J-A18038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.S.,                                     :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellant              :
                                          :
             v.                           :
                                          :
M.I.S. AND T.W.,                          :
                                          :
                   Appellees              :            No. 47 MDA 2015

             Appeal from the Order entered on December 9, 2014
              in the Court of Common Pleas of Columbia County,
                    Civil Division, No. 2006-CV-0001648-DU

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JULY 29, 2015

        M.S. (“Paternal Grandmother”) appeals from two Orders, concerning

custody of her minor grandchildren, C.S. and F.S. (“the Children”), ruling

that (1) the mother of the Children, M.I.S. (“Mother”), is not an

“incapacitated” parent under 23 Pa.C.S.A. § 5324(3)(iii)(B),1 and Paternal

Grandmother therefore lacks standing to seek legal and physical custody of

the Children; and (2) Mother’s sister, T.W. (“Maternal Aunt”), shall have

primary physical custody and full legal custody. We affirm.

        The trial court set forth the relevant factual and procedural history

underlying this appeal as follows:



1
  Section 5324, governing standing for any form of legal or physical custody,
provides, in relevant part, that “[a] grandparent of the child who is not in
loco parentis to the child” has standing when “the child is substantially at
risk due to parental abuse, neglect, drug or alcohol abuse or incapacity[.]”
23 Pa.C.S.A. § 5324(3)(iii)(B) (emphasis added).
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            The subjects of this matter are the [C]hildren of [Mother]
     and [F.T.S. (“Father”)]. … [Mother] and [Father] were divorced
     on June 8, 2012, after long and contentious litigation. On July 1,
     2012, [Father] was murdered in his home located in Columbia
     County. Subsequently, a state-wide investigating grand jury
     issued a presentment charging [Mother] and her father, [A.R.F.],
     also known as [A.R.S.,FN 1] with the crime.          [Mother] and
     [A.R.F.] are also charged in the same criminal information with
     the crime of arson, involving a fire at the home of [Paternal
     Grandmother]. [Mother] was arrested on July 28, 2014, and is
     currently incarcerated in the Columbia County Correctional
     Facility without bail and awaiting trial.
        [FN 1]
              [A.R.F.] is presently in custody in Buenos Aires,
        Argentina, awaiting extradition proceedings to the United
        States.

           Prior to her arrest, [Mother] executed a document which
     purports to appoint [Maternal Aunt] as guardian of[] [the
     C]hildren.

            [Paternal Grandmother] then filed a [C]omplaint seeking
     legal and physical custody of the [C]hildren. Following the
     procedures adopted in the 26th Judicial District, the matter was
     referred to that court’s standing custody Master for [an]
     expedited hearing. The Master concluded that the best interests
     of the [C]hildren mandated that they temporarily live with
     [Maternal Aunt] in the Philadelphia area[,] pending resolution of
     the criminal charges against [M]other. [Paternal Grandmother]
     filed exceptions to the Master’s recommendation[,] and … a
     preliminary conference was scheduled before [the trial court].
     Given the unusual facts of this matter, th[e trial] court
     immediately appointed a guardian ad litem for the [C]hildren,
     and [a] further conference was scheduled to permit the guardian
     ad litem to meet with the [C]hildren and determine their wishes.
     In addition, counsel for [Mother] objected to [Paternal
     Grandmother’s] standing to seek legal and physical custody of
     the [C]hildren. All counsel agreed that there were no issues of
     fact, and the [trial] court then issued a briefing schedule to
     resolve the issue of “standing.”




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           The issue before the court was the meaning of the word
     “incapacitated” in 23 Pa.C.S.A. [§] 5324(3)[(iii)(B)].[FN 2]
     [Paternal Grandmother] assert[ed] that [Mother’s] indefinite
     incarceration prevents her [from] exercising essential parental
     duties. [M]other … remind[ed the trial court] of her presumption
     of innocence. In addition, [Mother argued] that although her
     incarceration hampers her ability to be a parent, it does not
     prevent her from being able to make parental decisions for [the
     C]hildren, or from having regular, albeit re[s]trained, contact
     with them.
            [FN 2]
                 The legislature did not see fit to define this word in
            the context of grandparental custody litigation. [See 23
            Pa.C.S.A. § 5322 (definitions section).]

