J-A33028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.A.L.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                 v.

S.J.L. AND M.L.A.

                                                      No. 603 WDA 2016


                  Appeal from the Order Dated March 30, 2016
                In the Court of Common Pleas of Cambria County
                        Civil Division at No(s): 2015-450

BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                             FILED APRIL 10, 2017

        Pro se Appellant, A.A.L. (“Maternal Grandmother”), appeals from the

order dismissing her petition for special relief because she lacked standing.

On appeal, she contends, among other things, that the court erred by

preventing her from presenting evidence supporting her petition. We affirm.

        On January 29, 2015, Maternal Grandmother filed a pro se complaint

seeking primary physical custody of S.L. (born February 2012) (“Child”),

from S.J.L. (“Father”) and M.L.A. (“Mother”).1        Maternal Grandmother’s

complaint was a form complaint intended to be completed by pro se




____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
 Mother is not a party to this appeal. It does not appear Father and Mother
married.
J-A33028-16


grandparents or third parties. Compl., 1/29/15. Paragraph 10 of the form

complaint that she filed reads as follows:

           10. (a) If the plaintiff is a grandparent who is seeking
           physical and/or legal custody pursuant to 23 Pa.C.S. §
           5324, you must plead facts establishing standing pursuant
           to 23 Pa.C.S. [§] 5324(3)

           See attached: Petition for Emergency Custody__________

           (b) If the plaintiff is a grandparent or great-grandparent
           who is seeking partial physical custody or supervised
           physical custody pursuant to 23 Pa. C.S. §5325, you must
           plead facts establishing standing pursuant to §5325.

           _______________________________________________

Id. at ¶ 10 (italics reflect Maternal Grandmother’s handwritten insert).

Maternal Grandmother did not write anything on the line below paragraph

(b).

       The trial court set forth the facts and subsequent procedural history as

follows:

           On the same day [as she filed her custody complaint],
           Maternal Grandmother filed a “Petition for Emergency
           Custody Order” seeking immediate temporary legal and
           physical custody of the [C]hild. Maternal Grandmother
           alleged various instances of the [C]hild’s mistreatment, as
           well as the parents’ alleged mental health, alcohol abuse,
           and substance abuse.

              Following a Hearing on Maternal Grandmother’s
           “Petition for Emergency Custody Order,” the trial court
           issued an Opinion and Interim Order dated March 19,
           2015, stating:

             [Father and Mother] having failed a court-
             administered drug test [on March 19, 2015], it is
             hereby ORDERED and DECREED that temporary

                                      -2-
J-A33028-16


            physical custody of [the Child] is hereby vested in
            [Maternal Grandmother] pending further Order.
            [Maternal Grandmother, Mother, and Father] shall
            have shared legal custody of the minor [C]hild.
            Cambria County Children and Youth Services [“CYS”]
            is DIRECTED to investigate this matter and to
            determine if the [C]hild is dependent under the Child
            Protective Services Act. This Order is without
            prejudice for Children and Youth Services to make
            another Order for custody after full investigation.

         Interim Order dated Mar. 19, 2015, pgs. 1-2.

            On April 20, 2015, Hearing Officer Paul Eckenrode
         conducted a Custody Hearing and recommended that the
         parties share legal custody, that Maternal Grandmother
         maintain primary physical custody, and that Mother and
         Father have partial physical custody.   The trial court
         executed the Hearing Officer’s Recommended Interim
         Order on April 24, 2015.

Trial Ct. Op., 6/29/16, at 1-3 (some citations omitted). Apparently, no party

challenged Maternal Grandmother’s standing to bring the January 29, 2015

custody action.

      Meanwhile, CYS continued its investigation.       Upon completing that

investigation, the trial court held an Initial Adjudication hearing on June 30,

2015, during which it heard testimony from Maternal Grandmother, the

family’s CYS caseworker, a licensed psychologist who evaluated Father and

Maternal Grandmother, and a doctor who conducted a psychological

evaluation of S.L.   At the conclusion of the hearing, the court determined

that S.L. was not dependent, and it therefore returned custody to Father.

Thus, Maternal Grandmother had custody of the child from March 19, 2015

until June 30, 2015, a period of slightly more than three months.

                                     -3-
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      On July 27, 2015, Mother and Maternal Grandmother filed a joint

appeal from the June 30, 2015 order.        On September 2, 2015, the court

issued a Rule 1925(a) opinion in which it explained that “the evidence

established that Father was ready, willing, and able to take custody of S.L.”

and that, “after conducting an investigation into him CYS believed he was

able to provide adequate care for S.L., that it was in her best interests to be

placed in Father’s care, and that no services were required.” Trial Ct. Op.,

No. CP-11-DP-0000084-2015, 9/2/2015, at 10.           Because a parent was

available to take custody, the court believed placement with Maternal

Grandmother was not an option. See id. at 10-11. However, the court also

recounted concerns regarding Maternal Grandmother’s mental health and

her failure to treat it. See id. at 5-6.

   On November 23, 2015, this Court dismissed the appeal because Mother

and Maternal Grandmother, acting pro se, failed to comply with this Court’s

order to file a brief and reproduced record.    Order, No. 1232 WDA 2015,

11/23/15. Mother and Maternal Grandmother did not seek leave to appeal

to the Pennsylvania Supreme Court.

      On January 7, 2016, Maternal Grandmother filed a pro se Petition for

Special Relief under Pa.R.C.P. 1915.13, which sought clarification of Child’s




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J-A33028-16


“custody and visitation provisions.” Pet., 1/7/16, at 1-2.2               Maternal

Grandmother’s petition noted that it “appears,” Mother has “abandoned any

personal formal legal efforts to acquire visitation privileges for partial

custody of any kind for this child.” Id. at 2 (unpaginated).              Maternal

Grandmother requested that the trial court “schedule a hearing to determine

custody and visitation provisions” so Child could “be permitted contact with

all family members.” Id. On February 25, 2016, the trial court ordered a

hearing; the order did not impose any limitations on the introduction of

evidence or testimony.

        The hearing was held on March 28, 2016. During it, Father’s counsel

made an oral “motion that there is a lack of standing in this matter, under

the fact [that Maternal Grandmother] does not have standing to bring this
____________________________________________
2
    Rule 1915.13 states:

           At any time after commencement of the [custody] action,
           the court may on application or its own motion grant
           appropriate interim or special relief.      The relief may
           include, but is not limited to, the award of temporary legal
           or physical custody; the issuance of appropriate process
           directing that a child or a party or person having physical
           custody of a child be brought before the court; and a
           direction that a person post security to appear with the
           child when directed by the court or to comply with any
           order of the court.

Pa.R.C.P. 1915.13. We note that because the trial court’s June 30, 2015
order disposed of Maternal Grandmother’s custody complaint and all appeals
from that order were exhausted, the language of Rule 1915.13 suggests that
Maternal Grandmother may no longer have been eligible to seek relief under
this Rule because she no longer had a pending custody action. No party has
raised this issue and we therefore render no opinion with respect to it.


                                           -5-
J-A33028-16


action.”    N.T., 3/28/16, at 2.   The court responded that this “case was

initiated in February of 2015.     It does not appear that the motion was

previously addressed; is that correct?” Id. at 2-3.     Father’s counsel noted

that he was retained after the March hearing, briefly summarized the history

of the case, and reiterated that Maternal Grandmother “doesn’t have the

standing requisite to continue at this time to bring this action.” Id. at 3.

