J-S73001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.G.B.,                                                      IN THE SUPERIOR COURT OF
                                                                   PENNSYLVANIA
                                  Appellant

                             v.

E.H. & E.H.,

                                  Appellees                         No. 1265 MDA 2014


                    Appeal from the Order Entered June 24, 2014
                    In the Court of Common Pleas of York County
                      Civil Division at No(s): 2013-FC-1909-03


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                                     FILED DECEMBER 08, 2014

       J.G.B. (“Grandfather”) appeals the order sustaining the preliminary

objections     filed     by       E.H.   (“Father”)    and   E.H.   (“Mother”)   (collectively

“Parents”)     to      his    custody      complaint    concerning     his   grandson,   G.B.

We affirm.

       G.B. is six years old. His birth mother, K.B. (“Birth Mother”), died on

February 13, 2013.                 Parents, Birth Mother’s sister and brother-in-law,

adopted G.B. during August of 2013.1 G.B. resides with Parents and their

two genetic children as a cohesive nuclear family in Hanover, Pennsylvania.

Prior to her death, Birth Mother and G.B. resided for approximately thirty-six

months with Grandfather in Mechanicsburg, Pennsylvania.                          Immediately
____________________________________________


1
   The orphans’ court terminated the birth father’s parental rights on
June 11, 2013.
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after Birth Mother died, G.B. and Grandfather moved to Parents’ home.

Grandfather returned to his home in Mechanicsburg two months later.

       During the August 2013 adoption hearing, Grandfather testified that

Mother and Father were appropriate parents; however, on October 22, 2013,

while Parents’ adoption was pending, he filed a complaint in the family

division of the York County Court of Common Pleas wherein he requested

shared legal custody and shared physical custody of G.B.2        Grandfather

withdrew this complaint approximately two weeks later. On April 17, 2014,

subsequent to the entry of the adoption decree, Grandfather filed a second

custody complaint against Parents. The pleading, which did not invoke any

statutory grounds for standing or assert any facts that specifically triggered

it, requested that the court award him shared legal and physical custody of

G.B.

       Parents countered the custody complaint with preliminary objections,

as amended on May 7, 2014, challenging Grandfather’s standing to pursue

shared legal and physical custody of their son. Specifically, Parents asserted

that pursuant to § 5326 of the Child Custody Act, the adoption decree

vitiated any right to standing that Grandfather had garnered prior to the



____________________________________________


2
   Grandfather had previously filed a custody complaint against the birth
father at a different civil action number, but that complaint was dismissed
after the orphans’ court terminated birth father’s parental rights on June 11,
2013.



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adoption.3    Parents conceded that G.B.’s adoption into their family did not

alter Grandfather’s status as the child’s grandparent since they are

Grandfather’s daughter and son-in-law.           However, they argued that the

adoption decree reset the legal framework and Grandfather was required to

establish standing to pursue custody of his grandson in the context of the

current family dynamic.        They continued that under the existing scenario,

Grandfather could not establish standing under 23 Pa.C.S. §§ 5324 and

5325, two provisions of the Child Custody Law that extend standing to

grandparents and great-grandparents in specific situations outlined therein.

In sum, Parents argued that since Grandfather failed to invoke, much less

establish, his right to standing pursuant to the statute, his complaint should

be dismissed with prejudice.            Grandfather did not respond to Parents’

preliminary objections.



____________________________________________


3
    Section 5326 provides as follows:

       Effect of adoption

       Any rights to seek physical custody or legal custody rights and
       any custody rights that have been granted under section 5324
       (relating to standing for any form of physical custody or legal
       custody) or 5325 (relating to standing for partial physical
       custody and supervised physical custody) to a grandparent or
       great-grandparent prior to the adoption of the child by an
       individual other than a stepparent, grandparent or great-
       grandparent shall be automatically terminated upon such
       adoption.



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       On June 24, 2014, the trial court held an evidentiary hearing to

address Parents’ preliminary objections.             At the outset of the hearing,

Grandfather specifically invoked § 5324(3)(i)-(iii)(B) as the basis for

standing in the custody litigation and he stated his intention to concentrate

his evidence on that provision.                N.T., 6/24/14, at 4.     Additionally,

Grandfather sought to amend his complaint to forego his claim to legal

custody.    Id. at 4-5. Grandfather testified, and he presented one witness,

George Margetas, Esquire, who knew Mother socially and observed her

consume alcohol in a public setting.            Mother and Father testified on their

own behalf. Following the hearing, the trial court dictated a comprehensive

order from the bench wherein it sustained the preliminary objections and

dismissed the custody complaint.4 This timely appeal followed.