Trial Court Opinion, 1/23/15, at 1-3 (footnotes in original, some footnotes

omitted).

     By an Order entered on December 9, 2014 (hereinafter “the Standing

Order”), the trial court ruled that Mother is not “incapacitated” under 23

Pa.C.S.A. § 5324(3)(iii)(B), and thus, Paternal Grandmother lacked standing

to bring this custody action.      The trial court later entered an Order on

December 18, 2014 (hereinafter “the Custody Order”), granting full legal

custody and primary physical custody of the Children to Maternal Aunt.

Paternal Grandmother filed a timely Notice of Appeal from these two Orders,

along with a Concise Statement of Errors Complained of on Appeal, pursuant

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

     On appeal, Paternal Grandmother presents the following issues for our

review:

      I.    Whether the [trial] court committed an abuse of discretion
            and/or an error of law in concluding that [] Mother is not an
            incapacitated person[,] as contemplated by 23 Pa.C.S.A.


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            § 5324(3), thereby precluding Paternal Grandmother[’]s
            action for sole legal and sole physical custody due to lack of
            standing pursuant to 23 Pa.C.S.A. § 5324(3)?

      II.   Whether the [trial] court committed an abuse of discretion
            and/or an error [of] law in awarding sole legal and primary
            physical custody to [] Maternal Aunt?

     III.   Whether the [trial] court committed an abuse of discretion
            and/or an error [of] law by failing to hold any hearings
            (fact[-]finding or otherwise)[,] including an expedited
            hearing pursuant to 23 Pa.C.S.A. § 5330(A)[,] to assess
            whether [Mother] poses a risk of physical, emotional or
            psychological harm to the Children[,] or to take any
            evidence in this matter?

     IV.    Whether the [trial] court committed an abuse of discretion
            and/or an error [of] law by failing to follow the procedures
            set forth at 23 Pa.C.S.A. § 5337 regarding the relocation of
            the [] Children?

      V.    Whether the [trial] court[,] by it[]s specially[-]appointed
            [M]aster[,] committed an abuse of discretion and/or an
            error [of] law by failing to include counsel in his interview
            with the Children?

Brief for Appellant at 4 (capitalization omitted, issues numbered).

            The scope of review of an appellate court reviewing a child
      custody order is of the broadest type; the 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.




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D.G. v. D.B., 91 A.3d 706, 707-08 (Pa. Super. 2014) (citation and brackets

omitted).

      In Paternal Grandmother’s first issue, she argues that “[w]hen

[M]other became incapacitated by her current state of incarceration, that

incapacity gave rise to [Paternal Grandmother’s] standing to file an

action[.]” Brief for Appellant at 20; see also 23 Pa.C.S.A. § 5324(3)(iii)(B)

(granting standing to a grandparent of a child where “the child is

substantially at risk due to parental … incapacity”).

      This Court has explained that

      [t]he concept of standing, an element of justiciability, 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. … 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., 91 A.3d at 708 (citations, quotation marks and paragraph breaks

omitted).   A trial court’s determination regarding standing may not be

disturbed absent an abuse of discretion or an error of law. Butler v. Illes,

747 A.2d 943, 944 (Pa. Super. 2000).




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      Here, observing that the      Legislature     did not define      the   term

“incapacity”   in   connection   with     section   5324(3)(iii)(B),2    Paternal

Grandmother asserts that “Pennsylvania jurisprudence struggles with the

term incapacity as it relates to an incarcerated parent in [a] child custody

case.” Brief for Appellant at 11. However, Paternal Grandmother contends

that cases involving termination of parental rights, based upon incapacity

due to incarceration, provide guidance.

