J-S46008-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.R.                                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

A.H.

                                                    No. 166 MDA 2017


              Appeal from the Order Entered December 23, 2016
                In the Court of Common Pleas of Berks County
                       Civil Division at No(s): 14-20382


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 15, 2017

       T.R. (“Mother”) appeals the December 23, 2016 custody court order

that granted the petition to intervene filed by R.H. and S.H., the paternal

grandparents (“Grandparents”). We are constrained to quash the appeal.

       A.B. was born during October 2008, of Mother’s marriage to A.H.

(“Father”).   Mother filed a divorce complaint on October 20, 2014, which

included, inter alia, a complaint for custody of A.B. On August 18, 2015, the

trial court entered a final order that awarded Mother sole legal and physical

custody of A.B. and granted Father two hours supervised physical custody

per week. Neither party appealed that order.

       On June 28, 2016, Grandparents filed a petition to intervene seeking

standing to exercise partial physical custody pursuant to 23 Pa.C.S.


* Former Justice specially assigned to the Superior Court.
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§ 5325(2). Mother noted her opposition, and following a hearing, the trial

court granted the petition. However, after our Supreme Court issued D.P.

v. G.J.P., 146 A.3d 204 (Pa. 2016), the trial court granted reconsideration in

light of the High Court’s holding that the portion of § 5325(2) that applied to

parents that have been separated for a period of at least six months was

constitutionally infirm. D.P. involved the direct appeal to the Supreme Court

from a trial court order that denied grandparents standing and expressly

invalidated a component of the standing provision.         Effectively, Mother

asserted that the surviving clause in § 5325(2) relating to parents who

“have commenced and continued a proceeding to dissolve their marriage” is

unconstitutional under the equal protection and due process clauses of the

Fourteenth Amendment to the United States Constitution.1            23 Pa.C.S

§ 5325 (2).

       On December 23, 2016, following the submission of briefs and

additional argument, the trial court entered the above referenced order

reaffirming Grandparents’ standing to intervene in the custody litigation

pursuant to § 5325(2). Mother filed a timely appeal and concomitantly filed

her concise statement of errors on complained of on appeal pursuant to

Pa.R.A.P. 1925(b).
____________________________________________


1
   On October 21, 2016, Mother provided notice of her constitutional
challenge to the Attorney General of Pennsylvania by certified mail pursuant
to Pa.R.A.P. 235.



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      She raises two issues for our review:

      1. Did the Trial Court err in granting Grandparents' Petition to
      Intervene following the Supreme Court ruling in [D.P. v. G.J.P.,
      146 A.3d 204 (Pa. 2016)].

      2. Did the Trial Court's ruling and 23 Pa.C.S. [§] 5325 violate
      Appellant's Equal Protection and Due Process rights to raise and
      rear the minor child as a parent sees fit.

Mother’s brief at 4.    Neither Father nor Grandparents filed a brief in this

case, and, as of the date that the certified record was transmitted to this

Court, Grandparents have neglected to pursue any form of partial physical

custody.   Similarly, Father has failed to indicate either his support of or

opposition to Grandparents’ intervention.

      At the outset, we address Grandparents’ application to dismiss the

appeal for lack of jurisdiction because the December 23, 2016 order granting

intervention was not a final order. We previously stated, “[a]n appeal lies

only from a final order, unless permitted by rule or statute.” Stewart v.

Foxworth, 65 A.3d 468, 471 (Pa.Super. 2013).             Pursuant to Pa.R.A.P.

341(b)(1), “[a] final order is any order that . . . disposes of all claims and all

parties[.]” As it relates to custody cases, an order is final and appealable

only when it is: (1) entered after the court has completed its hearings on the

merits; and (2) intended by the court to constitute a complete resolution of

the custody claims pending between the parties. G.B. v. M.M.B., 670 A.2d

714 (Pa.Super. 1996).




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      As noted, Grandparents assert that the December 23, 2016 order was

not final because the trial court anticipated further proceedings to determine

whether awarding them some form of partial custody of A.B. was in the

child’s best interest.   Mother counters that the order granting standing is

final pursuant to Pa.R.A.P. 341(b) because “there is no open case or further

litigation pending in front of the trial court[.] Application for Relief Pursuant

to Pa.R.A.P., 3/16/17, at 2. Stated another way, Mother posits that, since

Grandparents have not yet pursued a motion to modify the existing custody

order, the order granting standing is final. We disagree.

      Mother’s argument is contrary to reason.          Grandparent’s decision

whether or not to immediately pursue partial physical custody is irrelevant to

the determination of finality. Rather, finality is controlled by the nature of

the order, i.e., whether the order puts a litigant out of court or disposes of

all claims and all parties.   Thus, having granted Grandparents standing to

pursue partial physical custody of A.B. pursuant to § 5325(2), the order put

neither Grandparents nor Mother out of court, and it did not resolve the

ultimate question of custody.       It is beyond peradventure that, under

Pennsylvania jurisprudence, an order granting a petition to intervene in a

custody action is interlocutory and not an appealable final order under Rule

341(b).   Beltran v. Piersody, 748 A.2d 715 (Pa.Super. 2000); K.W. v.

S.L., 157 A.3d 489, 502 (Pa.Super. 2017) (“Father concedes that the [order

granting standing] is not a final order pursuant to Pa.R.A.P. 341(b)”). Thus,

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we reject Mother’s assertion that Grandparents’ procrastination in filing a

request for relief after the order granting standing transformed the

interlocutory award of standing into a final order appealable under Rule 341.

