J-A22010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.M.                                                IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

A. & M.B.

                            Appellee                     No. 619 MDA 2016


                Appeal from the Order Entered March 18, 2016
             In the Court of Common Pleas of Cumberland County
                        Civil Division at No(s): 14-4411


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED SEPTEMBER 01, 2016

       Appellant C.M. (“Mother”) appeals from the order entered March 18,

2016 in the Cumberland County Court of Common Pleas, which granted

partial legal and primary physical custody of Mother’s biological child, N.M.

(“Child”),   to   Appellees     A.B.    (“Step-grandmother”)   and   M.B.   (“Step-

grandfather”) (collectively “Step-grandparents”).1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

Mother, who was born in 1977, wrote a letter to Step-grandparents, asking

them to allow her to come stay with them, because she was pregnant, the

father of the child was not in the picture, and she needed assistance. Step-
____________________________________________


1
 Step-grandfather was married to Mother’s biological mother when Mother
was born, and Mother considers Step-grandfather to be her father.
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grandparents agreed, and Child was born in January of 2012.             In March

2012, Child lived with Step-grandparents for two weeks while Mother

received mental health treatment at Roxbury Treatment Center. They all

lived together until March 2013, when Mother and Child moved to Kansas

and lived there until April 2014.         In April 2014, Mother and Child moved

back to Step-grandparents’ home.               On July 18, 2014, Mother and Step-

grandmother got into a verbal argument, which resulted in Mother touching

Step-grandmother’s face.         Mother testified she was trying to calm Step-

grandmother, while Step-grandmother testified Mother was being violent.2

Step-grandmother called the police, and Mother was arrested.              Mother

agreed that Step-grandparents could take care of Child while she was in

prison.

       Ten days later, on July 28, 2014, Step-grandparents filed a complaint

for custody of Child. On July 30, 2014, the court scheduled a conciliation

conference for August 26, 2014. Also on July 30, 2014, Step-grandmother

filed a protection from abuse (“PFA”) action against Mother.



____________________________________________


2
  Mother and Step-grandmother have not gotten along well for many years.
In addition to bickering, there was an incident in which Step-grandparents
picked up Mother from the airport, Mother fell asleep, then awoke in the
back seat and attempted to strangle them both. She does not remember
this. She claims that she was taking Xanax and Haldol (as prescribed by her
doctor), which caused her to occasionally black out. She is now on a
different combination of medications for her depression and anxiety.



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        On   September      16,    2014,       the   court   conducted   a   conciliation

conference.3     Mother was not represented by counsel.            On September 22,

2014, the court granted partial legal and primary physical custody of Child to

Step-grandparents. The order granted Mother partial supervised visitation,

which permitted her to see Child from 4:00 p.m. to 7:00 p.m. one night per

week in a community setting. The order did not analyze the custody factors

and allowed the parties to modify the provisions of the order by mutual

consent. After a status hearing on December 16, 2014, while Mother was

still without counsel, the court issued a nearly identical custody order on

January 5, 2015 that provided the date for another conciliation conference.

        On April 15, 2015, counsel entered appearance for Mother.               On May

23, 2015, the court conducted another conciliation conference. On May 27,

2015, the court expanded Mother’s visitation to unsupervised partial custody

for three hours on Fridays and Sundays through June 7, 2015. The court

scheduled another status conference by phone for Friday June 12, 2015.

        On June 11, 2015, Mother filed preliminary objections to Step-

grandparents’ standing, asserting that Mother and Child lived together at all

times from Child’s birth through July 18, 2014, when Mother was arrested,

excluding a two-week period when Mother was in Roxbury Treatment

Center.
____________________________________________


3
    The conference was delayed from the original date.




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     On December 2, 2015, after a hearing, the court denied Mother’s

preliminary objections. On March 18, 2016, the court entered the custody

order that is the subject of this appeal granting shared legal and primary

physical    custody   of   Child   to   Step-grandparents   with   Mother   having

unsupervised overnight visitation three weekends per month. The March 18,

2016 order also appointed a guardian ad litem and scheduled a progress

hearing on Mother’s employment, mental health, and housing status for June

16, 2016.    On April 14, 2016, Mother filed a notice of appeal from the March

18, 2016 order and the December 2, 2015 order dismissing her preliminary

objections. Mother simultaneously filed a Pa.R.A.P. 1925(b) statement.