      The court swore Maternal Grandmother in and began questioning her

about the basis of her petition and whether she had standing under Section

5324 of the Domestic Relations Code, which provides:

           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




                                       -6-
J-A33028-16


                (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. Maternal Grandmother contended, without objection by

Father, that she fulfilled the requirement in Section 5324(3)(i), because her

relationship with Child began under a court order, and that, with respect to

Section 5324(3)(ii), she is willing to assume responsibility for the Child. N.T.

at 5.     She further contended that she had standing under Sections

5324(3)(iii)(B) and (iii)(C), but, with respect to Subsection (C), the court

pointed out that Maternal Grandmother’s petition was filed on January 7,

2016, more than six months after Child was removed from her custody on

June 30, 2016.

        In addition to testifying, Maternal Grandmother was permitted to

introduce evidence that she contended would establish that Child was at risk

under    Section   5324(3)(iii)(B).   The   trial   court   instructed   Maternal

Grandmother to give a copy of her proposed “evidence packet” and exhibits

to Father’s counsel. N.T., 3/28/16, at 8. Father’s counsel objected to her

“Exhibit A,” a document dated March 10, 2015, that was considered at the

June 30, 2015 dependency hearing.            The court said that Maternal

Grandmother could not rely on evidence “approximately one year old” to

establish the child was presently at risk. Id. at 9. Maternal Grandmother


                                      -7-
J-A33028-16


countered that “just that document” was dated March 10th, that some of the

other documents “barely exceed” twelve months’ old, and the majority of

her documents “are within the 12-month period.” Id. at 9-10. She claimed

she was unable to present that evidence at the June 30, 2015 hearing.

Maternal Grandmother conceded that she did not have any evidence more

recent than July 2015. Id. at 11-12. In response to Maternal Grandmother’s

attempt “to get this evidence viewed and get the truth out there,” N.T.,

3/28/16, at 13, the court then stated:

          And unfortunately. I don’t have the ability to do that. It is
          not appropriate for the custody court to review a matter
          that the dependency court, in other words, Judge
          Krumenacker in the Children and Youth Services realm has
          determined. You don’t get two bites at the apple that way
          and the only way[s] you can enter this courtroom as a
          grandparent are by the means that I explained to you, and
          unfortunately, you don’t meet those tests for standing at
          this time.

Id. at 13-14. In sum, the trial court did not admit Maternal Grandmother’s

evidence both because it was not sufficiently recent (and therefore did not

tend to establish Child was currently at risk) and because her evidence

improperly sought reconsideration of a dependency ruling with which she

disagreed.

        The court entered an order on the same day as the hearing that

dismissed Maternal Grandmother’s Petition for Special Relief with prejudice

for lack of standing. In its decision, the court made the following findings of

fact:


                                      -8-
J-A33028-16


      (1) [Maternal Grandmother] is the minor child’s maternal
      grandmother.

      (2) Maternal Grandmother’s relationship with the child began
      with the consent of one or both of the parents.

      (3) On March 19, 2015, [the trial court] awarded custody of the
      minor child to Maternal Grandmother when Mother and Father
      each failed a court-administered drug test. The [trial court]
      referred the case to [CYS] for investigation.

      (4) On June 30, 20[15], CYS returned custody of the minor child
      to Father.

      (5) Maternal Grandmother asserts that the minor child is at risk
      because, inter alia, Mother and Father use illegal drugs.
      Maternal Grandmother acknowledges that she has no current
      evidence to substantiate her claims.

      (6) Maternal Grandmother does not stand in loco parentis to the
      child.

      (7) Maternal Grandmother is willing to assume responsibility for
      the child.

      (8) The child has not been determined to be a dependent child
      under 42 Pa.C.S. Ch. 63.

      (9) The child is not substantially at risk due to parental abuse,
      neglect, drug or alcohol abuse, or incapacity.

      (10) The child has not resided with Maternal Grandmother for a
      period of 12 consecutive months.

Trial Ct. Op., 3/28/16, at 1-2 (citation omitted).

      On April 1, 2016, Maternal Grandmother Filed a “Motion for Exceptions

/Reconsideration of Dismissal of Special Relief Petition - March 28, 2016




                                     -9-
J-A33028-16


Order.”3 On April 6, 2016, the trial court scheduled oral argument on the

motion for May 10, 2016; the court’s order stated that evidence would not

be accepted and only oral argument would be entertained. Order, 4/6/16.

On April 26, 2016, Maternal Grandmother filed her Notice of Appeal.        On

May 11, 2016, the trial court granted Maternal Grandmother’s request to

continue the oral argument on the motion for reconsideration because the

appeal would deprive the trial court of jurisdiction to act on the motion. See

Trial Ct. Op., 6/29/16, at 3 (explaining that court granted the motion

“because the trial court lacks jurisdiction over the case while Maternal

Grandmother’s appeal to the Superior Court is pending”).4

       On appeal, Maternal Grandmother presents the following issues:

             1. Was [M]aternal [G]randmother . . . improperly
          disallowed the opportunity to make a record supporting
          her Petition?

             2. Was [M]aternal [G]randmother’s Petition adequate to
          support claim for relief?

____________________________________________
3
   Maternal Grandmother’s motion for reconsideration asserted that her
January 7, 2016 Petition for Special Relief (which she erroneously contended
was filed on December 31, 2015), had been based on 23 Pa.C.S. § 5324
only, even though it said it sought clarification of Child’s “custody and
visitation provisions” (see Pet., 1/7/16, at 1-2). Maternal Grandmother’s
Mot. for Reconsideration, 4/1/16, at 1. Her motion attached the exhibits
that the trial court had refused to admit.
4
  Under Appellate Rule 1701(b)(3)(ii), the court would have had authority to
grant reconsideration up to May 26, 2016, but not thereafter. Because the
trial court did not grant reconsideration within the appeal period, Maternal
Grandmother’s appeal is properly before this Court. See M.O. v. J.T.R., 85
A.3d 1058, 1060 n.1 (Pa. Super. 2014).


                                          - 10 -
J-A33028-16


              3. Were [M]aternal [G]randmother’s efforts to seek
          relief, obstructed by the record keeping practices of the
          Cambria County Prothonotary office?

             4. Was the paramount interest of establishing the best
          interest of the child satisfied by the due process afforded
          to the Petitioner in this matter?

Maternal Grandmother’s Brief, at 7 (unpaginated).

      “The issue of whether the statute confers standing upon a grandparent

to seek custody and/or visitation is purely one of law, over which our review

is plenary.”    R.M. v. Baxter ex rel. T.M., 777 A.2d 446, 449 (Pa. 2001)

(construing statutory predecessor 23 Pa.C.S. § 5324, which governs when a

grandparent may have standing to pursue custody).

          [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. . . .

               [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 . . . .

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

emphasis omitted).

      We summarize Maternal Grandmother’s arguments for all of her

issues.   She contends that the trial court ruled on her petition before she

could testify and introduce evidence that would have established her

standing.      Maternal Grandmother’s Brief at 9 (unpaginated).         Maternal

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J-A33028-16


Grandmother asserts that because she acted as the parent of Child for more

than   twelve    months, she        has   standing.   The   trial   court,   Maternal

Grandmother maintains, prevented her from creating a record on the

“particulars outlined in [her] allegations” in the petition.           Id. at 9-10

(unpaginated).      The remainder of her brief argues that she is entitled to

“liberal visitation” with Child. Id. at 10.5 Her supplemental appellate brief

reiterates her belief that she was prevented from testifying before the court

dismissed her petition.        Maternal Grandmother’s Supplemental Brief at 1

(unpaginated). In sum, Maternal Grandmother’s arguments are focused on

whether she had standing and whether the trial court’s procedures

improperly obstructed her right to prove she had standing.6

       After careful review of the record, the parties’ briefs, and the trial

court’s decision, we affirm on the basis of the trial court’s opinions.          See

Trial Ct. Op., 6/29/16, at 3-7 (holding that (1) a hearing was held at which

Maternal Grandmother testified and was permitted to introduce evidence;

(2) Subsection 5324(3)(iii)(A) did not apply; (3) Maternal Grandmother had
____________________________________________
5
  Maternal Grandmother also apparently argues that (1) the prothonotary
erred by returning paperwork for improper formatting, and (2) there was a
broad violation of due process.        Maternal Grandmother’s Brief at 8
(unpaginated). Maternal Grandmother has waived both arguments as they
are undeveloped in her brief. Commonwealth v. Blango, 150 A.3d 45, 48
(Pa. Super. 2016) (noting, “claims for which arguments are undeveloped are
waived”).
6
  Maternal Grandmother does not contend that it was error for the trial court
to decide the case on the basis of standing under Section 5324, even though
she filed her petition under Rule 1915.13.


