J-A04044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.S. AND D.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
S.D. AND M.S.
v.
G.L.S., II
v.
S.D.
v.
M.S.,
Appellees No. 1480 WDA 2013
Appeal from the Order entered August 16, 2013
In the Court of Common Pleas of Clearfield County
Civil Division at No: 2012-309-CD
BEFORE: BOWES, WECHT, AND STABILE, JJ.
DISSENTING MEMORANDUM BY STABILE, J.: FILED FEBRUARY 12, 2015
I must respectfully dissent from the learned Majority’s decision for two
principal reasons. First, I believe the Majority has exceeded our standard of
review1 by finding facts and addressing issues not raised before this Court.
1
In McMillen v. McMillen, 602 A.2d 845 (Pa. 1992), our Supreme Court
explained an appellate court’s scope of review in child custody matters:
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
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Second, to my knowledge, the Majority essentially has recognized for the
first time grandpaternity by estoppel as a judicial doctrine in this
Commonwealth. No such doctrine ever has been recognized in our law.
Nonetheless, even if such a doctrine were to be recognized, I would not find
circumstances present here for its application.
The sole issue properly2 before this Court is whether the trial court
erred when it failed to equitably estop Mother from terminating the visitation
and custody rights of Appellants, putative grandparents, after the results of
a paternity test established that Appellants’ son was not the biological father
of Mother’s child, C.S. (“Child”). After a hearing, the trial court dismissed
Appellants’ complaint on the basis that Appellants did not have standing
under 23 Pa.C.S.A. § 5324 (sole physical custody) to sue for custody of
Child, because Appellants were not Child’s grandparents.
Instead of restricting our review in this matter to the equitable
estoppel issue raised and decided by the trial court, the learned Majority sua
sponte has raised and decided the non-jurisdictional issue of whether Mother
waived her right to challenge standing for failure to raise this issue at an
earlier opportunity. The Majority, acting as a fact-finder, finds waiver
the trial court’s factual findings; and thus, represent a gross
abuse of discretion.
Id. at 847 (citations omitted).
2
Appellants also argue whether the trial court erred by not finding that
continued custody by Appellants was in the best interest of Child. Because I
would not find error with the trial court dismissing this action for lack of
standing, I would not address the best interest issue.
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without the benefit of an evidentiary hearing, or notice and opportunity for
Mother to address this waiver issue or to explain the timing of her actions.
Having determined the challenge to standing as waived, the Majority
concludes, after detailed fact-finding ab initio from its review of the record,
that Mother is equitably estopped from challenging Appellants’ status as
grandparents to Child. The Majority finds equitable estoppel without any
evidence in the record to support the essential ingredient of detrimental
reliance to equitable estoppel.
With standing and equitable estoppel decided by sua sponte raising
issues and finding facts, the Majority compounds these errors by again sua
sponte raising and concluding that Appellants, alternatively, have standing
for partial custody of Child. The Majority accomplishes this feat by
disregarding the complaint filed for full custody and by treating Appellants’
complaint as if it were filed for partial custody under 23 Pa.C.S.A. § 5325.
The Majority again does so without the benefit of any findings by the trial
court or an opportunity by the parties to be heard on this issue.
I now set forth the reasons for my dissent. At the outset, the Majority
acknowledges the central issue on appeal is whether Mother should be
estopped equitably from challenging Appellants’ standing (as grandparents)
to dismiss Appellants’ underlying custody complaint and related custody
orders. Yet, despite this acknowledgment, the learned Majority takes it
upon itself to circumvent this central issue by disposing of this case based on
a waiver of standing claim—an issue Appellants failed to raise and preserve
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below or address in their appellate brief. The Majority attempts to
rationalize its sua sponte consideration of this waiver issue by reasoning this
issue is an innate component of Appellants’ estoppel claim because Mother’s
ten-month delay in raising standing is subsumed in Appellants’ estoppel
argument.