     On May 17, 2016, this Court ordered Mother to show cause why the

appeal should not be quashed as interlocutory. Mother filed a response on

May 23, 2016, asserting that the March 18, 2016 order was the first court

determination of custody in this matter, and that it is final notwithstanding

the scheduled progress hearing. On June 3, 2016, this Court discharged the

order to show cause and referred the issue of appealability to this merits

panel.

     Mother raises the following issues for our review:

           1. DO [STEP-GRANDPARENTS] (WHO CLAIM THE STATUS
           OF GRANDPARENTS) LACK STANDING BASED ON IN LOCO
           PARENTIS STATUS UNDER 23 PA.C.S[.] § 5324(2) WHERE
           [MOTHER] AND [CHILD] WERE TOGETHER DURING THE
           PERIODS THEY LIVED IN [STEP-GRANDPARENTS’] HOME
           AND BOTH LIVED SEPARATE AND APART FROM [STEP-
           GRANDPARENTS] FOR OVER A YEAR, AND THEN AGAIN
           LIVED TOGETHER FOR THREE MONTHS UNTIL MOTHER

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         WAS FORCIBLY SEPARATED FROM HER CHILD ON JULY 17,
         2014 AND [STEP-GRANDPARENTS] RETAINED CUSTODY
         AFTER THAT DATE THROUGH COURT PROCEEDINGS IN
         DEFIANCE OF [MOTHER’S] WISHES?

         2. DO [STEP-GRANDPARENTS] LACK STANDING TO SEEK
         CUSTODY UNDER 23 PA.C.S.[.] § 5324(3) BECAUSE
         [STEP-GRANDMOTHER]     HAS     NO    BIOLOGICAL
         RELATIONSHIP TO [MOTHER] AND WAS NEVER IN LOCO
         PARENTIS TO [MOTHER] DURING HER CHILDHOOD, AND
         THE OTHER REQUIREMENTS FOR A GRANDPARENT TO
         HAVE STANDING WERE NOT MET BY EITHER [STEP-
         GRANDPARENT]?

         3. DID [STEP-GRANDPARENTS] FAIL TO PRESENT CLEAR
         AND CONVINCING EVIDENCE TO OVERCOME [MOTHER]’S
         PRIMA FACIE RIGHT TO LEGAL AND PHYSICAL CUSTODY
         OF [CHILD] WHERE THERE IS NO EVIDENCE OF PHYSICAL
         ABUSE OR IMPROPER CARE OF THE CHILD AND [MOTHER]
         WAS FORCIBLY SEPARATED FROM HIM ON JULY 17, 2014?

Appellant’s Brief at 7.

      Preliminarily, we observe:

         “The appealability of an order directly implicates the
         jurisdiction of the court asked to review the order.”
         Estate of Considine v. Wachovia Bank, 966 A.2d 1148,
         1151 (Pa.Super.2009). “[T]his Court has the power to
         inquire at any time, sua sponte, whether an order is
         appealable.” Id.; Stanton v. Lackawanna Energy, Ltd.,
         915 A.2d 668, 673 (Pa.Super.2007). Pennsylvania law
         makes clear:

            [A]n appeal may be taken from: (1) a final order or
            an order certified as a final order (Pa.R.A.P. 341);
            (2) an interlocutory order as of right (Pa.R.A.P. 311);
            (3) an interlocutory order by permission (Pa.R.A.P.
            312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a
            collateral order (Pa.R.A.P. 313).

         Stahl v. Redcay, 897 A.2d 478, 485 (Pa.Super.2006),
         appeal denied, 918 A.2d 747 (Pa.2007) (quoting Pace v.
         Thomas Jefferson University Hosp., 717 A.2d 539, 540
         (Pa.Super.1998) (internal citations omitted)). Pennsylvania


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        Rule of Appellate Procedure 341 defines “final orders” and
        states:

           Rule 341. Final Orders; Generally

           (a) General rule. Except as prescribed in
           subdivisions (d), and (e) of this rule, an appeal may
           be taken as of right from any final order of an
           administrative agency or lower court.

