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                                2019 PA Super 91

 J. & S. O.                                :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 C.H.                                      :
                                           :
                    Appellant              :   No. 1361 MDA 2018

                Appeal from the Order Entered July 17, 2018
    In the Court of Common Pleas of York County Civil Division at No(s):
                           2014-FC-001854-03


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.:                     FILED: MARCH 27, 2019

      Appellant, C.H. (“Father”), appeals from the July 17, 2018 Order entered

in the York County Court of Common Pleas, which granted Appellees’

(“Maternal Grandparents”) Petition for Modification of Custody and awarded

Maternal Grandparents partial physical custody of H.H. (“Child”) every other

Saturday and additional time on holidays and during the summer months.

Based on the reasoning of Hiller v. Fausey, 904 A.2d 875 (Pa. 2006), we

conclude that 23 Pa.C.S. § 5325, granting standing to grandparents to seek

partial custody of their deceased child’s children (grandchildren), survives

strict scrutiny and is constitutional as applied in this case. We, thus, affirm.

      The relevant factual and procedural history is as follows. Father and

Child’s biological mother (“Mother”) were married and Child was born in 2009.

Child saw Maternal Grandparents on a weekly basis and often spent the night

at their home. Mother passed away in March 2013.
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       On October 14, 2014, Maternal Grandparents filed a Complaint for

Custody, which ultimately resolved with the filing of a Stipulated Order on

October 18, 2016.        The Stipulated Order awarded Maternal Grandparents

partial physical custody of Child three days per month during the school year

and seven days per month during the summer months, which could be

modified to overnight visitation at the recommendation of Child’s therapist.1

       On October 26, 2017, Maternal Grandparents filed a Petition for

Modification of Custody and Contempt of Existing Orders alleging that Father

was not complying with the Stipulated Order. After a custody trial, the trial

court granted Maternal Grandparents’ Petition for Modification of Custody and

denied Maternal Grandparents’ Petition for Contempt. As stated above, the

trial court awarded Maternal Grandparents partial physical custody of Child

every other Saturday during the school year, on Christmas Eve, and on four

additional days in the summer.

       Father timely appealed. Father and the trial court both complied with

Pa.R.A.P. 1925.

       Father raises the following issues on appeal:


____________________________________________


1 In a Pre-Trial Memorandum filed prior to a scheduled custody hearing that
never occurred due to parties’ agreement, Father raised the issue of whether
two custody statutes, 23 Pa.C.S. § 5325 and 23 Pa.C.S. § 5337, were
unconstitutional. On November 9, 2016, Father filed a Notice of Appeal raising
the same constitutional issues. On October 6, 2017, this Court sua sponte
determined that the October 18, 2016 Stipulated Order was interlocutory and,
therefore, quashed the appeal. See J.T.O. v. C.H., 179 A.3d 540 (Pa. Super.
2017) (unpublished memorandum).

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      1. Whether the statute granting automatic standing to
         grandparents at [23 Pa.C.S. § 5325(1)] violates a parent’s 14th
         Amendment rights to due process, as well as of the
         Pennsylvania Constitution, as the statute does not pass a strict
         scrutiny analysis where the grandparents have been offered
         ongoing contact with the grandchild after a parent’s death?

      2. Whether [23 Pa.C.S. § 5325(1)] creates unconstitutionally
         disparate treatment for the class in violation of a widowed
         parent’s 14th Amendment rights under the Equal Protection
         Clause, as well as Article 1, §§ 1 and 26 of the Pennsylvania
         Constitution, who are subjected to court review of their
         parenting decisions regarding the amount and length of contact
         between their child(ren) with grandparents versus those
         parents in two parent families?

      3. Whether by subsequent legislative enactment and application
         of the anti-relocation provisions contained within [23 Pa.C.S. §
         5337] causes [23 Pa.C.S. § 5325] to violate the fundamental
         rights of parents to make decision concerning their child’s care,
         custody and control as guaranteed to them under the
         Substantive Due Process Clause of the 5th Amendment as
         applied by the 14th Amendment of the United States
         Constitution?

      4. Whether due to the enactment of [23 Pa.C.S. § 5337], [23
         Pa.C.S. § 5325] violates the Equal Protection Clause of the 14th
         Amendment of the United States Constitution, and Article 1, §§
         1 and 26 of the Pennsylvania Constitution by its disparate
         treatment of parents based upon arbitrary parental
         classification?

Father’s Brief at 5-6.

      The constitutionality of a statute presents a question of law and this

Court’s review is plenary.    Schmehl v. Wegelin, 927 A.2d 183, 186 (Pa.

