S.A.
     § 5324(2), claiming that they stood in loco parentis for the child,
     and pursuant to 23 Pa.C.S.A. § 5325(2), as the biological
     parents of the child are separated.        Following a Custody
     Conciliation, an Order of Court was entered on November 1,
     2011, which provided that Father would have primary physical
     custody subject to Grandparents’ partial custody.         Although
     Natural Mother’s whereabouts were unknown, she was joined to
     the action.

           On December 8, 2011, Natural Mother filed a Counter-
     Claim for Custody. After a further Conciliation it was Ordered
     that the status quo would be maintained with Father having
     primary custody of the child and Grandparents having partial
     custody. It was further Ordered that Natural Mother and the
     child would undergo therapeutic reunification counseling.

            At the time and place for a further Custody Conciliation in
     August of 2012, Grandparents did not appear and were not
     represented by counsel. Therefore, Grandparent[s’] claim for
     custody was dismissed by Order of Court entered on August 28,
     2012. They did not object to the dismissal. It was further
     Ordered that Father would retain primary physical custody of the
     child, with Natural Mother having therapeutic supervised partial
     custody.

           On March 13, 2013, Natural Mother agreed to a voluntary
     termination of parental rights and executed a Consent to
     Adoption. Accordingly, a Consent Order was entered closing the
     custody matter between Father and Natural Mother. Following a
     hearing on June 7, 2013, a Final Decree in Adoption was
     entered, recognizing the child’s stepmother, [Adoptive Mother]
     as the legal mother of [Child]. From that day forward [Child]
     continued to reside with Father and Adoptive Mother as an intact
     family.

Order of Court, 2/7/14, at 1-3.

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       On   December    26,   2013,    Grandparents   filed   their   Petition   for

Reinstatement of Custody Action and for Modification.           In the petition,

Grandparents explained that they “willing[ly] did not appear and did not

request that their counsel appear on their behalf” at the custody conciliation

of August 9, 2012.     Petition for Reinstatement of Custody Action and for

Modification, 12/26/13, at 6.    Grandparents averred that “they and Father

had been working well together and Father had been willing[ly] cooperating

to ensure that they had the custody time under the January 25, 2012 Order

of Court.” Id. According to Grandparents, “Father indicated that he would

continue to do so and that the involvement of the Court was no longer

necessary. It was on that basis that Paternal Grandparents did not appear

at the August custody conciliation.” Id.

       Grandparents claimed, however, that “Father has gradually and

continually restricted the Paternal Grandparent[s’] time with emotional

detriment to the child.” Id. Specifically, Grandparents averred that the last

time   they   saw    Child    “was    approximately   [the]   end     of   October

2013/beginning of November 2013,” and that Father “has reduced them [to]

seeing their grandson [] every three (3) week[s] for approximately three (3)

hours.” Id. at 6-7. Grandparents requested that “their custody action be

reinstated and that they be provided with substantial o[r] partial custody

time at least equal to the prior Orders of Court dated November 1, 2011 and

January 25, 2012.” Id. at 7.



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      On January 23, 2014, Father filed preliminary objections and an

emergency motion to dismiss to Grandparents’ petition. In his preliminary

objections, Father contended, inter alia, that Grandparents lacked standing

to pursue custody of Child.    That same day, Grandparents responded by

filing an answer, new matter, and request for sanctions.        Argument on

Father’s preliminary objections occurred on January 30, 2014.

      On February 7, 2014, the trial court entered an order which dismissed

Grandparents’ petition. Grandparents timely filed a notice of appeal, as well

as a concise statement of errors complained of on appeal pursuant to

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

      Grandparents raise the following issues for our review:

      A. Whether the [t]rial [c]ourt erred in ruling the adoption of
      [Grandparents’] grandson by his stepmother had terminated
      their standing to seek custody with respect to him?