           (b) Definition of final order. A final order is any
           order that:

           (1) disposes of all claims and of all parties; or

           (2) is expressly defined as a final order by statute;
           or

           (3) is entered as a final order pursuant to subdivision
           (c) of this rule.

           (c) Determination of finality. When more than
           one claim for relief is presented in an action, whether
           as a claim, counterclaim, cross-claim, or third-party
           claim ... the trial court ... may enter a final order as
           to one or more but fewer than all of the claims ...
           only upon an express determination that an
           immediate appeal would facilitate resolution of the
           entire case. Such an order becomes appealable when
           entered. In the absence of such a determination and
           entry of a final order, any order ... that adjudicates
           fewer than all the claims ... shall not constitute a
           final order. ...

        Pa.R.A.P. 341(a)–(c). Under Rule 341, a final order can be
        one that disposes of all the parties and all the claims, is
        expressly defined as a final order by statute, or is entered
        as a final order pursuant to the trial court’s determination
        under Rule 341(c). Pa.R.A.P. 341(b)(1)–(3); In re N.B.,
        817 A.2d 530, 533 (Pa.Super.2003).

In re Estate of Cella, 12 A.3d 374, 377-78 ([Pa.Super.]2010).

        Furthermore, a custody order is considered final and
        appealable only if it is both: (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

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         claims pending between the parties. G.B. v. M.M.B., 670
         A.2d 714, 720 ([Pa.Super.]1996).

Moyer v. Gresh, 904 A.2d 958, 963-64 (2006).

      Further, we can raise the issue of standing sua sponte:

         Generally, in the context of statutory causes of action,
         “[w]hen our legislature has designated who may bring an
         action under a particular statute, a court does not have
         jurisdiction over the action unless the party bringing the
         action has standing.” In re Adoption of W.C.K., 748 A.2d
         223, 228 (Pa.Super.2000).

K.B. II v. C.B.F., 833 A.2d 767, 774 (Pa.Super.2003).

            [W]hen a statute creates a cause of action and
            designates who may sue, the issue of standing
            becomes interwoven with that of subject matter
            jurisdiction.   Standing      then    becomes      a
            jurisdictional prerequisite to an action. It is
            well-settled that the question of subject matter
            jurisdiction may be raised at any time, by any party,
            or by the court sua sponte.

         [Grom       v.   Burgoon,     672    A.2d    823,    824-25
         (Pa.Super.1996)] (citations omitted) (emphasis added). In
         Grom, the appellant alleged that the trial court
         erroneously raised the issue of standing sua sponte. The
         appellant was a grandparent seeking visitation rights of a
         child pursuant to the custody and grandparents visitation
         statute, 23 Pa.C.S. § 5313. There, this Court concluded
         that, because Section 5313 creates a cause of action for
         grandparent visitation and specifies who may bring an
         action under its provisions, standing was a prerequisite for
         jurisdiction. Id. at 825. Accordingly, we held that the trial
         court properly considered the question of standing sua
         sponte. Id.

K.B. II, 833 A.2d at 774 (considering question of standing because trial

court should have considered whether grandparents had standing to bring

the action under the statute).




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      In its March 18, 2016 order, the trial court granted Step-grandparents

primary physical custody and joint legal custody of Child based on the

factors enumerated in 23 Pa.C.S. § 5328. The court appointed a guardian

ad litem and scheduled a hearing on Mother’s employment, mental health,

and housing status for June 16, 2016.

      After Mother appealed, on June 16, 2016, the court amended the

custody order to give Mother an additional weekday overnight as negotiated

by the guardian ad litem.      It further directed that a hearing to review

Mother’s status would be held September 1, 2016.

      Although, in the March 18, 2016 custody order, the court scheduled a

future hearing, it also made a custody determination after conducting a

hearing.   The order is a final determination, because it granted a party

primary custody and determined that party had standing to file for custody.

While the arrangement might change slightly, Appellant can properly

challenge standing at this point.

      In her combined issues, Mother argues that Step-grandparents lack

standing to bring a custody complaint against Mother, because Mother has

lived with Child since his birth, and Step-grandparents have only acted as

grandparents.   She further contends that the court erred in determining

Step-grandparents had standing, because it based its decision on the time

Step-grandparents spent with Child after they filed a complaint in custody,

at which point they had only been caring for Child exclusively for ten days.