      Paternal Grandmother concedes that our Supreme Court, in a plurality

decision in In re R.I.S., 36 A.3d 567 (Pa. 2011), held that “this Court has

never adopted or countenanced a view that incarceration alone is per se

evidence of parental incapacity ….” Id. at 574; see also Brief for Appellant

at 17. However, Paternal Grandmother points out that the Supreme Court

subsequently re-visited its decision in In re R.I.S., and concluded, in In re

Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012), as follows:

      [W]e now definitively hold that incarceration, while not a litmus
      test for termination [of parental rights], can be determinative of
      the question of whether a parent is incapable of providing
      “essential parental care, control or subsistence[,]” and the
      length of the remaining confinement can be considered as highly
      relevant to whether “the conditions and causes of the incapacity,
      abuse, neglect or refusal cannot or will not be remedied by the
      parent[.]”

2
  Paternal Grandmother points out that the Pennsylvania Rules of Civil
Procedure define the term “incapacitated person” as follows: “[A]n adult
whose ability to receive and evaluate information effectively and
communicate decisions in any way is impaired to such a significant extent
that the person is partially or totally unable to manage financial resources or
to meet the essential requirements for physical health and safety[.]”
Pa.R.C.P. 2051; see also Brief for Appellant at 15.


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Id. at 830 (quoting 23 Pa.C.S.A. § 2511(a)(2)); see also Brief for Appellant

at 16-17.

      After review, we are unpersuaded by Paternal Grandmother’s claim

that “the Pennsylvania Supreme Court holds the position that incarceration is

determinative on the issue of incapacity.” Brief for Appellant at 18. Indeed,

the Court in R.I.S. “emphatically” held that incarceration alone is not per se

evidence of parental incapacity. R.I.S., 36 A.3d at 574. Moreover, contrary

to Paternal Grandmother’s claim, we conclude that the Supreme Court’s

decision in S.P., supra, does not undermine the holding in R.I.S.,3 which

remains good law. If incarceration alone is not determinative on the issue of

parental incapacity in the context of termination of parental rights, we see

no reason to rule to the contrary in the context of grandparental standing

under section 5324(3)(iii)(B), and conclude that the trial court correctly




3
  Indeed, the S.P. Court stated that its holding, i.e., that “that incarceration,
while not a litmus test for termination, can be determinative … to provide
grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2)[,]” was “[i]n
line with the expressed opinion of a majority of justices in R.I.S.” S.P., 47
A.3d at 828 (emphasis added). Moreover, the decisions in R.I.S. and S.P.
apply only to cases concerning the termination of parental rights. However,
since our research discloses no appellate decisions interpreting the term
“incapacity” under 23 Pa.C.S.A. § 5324(3)(iii)(B), we are guided by R.I.S.
and S.P.


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ruled that Mother is not “incapacitated” under that section. 4 Additionally, it

is undisputed that, here, Mother maintains contact and communication with

the Children, albeit to a limited extent due to her incarceration.

      Accordingly, we conclude that (1) the trial court correctly ruled in the

Standing Order that Paternal Grandmother lacks standing              under 23

Pa.C.S.A. § 5324(3)(iii)(B) at this time; and (2) she is therefore precluded

from challenging the Custody Order. Moreover, we need not address

Paternal Grandmother’s remaining issues on appeal, since her lack of

standing precludes her from challenging these matters.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2015




4
  Though section 5324 does not define the term incapacity, we conclude that
incarceration of a parent alone does not meet the definition of incapacity
under any of the statutory or rule-based definitions of this term cited by
Paternal Grandmother. See Pa.R.C.P. 2051, supra; 23 Pa.C.S.A. § 5602
(section of the Pennsylvania Standby Guardianship Act defining incapacity as
“[a] chronic and substantial inability, resulting from a mental or organic
impairment, to understand the nature and consequences of decisions
concerning the care of the designator’s dependent minor and a consequent
inability to care for the minor.”) (emphasis added).


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