       Grandfather leveled one issue in his statement of errors complained of

on appeal,5 which he iterates in his brief as follows: “Did the trial court err

in sustaining the preliminary objections where [Grandfather] presented
____________________________________________


4
  On July 1, 2014, the trial court entered the written order on the docket
and issued notice required under Pa.R.C.P. 236(a)(2).
5
   Grandfather failed to file a statement of errors complained of on appeal
simultaneous with his notice of appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
However, since Grandfather complied with the trial court’s order directing
him to file the Rule 1925(b) statement, the misstep was harmless. D.M. v.
V.B., 87 A.3d 323, 326-27 (Pa.Super. 2014) (“As Appellant has since
rectified the [noncompliance with Rule 1925(a)(2)(i)], we see no prejudice
to any party resulting from Appellant's failure to adhere to the procedural
rules in this instance, and we shall proceed to review the merits of the
appeal.”).



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evidence that Adoptive Mother had a substance abuse issue?” Grandfather’s

brief at 4.

      We review the trial court’s decision for an abuse of discretion. See In

re B.L.J., 938 A.2d 1068, 1071 (Pa. Super. 2007) (“This Court will reverse

the trial court's decision regarding preliminary objections only where there

has been an error of law or abuse of discretion."); Kellogg v. Kellogg, 646

A.2d 1246, 1250 (Pa.Super. 1994) (“Once the trial court determination is

made [as to standing], it will be reviewed by this court in the same manner

that we review any such determination, that is, under an abuse of discretion

or error of law standard.”). We recently reiterated the pertinent principles

as follows:

      The concept of standing, an element of justifiability, is a
      fundamental one in our jurisprudence: no matter will be
      adjudicated by our courts unless it is brought by a party
      aggrieved in that his or her rights have been invaded or
      infringed by the matter complained of. The purpose of this rule
      is to ensure that cases are presented to the court by one having
      a genuine, and not merely a theoretical, interest in the matter.
      Thus the traditional test for standing is that the proponent of the
      action must have a direct, substantial and immediate interest in
      the matter at hand.

              ....

      In the area of child custody, principles of standing have been
      applied with particular scrupulousness because they serve a dual
      purpose: not only to protect the interest of the court system by
      assuring that actions are litigated by appropriate parties, but also
      to prevent intrusion into the protected domain of the family by
      those who are merely strangers, however well-meaning.




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D.G. v. D.B., 91 A.3d 706 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H., 682

A.2d 1314, 1318 (1996)) (internal quotations and citations omitted).

      Herein, Grandfather’s assertion of standing implicates the application

of 23 Pa.C.S. § 5324(3), regarding standing for any form of physical custody

or legal custody. That provision provides, in pertinent part as follows:

      The following individuals may file an action under this chapter for
      any form of physical custody or legal custody:

            ....

        (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. § 5324(3).

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       Grandfather invoked standing pursuant to subsection (3)(i)-(iii)(B)

concerning the parental abuse, neglect, drug or alcohol abuse, or incapacity.

Thus, Grandfather had the burden of proving by clear and convincing

evidence that, inter alia, G.B. was at substantial risk due to Parents’ drug or

alcohol abuse.6       Kellogg, supra at 1249-1250 (“a third party seeking

custody must show more than a passing interest in the child. The petitioner,

in order to be awarded standing, must prove by clear and convincing

evidence that he or she has shown a sustained, substantial and sincere

interest in the welfare of the child.”). For the reasons discussed below, we

find that Grandfather was unable to satisfy his burden of proof.

       Grandfather argues that he adduced adequate evidence to support his

standing claim based upon Mother’s alleged substance abuse.         In sum, he

maintains that, “it is clear from the record that he could prove facts [,

ostensibly during the custody trial,] legally sufficient to establish a right to

relief.” Grandfather’s brief at 10. He opines that even to the extent that

Mother has not imbibed in G.B.’s presence, her drinking habits would have a

negative impact on the child, and he speculates that, if left untreated,

Mother’s substance abuse could place the child at substantial risk.
____________________________________________


6
   While Grandfather does not address the other components of § 5324(3),
Parents assert that, in addition to failing to prove the requisite substantial
risk of harm, Grandfather could not establish that he was willing to assume
responsibility for the child pursuant to subsection (3)(ii). As we affirm the
trial court’s determination that Grandfather failed to establish that G.B. was
substantially at risk, we do not address this aspect of Parents’ argument.



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      Parents counter that, notwithstanding Grandfather’s protestation that

he would be able to prove his right to relief at trial, the trial court provided

Father the opportunity to establish standing under § 5324(3)(i)-(iii)(B)

during the evidentiary hearing, and Grandfather failed to satisfy the

threshold requirement of standing under the statutory provision that he

specifically invoked.   Parents’ brief at 7.   They highlight that Grandfather

adduced scant evidence to demonstrate either that he was willing to assume

responsibility for G.B. or that the child was at substantial risk of harm.

Additionally, Parents assail whether Grandfather’s purported concern over

his grandson’s safety is genuine. They point out that, despite Grandfather’s

apparent concern for G.B.’s safety, he inexplicably failed to express any

concern for G.B.’s cousins/adoptive brothers, whom presumably would be

subject to the identical risk of harm from Mother’s alleged substance abuse.