                                          - 12 -
J-A33028-16


no current evidence that Child was currently at risk under subsection (B);

and (4) Maternal Grandmother could not establish standing under subsection

(C), as Child had not resided with Maternal Grandmother for twelve

consecutive months and Maternal Grandmother did not file a petition within

six months).

      Maternal Grandmother’s brief suggests a mistaken belief that the court

improperly prevented her from testifying and introducing evidence. To the

contrary, the trial court’s February 25, 2016 order that scheduled the

hearing on Maternal Grandmother’s petition did not prohibit testimony or the

introduction of evidence. Accordingly, at the hearing, Maternal Grandmother

testified and sought to introduce evidence over the objection of Father’s

counsel.   The trial court properly sustained that objection, but the court’s

ruling was not an improper bar against submission of evidence by Maternal

Grandmother. The court’s order regarding Maternal Grandmother’s motion

for reconsideration did state that only oral arguments would be permitted,

Order, 4/6/16 (scheduling hearing on Appellant’s reconsideration motion for

May 10, 2016), but that is because such motions are not evidentiary

proceedings.

      Maternal Grandmother also complains that she has been deprived of

visitation rights.   Maternal Grandmother did not institute the present

proceeding by filing a custody complaint under Sections 5324 or 5325 of the

Domestic Relations Code, but instead by filing a petition under Rule 1915.13,


                                    - 13 -
J-A33028-16


which is intended “as a means to bring about emergency relief.” Steele v.

Steele, 545 A.2d 376, 378 (Pa. Super. 1988). “[T]he appropriate manner

to bring about a change in a custody/visitation Order is by petition for

modification, which would follow, generally[,] the procedure under Pa.R.C.P.

1915.3,” which addresses commencement of a custody complaint. Id.

        Instead of dismissing the Rule 1915.13 petition, the trial court opted

— with Maternal Grandmother’s acquiescence and no objection by Father —

to construe her petition as a complaint for custody under Section 5324, and

it then correctly held that Maternal Grandmother lacked standing under that

provision. When Maternal Grandmother’s inquired further about visitation at

the March 28, 2016 hearing, the trial court told her she would have to bring

“a different action” in which she would seek “partial physical custody.” N.T.,

3/28/16, at 14.7 We understand the court to have been referring to the fact


____________________________________________
7
    The relevant portion of the hearing transcript includes this exchange:

           [Maternal Grandmother]: So I don’t even qualify for
           visitation?

           The court: That is a different action. You are suing for a
           form of physical custody and this is what you have to
           prove. If you want to request partial physical custody, you
           would meet that standing, but that is a separate action.

           [Maternal Grandmother]: Your Honor, I have not seen my
           grandchild in eight months. . . . I just want any access to
           this child and it will not be given to me unless you order it.
           There is no—

(Footnote Continued Next Page)

                                          - 14 -
J-A33028-16


that a grandparent who lacks standing under Section 5324 may still seek

partial physical custody (that is, visitation)8 under Section 5325 of the Code,

which states:

                       _______________________
(Footnote Continued)
           The court: And I don’t have the authority to order it at this
           time, and again, it is clear that you are very sincere in
           your desire for what is best, but the rules and the laws are
           written a certain way, because parents are presumed,
           unless otherwise determined by a court of law, to have the
           child’s best interests at heart and the rules were
           established to prevent third parties, even blood relatives,
           from interfering in the family relationships.

               And, again, there are methods by which you may be
           able to proceed for some type of partial physical custody.
           I can’t make a determination today, because that is not
           what you are here for, but I can say that I am going to
           grant the objection to the standing and no further action
           will be required.

N.T., 3/28/16, at 14-15.
8
    Section 5322(b) of the Code, 23 Pa.C.S. § 5322(b), states:

        (b) Other law.—In a statutory provision other than in this
        chapter, when the term “visitation” is used in reference to child
        custody, the term may be construed to mean:

           (1) partial physical custody;

           (2) shared physical custody; or

           (3) supervised physical custody.

23 Pa.C.S. § 5322(b). Although Chapter 53 eliminated the term “visitation,”
other statutes and rules still reference “visitation”. See, e.g., Pa.R.C.P.
1920.1 (defining “‘custody’ [as including] partial custody and visitation”).
This Court has observed that Section 5325 explicitly permits a grandparent
to seek “visitation.” R.M. v. J.S., 20 A.3d 496, 510 n.12 (Pa. Super. 2011).



                                           - 15 -
J-A33028-16


          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 parents of the child . . . have
              commenced and continued a proceeding to dissolve
              their marriage; 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.

23 Pa.C.S. § 5325.9          The trial court told Maternal Grandmother at the

hearing that she “would meet that standing,” N.T. 3/28/16, at 14, but did

not otherwise explain this statement.              We express no view regarding

whether Maternal Grandmother may be eligible for standing under Section

5325, as that issue is not currently before us. We conclude, however, that

the trial court did not err in denying Maternal Grandmother visitation rights

(that is, partial physical custody) under Section 5324, without prejudice to

Maternal Grandmother’s right to seek visitation under Section 5325 in an

appropriate separate proceeding.

____________________________________________
9
  We have omitted from this quotation a portion of Section 5325(2) that our
Supreme Court held unconstitutional in D.P. v. G.J.P., 146 A.3d 204, 217
(Pa. 2016).


                                          - 16 -
J-A33028-16


      In sum, having discerned no error of law, we affirm. See R.M., 777

A.2d at 449. The parties are instructed to include the June 29, 2016 and

September 2, 2015 trial court opinions in any filings referencing this Court’s

decision.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2017




                                    - 17 -
                                                                               Circulated 03/24/2017 03:02 PM




          .,·...
IN THE COURT OF COMMON PLEAS OF CAMBRIA ('.OUNTY, PENNSYLVAi~A
                   .              .                       f
                                      JUVENILE DIViSION . f,           .I.       .
                                                                                           ...               I\.
                                                                                                             \

                                                  "'
IN THE MATTER OF:                                 *
                                                  *
S.L.> DOB 02/03/2012,                             *    CP-11-DP-0000084-2015

Appeal of A.J;.,., Maternal Grandmother, and           Opinion Pursuaht to Rule of Appellate
                                                                                                                   \
                                                                                                                       ..
                                                                                                                       \'
                                                                                                                            ;.


M.A., Mother                                      *    Procedure 1925(a)(2)' ·

   . OPINION PURSUANT TO RULE OF APPELLATE
                                                                                                       .,I
                                PROCEDURE 1925 {a){2) · ·                                        .I,

Krumenacker. J:: A.L., maternal grandmother (Grandmother), and M.A., mother (Mother),

the appellants herein, appeal from this court'sJuly 22, 2015, Order which, inter alia,

determined -that S.L. was not a dependant child, removed her from the1 care of Grandmother, .
                                                                           \
returned her to the care and custodyof St.L, her fatherIf'ather), and terminated services.

