J-S35013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    B.S.C., S.P.M. AND L.A.M.                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                        v.

    A.R.W., D.J.W., AND J.M.W.

    APPEAL OF: D.J.W. AND J.M.W.                         No. 115 MDA 2018


                 Appeal from the Order Entered December 15, 2017
                   In the Court of Common Pleas of York County
                    Civil Division at No(s): 2014-FC-001113-03


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED AUGUST 28, 2018

        D.J.W.    and   J.M.W.    (“Maternal   Grandparents”)   appeal   from   the

December 15, 2017 order sustaining the preliminary objections filed by A.R.W.

(“Mother”) and dismissing Maternal Grandparents’ underlying complaint for

custody of A.R.C. (”Child”) (born in May of 2014).1 After careful review, we

affirm.

        We glean the following relevant facts and procedural history from the

record. Mother and B.S.C. (“Father”)2 are the biological parents of Child. Both

were minors at the time of Child’s birth.           S.P.M. and L.A.M. (“Paternal

Grandparents”) volunteered to care for Child at birth, as Mother and Father

were still in high school, and Maternal Grandparents were unable to care for


____________________________________________


1An amended order, dated January 16, 2018, was issued by the trial court to
correct two typographical errors in the original order.

2   Father is not represented by counsel in this case.
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Child, at the time, due to J.M.W.’s health issues. N.T. Hearing, 12/13/17, at

61.

        On June 17, 2014, the trial court approved a custody stipulation entered

into by Mother, Father, Paternal Grandparents and Maternal Grandparents.

Pursuant to the terms of the stipulation, full legal custody and primary physical

custody of Child was awarded to Paternal Grandparents and limited visitation

rights were granted to Father.3 The stipulation also initially awarded Mother

visitation rights at the home of Paternal Grandparents until August 1, 2014.

Commencing August 1, 2014, Mother’s visitation schedule ceased, and Mother

was granted partial physical custody, as proscribed in the stipulated order.

See Custody Stipulation, 6/17/14.              No custody rights were awarded to

Maternal Grandparents. Id.

        Since Mother resided with Maternal Grandparents from Child’s birth, up

until March of 2017, all of Mother’s visitations with Child during that period of

time took place at Maternal Grandparents’ home. Mother was forced to move

out of their home, however, following an incident in March of 2017, where

police were called after Mother assaulted J.M.W. N.T. Hearing at 7.4 Despite

Mother’s moving out of their residence, Maternal Grandparents have continued

____________________________________________


3 Father moved out of Paternal Grandparents’ home prior to Child’s birth and
has had minimal contact with Child. He has not exercised his visitation rights
since Child was two months of age. N.T. Hearing at 61; see also Paternal
Grandparents’ Brief at 3.
4   Mother currently resides with her boyfriend and his family. Id.



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to enjoy visits with Child on a weekly basis, with the consent of Paternal

Grandparents.

         On September 6, 2017, Maternal Grandparents filed a complaint for

custody, in which they sought shared legal and partial physical custody of

Child.    In their complaint, Maternal Grandparents allege that “unsafe and

addictive behaviors of Mother and Father are what initially led to the

agreement for Paternal Grandparents to have primary custody of [C]hild[,]”

and claim that these behaviors have continued.        Complaint, 9/6/17, at 2.5

Maternal Grandparents further aver that the only reason that the custody

stipulation did not delineate a specific custodial schedule for them is that

Mother was a minor and resided with them at the time. Id.

         On October 24, 2017, Mother filed preliminary objections to the custody

complaint and argued that Maternal Grandparents do not have standing to

pursue any form of custody under Sections 5324 and 5325 of the Custody Act

(23 Pa.C.S. §§ 5324-5325). In support of her claim, Mother asserted that

Maternal Grandparents were not awarded any custody rights to Child in the

June 13, 2014 Stipulation, nor do they stand in loco parentis to Child. After

hearing testimony from Mother, Maternal Grandparents, and Paternal

Grandmother at a hearing on December 13, 2017, the trial court sustained

____________________________________________


5 At the hearing on her preliminary objections, Mother admitted to substance
abuse (i.e., marijuana) in the past. N.T. Hearing at 8. Mother further testified
that she has been diagnosed with borderline personality disorder, depression,
and ADHD and stated that she has managed these conditions with medication
and by regularly attending therapy. Id. at 9.