My review of the record reveals that Appellants did not assert waiver
as a defense to Mother’s standing challenge at any time before the trial court
or this Court. It is well established that issues not raised in the lower court
are waived and cannot be raised for the first time on appeal. See Pa.R.A.P.
302(a); see also Green v. Green, 69 A.3d 282, 287 (Pa. Super. 2013)
(concluding that an issue cannot be raised for the first time on appeal).
Because it was this Court that raised the waiver issue, not surprisingly, this
issue of waiver also is not presented in Appellants’ 1925(b) statement of
issues for appeal. This absence provides a second basis for waiver of this
issue on appeal to this Court. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement . . . are waived.”). The issue of waiver also does
not appear in any of Appellants’ statement of questions in their brief to this
Court. The issue again is waived. See Pa.R.A.P. 2116(a) (“The statement
of the questions involved must state concisely the issues to be resolved,
expressed in terms and circumstances of the case[.]”). Even if this issue
were not expressly stated in the questions presented, this Court still would
not be justified in addressing this claim because it is entirely absent from
any briefing submitted by Appellants to this Court. See Pa.R.A.P. 2119(a);
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see also Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675 (Pa. Super.
2007) (the failure to develop an argument with citation to and analysis of
relevant authority waives the issue on appeal).3
With specific reference to the issue of standing, our Supreme Court
further has explained, courts are “prohibited from raising the issue of
standing sua sponte. ‘Whether a party has standing to maintain an action is
not a jurisdictional question.’” In re Nomination Petition of deYoung,
903 A.2d 1164, 1168 (Pa. 2006). In deYoung, our Supreme Court
expressly rejected the notion that “standing can be raised by [a] court sua
sponte” because it is intertwined with subject matter jurisdiction. Id. at
1167-68. Hence, if courts are prohibited from raising the issue of standing
on their own accord, then, by that same logic, the issue of waiver of a
standing challenge likewise, cannot be raised sua sponte in this case.
To the extent the Majority states it may raise the issue of waiver of
standing sua sponte because the issue is subsumed by Appellants’ estoppel
argument, I strongly disagree.4 The doctrine of equitable estoppel, as
discussed infra, requires proof of an inducement relied upon by another to
3
It is likely unfair to speak in terms of Appellants waiving this issue, as it
suggests some fault on the part of Appellants. This Court has raised the
issue. Appellants never have urged the trial court or this court to consider
the issue of waiver.
4
Although the Majority does not cite any rule of appellate procedure
regarding equitable estoppel subsuming a standing waiver, I presume it
refers to the “fairly suggested” language of Pa.R.A.P. 2116 (“[T]he
statement of question will be deemed to include every subsidiary question
fairly comprised therein.”).
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their detriment. The issue of waiver, as raised by the Majority, concerns
whether Mother had the right even to raise her challenge to standing based
upon unreasonable delay in raising the issue. The timing consideration in
the standing waiver issue exists wholly apart from any consideration
regarding the elements of equitable estoppel. Simply stated, the substance
of an equitable estoppel claim does not subsume the procedural question of
whether a challenge to standing has been raised timely.
Having determined that the issue of standing waiver was properly
before this Court, the Majority, relying principally upon Kellogg v. Kellogg,
646 A.2d 1246 (Pa. Super. 1994), concludes that Mother waived any right to
challenge standing by not raising this issue at an earlier time. Although the
Majority relies upon Kellogg, I am not convinced Kellogg was properly
decided. With respect to custody actions, Pa.R.C.P. No. 1915.5(a) quite
clearly requires that a person raise only issues of “jurisdiction of the person”
or “venue” by way of preliminary objection within twenty days of service of
the pleading to which they object. Preliminary objections to civil actions
similarly are limited. See Pa.R.C.P. No. 1028(a)(1). Standing is not among
the defenses that must be raised preliminarily. Yet, the Kellogg court re-
wrote Rule 1915.5(a) through case law to include standing as a third
defense that must be preliminarily raised within twenty days when
responding to a custody complaint.5 In my view, the Majority correctly
5
By including standing as a part of Rule 1915.5(a) through case law, the
court creates a trap for practitioners who rely upon the clear and
unequivocal language of the rule for guidance. Kellogg was decided some
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moves away from the mechanical inclusion of standing within the strict time
constraints of Rule 1915.5(a), recognizing the issue of standing can be fluid
in custody cases. Because Rule 1915.5(a) does not include standing among
the defenses that must be preliminarily raised, it is my view standing should
be treated like any other defense not subject to waiver if not raised within a
prescribed time under our rules.