2007). “A statute duly enacted by the General Assembly is presumed valid

and will not be declared unconstitutional unless it clearly, palpably and plainly

violates the Constitution.”     Id. (citation and internal quotation marks




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omitted). Accordingly, any party seeking to overcome that presumption of

validity “bears a heavy burden of persuasion.” Id.

         In his first two issues, Father avers that 23 Pa.C.S. § 5325(1), the

underlying statute providing Maternal Grandparents standing in the instant

custody matter, is unconstitutional. Father’s Brief at 5. Father argues that

the statutory provision, which states, “where the parent of the child is

deceased, a parent or grandparent of the deceased parent may file an action

[for partial physical or supervised physical custody,]” violates both his due

process and equal protection rights.2 See 23 Pa.C.S. § 5325(1); Father’s Brief

at 5.

Due Process Rights

        Father first contends that Section 5325(1) as applied violates his due

process rights to raise his child without government interference. Father’s

Brief at 13. He asserts that the statute fails to pass strict scrutiny because it

is not narrowly tailored to serve a compelling state interest. Id. at 15. He

contends that Section 5325(1) violates the Due Process Clause because it

automatically grants standing to any grandparent when their child is deceased

regardless of whether the surviving parent has allowed continued, consistent,

and ongoing contact between a child and the grandparents. Id. at 5, 15-17.




____________________________________________


2 We note that the legislature repealed the prior statute, 23 Pa.C.S. § 5311,
in 2010 and replaced it with 23 Pa.C.S. § 5325, which the legislature amended
to its current version in 2018.

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       It is well settled that grandparent visitation and custody statutes

generally authorize state action and, therefore, are subject to constitutional

limitations. D.P. v. G.J.P., 146 A.3d 204, 210 (Pa. 2016). The Fourteenth

Amendment provides that no State shall “deprive any person of life, liberty,

or property, without due process of law” or deny any person within their

jurisdiction “the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

The Pennsylvania Constitution provides equivalent protections.3

       Our Supreme Court has held that Section 5325 infringes upon the right

of parents to make decisions regarding the care, custody, and control of their

children,   a   fundamental      right   that    is   protected   by   the   Fourteenth

Amendment’s “due-process and equal-protection guarantees.” D.P., supra

at 210. Because Section 5325 infringes upon a fundamental right, “to survive

a due process or equal protection challenge, Section 5325 must satisfy the

constitutional standard known as strict scrutiny.” Id.; see also Hiller, supra

at 885 (holding that we must apply a strict scrutiny analysis when the state

infringes upon the fundamental rights of parents to direct the care, custody,

and control of their children).


____________________________________________


3 The Pennsylvania Constitution, Article 1, Section 1 provides: “All men are
born equally free and independent, and have certain inherent and indefeasible
rights, among which are those of enjoying and defending life and liberty, of
acquiring, possessing and protecting property and reputation, and of pursuing
their own happiness.” Pa. Const. art. I, § 1. Article 1, Section 26 provides:
“Neither the Commonwealth nor any political subdivision thereof shall deny to
any person the enjoyment of any civil right, nor discriminate against any
person in the exercise of any civil right.” Pa. Const. art. I, § 26.

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       In   general,    a    strict    scrutiny   analysis   examines      whether   the

governmental action is narrowly tailored to a compelling state interest. D.P.,

supra at 210.       “[T]he inquiries per the Due Process and Equal Protection

Clauses     are   distinct   but      overlapping:   pursuant   to   the   former,   the

government’s infringement on fundamental rights must be necessary to

advance a compelling state interest, whereas under the latter it is the

classification inherent in the statute which must be necessary to achieve that

interest.” Id. (citation omitted).

       The compelling state interest at issue in grandparent custody and

visitation statutes is the state’s longstanding interest in protecting the health

and emotional welfare of children and promoting their well-being. See Hiller,

supra at 886; D.P., supra at 211. Our Supreme Court, like the United States

Supreme Court, has frequently approved of the state’s exercise of its parens

patriae interest and allowed infringements on parental rights where the

welfare of children is at stake.4 Hiller, supra at 886. Specifically, this has

occurred in cases where our Supreme Court has permitted termination of

parental rights, declarations of dependency, and grants of custody to non-

biological parents over the objection of biological parents. Id.




____________________________________________


4 “Parens patriae, literally ‘parent of the country,’ refers . . . to the role of the
state as sovereign and guardian of persons under a legal disability to act for
themselves such as juveniles, the insane, or the unknown.” D.P. v. G.J.P.,
146 A.3d 204, 211 n.9 (Pa. 2016) (citation omitted).