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Mother’s     objections   and   dismissed   the   custody   complaint.   Maternal

Grandparents subsequently filed a motion for reconsideration, which the court

denied on January 16, 2018.

      On January 12, 2018, Maternal Grandparents filed a timely notice of

appeal, along with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).        Maternal Grandparents now

present the following issues for our review:

      I.      Did the trial court err when it [sustained Mother’s]
              preliminary objections?

      II.     Did the trial court commit an abuse of discretion or an error
              of law by ruling that [Maternal Grandparents] did not have
              standing?

      III.    Did the trial court commit an abuse of discretion or an error
              of law by not acknowledging that [Maternal Grandparents]
              have been captioned parties since origination of this action
              and have had regular periods of custody of [] Child since
              removal from their home?

      IV.     Did the trial court commit an abuse of discretion or an error
              of law by failing to acknowledge the status of [Maternal
              Grandparents] as in loco parentis during Mother’s periods of
              custody?

Maternal Grandparents’ Brief at 3 (unnecessary capitalization omitted).

      Our review of a challenge to a trial court’s decision to grant preliminary

objections is guided by the following standard:

      Preliminary objections, the end result of which would be dismissal
      of a cause of action, should be sustained only in cases that are
      clear and free from doubt. The test on preliminary objections is
      whether it is clear and free from doubt from all of the facts pleaded
      that the pleader will be unable to prove facts legally sufficient to
      establish his right to relief. To determine whether preliminary
      objections have been properly sustained, this court must consider


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      as true all of the well-pleaded material facts sets forth in
      appellant’s complaint and all reasonable inferences that may be
      drawn from those facts.

Butler v. Illes, 747 A.2d 943, 944 (Pa. Super. 2000) (quoting Chester

County Children and Youth Services v. Cunningham, 636 A.2d 1157, 58

(Pa. Super. 1994)) (internal citations omitted).

      We further note:

      A trial court’s determination of standing will not be disturbed by
      our Court absent an abuse of discretion or an error of law. It is
      well established that persons other than natural parents are third
      parties for purposes of custody controversies. Third parties will
      be found to have standing only when they establish that they have
      a prima facie right to custody.

Id. Moreover,

      [i]n 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.

D.G. v. D.B., 91 A.3d 706, 708 (Pa. Super. 2014).

      Section 5324 of the Custody Act identifies persons who have standing

to seek child custody:

      § 5324. Standing for any form of physical custody or legal
      custody.

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

      (1)   A parent of the child.

      (2)   A person who stands in loco parentis to the child.

      (3)   A grandparent of the child who is not in loco parentis to the
            child:


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           (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 (emphasis added).

     Section 5325 of the Child Custody Act further provides:

     § 5325.     Standing for partial physical custody and
     supervised physical custody.

     In addition to situations set forth in section 5324 (relating to
     standing for any form of physical custody or legal custody),
     grandparents and great-grandparents may file an action under
     this chapter for partial physical custody or supervised physical
     custody in the following situations:

           (1)     where the parent of the child is deceased, a parent or
                   grandparent of the deceased parent may file an action
                   under this section;

           (2)     where the relationship with the child began either with
                   the consent of a parent of the child or under a court
                   order and where the parents of the child:


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                     (i)       have commenced a proceeding for custody;
                               and

                     (ii)      do not agree as to whether the grandparents
                               or great-grandparents should have custody
                               under this section; or

              (3)    when the child has, for a period of at least 12
                     consecutive months, resided with the grandparent or
                     great-grandparent,     excluding  brief    temporary
                     absences of the child from the home, and is removed
                     from the home by the parents, an action must be filed
                     within six months after the removal of the child from
                     the home.