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She further claims Step-grandparents lack standing under Section 5324(3),

because they are not the natural grandparents of Child, Child is not a

dependent child, and Child is not substantially at risk due to parental abuse,

neglect, drug or alcohol abuse or incapacity.

      Our scope and standard of review of a custody order are as follows:

         [T]he appellate court is not bound by the deductions or
         inferences made by the trial court from its findings of fact,
         nor must the reviewing court accept a finding that has no
         competent evidence to support it…. However, this broad
         scope of review does not vest in the reviewing court the
         duty or the privilege of making its own independent
         determination.... Thus, an appellate court is empowered
         to determine whether the trial court’s incontrovertible
         factual findings support its factual conclusions, but it may
         not interfere with those conclusions unless they are
         unreasonable in view of the trial court’s factual findings;
         and thus, represent a gross abuse of discretion.



                                 *    *    *

         [O]n issues of credibility and weight of the evidence, we
         defer to the findings of the trial [court] who has had the
         opportunity to observe the proceedings and demeanor of
         the witnesses. The parties cannot dictate the amount of
         weight the trial court places on evidence. Rather, the
         paramount concern of the trial court is the best interest of
         the child. Appellate interference is unwarranted if the trial
         court’s consideration of the best interest of the child was
         careful and thorough, and we are unable to find any abuse
         of discretion.

A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super.2014) (quoting R.M.G., Jr. v.

F.M.G., 986 A.2d 1234, 1237 (Pa.Super.2009)).

         Although matters of standing may involve factual
         questions, [if] the essential facts were uncontested…the
         issue [would be] resolved as a question of law, over which
         our review is plenary. … See also In re L.C., II, 900 A.2d

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        at 380 (treating similar issue of grandparent standing
        under the Juvenile Act as “largely one of statutory
        interpretation” over which “our review is plenary.”)

In re B.S., 923 A.2d 517, 520–21 (Pa.Super.2007).

     “Absent a prima facie right to custody, a third party lacks standing to

seek custody as against the natural parents.” Gradwell v. Strausser, 610

A.2d 999, 1002 (Pa.Super.1992).

        There is a stringent test for standing in third-party suits for
        visitation or partial custody due to the respect for the
        traditionally strong right of parents to raise their children
        as they see fit. The courts generally find standing in third-
        party visitation and custody cases only where the
        legislature specifically authorizes the cause of action. A
        third party has been permitted to maintain an action for
        custody, however, where that party stands in loco parentis
        to the child. [ ].

        [I]n loco parentis is a legal status and proof of essential
        facts is required to support a conclusion that such a
        relationship exists. Furthermore, the phrase “in loco
        parentis” refers to a person who puts oneself in the
        situation of a lawful parent by assuming 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. The rights and liabilities arising out of an
        in loco parentis relationship are, as the words imply,
        exactly the same as between parent and child. The third
        party in this type of relationship, however, can not place
        himself in loco parentis in defiance of the parents’ wishes
        and the parent/child relationship.

        The in loco parentis basis for standing recognizes that the
        need to guard the family from intrusions by third parties
        and to protect the rights of the natural parent must be
        tempered by the paramount need to protect the child’s
        best interest. Thus, while it is presumed that a child’s best
        interest is served by maintaining the family’s privacy and
        autonomy, that presumption must give way where the

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        child has established strong psychological bonds with a
        person who, although not a biological parent, has lived
        with the child and provided care, nurture, and affection,
        assuming in the child’s eye a stature like that of a parent.
        Where such a relationship is shown, our courts recognize
        that the child’s best interest requires that the third party
        be granted standing so as to have the opportunity to
        litigate fully the issue of whether that relationship should
        be maintained even over a natural parent’s objections.

Morgan v. Weiser, 923 A.2d 1183, 1187 (Pa.Super.2007) (internal

citations omitted) (emphasis added).

        § 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:

              (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


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                 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.