Orderof 7/22/15. At the initial adjudication hearing held June 30, 2015, Father was

represented by Michael Crum (Crum), Esquire, Mother was unrepresented and not present,

and Grandmother was represented by Michael Filia (Filia), Esquire.

       On July 27,. 2015, Grandmother and Mother filed a timely Joint Notice of Appeal and

Concise Statement of Errors Complained ofon Appeal (Concise Statement) pursuant to

Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(l). Pa.Rs.AP, 905, -1925
                          .                                   .
(West 2015). The Concise Statement lists into thirty-seven separate matters that can be

grouped into three allegations of error. These allegations of error are:

        1. Did the Court err in holding the June 30, 2015, adjudication hearing in violation of

              Mother's Due Process rizhtas
                                     ~     she did not have notice of. the hearing?

       2. Was the Court's decision that S.L. is not dependent and should be returned to her

              father correct?
        3. Was counsel for Grandmother ineffective?

In essence Grandmother and Mother challenge the Court's determination that S.L. was not

dependent and transferring custody of her to father. For the reasons discussed below the

appeal should be dismissed and the Court's Order affirmed,

                       PROCEDURAL BACKGROUND
        On January 29, 2015, Grandmother filed a custodyaction at docket 0450-2015

alleging, inter alia, the parents were unable to care for S.L. due to drug issues. The Honorable

Linda Rovder Fleming (Fleming) conducted a conference on March 16, 2015 with

Grandmother represented by Filia and both Father and Mother were unrepresented. Judge

Fleming on March 19, 2015, issued an Opinion and Interim Order finding, inter alia, that

Mother and Father tested positive for illegal substances, that the safety of S.L. could not be

assured in their care, directing Cambria County Children and Youth Service (CYS) to initiate

an investigation to determine if S.L. was dependent, and granting Grandmother temporary

Custody of S.L. Opinion and Interim Order of 3/19/14 at docket 0450:.2015. The Interim

Order also indicated that it was without prejudice to the power of CYS, more accurately the

Juvenile Division of the Court, to make an order of custody after completition of the

investigation. Id.

       A hearing on the custody matter was scheduled before Domestic Relations Permanent

Hearing Officer Paul J. Eckenrode (Eckenrode), Esquire for April 20, 2015. At that hearing

Father was represented by Crum, Grandmother by Filia, and Mother was unrepresented,

Following this hearing Eckenrode recommended, inter alia, that physical custody remain with

Grandmother and these recommendations were adopted by Judge Fleming. Order of 4/24/14

at docket 0450-2015. Following the completion of the CYS investigation, an Initial

                                          Page 2 of 14
    Adjudication hearing was held June 30, 2015, after which S.L was deemed not dependent and

    returned to her father.

                                    FACTUAL BACKGROUND1
             CYS initiated services to this family in 2013 to provide General. Protective Services

    (GPS) and other assistance to Mother and Father who were young and new parents, Rob.in

    Alvarez-Plack (Alvarez-Plack) testified that she is the CYS caseworker assigned to this

    family and has been providing GPS for sometime. Alvarez-Plack testified that she meets with

    S.L. at least monthly, that prior to· September 2014 those visits occurred at Father's and after

    that time they occurred at Grandmother's, Alvarez-Plack testified that S.L. in Father's care

    was outgoing, friendly, lively, had an increasing vocabulary, was developing problem solving

    skills, was a healthy eater, and generally on target Alvarez-Plack testified that once custody .

    shifted to Grandmother S.L. became increasingly timid, shy, unsure of herself, unwilling to

    speak openly with others, seemed withdrawn, and appeared to be regressing verbally, with her

    problem solving skills, and with her social skills.

            Alvarez-Plack indicated that she has concerns with Grandmother due to her mental

health, her lack of mental treatment over the years,. failure to. follow through with drug

treatment, and failure to take her prescribe Suboxone and Vybrid as directed. Alvarez-Plack

indicated that Grandmother had recently started mental health treatment after several years on

non-treatment and that Grandmother told her she could not afford her medications. In addition

Alvarez-Plack testified that since 2013, CYS received at least seven allegations of sexual

abuse related to S.L., some of these from Grandmother, that each report was investigated,

including at least one medical examination, and that each was determined as unfounded.

1
    This summary is distilled from the transcripts without citation to specific portions of the record.
                                                      Page 3 of 14
    Despite this Grandmother continues to question S.L. about sexual abuse and to believe that

    abuse is occurring which concerns the agency.

            Alvarez-Plack testified that she made multiple unsuccessful attempts to contact

    Mother and that notice of the hearing was mailed to her last known address but that she was

    not present. Alvarez-Plack indicated that Mother had an active bench warrant for her arrest for

    unpaid costs and fines, was not compliant with drug treatment, and not compliant with

    services.

            Relative to Father, Alvarez-Plack testified that he had not tested positive for drugs
prior to the March 19th test, that she has drug tested him multiple times since March, that all

tests were negative, that he lived with his paramour and her two sons, that the home was

appropriate, that the home was adequate for S.L., and that he had custody of S.L. until August

2014. In August 2014 Father allowed Grandmother to take S.L. for a weekend visit after

which Grandmother did not return the child to Father.2 Alvarez-Plack testified that the agency

had no concerns with Father, recommended giving custody of S.L. to him, and recommended

finding S.L. not dependent. Finally, when questioned by the Court Alvarez-Plack testified that

she was subpoenaed to attend the April 24th custody hearing but that she did not testify.

            Dennis Kashurba (Kashurba), a licensed psychologist, testified that he performed an

evaluation of Father on June 15, 2015, and that he found no areas of concern. Kashurba

testified that based on his evaluation there was no reason Father could not care for S .L. if she

were returned to his care. Kashurba did recommend ongoing caseworker services to assess

compliance and parenting skills.




i   There was no testimony why Father did not seek legal aid in recovering S.L. from Grandmother.
                                                  Page 4 of 14
        Kashurba testified that he evaluated Grandmother on August 16, 2006, and at that time

diagnosed her with, inter alia, major depressive disorder and opiate dependency and that he

had recommended ongoing mental health and drug treatment for her. He indicated that he

reviewed a current evaluation of Grandmother performed by Family Behavioral Resources

(FBR) that showed a diagnosis of major depressive disorder and opiate dependency. Based on

the review of the current evaluation and his prior evaluation Kashurba indicated that

Grandmother had the same issues now as in 2006 and that she required ongoing mental health

treatment, drug treatment, and psychiatric follow-up for medication checks.

        Grandmother testified that she began mental health treatment with FBR in March

2015, she attended counseling every two weeks, she was unable to afford Suboxone, se was

therefore weaning herself from it but not on the advice of her doctor, and that she did not ·

agree with the recommendations. Grandmother further testified that Father and his paramour

were using lllegal drugs, lying, and manipulating everyone. Grandmother testified that she ·

believed Alvarez-Plack was not honest with her, was lying, and was unwilling to listen to any

of Grandmother's concerns that S.L. was abused by Father and/or his paramour. Grandmother

testified that while in Father's care S.L. sustained injuries, a biting incident with a child of

Father's paramour and a shoulder injury, that she believed were child abuse but that CYS had

told here were investigated and determined to be accidental.

       Dr. Shannon Nikoloff (Nikoloff) testified that she conducted a psych~logical

evaluation on S.L. on May 26, 2015 to determine if she suffered any abuse. Nikoloff testified

that all information she obtained was from either Grandmother or S.L. during play therapy.

Nikoloff testified that based on her evaluation S.L. had suffered some emotional or mental

abuse, that she could not rule sexual abuse, and there was a possibility of physical abuse most


                                            Page 5 of 14
. i
  i




        likely by a man. She testified that she "was not a man hating psycho le gist, but [S.L.] is hiding

        from men." N.T. 6/30/15 p. 59. Nikoloff indicated she concluded this because during play

       therapy S.L. would frequently have the dolls hide, no boy .dolls were allowed in the dollhouse,

       and the police came·and took a boy doll away.