42 Pa.C.S. § 4325.

       Instantly, Maternal Grandparents assert that they possess the requisite

standing to pursue custody, partial custody, and/or visitation of Child under

Sections 5324 and 5325 of the Custody Act. See Maternal Grandparents’ Brief

at 14. Maternal Grandparents claim to have stood in loco parentis to Child,

as they allege to have provided the majority of her care when she resided in

their home. Id. at 14, 17.6 Alternatively, Maternal Grandparents argue that,

should they be found to not have acted in loco parentis, they are grandparents

“whose relationship with [Child] started with the consent of the parents,

____________________________________________


6 D.J.W. testified that he and his wife “[c]ooked, fed, cleaned, bathed, [and
did] pretty much everything that was required[]” for Child. N.T. Hearing at
30. He also stated that they did these things not just because they wanted to
be grandparents, but also because Mother “didn’t do it most of the time.” Id.
at 31. “[U]sually[,] she was either asleep when [Child] was up in the morning
and wouldn’t get up, so we had to take care of her, not that we really minded,
or she was on her phone or just laying around [not] doing much of [anything].”
Id. Regarding Child’s care, J.M.W. added: “It took a lot. We did all the
meals. Sometimes [Mother] would help with baking things like cookies or
muffins, but we did the planning of the meals and everything like that. When
she was little, I would feed her … baby food … and milk….” Id. at 44-45.

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continued with consent of the party having sole legal custody of [Child], [] are

willing to assume responsibility for [Child], and [Child] resided with them

continuously from birth until May 2017[,] on weekends and each Tuesday[,]”

in accordance with section 5324(3). Id. at 17-18. After careful review, we

deem Maternal Grandparents’ claims to be wholly without merit.

      Pursuant to section 5324(2), a person who stands in loco parentis to the

child has standing to pursue any form of custody. 23 Pa.C.S. § 5324(2).

      The term in loco parentis literally means ‘in the place of a parent.’”
      Peters v. Costello, … 891 A.2d 705, 710 ([Pa.] 2005) (citing
      Black’s Law Dictionary, 791 (7th Ed. 1991)). A person stands in
      loco parentis with respect to a child when he or she “assum[es]
      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.”            Id.
      (quoting T.B. v. L.R.M., … 786 A.2d 913, 916-17 ([Pa.] 2001))….
      “[I]n loco parentis status cannot be achieved without the consent
      and knowledge of, and in disregard of[,] the wishes of a parent.”
      E.W. v. T.S., 916 A.2d 1197, 1205 (Pa. 2007) (citing T.B.,
      supra).

K.W. v. S.L., 157 A.3d 498, 504-505 (Pa. Super. 2017).

      Contrary to Maternal Grandparents’ claim that they have provided the

majority of care for Child, the record clearly establishes that, in accordance

with the court-approved custody stipulation entered into by all parties,

Paternal Grandparents have exercised sole legal custody and primary physical

custody of Child since her birth. We acknowledge that Maternal Grandparents

provided financial support for both Mother and Child while Mother was residing

with them, and that they assisted in caring for Child during Mother’s periods



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of visitations. See N.T. Hearing at 6, 14-15, 30-31, 44-45. However, we

conclude that their acts have been more consistent with the acts of loving

grandparents wanting to assist their daughter with their grandchild, rather

than showing an intent to assume all of the rights and responsibilities of

parenthood.    See D.G. v. D.B., 91 A.3d 706 (Pa. Super. 2014) (refusing to

recognize in loco parentis status despite the fact that the grandmother

financially supported child, provided occasional shelter, meals, laundry, and

transportation to and from medical appointments).

      Moreover, it is clear that a third party cannot place himself or herself in

in loco parentis status in defiance of the parents’ wishes. See E.W. v. T.S.,

supra. (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”). Here, Mother has expressly stated that she does not want her

parents to have custodial time with Child because she doesn’t think they are

fit to be parents. N.T. Hearing at 8. After careful review of the record, we

discern no error of law or abuse of discretion, on the part of the trial court, in

concluding that Maternal Grandparents lacked in loco parentis standing to

pursue custody in this matter.

      Next, we examine whether Maternal Grandparents have standing to

assert a claim for custody under section 5324(3). There is no dispute that

Maternal Grandparents are grandparents whose relationship began with

Mother’s consent, and that they are willing to assume responsibility for Child.

