J-A18038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
M.I.S. AND T.W., :
:
Appellees : No. 47 MDA 2015
Appeal from the Order entered on December 9, 2014
in the Court of Common Pleas of Columbia County,
Civil Division, No. 2006-CV-0001648-DU
BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 29, 2015
M.S. (“Paternal Grandmother”) appeals from two Orders, concerning
custody of her minor grandchildren, C.S. and F.S. (“the Children”), ruling
that (1) the mother of the Children, M.I.S. (“Mother”), is not an
“incapacitated” parent under 23 Pa.C.S.A. § 5324(3)(iii)(B),1 and Paternal
Grandmother therefore lacks standing to seek legal and physical custody of
the Children; and (2) Mother’s sister, T.W. (“Maternal Aunt”), shall have
primary physical custody and full legal custody. We affirm.
The trial court set forth the relevant factual and procedural history
underlying this appeal as follows:
1
Section 5324, governing standing for any form of legal or physical custody,
provides, in relevant part, that “[a] grandparent of the child who is not in
loco parentis to the child” has standing when “the child is substantially at
risk due to parental abuse, neglect, drug or alcohol abuse or incapacity[.]”
23 Pa.C.S.A. § 5324(3)(iii)(B) (emphasis added).
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The subjects of this matter are the [C]hildren of [Mother]
and [F.T.S. (“Father”)]. … [Mother] and [Father] were divorced
on June 8, 2012, after long and contentious litigation. On July 1,
2012, [Father] was murdered in his home located in Columbia
County. Subsequently, a state-wide investigating grand jury
issued a presentment charging [Mother] and her father, [A.R.F.],
also known as [A.R.S.,FN 1] with the crime. [Mother] and
[A.R.F.] are also charged in the same criminal information with
the crime of arson, involving a fire at the home of [Paternal
Grandmother]. [Mother] was arrested on July 28, 2014, and is
currently incarcerated in the Columbia County Correctional
Facility without bail and awaiting trial.
[FN 1]
[A.R.F.] is presently in custody in Buenos Aires,
Argentina, awaiting extradition proceedings to the United
States.
Prior to her arrest, [Mother] executed a document which
purports to appoint [Maternal Aunt] as guardian of[] [the
C]hildren.
[Paternal Grandmother] then filed a [C]omplaint seeking
legal and physical custody of the [C]hildren. Following the
procedures adopted in the 26th Judicial District, the matter was
referred to that court’s standing custody Master for [an]
expedited hearing. The Master concluded that the best interests
of the [C]hildren mandated that they temporarily live with
[Maternal Aunt] in the Philadelphia area[,] pending resolution of
the criminal charges against [M]other. [Paternal Grandmother]
filed exceptions to the Master’s recommendation[,] and … a
preliminary conference was scheduled before [the trial court].
Given the unusual facts of this matter, th[e trial] court
immediately appointed a guardian ad litem for the [C]hildren,
and [a] further conference was scheduled to permit the guardian
ad litem to meet with the [C]hildren and determine their wishes.
In addition, counsel for [Mother] objected to [Paternal
Grandmother’s] standing to seek legal and physical custody of
the [C]hildren. All counsel agreed that there were no issues of
fact, and the [trial] court then issued a briefing schedule to
resolve the issue of “standing.”
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The issue before the court was the meaning of the word
“incapacitated” in 23 Pa.C.S.A. [§] 5324(3)[(iii)(B)].[FN 2]
[Paternal Grandmother] assert[ed] that [Mother’s] indefinite
incarceration prevents her [from] exercising essential parental
duties. [M]other … remind[ed the trial court] of her presumption
of innocence. In addition, [Mother argued] that although her
incarceration hampers her ability to be a parent, it does not
prevent her from being able to make parental decisions for [the
C]hildren, or from having regular, albeit re[s]trained, contact
with them.
[FN 2]
The legislature did not see fit to define this word in
the context of grandparental custody litigation. [See 23
Pa.C.S.A. § 5322 (definitions section).]
Trial Court Opinion, 1/23/15, at 1-3 (footnotes in original, some footnotes
omitted).
By an Order entered on December 9, 2014 (hereinafter “the Standing
Order”), the trial court ruled that Mother is not “incapacitated” under 23
Pa.C.S.A. § 5324(3)(iii)(B), and thus, Paternal Grandmother lacked standing
to bring this custody action. The trial court later entered an Order on
December 18, 2014 (hereinafter “the Custody Order”), granting full legal
custody and primary physical custody of the Children to Maternal Aunt.
Paternal Grandmother filed a timely Notice of Appeal from these two Orders,
along with a Concise Statement of Errors Complained of on Appeal, pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Paternal Grandmother presents the following issues for our
review:
I. Whether the [trial] court committed an abuse of discretion
and/or an error of law in concluding that [] Mother is not an
incapacitated person[,] as contemplated by 23 Pa.C.S.A.
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§ 5324(3), thereby precluding Paternal Grandmother[’]s
action for sole legal and sole physical custody due to lack of
standing pursuant to 23 Pa.C.S.A. § 5324(3)?
II. Whether the [trial] court committed an abuse of discretion
and/or an error [of] law in awarding sole legal and primary
physical custody to [] Maternal Aunt?
III. Whether the [trial] court committed an abuse of discretion
and/or an error [of] law by failing to hold any hearings
(fact[-]finding or otherwise)[,] including an expedited
hearing pursuant to 23 Pa.C.S.A. § 5330(A)[,] to assess
whether [Mother] poses a risk of physical, emotional or
psychological harm to the Children[,] or to take any
evidence in this matter?