Regardless of whether standing is to be properly pled under Rule
1915.5(a), I nonetheless, on the merits of this issue, cannot conclude that
Mother waived her right to raise the issue of Appellants’ standing. The
record is devoid of any hearing, evidence, or any fact-finding by the trial
court on this timeliness issue (because it was not raised by Appellants). The
only issue heard by the trial court prefatory to this appeal was Appellants’
estoppel argument. There was no hearing or determination by the trial court
as to whether Mother was entitled to raise her standing challenge.
Nonetheless, the Majority renders its own factual findings contrary to our
standard of review by stating:
Mother claimed that she suspected that Putative Father was not
C.S.’s birth father and that she advised him of her doubts. While
Mother could not prove her suspicions that Appellants were not
genetic relatives of C.S. until she obtained the results of [the]
DNA testing, that does not excuse Mother’s protracted delay
once she acquired the DNA results during the ongoing custody
proceedings. Mother obtained the results of a private DNA test
during June 2012; however, she did not assert her standing
challenge until April 2013, ten months later. Rather than assert a
20 years ago. If standing is to be included in the required defenses that
must be raised preliminarily to a custody complaint, the rule should be
properly amended so as not to prejudice practitioners admitted after 1994
not entirely familiar with historical case law.
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standing challenge immediately after receiving confirmation,
Mother filed additional pleadings seeking to reduce Appellants’
custodial rights for various reasons unrelated to standing.
Maj. Mem. at 12 (emphasis added). The Majority concludes although Mother
was not required to raise a standing challenge at the outset of the case, she
certainly was required to do so as soon as she had tangible confirmation that
Appellants were not genetically related to Child. The Majority makes these
findings without an evidentiary record that would have provided Mother an
opportunity to explain the timing of her actions, assuming timeliness may be
dispositive of her standing challenge.
There is no evidence of record to suggest that Mother in fact knew of
Child’s biological father until DNA testing was accomplished. The Majority
treats prior knowledge as a fait accompli without any findings by the trial
court. No doubt, Mother thought to pursue this issue after experiencing
numerous acrimonious and contentious court proceedings with putative
grandparents for custody of Child. Mother’s timing also may be explained by
the fact that counsel did not represent her until the filing of her standing
challenge, a possible change of circumstance in her case. In all likelihood,
Mother’s standing challenge was the result of counsel’s legal review of the
proceedings, a task probably beyond Mother’s capabilities. I, however, like
the Majority, am in no position to make findings of fact in this regard.
The point I wish to make clear is that Mother may very well have
explained satisfactorily her timing on this standing issue if given the
opportunity to do so, and if the issue of waiver was properly raised before
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the trial court. The Majority impermissibly engages in fact-finding to reach
its conclusion without the benefit of any record or fact-finding by the trial
court, and without any ability to weigh the testimony or credibility of the
parties.
[U]nlike trial courts, appellate courts are not equipped to make
the fact-specific determinations on a cold record, where the trial
judges are observing the parties during the relevant hearing and
often presiding over numerous other hearings regarding the child
and parents. Therefore, even where the facts could support an
opposite result, . . . an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations
omitted); see also D.G. v. D.B., 91 A.3d 706, 707 (Pa. Super. 2014)
(noting that a reviewing court’s standard of review “does not vest in the
reviewing court the duty or the privilege of making its own independent
determination”).