See N.T. Hearing, 12/13/17, at 66.          Thus, the criteria of subsections

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5324(3)(i) and (ii) have been met. With regard to subsection 5324(3)(iii),

however, the trial court found that none of the necessary elements for

establishing standing under subsections (iii)(A), (iii)(B), or (iii)(C) have been

satisfied. See Amended Trial Court Opinion (“TCO”), 1/16/18, at 1-5.

      First, Child has not been adjudicated dependent, pursuant to section

5324(3)(iii)(A). See N.T. Hearing at 66. Next, the trial court found Child not

to be “substantially at risk due to parental abuse, neglect, drug or alcohol

abuse or incapacity[,]” pursuant to section 5324(3)(iii)(B).       TCO at 2.    In

support of its conclusion, the trial court opined:

      While the [c]ourt has heard testimony regarding Mother’s use of
      marijuana in the past and conduct in the past, the issue is
      [whether] the child [is] at substantial risk today.

            The     primary     custodians     of     [Child],   [P]aternal
      [G]randparents, testified, and their counsel has confirmed on their
      behalf, that they do not believe [Child] is at substantial risk at this
      time. Paternal [G]randmother stated if she did believe that [Child]
      was at risk, she would not turn [her] over to Mother. [Paternal]
      Grandmother also testified that she visited [] Mother’s home to
      ensure it was appropriate and safe for [Child] before allowing
      Mother to resume overnight custody of [Child].

            The [c]ourt did hear testimony concerning Mother’s
      diagnosis for various mental health issues and testimony
      regarding the need for Mother to have been hospitalized for an
      inpatient stay at one point in previous years. Testimony …
      substantiated that Mother has been receiving mental health
      treatment and remains compliant with her mental health
      treatment and that her diagnosed mental health issues do not
      prevent her from properly and safely parenting her child at this
      time.

            So based on the totality of the testimony, the [c]ourt does
      not believe [Child] is substantially at risk and, therefore,
      [M]aternal [G]randparents do not have standing under that
      section of the law.

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Id. at 2-3.

      Lastly, the court turned to the final possible criteria under section 5324,

as well as the identical subsection under section 5325, to determine whether

Child has resided with Maternal Grandparents for a period of at least twelve

consecutive months, “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.”     Id. at 3.   See also 23 Pa.C.S. § 5324(3)(iii)(C); 23 Pa.C.S. §

5325(3).

      The [c]ourt believes, based on the testimony, that the action was
      filed within six months of when Mother left the home of [M]aternal
      [G]randparents. That’s not an issue of concern to the [c]ourt.
      The court does have concern, though, given that the statute states
      12 consecutive months but for brief, temporary absences.

      [Child] has primarily been residing with Paternal Grandparents
      and has had brief visits with Mother at Maternal [G]randparents’
      home per a prior order of the [c]ourt. [The court believes] there’s
      some question as to whether [Child] being at [M]aternal
      [G]randparents’ home with the Mother would meet the definition
      of brief temporary absences or not.

      The [c]ourt believes that on that [basis] alone[,] [Maternal
      Grandparents] would fail, but even if the [c]ourt was accepting
      that the grandparents met the 12 consecutive months
      requirement of [section] 5324 or [section] 5325, that …
      requirement also says that the child was removed from the home
      by the parents.

      The testimony made it clear that Mother was forced to cease her
      residence in [Maternal] [G]randparents’ home not by choice but
      by a decision of the grandparents. And the [c]ourt certainly
      understands the basis for that decision, but the [c]ourt interprets
      the statutory requirement as that the parent chooses to remove
      the child from the grandparents’ custody, and the [c]ourt doesn’t
      believe that’s the case here, that instead, the parent, Mother in

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      this instance, was required to leave the grandparents’ home. And
      since the custody was with her, the child was also removed by the
      decision of the grandparents to have Mother removed from their
      home.

Id. at 4-5. The trial court concluded that Maternal Grandparents lack standing

and, therefore, sustained Mother’s preliminary objections and dismissed the

underlying complaint. We discern no error of law or abuse of discretion in the

court’s decision.

      Accordingly, we affirm the trial court’s December 15, 2017 order

sustaining the preliminary objections filed by Mother and dismissing Maternal

Grandparent’s complaint for custody of Child.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/28/2018




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