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        Applying these principles to this case, we start with the proposition that

the protection of the welfare of children, including ensuring that children of

deceased parents are not deprived of beneficial relationships with their

grandparents, is a compelling state interest. See D.P., supra at 211. We

must next determine whether Section 5325(1) is narrowly tailored to serve

that interest. See Hiller, supra at 886. We find that it is.

        We are guided by Hiller, supra, where our Supreme Court addressed

the constitutionality of Section 5311, the prior statute granting standing to

grandparents whose child has died.5 In Hiller, the maternal grandmother and

the child saw each other daily and had a close relationship prior to the

mother’s death.      Id. at 877.      After mother’s death, the father suspended

frequent contact and the child only saw maternal grandmother a few times

throughout the year following mother’s death. Id. The grandmother filed for

partial custody and, after a hearing, the trial court awarded grandmother

physical custody of the child one weekend per month and one week in the



____________________________________________


5   23 Pa.C.S. § 5311 (repealed) stated:

        If a parent of an unmarried child is deceased, the parents or
        grandparents of the deceased parent may be granted reasonable
        partial custody or visitation rights, or both, to the unmarried child
        by the court upon a finding that partial custody or visitation rights,
        or both, would be in the best interest of the child and would not
        interfere with the parent-child relationship. The court shall
        consider the amount of personal contact between the parents or
        grandparents of the deceased parent and the child prior to the
        application.


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summer. Id. Father appealed, challenging the constitutionality of the trial

court’s application of the statute. This Court affirmed.

      On review, our Supreme Court also affirmed, holding that the application

of the portion of the statute, which allowed visitation or partial custody to

grandparents upon death of a child’s parent, did not violate the father’s due

process right to direct the care, custody, and control of his child. Id. at 890.

Most relevant to our analysis, the Court held that the prior statute, which is

nearly identical to the current Section 5325(1), survived a strict scrutiny

analysis, observing that it “narrowly limits those who can seek visitation or

partial   custody   not   merely   to   grandparents,   but   specifically   to

grandparents whose child has died.” Id. at 886 (emphasis added).

      The Court observed that there is a policy interest in permitting continued

contact with grandparents, particularly because “grandparents have assumed

increased roles in their grandchildren’s lives and our cumulative experience

demonstrates the many potential benefits of strong inter-generational ties.”

Id. While the Court recognized that a grandparent’s desire for partial physical

custody would not prevail over a fit parent’s decision to limit contact in all

cases, it refused “to close our minds to the possibility that in some instances

a court may overturn even the decision of a fit parent to exclude a grandparent

from a grandchild’s life, especially where the grandparent’s child is

deceased and the grandparent relationship is longstanding and

significant to the grandchild.” Id. at 887 (emphasis added).




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      Finally, the Court recognized that the statute balanced the state’s

interest and parent’s rights when it required courts to ensure that the

visitation or partial custody would not interfere with the parent-child

relationship and was in child’s best interest. Id. The Court acknowledged

that the statute required courts to consider the amount of contact between a

grandparent and a grandchild before the petition was filed. Id.

      The current provision, Section 5325(1), is virtually identical to the

statute that was at issue in Hiller.     Both are narrowly tailored to provide

grandparents and great-grandparents standing to file for partial physical

custody where the parent of the child is deceased. See 23 Pa.C.S. § 5325(1);

23 Pa.C.S. § 5311 (repealed). See also Hiller, supra at 886. As with the

prior statute, Section 5325(1) advances the longstanding compelling state

interest of protecting the health and emotional welfare of children by creating

an opportunity for the child to have a relationship with the family of the child’s

deceased parent. See Hiller, supra at 886. Also, it is narrowly tailored to

limit those who can seek visitation or partial custody specifically to

grandparents whose child has died. See id. Section 5325(1), like Section

5311, thus, passes strict scrutiny. Accordingly, pursuant to the reasoning and

analysis in Hiller, we conclude that Section 5325(1) does not violate Father’s

due process rights to direct the care, custody, and control of Child.

      Father argues, without citing the record, that Hiller does not apply in

this case because Hiller addressed a “distinctly different factual scenario

[from] the case at hand, one where after one parent’s death, the other parent

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refused a grandparent contact with the child[.]” Father’s Brief at 15. Father

argues that Section 5325(1) is not structured with precision because it

requires no advance showing by grandparents that they are actually being

denied visitation with their grandchild. Father’s Brief at 16-17. We reject

Father’s attempt to distinguish the applicability of Hiller.

        As in Hiller, we recognize that Section 5325(1) is narrowly tailored

because it applies specifically to grandparents whose child has died. Appellant

has provided no support for his claim that standing to seek partial physical

custody required any factual basis beyond that provided quite precisely in the

statute. See 1 Pa.C.S. § 1921(b) (stating “[w]hen the words of a statute are

clear and free from all ambiguity, the letter of it is not to be disregarded under

the pretext of pursuing its spirit.”). Father’s contention ignores the fact that

all custody considerations are based on the best interests of the child and a

statute granting standing does not change that. We, thus, reject Appellant’s

attempt to distinguish Hiller.