        In any event, the paramount concern in both custody and
        visitation cases, including those in which grandparents are
        seeking rights, is the best interests of the child. Norris,
        supra, 619 A.2d at 340. “[T]he goal in each case is to
        foster those relationships which will be meaningful for the
        child, while protecting the child from situations which
        would have a harmful effect.” Miller, supra, 478 A.2d at
        453 (Pa.Super.1984) (quoting, 500 Pa. at 260, 455 A.2d at
        1182). Factors to consider in determining the best
        interests of the child include the child's “physical,
        intellectual, emotional and spiritual well-being.” Johnson,
        supra, 589 A.2d at 1164. Section 5311 requires that the
        trial court perform a detailed, child-centered analysis when
        crafting its order granting partial custody to grandparents.
        Id.

Douglas v. Wright, 801 A.2d 586, 591 (P.Super.2002).

     The trial court did not abuse its discretion in finding Step-grandparents

had in loco parentis standing to bring the custody action. The trial court was

free to find Step-grandparents’ testimony more credible than Mother’s and

believe that they provided exclusive care for Child. The court found Step-

grandparents provided Child with the necessities of life, including “food,

shelter, clothing, diapers, basic grooming, medical care, transportation

and…educational arrangements” while Child and Mother lived with them.

The court found that Mother allowed Step-grandparents to provide this care.

The court further reasoned:

        [Step-grandparents] served       as more     than a mere
        caretaker  or   babysitter,      including   exercising an

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          uninterrupted period of primary physical custody over
          Child since September 22, 2014. In light of that fact, and
          the fact that [Step-Grandparents] have provided for the
          basic needs of the Child for the majority of Child’s life,
          [Step-grandparents] clearly have standing in loco parentis.

Trial Court Opinion and Order of Court denying Mother’s preliminary

objections (“PO Opinion”), filed December 2, 2015, at 4.       The trial court

recognized that the need to guard the family from third party intrusions and

to protect the rights of the natural parent must be “tempered by the

paramount need to protect the child’s best interest.”     Trial Court 1925(a)

Opinion, filed May 11, 2015, at 6 (quoting T.B. v. L.R.M. 786 A.2d 913,

917(Pa.2001)). Although Step-grandparents did not provide uninterrupted

primary physical custody before the trial court ordered them to do so, the

court found that they provided the necessities of life to Child while Child and

Mother lived with them.       Thus, the trial court’s conclusion that Step-

grandparents acted in loco parentis to Child by assuming the obligations

incident to the parental relationship is reasonable.

        Moreover, Step-grandparents have standing under 23 Pa.C.S. §

5324(3)(iii)(B). In its opinion denying Mother’s preliminary objections, the

trial court did not consider whether Step-grandparents have grandparent

standing under 23 Pa.C.S. § 5324(3)(iii)(B), because it found this point to be

moot.    However, in its Pa.R.A.P. 1925(a) opinion, the trial court states that

it found Child was “substantially at risk due to parental abuse, neglect, drug




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or alcohol abuse or incapacity” from the testimony at the hearing on

Mother’s preliminary objections:

         The uncontroverted testimony at the hearing in this matter
         indicates that [Mother] has a history of drug abuse, as well
         as mental health issues.       [Mother] heard voices and
         hallucinated, was prone to misusing her medications, and
         committed violent acts against others either without
         provocation or with minimal provocation. As recently as
         October 2014[,] [Mother] received in-patient treatment for
         drug rehabilitation purposes. [Mother’s] history of drug
         and alcohol abuse, mental health problems and violent
         conduct clearly place Child at substantial risk. While to the
         best of the Court’s knowledge[, Mother] has not, to date,
         injured Child, [Mother] also has not, to the best of the
         court’s knowledge, ever resided alone with Child for a
         significant amount of time.        In the past, [Mother]
         demonstrated behavior that did directly put Child at risk.
         This [c]ourt is not willing to gamble that [Mother] is at a
         point in her life where she can safely exercise sole legal
         and physical custody, especially given that [Mother]
         previously depended on [Step-grandparents] to provide
         the overwhelming majority of care for Child.

Trial Court Pa.R.A.P. 1925(a) Opinion at 13 (citations to the record omitted).

      Thus, not only do Step-grandparents have in loco parentis standing to

bring this custody dispute, but they also have standing under 23 Pa.C.S. §

5324(3)(iii)(B).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2016

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