Having dispatched Mother’s standing issue on the basis of waiver, the
Majority proceeds next to address the issue of equitable estoppel, the only
issue properly before this Court. See Maj. Mem. at 13. The Majority
concludes that Appellants met their burden of proof with respect to equitably
estopping Mother from challenging their status as Child’s grandparents. The
doctrine of “equitable estoppel” is one of fundamental fairness, designed to
preclude a party from depriving another of a reasonable expectation when
the party inducing the expectation, albeit gratuitously, knew or should have
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known that the other party would rely on that conduct to his detriment. See
Jacob v. Shultz-Jacob, 923 A.2d 473, 480 (Pa. Super. 2007).
In this regard, acting again impermissibly as a trial court, the Majority
finds and then concludes:
[O]ur review of the case law did not reveal a single case that
addressed a non-biological grandparent’s ability to invoke
equitable estoppel against a birth parent[, like Mother,] who not
only actively misled them to believe the child was their
grandchild, but also consented to [their] exercise of custodial
rights.
....
Mother represented over a two-year period that Appellants were
C.S.’s birth grandparents. Although Mother suspected from the
outset that Putative Father was not C.S.’s birth parent, she
identified him as the father on the child’s birth certificate and
executed an acknowledgment of paternity that identified him as
C.S.’s father. Similarly, her actions encouraged Appellants to
fashion and maintain a grandparent-child relationship with C.S.
. . . . [Mother] mounted a largely unsuccessful campaign to
erode the terms of the custody arrangement [with Appellants].
....
The trial court ignores Mother’s inaction and consent to
Appellants’ custody rights in declining to apply equitable estoppel
to prevent Mother from invoking the results of a paternity test to
strip Appellants of their custody rights. Appellants have always
held themselves out as grandparents, and with Mother’s express
consent and endorsement, they have exercised legitimate, court-
ordered custodial rights as C.S.’s grandparents since May 2012.
Mother’s actions and representations regarding C.S.’s
parentage for the first two years of the child’s life and her silence
in agreeing to the initial custody order induced Appellants to
believe that C.S. was their grandchild. Appellants relied upon
Mother’s representations and omissions to their detriment, and
would be severely prejudiced if Mother were permitted to invoke
the results of the genetic testing at this point in order to deny
their beneficial relationship with C.S. Thus, we conclude that the
trial court erred in holding that equitable estoppel was
inapplicable.
Maj. Mem. at 16-19 (emphasis added).
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I disagree with the Majority’s conclusion that Appellants met their
burden of proof to establish detrimental reliance on their equitable estoppel
claim based upon Mother’s misrepresentations regarding their genetic ties to
Child. At the hearing on Mother’s motion to dismiss/vacate, Appellants
testified on their own behalf and offered the testimony of their son, putative
father. The Majority finds detrimental reliance, in sum, based on the fact
Appellants operated under the assumption created by Mother that they were
the biological grandparents to Child. Beyond this, neither the Majority’s
memorandum, nor my review of the record, yields any evidence that would
support the conclusion that Appellants suffered any detriment sufficient to
support an equitable estoppel claim, nonetheless substantial prejudice as
claimed by the Majority. The Majority’s cumulative and repeated references
to Mother’s actions does not establish or answer whether Appellants suffered
any detrimental reliance.
Appellants enjoyed the benefit of acting as grandparents to Child, but
the loss of this benefit to which they were not entitled, alone, does not
establish detrimental reliance. The record does not demonstrate Appellants
are in any worse position now than they would have been if originally
advised they were not Child’s grandparents. See Card v. Commonwealth
of Pennsylvania, Pennsylvania School Employes' Retirement Bd., 478
A.2d 510, 514 (Pa. Cmwlth. 1984) (noting that petitioner, despite repeatedly
being advised of eligibility to purchase pension credits, could not claim
equitable estoppel as record did not demonstrate her position was
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detrimentally changed, since she was in no worse position than she would
have been had she initially been informed correctly of her ineligibility).