                Upon conclusion of thehearing the Court entered a verbal.order that, inter alia, found:

       S.L .. was not dep~ndent; that Father was ready and able to provide for her health, safety and

      welfare; that Nikoloff' s testimony was not credible in Iight of all the other evidence and

      reports; that Grandmother hadnot complied with mental treatment over the years and that her

      mental health needs to he re-evaluated; that the custody order was entered without sufficient

      basis as the hearing officer did not hear testimony from Alvarez-Plack or any CYS

      caseworker; returned S.L. to her Father; and directed that if Grandmother wished visitation

      she would need to proceed through the Domestic Relations Division.

                                             DISCUSSION
                    -            .       .   .

         I.       Did the Court err in holding the June 30, 2015, review hearing in violation of

                        Mother's Due Process right as she did not have notice of the hearing?

              Grandmother and Mother's first allegation of error is that the Court erred in holding

  the hearing despite Mother having not received notice of the hearing. Testimony at the

  hearing established that Mother's last known address was

 .Pennsylvania, an address shared with Grand~other. Both Grandmother and Mother'~

 hearing notices were mailed to this address. The Court also observes that this address is the

 same listed on the Notice of Appeal for both Grandmother and Mother. CYS has a clear duty

 to provide notice to a parent relating to any court hearing concerning their child and a parent

has a due process right to be notified. 42 Pa.C.S. § 6336.1 (West2015) .
                                                 . Page6of14
         "The core of due process is the right to notice and a meaningful opportunity to be

  heard." Lachance v. Erickson. 522 U.S. 262. 266, 118 S.Ct. 753, 139 L.Ed.2d 695 (1998).

  Due process requires that the means employed to provide notice be such as one "desirous of

  actually informing" the person would reasonably adopt to accomplish notice. Jones v.

  Flowers, 547 U.S. 220, 229, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (quoting Mullane v.

  Central Hanover Bank& Trust Co.• 339 U.S. 306, 315, 70·S.Ct. 652, 94 L.Ed. 865 (1950)).

         The record in this matter reflects that a U.S. Postal Service Certified Mail Return

  Receipt Card, frequently called a green card, was returned indicating that notice of the hearing

  was undeliverable and not able to be forwarded to Mother. However, Grandmother's green

  card was received back but signed for by another household resident. CYS sent notice of the

  hearing to Mother's last known address, one she shared with Grandmother, and that the notice

  was returned as undeliverable and unable to be forwarded. CYS was not notified by either         ·

  Grandmother or Mother that Mother had changed residences and a person desirous of actually

_ informing the person would reasonably seek to do so at the last known residence. Further,

  Grandmother did receive notice of the hearing and presumably could have shared this

  information with Mother had she chosen to do so.

         Alvarez-Plack testified that she made several attempts to locate and speak with Mother

  but was unsuccessful inlocating her. N.T. 6/30/15 p.10. Further, Alvarez-Plack testified that

  Mother had an active bench warrant for her arrest, ill.,, and the Court believes that this may

  have.influenced her decision to ignore the hearing notice and not attend the hearing rather

  than risk being arrested on that warrant should she appear.

         As Mother was an absentee and non-custodial parent the agency was not requiredto

  engage in reasonable efforts to locate her. In re J.C., 412 Pa. Super. 369, 603 A.2d 627 (1992)

                                             Page 7 of 14
( county need not make "reasonable'' efforts to locate absent, non-custodial parent whose

whereabouts are unknown prior to obtaining finiing of dependency). Since CYS met the

standard set forth in Jones to employ means to provide notice be such as one desirous of

actually informing the person would reasonably adopt to accomplish notice, sending notice to

the last known residence and caseworker contacts, there was no violation of Mother's due

process rights.~      Scott v. Wickard, 2009 WL 25654 7 (M.D. Pa. Feb. 3, 2009)(Pennsylvania

county CYS agency did not violate a father's procedural due process rights; agency attempted

to notify him of a child dependency hearing via means that a reasonable person desirous of

actually informing another thereof would have employed, including use of phonebook and

internet searches). Accordingly, there is no merit to this issue.

    II.      Was the Court's decision that S.L. is not dependent and should be returned to

                                               her father correct?

          The vast remainder of the issues raised challenge, in various ways, whether the

Court's determination that S.L. was not dependent and should be returned to her non-custodial

father was correct. A review of twenty-three of these issues reveals that they involve

allegations that witnesses committed perjury, that certain facts were distorted or inaccurate,

that avenues of questioning were not explored, that certain items of evidence were not

presented, that various CYS employees lack integrity, and assertions that CYS employees

misled Department of Human Services (OHS) investigators.

          It is well settled that "[t]he weight of the evidence is exclusively for the finder of fact

who is free to believe all, part, or none of the evidence and to determine the credibility of the

witnesses." Commonwealth v. Simmons, 541 Pa. 21 l,'229, 662 A.2d 621, 630 (1995). This

principal applies equally where a judge sits as fact finder. Commonwealth v. Davis, 491 Pa.

                                              Page 8 of 14
363, 372, 421 A.2d 179, 183 (1980). When reviewing for sufficiency or weight of the

evidence, a court may not substitute its judgment for that of the fact-finder; if the record

contains support for the verdict, it may not be disturbed. Commonwealth v. Murdick, 510 Pa.

305, 308, 507 A.2d 1212, 1213 (1986). A court may not reverse the fact finders determination

unless it is "so contrary to evidence as to shock one's sense of justice." Simmons, 541 Pa. at

229, 662 A.2d at 63 0. Where the court is sitting as fact finder a challenge to the weight of the

evidence requires a showing of an abuse of discretion.

         In reviewing a decision for abuse of discretion, appellate courts are bound by the facts

as found by the trial court unless they are not supported in the record. In re: A.P., 728 A.2d

375, 378 (Pa. Super. 1999) (citation omitted). Further, our Superior Court has consistently

held that

         Our scope of review, accordingly, is of the broadest possible nature. It is this
         Court's responsibility to ensure that the record represents a comprehensive
         inquiry and that the hearing judge has applied the appropriate legal principles
         to that record. Nevertheless, we accord great weight to the court's fact-finding
         function because the court is in the best position to observe and rule on the
         credibility of the parties and witnesses.

In re: E.P .• .J.P.   & AP., 841   A.2d 128, 131 (Pa. Super. 2003)(quoting ln·re: R.W.J., 826 A.2d

10, 12 (Pa. Super. 2003)). An abuse of discretion is not merely an error in judgmentbut exists

only when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary,

or capricious, or where the court has failed to apply the law or was motivated by partiality,

prejudice, bias, or ill will. Hannan v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000). See also.

Van Dine v. Gyuriska, 552 Pa. 122, 713 A.2d 1104 (1998); Rebert v. Rebert, 757 A.2d 981

(Pa. Super. 2000).

         FDl' a decision to be against the weight of the evidence it must be shown that the

evidence relied on to reach the decision was so inherently improbable or at variance with the
                                                Page 9 of 14
admitted or proven facts, or with ordinary experience, that it resulted in a decision that is

shocking to the court's sense of justice. Thomas v. E.B. Jennyn Lodge No. 2, 693 A.2d 974

(Pa. Super. 1997). While an appellate court will review the evidence, determinations

pertaining to the credibility of witnesses and the weight to assign evidence are matters within

exclusive province of the fact finder and may not be disturbed by the appellate court. See,

Weir by Gasper v. Estate of Ciao, 551 Pa. 491, 556 A.2d 819 (1989).