      B. Whether the [t]rial [c]ourt erred in finding that
      [Grandparents’] standing to seek custody was terminated
      because their prior custody action had been dismissed after their
      standing was recognized and custody time was granted to them?

      C. Whether the lower court erred in its[] interpretation and
      application of 23 Pa.C.S.A. § 5326, 23 Pa.C.S.A. § 2102, Rigler
      v. Treen, 660 A.2d 111 (Pa.[]Super. 1995) and Suroviec v.
      Mitchell, 500 A.2d 894 (Pa.[]Super. 1985)?

Grandparents’ Brief at 8.

      Grandparents’ issues involve questions of law.       As a result, our

standard of review is de novo, and our scope of review is plenary. P.T. v.

M.H., 953 A.2d 814, 817 (Pa. Super. 2008).



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     Instantly, the trial court dismissed Grandparents’ petition on the basis

that they had “not properly filed a custody complaint” pursuant to Pa.R.C.P.

1915.3(a), which states that, “[e]xcept as provided by subdivision (c), an

action shall be commenced by filing a verified complaint substantially in the

form provided by Rule 1915.15(a).”     Order of Court, 2/7/14, at 3-4.   The

court reasoned that Grandparents had failed to plead facts sufficient to

establish standing, and that the fact that Grandparents may have had

standing in the past did not exempt them from having to demonstrate

standing now.    Id.; Trial Court Opinion, 3/19/14, at 2-4.       The court

proceeded to consider whether Grandparents had standing, “for the purpose

of judicial economy,” and concluded that they did not.      Order of Court,

2/7/14, at 4.

     In response, Grandparents raise several arguments concerning their

standing to bring a custody action. Grandparents direct our attention to the

language of 23 Pa.C.S.A. §§ 5325(2), and 5326, as well as several decisions

by this Court, including Rigler v. Treen, 660 A.2d 111 (Pa. Super. 1995),

and Suroviec v. Mitchell, 500 A.2d 894 (Pa. Super. 1985), which they

assert demonstrate their current standing to seek custody of Child.

     After a thorough review of the record, we conclude that Grandparents

are not entitled to relief. Even if Grandparents are correct that they have

standing to seek custody of Child, and even if they pled sufficient facts to

establish standing, they did not properly commence a custody action. Here,

Grandparents filed a petition to “reinstate” their prior custody case.   Our

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Rules of Civil Procedure do not permit a petitioner to simply “reinstate” a

dismissed custody action at their convenience.     Rather, a party seeking

custodial rights to a child must file a complaint in substantial compliance

with our Rules of Civil Procedure. See Pa.R.C.P. 1915.3(a), supra.

     Further, even if we were to treat Grandparents’ petition as the

functional equivalent of a custody complaint, we would still conclude that

this pleading did not comply substantially with the requirements of Rule

1915.15(a) and, as a result, was inadequate to commence a custody action.

Most critically, Grandparents did not include with their petition a “Criminal

Record/Abuse History Verification.”    See Pa.R.C.P. 1915.15(a); Pa.R.C.P.

1915.3-2 (“The petitioner must file and serve with the complaint, or any

petition for modification, a verification regarding any criminal or abuse

history of the petitioner and anyone living in the petitioner's household.”)

(emphasis added).1

     We thus affirm the order dismissing Grandparents’ petition. In light of

our conclusion that Grandparents failed to properly commence a custody

action, we need not address their arguments concerning standing, and we

express no opinion as to whether Grandparents have standing. We simply

acknowledge that Grandparents were required to file a proper custody

complaint, and that they have failed to do so.


1
  While our reasoning does not match that of the trial court, “[i]f we
determine that the trial court ruling is correct, we can affirm on any basis
supported by the record.” R.M. v. J.S., 20 A.3d 496, 506 n.8 (Pa. Super.
2011) (citation omitted).
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J-A23022-14


     Order affirmed.

     Judge Donohue joins the memorandum.

     Judge Musmanno concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/30/2014




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