Appellants have not produced any evidence of a detrimental change in
position to support their claim. Equitable estoppel always must be
predicated upon some detrimental reliance. See id. If the modicum of
evidence offered by Appellants here was all that was necessary to claim
grandparent status by equitable estoppel, there virtually would be no case in
which parentage is disputed where third parties would not be able to
establish standing on an equitable estoppel claim.
Moreover, I disagree with the Majority’s finding of equitable estoppel
and hence, reinstating custody in Appellants, on a more fundamental level.
The focus in an equitable estoppel claim is upon the expectation created and
the detrimental reliance upon that expectation. Here, Appellants assert
equitable estoppel against Mother to gain grandparent status in order to
seek custody of Child. Invocation of the doctrine was for the benefit of
Appellants. In every custody matter, however, the paramount focus is upon
the best interests of the child. See 23 Pa.C.S.A. § 5328(a). Nowhere in
Appellants’ equitable estoppel claim, or as found by the Majority, is the best
interests of Child considered before conferring non-biological grandparent
status upon Appellants so they can continue to seek custody of Child. This
no doubt, is because the “best interests” of a child is not an element of an
equitable estoppel claim. Therefore, I am in agreement with the trial court
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that considerations underlying the doctrine of paternity by estoppel6 do not
apply to grandparents. This is buttressed by the fact that our Legislature
has seen fit to codify paternity by estoppel, but has not done so similarly for
grandparents. See 23 Pa.C.S.A. § 5102. Succinctly stated, there is no
grandpaternity by estoppel in Pennsylvania.
Next, in determining that the doctrine of equitable estoppel would
apply instantly, the Majority “observe[s] that Appellants attained standing to
pursue partial custody of C.S. pursuant to 23 Pa.C.S.[A.] § 5325(2), relating
to grandparent’s standing for partial custody[.]” Maj. Mem. at 19. The
parties here do not dispute the fact Appellants initiated their custody action
under 23 Pa.C.S.A. § 5324, for sole physical custody of Child. The Majority,
by invoking Section 5325, essentially amends Appellants’ custody complaint
sua sponte from one seeking full custody to partial custody of Child.
Because partial custody was not the relief sought in Appellants’ pleadings, I
disagree with the Majority’s invocation of Section 5325.7
6
“[P]aternity by estoppel continues to pertain in Pennsylvania , but it will
apply only where it can be shown, on a developed record, that it is in the
best interests of the involved child.” K.E.M. v. P.C.S., 38 A.3d 798, 810
(Pa. 2012).
7
Even were we to assume Appellants are the grandparents of Child for
purposes of this appeal, they still would be unable to assert standing under
Section 5324 of the Act to seek custody of Child. It is undisputed that
Appellants are not the parents of Child, do not stand in loco parentis to him,
and Child has not resided with Appellants for at least 12 consecutive
months. Therefore, Appellants would be unable to assert standing under
Section 5324 of the Act to seek custody of Child even if they were
considered grandparents for purposes of this custody action.
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I am not without sympathy for Appellants’ situation, i.e., loving and
caring for a child as one’s own grandchild only to discover later the lack of
any genetic link. I have no doubt Appellants feel a bond with Child and are
angered at Mother. Nonetheless, for the reasons set forth above, I
respectfully dissent from the Majority’s decision to find Mother’s standing
challenge to be waived, to confer grandparent status upon Appellants
premised upon equitable estoppel, to convert Appellants’ claim for custody
to one for partial custody, and to reinstate the March 11, 2013 order
granting Appellants partial custody subject to a best interest analysis
pursuant to § 5328(a).
For all the foregoing reasons, I respectfully dissent.
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