        The fundamental purpose of proceedings under the Juvenile Act is to preserve the

unity of the family. 42 Pa.C.S. § 630l(b)(l) (West2105). The care and protection of children

are to be achieved in a family envirorunent whenever possible. 42 Pa.C.S. § 630l(b)(3) (West

2105). It is well settled that a child whose non-custodial parent is ready, willing, and able to

provide adequate care to child cannot be found dependent unless one of the remaining basis

for dependency defined in the Juvenile Act is proven. See, 42 Pa.C.S. §6302 (West 2015); In

re M.L., 562 Pa. 646, 757 A.2d 849 (2000); In re K.A,D., 779 A.2d 540 (Pa. Super. 2001).

        Inthis matter the evidence established that Father was ready, willing, and able to take

custody ofS.L. Further, after conducting an investigation into him CYS believed he was able

to provide adequate care for S.L.; that it was in her best interests to be placed in Father's care,

and that no services were required. Since there was a non-custodial parent who was ready,

willing, and able to provide adequate care to S.L. she could not be found dependent unless

one of the remaining basis for dependency defined in the Juvenile Act (Act) is proven.. See,

42 Pa.C,S. §6302 (West 2015); In re M.L., 562 Pa. 646, 757 A.2d 849 (2000); In re K.A.D.,

779 A.2d 540 (Pa. Super. 2001). No other basis for dependency was alleged or proven and so

S.L. could not be found dependent under these circumstances. Id.



                                           Page 10 of 14
        Even if Grandmother had been an equally acceptable placement option the Act

· dictates a strong preference to keep families together and that bias would mandate return of

 S.L. to her father over any other person with the possible exception of her mother who in this·

 case was not a suitable option. See, 42 Pa.C.S. §§ 6301 (b)(3), 635 l (f.1 )(1) (West 2105); In re

 L1.., 456 Pa. Super. 685, 695-96, 691 A.2d 520, 525 (1997) ("we conclude that, consistent

 with its concentration on the parent-child relationship, the Act's goal.of "preserving family

 unity=refers, primarily, to sustaining the connection between children and their natural

 parents."), See also, 42 U.S.C.A. § 675(5)(C) (West 2015)(highest preference in permanency
 plan goals is reunification with parent). Hence the Court did not err in finding S.L. not ·

 dependent and returning her to her Father's care. In re M.L., 562 Pa. 646, 757 A.2d 849

 (2000) (child whose. non-custodial parent is ready, willing, and able to provide adequate care

 to child cannot-be found dependent; trial court had authority to transfer custody of child from

 mother to father in dependency proceeding, even though court found that child was not

 dependent). Accordingly, there is no merit to this issue.

                        ID. Was counsel for Grandmother ineffective?

         Grandmother raises at least eleven issues related to the question of whether her

 counsel,
   .      attorney Filia, was ineffective at the initial adjudication hearing. It is well settled that
                                                                                 \




 parents are entitled not only to counsel in dependency proceedings but to effective counsel

 and that ineffectiveness of counsel is an available issue for appellate review from a finding     of
 dependency. In re S.M., 418 Pa. Super. 359, 614 A.2d 312 (1992); Matter of J.P., 393 Pa.

 Super. l, 573 A.2d 1057 (1990). In S.M. our Superior Court explained that

         Under the criminal standard, in order to prevail on an ineffectiveness of
         counsel challenge, the appellant must show that she had a claim of arguable
         merit, that counsel handled the claim unprofessionally and that counsel's
         action caused her prejudice. We hold that in the context of a dependency
                                             Page 11 ofl4
         proceeding, before counsel can be deemed ineffective, under the above stated
         criminal standard, the appellant must make a strong showing of ineffectiveness
         of counsel. Under this heightened test the parent must come forward with
         evidence that indicates to a high degree of likelihood 'that but for an
         unprofessional error on the part of counsel, the child would not have been
         found to be dependent.

         This heightened standard reflects the fact that a finding of dependency does not
         constitute a deprivation of liberty as does a sentence of imprisonment in a
         criminal setting. It also reflects the reality. that it is of paramount importance in
         a child's life to have decisions about the child's status and placement be final,
         and not subject to challenge absent a strong showing of ineffectiveness on the
        part of counsel. As this court has noted, "[t]he state's interest in finalityis
        unusually strong in child-custody disputes .... It is undisputed that children
        require secure, stable, long term, continuous relationships with their parents or
        foster parents. There is little that can be as detrimental to a child's sound
        development as uncertainty over whether he is to remain in his current 'home'
        under the care of his parents or foster parents, especially when such uncertainty
        is prolonged."

        In light of these special considerations there is good reason for applying a more
        stringent test for measuring effectiveness of parents' counsel in dependency
       proceedings than for measuring the effectiveness of lawyers in most other
       settings. While identifying the unique needs of children, the heightened
       standard still provides protection for parents who have been inadequately
       served by their lavvyer. It recognizes that parents must have effective counsel
       in order to vindicate their interest in raising their own children without the
       interference of the state. As Judge Montemuro stated in his Concurring
       Opinion in In the Matter of J.P., "Whether the end result involves
       incarceration, confinement in a mental hospital or youth treatment center, or as
       here the removal of one's child, the forces of opposition (the state) are always
       larger and better equipped, but are not necessarily either correct or just in their
       assessments."

S.M., 418 Pa. 'Super, 359, 366-68, 614 A.2d 312, 315-16 (citations omitted)(emphasis in

original).

       Here S.L. was found not dependent and returned to the care and custody of her father.

The Court is uncertain if a claim of ineffectiveness can be raised under these circumstances

as S.M. and J.P. involve children who were found dependent Nonetheless the Court will

briefly address Grandmother's claims under the standard set forth in S.M. Under S.M.'s

                                           Page l2 of 14
 heightened test Grandmother must come forward with evidence that indicates to a high

 degree of likelihood that but for an unprofessional error on the part of Filia, S.L. would not

 have been found to be not dependent and returned to Father. A review of Grandmother's

 allegations of ineffectiveness reveals that even if all are accepted as true none would have

 resulted in a different outcome.

        As discussed above where there is a non-custodial parent who is ready, willing, and

 able to provide adequate care to a child that child cannot be found dependent, unless one of

 the remaining basis for dependency defined in the Act is proven, and the child should be .
 placed in the care of that parent. See. 42 Pa.C.S. §6302 (West 2015); In re M.L., supra; In re

 K.A.D., supra. In the matter sub Judice that Father was such a parent was established by clear

 and convincing evidence and none of the allegation against Filia relate to how he failed to

establish that Father was not ready, willing, and able to provide adequate care for S.L. Instead

the issues raised focus on questions of evidence not presented that was favorable to

Grandmother, witness favorable to Grandmother not being called, and general allegations of

ineffectiveness. Each of these issues focuses on matters related to whether Grandmother was

an appropriate placement option. As discussed above whether Grandmother was an equally

good option is not relevant where a ready, willing, and capable non-custodial parent existed

to take custody of the child. Accordingly, there is not merit to this or any allegation of error.

       The Court observes that this matter at its core is a custody dispute between

Grandmother and Mother on one side and Father on the other. From a review of the record in

this matter and the related domestic relations case it is clear that Grandmother and Mother are

attempting to use CYS   as   another means to obtain custody of S.L. and will take any steps

necessary to further that objective. In their "Conclusion" portion of the Concise Statement,

                                           Page 13 of 14
I   I   I   .,




                  Grandmother and Mother recite a lengthy list of individuals they have contacted to "conduct

                  a proper investigation" including CYS workers, the CYS.director, various law enforcement

                  agencies, DHS investigators, the Office of the Attorney General, the Cambria County District

                  Attorney, and state Senator John Wozniak. Appellants would have this Court and the

                  Superior Court believe that each of these individuals or entities failed to act accordingly in

                  concluding that S. L.' s safety was insured and that remaining with her father was in her best

                  interests. Such a conclusion would require the Courts to accept that all of these persons were

                  engaged in a conspiracy of massive scale against the appellants and there exists no rational

                 basis to conclude such a conspiracy exists.