       Additionally, although Mother does not argue that the order was a

collateral order appealable as of right pursuant to Pa.R.A.P. 313(a), 2 we

observe that the collateral order doctrine does not apply herein. Pursuant to

Rule 313(b), “A collateral order is an order separable from and collateral to

the main cause of action where the right involved is too important to be

denied review and the question presented is such that if review is postponed

until final judgment in the case, the claim will be irreparably lost.” Instantly,

the December 23, 2017 order fails to satisfy the requirements of the

collateral order doctrine insofar as Mother’s challenge to Grandparents’

standing will not be irreparably lost if review of that issue is postponed until

the entry of a final custody order.            See Beltran, supra (order granting

intervenor status did not qualify as a collateral order because denial of

immediate review would not cause claim to be irreparably lost). Indeed, if

the trial court eventually awards Grandparents some form of partial physical

custody of A.B., Mother will be able to appeal that final order and, at that

time, she can challenge the trial court’s determination that Grandparents
____________________________________________


2
  As Mother refused to acknowledge that the order was interlocutory, she
neglected to seek to certify the interlocutory order for appeal or assert that
the interlocutory order was appealable of right pursuant to Pa.R.A.P. 311.



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had standing pursuant to § 5325(2). Until custody is altered, however, it is

difficult to characterize Mother as an aggrieved party since there is no

imposition upon her fundamental right to parent A.B. without interference

and there is no intrusion on her ability to exercise sole legal and primary

physical custody over her daughter, subject only to Father’s two-hour period

of supervised physical custody per week.

      Moreover, we observe that the posture of the case at bar is

substantively different from the facts of K.W. v. S.L., 157 A.3d 498

(Pa.Super. 2017), where this Court found that a father’s fundamental right

to parent his child required immediate review of the interlocutory order

granting in loco parentis standing to third-party intervenors who desired to

to adopt the father’s daughter without his consent. The salient facts in K.W.

are as follows. K.W. unknowingly fathered a daughter, who was placed for

adoption.   Two days after birth, the adoption agency placed her with a

prospective family where she remained.        When the agency established

contact with the father two months after placement, he refused to consent

to the adoption.   Eventually, the father and the prospective parents filed

countervailing custody complaints, and the father filed preliminary objections

that challenged the prospective parents’ standing to pursue custody. In the

interim, the prospective parents exercised primary physical custody and

father exercised periods of partial custody. The parties shared legal custody.




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      After a hearing on the father’s preliminary objections, the trial court

granted the prospective parents in loco parentis standing to sue for legal and

physical custody under § 5324(2).       The father appealed, arguing that a

third-party cannot be conferred in loco parentis standing in contravention of

a parent’s wishes.

      On appeal, this Court addressed the threshold issue of jurisdiction,

i.e., whether the interlocutory order granting standing was appealable. The

father conceded that the order granting standing was not a final order

appealable under Rule 341(b), but he contended that the order was

appealable under the collateral order doctrine codified in Rule 313(a) and

(b). In relation to the third-prong of the doctrine, upon consideration of the

father’s fundamental constitutional right to parent his child and the fact that

the father had been deprived that right without any due process protections,

we concluded that his claim would be irreparably lost if review was

postponed until the trial court entered a final custody order.     In sum, we

reasoned,

      Under the unique circumstances of this case, where Father was
      deprived of Child by a private adoptions agency without the
      benefit of a hearing or other due process protections, this Court
      could not hope to fully vindicate or restore Father’s rights by the
      time of his second appeal. We therefore conclude that the . . .
      order [granting third-party standing] satisfies . . . the collateral
      order doctrine, and that Father’s appeal is properly before us.

Id. at 504. We were particularly frustrated by the fact that the trial court

permitted the proceedings to continue when “Father ha[d] been deprived of

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Child without any evidence in the record that he [was] an unfit parent, and

without the benefit of due process protections.” Id. at 507.

      Thus, we reviewed the merits of the trial court’s interlocutory order

granting the prospective parents in loco parentis status and found that the

court erred in concluding that a third-party could attain in loco parentis

status against the father’s wishes. Accordingly, we reversed the order and

remanded the matter with directions to sustain the father’s preliminary

objections to the prospective parent’s custody complaint.

      Presently, Mother is not facing similar impediments to her ability to

exercise her fundamental rights as a parent. First, she was not deprived of

any due process protections at any point during the custody dispute.

Moreover, unlike the Father in K.W., supra, whose parental authority had

been supplanted against his will by third-party intervenors who continued to

exercise primary physical custody of his daughter despite the unresolved

question of their standing, Mother’s fundamental right to parent remains

unimpeded by the order recognizing Grandparents’ standing to pursue

partial custody at some point in the future. Unless and until the trial court

awards Grandparents some form of partial physical custody, there is no

tangible grievance for Mother to vindicate. Again, while the father in K.W.

would have been forced to continue to share legal custody and to forego

additional periods of physical custody with his daughter had this Court not

permitted an immediate appeal under the collateral order doctrine, neither of

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those concerns is implicated herein. Mother maintains sole legal custody of

A.B., and while her domain is subject to Father’s brief period of supervised

partial physical custody, she is not beholden to Grandparents’ custody

requests in any regard. Thus, we find that the facts of this case does not

present a similar set of unique circumstances that required us to review the

interlocutory order in K.W., supra.

      As the December 23, 2016 order denying Mother’s motion for

reconsideration from the prior order granting Grandparents standing to

pursue partial physical custody pursuant to §5325(2) is neither a final order

nor an appealable collateral order, we lack jurisdiction to address the merits

of Mother’s constitutional challenge.   Accordingly, we grant Grandparents’

motion to dismiss the appeal for lack of jurisdiction, and we quash the

appeal.

      Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




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