J-S16003-15


K.H. and M.T.-C.,                         :     IN THE SUPERIOR COURT OF
      Appellants                          :          PENNSYLVANIA
                                          :
                    v.                    :     No. 1748 MDA 2014
                                          :
T.M., A.L., E.D., and                     :
Berks County Children and                 :
Youth Services                            :

              Appeal from the Order Entered October 3, 2014
              in the Court of Common Pleas of Berks County
                       Civil Division, at No. 14-17221

BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J.:                             FILED APRIL 13, 2015

      K.H. and M.T.-C. (Parental Grandparents) appeal the order of the

Court of Common Pleas of Berks County, Civil Division, entered October 3,

2014, by which the trial court declined to hear Paternal Grandparents’

Petition for Custody of a Minor Child on the grounds that the matter had

already been decided by a court of coordinate jurisdiction and that Paternal

Grandparents had failed to join Berks County Children and Youth Services

(BCCYS) as an indispensable party. We affirm.

      The record supports the following recitation of the facts of this case.

On September 4, 2013, the trial court adjudicated B.M. (Child) dependent

and transferred her to the temporary legal custody of BCCYS for placement,

with concurrent goals of reunification and adoption.

      At the time of Child’s placement, T.M. (Mother) and E.D. (Legal Father)

identified Child’s foster parents as kinship resources for Child.   Child has

remained in placement with them throughout this case.          When BCCYS
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located A.L. (Biological Father) and requested information about his relatives

as possible placements for Child, Biological Father explicitly stated that he

did not want Child placed with his parents, Paternal Grandparents. The trial

court granted limited visits between Paternal Grandparents and Child, but

ordered that Child was to remain in her current foster home.

      Paternal Grandparents applied for licensing as foster parents through

BCCYS in September of 2014.        BCCYS denied their application on January

14, 2014. Paternal Grandparents appealed BCCYS’ denial to the Bureau of

Hearings and Appeals of the Department of Human Services.          On July 22,

2014, the Bureau issued a Recommendation that Paternal Grandparents’

appeal be denied.

      In   its   Recommendation,     the   Bureau   concluded   that   Paternal

Grandparents were not able to provide a caring, nurturing and adequately

supervised environment for a child placed in their care. The Bureau further

concluded that M.T-C.’s mental stability and emotional adjustment were

fragile and needed to be monitored, especially in light of M.T.-C.’s

aggressive and intimidating behavior toward the BCCYS employees who

worked with them. The Bureau also concluded that Paternal Grandparents’

home was not a safe environment for Child because their son, Biological

Father, a drug addict, has lived with them off and on for all of his adult life.

In addition, M.T.-C. and Biological Father were involved in a physical

altercation in September of 2010 when M.T.-C. assaulted and injured



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Biological Father.   The Bureau also concluded that Paternal Grandparents

failed to cooperate with BCCYS throughout the licensing process, and failed

to disclose important details to BCCYS.         Among the details Parental

Grandparents failed to disclose were M.T.-C.’s arrest and conviction records,

their own smoking and drinking habits, Biological Father’s drug addiction,

their history of domestic violence and the September 2010 physical

altercation between M.T.-C. and Biological Father.

        Paternal Grandparents filed a Petition for Custody of a Minor Child in

the trial court on August 15, 2014. Paternal Grandparents identified Mother,

Legal Father and Biological Father as defendants, but, although they served

BCCYS with the petition, they failed to include BCCYS as a party.

        The trial court held a hearing on the petition on September 24, 2014.

The trial court first refused to address the merits of the petition on the

grounds that Paternal Grandparents’ petition was defective and that a judge

of concurrent jurisdiction had entered an order awarding custody of Child to

BCCYS pursuant to a dependency petition. The trial court granted BCCYS’

oral motion to dismiss Paternal Grandparents’ petition for failure to name

BCCYS as an indispensable party.

        Paternal Grandparents filed a motion for reconsideration of the trial

court’s dismissal of their petition, which the trial court denied and then

entered its order dismissing Paternal Grandparents’ petition on October 3,

2014.    Paternal Grandparents filed a timely notice of appeal of that order



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and also filed an Emergency Application for Exercise of Plenary and

Extraordinary Jurisdiction Using King’s Bench and Superintendency Powers in

the Supreme Court of Pennsylvania.      The Supreme Court promptly denied

the application.   On November 26, 2014, the trial court terminated the

parental rights to Child of Mother, Legal Father and Biological Father.

      Paternal Grandparents present the following questions for our review.

            I. Did the [trial] court abuse its discretion when it
      determined custody of a dependent child had already been
      decided through placement in the dependency action?

            2. Did the lower court abuse its discretion when it
      dismissed the custody action for failure to include an
      indispensable party?

Paternal Grandparents’ Brief, at 3.

      In deciding this matter, we consider pure questions of law.         “Our

standard of review over questions of law is de novo and to the extent

necessary, the scope of our review is plenary as [the appellate] court may

review the entire record in making its decision.” K.A.R. v. T.G.L., 107 A.3d

770, 775 (Pa. Super. 2014) (brackets in original; citation omitted).

      We will analyze both questions at         the same time.         Paternal

Grandparents argue that “Denying grandparents the right to seek custody

under 23 Pa.C.S.A. § 5324 until a dependency matter is concluded creates a

situation where the statute is useless, as once dependency is concluded the

matter is moot.” Parental Grandparents’ Brief, at 7.




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      The statute to which Paternal Grandparents refer, 23 Pa.C.S.A. §

5324, provides, in pertinent part:

      § 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:
                                        ...

       (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);
                                         ...

23 Pa.C.S.A. § 5324(3).

      The statute in question does no more than grant standing to

grandparents in certain custody actions.           A plain reading indicates that

Paternal Grandparents are entitled to standing in this matter. What it does

not do, as Paternal Grandparents claim, is assure that their case will move

forward once they file it, especially if they do not follow proper procedure.

The trial court did not deny standing to Paternal Grandparents; it declined to

hear their petition on other grounds. Here is how the trial court described

their filing and its disposition of that filing:

      [Paternal Grandparents] did not file a custody complaint when
      initiating this case, although the Berks County Prothonotary


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      docketed it as such, nor did they file the required custody
      coversheet, the mandatory order scheduling the matter for
      mediation and conciliation, and they did not seek a custody trial.
      Rather, Paternal Grandparents attempted to sidestep not only
      the ongoing [d]ependency proceeding, but also attempted to
      bypass the fundamental due process procedures involved in an
      ordinary custody case as required by the Pennsylvania Rules of
      Civil Procedure. Importantly, while the bulk of Paternal
      Grandparents’ 58-paragraph petition, along with voluminous
      exhibits, concerns the pending proceedings in Dependency Court
      and acknowledges that Child is in the custody of [BCCYS], they
      fail to name BCCYS as a party to the custody case.

Trial Court Opinion, at 1-2.

      It is clear from our review of the record that the Dependency Court

had approved Child’s placement with appropriate foster parents. It is also

clear from our review that Paternal Grandparents’ petition was procedurally

defective, as the trial court describes above. And it is beyond question that

Paternal Grandparents’ failure to join BCCYS, the entity with legal custody of

Child, deprived their claim of an indispensable party.

      Thus, it appears that the trial court did not, as Paternal Grandparents

claim, refuse, pursuant to 23 Pa.C.S.A. § 5324, to hear their claim on the

ground that it had already been heard by the Dependency Court. Instead, it

simply maintained the status quo ante previously established by the

Dependency Court when Paternal Grandparents failed to present a justiciable

claim.

      Accordingly, for the reasons stated, we affirm the order of the trial

court entered October 3, 2014.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2015