                         The Court further notes that since this matter was decided and the appeal initiated

                 Grandmother and/or Mother have joined a Facebook group called Social Worker of the Year,

                 dedicated to slandering social workers nationwide. In addition Grandmother has posted

                 various comments on her homepage making insulting, disparaging, and thinly veiled threats

                 against Alvarez-Plack and others. Only recently has she changed her privacy settings making

                 her comments available only to her friends. In addition Grandmother has threatened to reveal

                 the addresses and names of the caseworkers, their family members, and other personal

                 details. Also posted were video files of home visits by Alvarez-Plack, which included

                 conversations between her and Grandmother.

                        As there is no merit to any allegation of error and for the reasons discussed herein, the

                 appeal should be dismissed and the Court's Order of July 22, 2015, should be affirmed.




                                                                       Norman A.

                 September 2, 2015
                                                           Page 14 of 14
                                                                                        Circulated 03/24/2017 03:02 PM




                   TN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
                                           CIVIL DIVISION

            A.AL.,                                                             Trial Court No. 2015-450

                                      Plaintiff,                               Superior Court No. 603 WDA 2016:
  t I.
  i; ·                       v.
                                                                                                                                    i


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  11
            SJ.L. and M.L.A.,
                                                                                                                                        II
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  11                                  Defendants.

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            ATTORNEYS OF RECORD:                                                                                                         I
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                                                                                                                   ,--r.
                     For the Plaintiff               PRO SE·-                                                    .ni,              . l
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                     For the Defendants:             MICHAEL T. CRUM, ESQUIRE
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       j.
                                STATEMENTIN SUPPORTOF ORDER ruRsufm T~
                             PENNSYLVANIA RULE OF APPELLATE PROCEDURE1925(a)
                                                                                                                                             l1




  I                      -        .                             . .        -                                I              -
                     FLEMING, J., June 28, 2016.       Pursuant to Pennsylvania Rule of Appellate Procedure I
            1925(a), the trial court presents the following Statement in Support ofits Order dated March
            28, 2016:.
                     On January 29, 2015, Plaintiff, A.A.L. ["Maternal Grandmother"], filed a Complaint for
            Custody of S.J.L. (born February 3, 2012) [the "child") seeking primary physical custody from
            Defendants, S.J.L. ["Father"] and M.L.A. ["Mother"]. COMPLAINT FOR CUSTODY FILED FOR
            RECORD ON JAN. 29, 2015.           On the same day, Maternal Grandmother filed a "Petition for
            Emergency Custody Order" seeking immediate temporary legal and physical custody of the
            child. PETITION FOR EMERGENCY CUSTODY ORDER FILED FOR RECORD ON JAN. 29, 2016, pgs. 1-
            12. Maternal Grandmother alleged various instances of the child's mistreatment, as well as the
            parents' alleged mental health, alcohol abuse, and substance abuse. Id.
                                                                                                                                                  I
                     Following a Hearing on Maternal Grandmother's "Petition for Emergency Custody                                                'I



            Order," the trial court issued an Opinion and Interim Order dated March 19, 2015, stating:                         ·                  1

                                                                                                                                                  I

   ii
       I
                                                                                                                                                  I
                                                                                                                                                  I
              [Father and Mother] having failed a court-administered drug test [on March 19,
              201.6], it is hereby ORDERED and DECREED that temporary physical custody of
              [the child] is hereby vested in [Maternal Grandmother] pending further Order.
              [Maternal Grandmother, Mother, and Father] shall have .shared legal custody of
              the minor child. Cambria County Children and Youth Services ["CYS"] is
I:
            · DIRECTED to investigate this matter and to determine if the child is dependent
              under the Child Protective Services Act. This Order is without prejudice for
              Children and Youth Services to make another Order for custody after full
              investigation.                                                                                       ii.
     lNTERIMORDERDATEDMAR.19,201.5,pgs.1-2.                                                                  .     i
               On April 20, 2015, Hearing Officer Paul Eckenrode conducted a Custody Heari~g and                   I
     recommended that the parties share legal custody, that Maternal Grandmother maintain primary                  I
     physical custody, and that Mother a~d Father have partial physical custody.                 lNTERlM ORDER t
     DATED A~R. 24, 20.15,    11 1,   10. The trial court executed the Hearing Officer's Recommended
                                                                         .
                                                                                                                   I'
     Interim Order on April 24, 2015. Id On June 30, 2015, CYS returned custody of the child to]
     Father.    See OPINION DATED MAR. 28, 2016, FINDINGS OF                 FACT   1 4; NOTES   OF TRANSCRIPT      l
                                                                                                                       l
                                                         .                                                             I

     (MAY 18, 2016) ["N.T."], pgs.      3-5.
               On January 7, 2016, Maternal Grandmother filed a Petition for Special Relief seeking\
     clarification of "custody and visitation provisions."        PETITION FOR SPECIAL·RELIEF         FILED FO.R       ii

     RECORD ON JAN. 7, 2016, pg. 2. On March 28, 2016, the trial court conducted a Hearing; and,
     Father presented an oral motion arguing that Maternal Grandmother lacked standing. N.T., pg.                       I
     2.   By Opinion · and Order· dated March 28, --2itt6, the trial court dismissed Maternal
     Grandmother's Petition for Special Relief with prejudice for lack of standing.                OPINION AND
     ORDER DATED MAR, 28~ 2016.           On April l, 2016, Maternal Grandmother filed a "Motion for
     Exceptions/Reconsideration of Dismissal of Special Relief Petition - March 28, 2016 Order,"
     which the trial court scheduled for oral argument on May 10, 2016.
               On April 26, 2016, Maternal Grandmother filed her Notice of Appeal. On May 6, 2016,
     Maternal Grandmother filed a "Petition to Proceed In Forma Pauperis." which the trial court
     granted on May 11, 2016.            On May 10, 2016, Maternal Grandmother filed a Concise
     Statement' and two Applications for Order to Transcribe Record. On May 11, 2016, the trial


     1
       See D.M._ v. V.B., 87. A.3d 323,. 326-327 (Pa. Super: 2014) (finding no prejudice to either party where the j
     appellant failed to file a timely concise statement but rectified the error).

                                                             2
             court granted Maternal Grandmother's request to continue oral argument on her "Motion for
             Exceptions/Reconsideration of Dismissal of Special Relief Petition - March 28, 2016 Order":
             because the trial court lacks jurisdiction over the case while Maternal Grandmother's appeal to
             the Superior Court is pending. The special relief hearing transcript was lodged on May 18,
     '

iiI,
ii
             20.16. See N.T., pgs.1-17.
                     In its March 28, 2016 Opinion, the trial court made the following Findings of Facts:2
!
I,
   I
1,                   (1)      Maternal Grandmother is the minor child's maternal grandmother .. N.T.,
                              pg. 4.3
11

11                   (2)      Maternal Grandmother's relationship with the child began with the
I
i                             consent of one or both of the parents. N.T., pg. 5.
                     (3)      On March 19·, 2015, [the trial court] awarded custody of the minor child to
                              Maternal Grandmother when Mother and father each failed a court-
                              administered drug test. The [trial court] referred the case to [CYS] for
                              investigation. N.T., pg. 4 (referencing INTERIM ORDER DATED MAR. 19,
                              2016).
                     (4)      On June 30, 201[5],4 CYS returned custody of the minor child to Father~
                              N.T., pgs. 3-5.                                     .
                     (5)      Maternal Grandmother asserts that the minor child is at risk because, inter
                              alia, Mother and Father use illegal drugs. N.T., pg. T, Maternal
                              Grandmother acknowledges . that she has no current evidence to·
                              substantiate her claims. N.T., pgs. 11-15.
                     (6)      Maternal Grandmother does not stand in loco parentis to the child. See
                              N.T., pgs. 5-7.
                     (7)      Maternal Grandmother is willing to assume responsibility for the· child.
                              N.T., pgs. 5-6.
                     (8)      The child has not been determined to be a dependent child under 42 PA.
                              C.S. Ch. 63. N.T., pgs. 5-6.
                     (9)      The child is not substantially at risk due to parental abuse, neglect, drug or
                              alcohol abuse, or incapacity. N.T., pgs. 7-15.
                     (10)     The child has notresided with Maternal Grandmother for a period of 12
                              consecutive months. N.T., pgs. 5-7.