      In sustaining Parents’ challenge to Grandfather’s standing, the trial

court found that Grandfather failed to establish that G.B. was substantially

at risk due to drug or alcohol abuse.          The trial court reasoned, “The

testimony indicated that there were occasions where [Mother] had drank to

excess, but there’s been no testimony at all that at any time was a child at

risk due to her drinking.” N.T., 6/24/14, 73. It continued, “[m]oreover, we

find her credible in her testimony that she has not drank any significant

amounts since the time of the adoption.”        Id.   As discussed below, the

certified record supports the trial court’s determination.


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      During the evidentiary hearing, Grandfather testified that while he

briefly resided with G.B., Parents, and their birth children prior to the child’s

adoption, he witnessed Mother drink a glass of wine as early as 9:00 a.m.

Id. at 35-36.    He further relayed that Mother ignored his concerns about

drinking so early.   Id. at 36.   Grandfather also testified that, during that

brief period, he witnessed Mother take medication while drinking. Id. at 36-

37.    Additionally, he outlined an isolated incident that he believed

exemplified her anger issues.     Id. at 37.    As it relates to Mother’s prior

history with alcohol, Grandfather testified that Mother drank to excess as a

teenager and boasted about drinking and driving. Id. at 39-40. Although

Grandfather characterized Mother as an alcoholic, he did not have any

concerns about Father’s fitness to care for G.B.     Id. at 39. During cross-

examination, Grandfather conceded that he has not seen Mother drink since

October 7, 2013, the date of their last interaction. Id. at 41.

      Grandfather also called George Margetas, Esquire, as a witness.

Attorney Margetas testified that he dated Birth Mother for approximately

eight months during 2013.         Id. at 6-7.     Throughout that period, he

interacted with Mother and observed her drink socially.        Id. at 6-7.    He

continued that he witnessed her drink to excess “a couple of times” during

that period.    Id. at 7.   In the course of the trial court’s examination,

Attorney Margetas further elucidated that he knew Mother for approximately

seven years, and stated that when they both were younger, it was common


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for people in their circle of friends to drink excessively. Id. at 10. However,

he reiterated that in their recent history since then, he had only seen her

intoxicated twice. Id. at 10-11.

      Parents countered Grandfather’s evidence with opposing testimony

establishing that neither parent had substance abuse issues. First, Mother

testified that she has three children, including G.B., who is her middle child.

Id. at 15. She resides with Father in an intact marriage. Id. They have

never been separated or petitioned for divorce. Id.

      Mother denied that she had a drinking problem or that she has sought

treatment for alcoholism.      Id. at 21.     She stated that she consumed

approximately one glass of wine per week with dinner. Id. at 62-63. She

specifically denied drinking at 9:00 a.m.     Id. at 64.   Moreover, she noted

that the observations that Attorney Margetas testified about occurred during

2012, while she and Birth Mother went dancing at a night club. Id. at 21.

She further clarified that Father drove them home when the evening was

over. Id.

      Mother explained that, as a nurse at York Hospital Trauma Center, she

works three twelve-hour days per week.        Id. at 63.     The shift alternates

weekly between daylight and overnight periods.         Id.    She is subject to

random drug screens, the most recent occurring three or four months prior

to the hearing. Id. at 28-29. Mother has never been treated for drug or

alcohol abuse.    Id. at 28.       Finally, Mother acknowledged that she is


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prescribed Zoloft for depression, and takes Alzapam and Ambien as

necessary for anxiety and insomnia respectively.             Id. at 26-27.   She

highlighted that her physician advised her not to consume alcohol when she

takes her medication. Id. at 28.

         Father also testified.   In sum, he stated that as a seventeen-year

veteran of the United States Department of Defense and a member of a U.S.

Army Reserve unit, he was subject to drug testing, which he passed on

every occasion.      Id. at 30.   Furthermore, he testified that Mother did not

have issues with drugs or alcohol. Id.

         The foregoing evidence supports the trial court’s decision to sustain

Parents’     preliminary   objections   to   Grandfather’s   custody   complaint.

Grandfather declined to plead the basis of his standing in the underlying

custody complaint or in a response to Parents’ preliminary objections, and

when granted an evidentiary hearing for the specific purpose of determining

standing, he failed to adduce clear and convincing evidence supporting his

claim that Mother’s alcohol and drug abuse placed G.B. “substantially at

risk.”    At most, Grandfather proffered uncontested evidence that Mother

drank alcohol to excess as a teenager, he last observed her drink on

October 7, 2013, and that she and Birth Mother imbibed during 2012.

Parents contested Grandfather’s remaining testimony, including his assertion

that Mother once drank wine as early as 9:00 a.m., and upon hearing the

countervailing evidence, the trial court made a specific credibility finding in


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favor of Parents and against Grandfather. As the certified record supports

the trial court’s determination that Grandfather’s invocation of § 5324(3)

was unavailing, we will not disturb it.

      For all of the foregoing reasons, we affirm the order sustaining

Parents’ preliminary objections to Grandfather’s custody complaint.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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