        Further, Father’s reliance on Troxel v. Granville, 530 U.S. 57 (2000)

and D.P., supra – both cases where grandparent custody statutes were found

to be unconstitutional – to support his argument that Section 5325(1) is

unconstitutional is unpersuasive. Both cases are easily distinguished from this

case.

        In Troxel, the fact pattern is similar to the instant case where a

grandparent sought visitation with a grandchild after the death of a parent.

The United States Supreme Court found the underlying statute to be

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unconstitutional because the Washington statute provided that any person

may petition the court for visitation at any time. Troxel, supra at 67. In

contrast, Section 5325(1) limits petitioners to grandparents who have a

deceased child.

      D.P. is, likewise, easily distinguished from this case. In D.P., supra,

our Supreme Court found now-repealed Section 5325(2), which granted

standing to a grandparent to seek custody of a grandchild if the child’s parents

were separated for at least six months, to be unconstitutional.       First and

foremost, D.P. addresses an entirely different section of the statute. Further,

the Court in D.P. specifically distinguished the statute at issue in D.P., which

granted standing to grandparents of separated parents, from a statute

granting standing to grandparents who have a deceased child, stating that

when parents are separated “there is no void stemming from the death of a

parent.” D.P. at 215.

      Accordingly, as stated above, we conclude that Section 5325(1) does

not violate Father’s due process rights to direct the care, custody, and control

of Child. Pennsylvania has a longstanding interest in protecting children and

promoting their well-being, and the statute is narrowly tailored to grant

standing to seek custody only to grandparents whose child has died, rather

than all grandparents.

Equal Protection Rights

      Father next avers that Section 5325(1) violates his equal protection

rights by subjecting a class of individuals, namely widowers, to court review

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of their parenting decisions regarding grandparent visitation when non-

widowed parents are not subject to such review. Father’s Brief at 17. Father

once again argues that the statute does not survive a strict scrutiny analysis

because it is not narrowly tailored to ensure a compelling state interest. Id.

at 17-18.

      As discussed above, when examining whether Section 5325(1) violates

Father’s equal protection rights we must employ a strict scrutiny analysis to

determine if the classification inherent in the statute is necessary to achieve

the compelling state interest of protecting children and ensuring their well-

being. See D.P., supra at 210. Since we held, supra, that Section 5325(1)

does not violate Father’s due process rights because the statute is narrowly

tailored to grant standing only to grandparents whose child has died, it is

axiomatic that the classification inherent in the statute – parents who are

widowers – is necessary to achieve the same interest. It is impossible to grant

standing to grandparents whose child has died without singling out widowed

parents.

      Accordingly, we find that Section 5325(1) does not violate Father’s equal

protection rights because the classification inherent in the statute is necessary

to achieve the compelling state interest of protecting children and ensuring

their well-being.

Section 5337 – Relocation

      In Father’s final two issues, he avers that 23 Pa.C.S. § 5337, a statute

that prohibits a parent from relocating unless every individual who has custody

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rights to the child consents or the court approves the proposed relocation, is

unconstitutional as it relates to Section 5325(1), the statute granting

automatic standing to grandparents who have deceased children. Father’s

Brief at 5-6. Father argues that because of the concomitant rights granted

under Section 5337, allowing grandparents to acquire custodial rights over the

objection of a fit parent pursuant to Section 5325(1) enables grandparents to

“frustrate the parents’ decision on the fundamental right to decide where to

live and raise their child[.]”   Father’s Brief at 21.    Father’s challenge is

premature.

      Father did not file a pleading requesting relocation and Father did not

offer any testimony that he planned to relocate. Maternal Grandparents argue

that Father is essentially seeking an “advisory opinion” on the constitutionality

of Section 5337 without a relocation request before the court.         Maternal

Grandparents’ Brief at 20. We agree and decline to address these issues. See

Gulnac by Gulnac v. South Butler County School Dist., 587 A.2d 699,

701 (Pa. 1991) (stating a declaratory judgment must not be employed “to

determine rights in anticipation of events which may never occur” or “as a

medium for the rendition of an advisory opinion which may prove to be purely

academic.”)

      For the reasons discussed above, we find that Section 5325(1) does not

clearly, palpably, and plainly violate the Constitution. Accordingly, we affirm.

      Order affirmed.

      Judge Lazarus joins the opinion.

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     Judge Nichols concurs in result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2019




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