             2
               The trial court's Findings of Fact are reproduced here in full with citations to the record added.
             3
               The trial court notes a typographical error in the transcript, which states "paternal grandmother" instead of
             "maternal grandmother." CompareN.T.,.pg, 4 with OPINION DATED M~. 28, 2016, FINDINGS OF FACT1 I.
             4
               The trial court corrected a typographical error from "2016" to "2015." Compare N.T., pgs. 3-5 with OPINION
             DATED MAR. 28, 2016, FINDINGS OF FACT14.
l
                                                                    3
II
I        .
      OPINION DATED MAR. 28, 2016, FINDINGS OF FACT<J[11-10.


                                              DISCUSSION
      Purported Errors
•,.
i
             On appeal, Material Grandmother claims the trial court erred as follows:
             (1) Was [Maternal Grandmother] improperly disallowed the opportunity to make                I!
                 a record supporting her [Petition for Special Relief]?
             (2) Was [Maternal Grandmother's Petition for Special Relief] adequate to support
                 a claim for relief?
             (3) Were [Maternal Grandmother's] efforts to seek relief obstructed by the record            Il
                 keeping practices of the Prothonotary Office?
             (4) Was the paramount interest of establishing the best interest of the child
                                                                                                              I
                 satisfied by the due process afforded to [Maternal Grandmother] in this
               · matter?                                                                                      I
                                                                                                         ·1
      CONCISESTATEMENT FILED FOR RECORDON MAY 10, 2016 ["CONCI~E STATEMENT"j,                ,r,r 1-4.        I


                                                                                                              I
      Standard of Review
                                                                                                              I
             The Superior Court of Pennsylvania reviews a trial court's order as follows:                     I
             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.
             The 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. 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.



                                                      4
               Moreover[, 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.
        D.G. v. D.B., 91 A.3d 706, 707-708 (Pa. Super. 2014) (citation, brackets, quotation marks, and i
        indentations omitted).
                                                                                                               !


        Legal Analysis
               Pursuant to Section 5324 of. the Pennsylvania Child Custody Statute, the following I
                                                                                                               I
                                                                                                               I
        individuals have standing to file an action for any form of physical 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

                       (i) whose relationship with the child began either with the consent of a
                           parent of the child or under a court order;              ·                          l   !
                                                                                                                   i
                       (ii) who assumes or is willing to assume responsibility for the child; and
                                                                                                                   I
                                                                                                                   I·
                       (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);                               I
                                 (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 a 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 ofthe child from the home.
        23 PA. C.S. § 5324.
               In this case, Matemal Grandmother lacks standing to pursue an action for custody under
        Section 5324. Matemal Grandmother acknowledges that she is not the child's parent and that

I
    I   she does not currently stand in loco parentis to the child to constitute standing under Section
        5324(1) or (2). N.T., pg. 4. Thus, Maternal Grandmother could only have standing as a                   I
        grandparent who meets the requirements of Section 5324(3)(iii).               First, the trial    court I


                                                           5
                                                                                                                       I
                                                                                                                        I
         acknowledged that Section 5324(3)(iii)(a) regarding juvenile delinquency proceedings did not
         apply to this matter. N.T., pgs. 5-6.
              '   Second, Maternal Grandmother alleged that "the child is substantially at risk due to

  . ''
         parental abuse, neglect, drug or alcohol abuse, or incapacity" under Section 5324(3)(iii)(b).:
  .
  ! :
    :
         N.T., pg. 7. The trial court explained to Maternal Grandmother that she must "show that the
 ij
 !'      child is currently at risk, so, [the trial court could not] look at evidence that is approximately!
  ,I
  i!     one year old."     N.T., pgs. 9-10.   Nonetheless, Maternal Grandmother attempted to introduce\

. lI     evidence she failed to present at a CYS Hearing on June 30, 2015, as well as other evidence she          !
  11
  !I
 '1
         failed to raise at an emergency custody hearing on March 19, 2015. See N.T., pgs. 9-14.                  I
 ii               Regarding corrent risk to the child, Maternal Grandmother- testified that she has "not          I
         been able to se~ her" for "the past eight mohths" and she did not "h_ave anything from July [of!
         2015] forward."      N.T., pgs. 11-12. Thus, Maternal Grandmother relied on eight-month old            I
  11     allegations and failed to submit evidence of current risk to the child. According~y,         the trial l
  ,I
  1·
         court concluded that Maternal Grandmother lacked standing under Section 5324(3)(iii)(b).          Seel I
  iI                                               .
                                                             .
                                                                                                                      I
  ''I
         oo. v. D.H,      91 A.3d 706, 712-713 (Pa. Super. 2014) (noting that "the record is not developed            j
         enough to indicate that Mother has ongoing drug or alc?hol problems" where Mother testified
         she had. been sober for three years). See also R.M v. Baxter, 777 A}d 446, 448-449 (Pa. 2001)
         (dismissing the grandmother's petition for lack of standing and "reasoning that the child was no
         longer at risk because the child services agency removed him from the home and placed him
         with foster parents").
                  Lastly, the child did not reside with Maternal Grandmother for 12 consecutive months
         under Section 5324(3)(iii)(c).    N.T., pg. 6. Here, the child resided with Maternal Grandmother
         from the date of the trial court's Interim Order on March 19, 2015 until CYS returned the child
         to Father on June 30, 2015. INTERI_M ORDER DATED MAR. 19, 2016; N.T., pgs.            3-5.   Maternal
         Grandmother filed her Petition for Special Relief     in this action on January 7, 2016, just over six
         months after the removal of the child from the home. N.T., pg. 6 (referencing PETITION FOR
         SPECIAL RELIEF FILED FOR RECORD ON JAN. 7, 2016). Thus, the trial court correctly concluded
         that. Maternal     Grandmother    did not meet the requirements         of Section    5324(3)(iii)(c).




                                                           6
Therefore, the trial court dismissed Maternal Grandmother's Petition for Special Relief for lack
of standing under Section 5324.
       Additionally, the trial court notes that a grandparent's standing under the Pennsylvania     i
Child Custody Statute is a prerequisite to the trial court's jurisdiction over a matter. See KB.   n,
v. C.B.F, 833 A.2d 767 (Pa. Super. 2003). In light of the foregoing conclusion that Maternal
Grandmother lacked standing, the trial court consequently lacks jurisdiction over the merits of
the case. Therefore, any purported errors regarding the merits of this case raised by Maternal
Grandmother on appeal will not be addressed by the trial court.


                                          CONCLUSION
                       ,                        .                                           .           I
       For the re~sons set forth above, Petitioner's appeal should be dismissed and the trial           I
court's Order dated March 28, 2016 should be affirmed.                                             · 1


                                              RESPECTFULLY SUBMITTED,


                                                                                                        I


                                                                                                   , I .




                                                    7