IV. Whether the [trial] court committed an abuse of discretion
and/or an error [of] law by failing to follow the procedures
set forth at 23 Pa.C.S.A. § 5337 regarding the relocation of
the [] Children?
V. Whether the [trial] court[,] by it[]s specially[-]appointed
[M]aster[,] committed an abuse of discretion and/or an
error [of] law by failing to include counsel in his interview
with the Children?
Brief for Appellant at 4 (capitalization omitted, issues numbered).
The scope of review of an appellate court reviewing a child
custody order is of the broadest type; the appellate court is not
bound by the deductions or inferences made by the trial court
from its findings of fact, nor must the reviewing court accept a
finding that has no competent evidence to support it. However,
this broad scope of review does not vest in the reviewing court
the duty or the privilege of making its own independent
determination. Thus, an appellate court is empowered to
determine whether the trial court’s incontrovertible factual
findings support its factual conclusions, but it may not interfere
with those conclusions unless they are unreasonable in view of
the trial court’s factual findings; and thus, represent a gross
abuse of discretion.
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D.G. v. D.B., 91 A.3d 706, 707-08 (Pa. Super. 2014) (citation and brackets
omitted).
In Paternal Grandmother’s first issue, she argues that “[w]hen
[M]other became incapacitated by her current state of incarceration, that
incapacity gave rise to [Paternal Grandmother’s] standing to file an
action[.]” Brief for Appellant at 20; see also 23 Pa.C.S.A. § 5324(3)(iii)(B)
(granting standing to a grandparent of a child where “the child is
substantially at risk due to parental … incapacity”).
This Court has explained that
[t]he concept of standing, an element of justiciability, is a
fundamental one in our jurisprudence: no matter will be
adjudicated by our courts unless it is brought by a party
aggrieved in that his or her rights have been invaded or
infringed by the matter complained of. … Moreover[, i]n the
area of child custody, principles of standing have been applied
with particular scrupulousness because they serve a dual
purpose: not only to protect the interest of the court system by
assuring that actions are litigated by appropriate parties, but
also to prevent intrusion into the protected domain of the family
by those who are merely strangers, however well-meaning.
D.G., 91 A.3d at 708 (citations, quotation marks and paragraph breaks
omitted). A trial court’s determination regarding standing may not be
disturbed absent an abuse of discretion or an error of law. Butler v. Illes,
747 A.2d 943, 944 (Pa. Super. 2000).
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Here, observing that the Legislature did not define the term
“incapacity” in connection with section 5324(3)(iii)(B),2 Paternal
Grandmother asserts that “Pennsylvania jurisprudence struggles with the
term incapacity as it relates to an incarcerated parent in [a] child custody
case.” Brief for Appellant at 11. However, Paternal Grandmother contends
that cases involving termination of parental rights, based upon incapacity
due to incarceration, provide guidance.
Paternal Grandmother concedes that our Supreme Court, in a plurality
decision in In re R.I.S., 36 A.3d 567 (Pa. 2011), held that “this Court has
never adopted or countenanced a view that incarceration alone is per se
evidence of parental incapacity ….” Id. at 574; see also Brief for Appellant
at 17. However, Paternal Grandmother points out that the Supreme Court
subsequently re-visited its decision in In re R.I.S., and concluded, in In re
Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012), as follows:
[W]e now definitively hold that incarceration, while not a litmus
test for termination [of parental rights], can be determinative of
the question of whether a parent is incapable of providing
“essential parental care, control or subsistence[,]” and the
length of the remaining confinement can be considered as highly
relevant to whether “the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied by the
parent[.]”
2
Paternal Grandmother points out that the Pennsylvania Rules of Civil
Procedure define the term “incapacitated person” as follows: “[A]n adult
whose ability to receive and evaluate information effectively and
communicate decisions in any way is impaired to such a significant extent
that the person is partially or totally unable to manage financial resources or
to meet the essential requirements for physical health and safety[.]”
Pa.R.C.P. 2051; see also Brief for Appellant at 15.
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Id. at 830 (quoting 23 Pa.C.S.A. § 2511(a)(2)); see also Brief for Appellant
at 16-17.
After review, we are unpersuaded by Paternal Grandmother’s claim
that “the Pennsylvania Supreme Court holds the position that incarceration is
determinative on the issue of incapacity.” Brief for Appellant at 18. Indeed,
the Court in R.I.S. “emphatically” held that incarceration alone is not per se
evidence of parental incapacity. R.I.S., 36 A.3d at 574. Moreover, contrary
to Paternal Grandmother’s claim, we conclude that the Supreme Court’s
decision in S.P., supra, does not undermine the holding in R.I.S.,3 which
remains good law. If incarceration alone is not determinative on the issue of
parental incapacity in the context of termination of parental rights, we see
no reason to rule to the contrary in the context of grandparental standing
under section 5324(3)(iii)(B), and conclude that the trial court correctly
3
Indeed, the S.P. Court stated that its holding, i.e., that “that incarceration,
while not a litmus test for termination, can be determinative … to provide
grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2)[,]” was “[i]n
line with the expressed opinion of a majority of justices in R.I.S.” S.P., 47
A.3d at 828 (emphasis added). Moreover, the decisions in R.I.S. and S.P.
apply only to cases concerning the termination of parental rights. However,
since our research discloses no appellate decisions interpreting the term
“incapacity” under 23 Pa.C.S.A. § 5324(3)(iii)(B), we are guided by R.I.S.
and S.P.
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ruled that Mother is not “incapacitated” under that section. 4 Additionally, it
is undisputed that, here, Mother maintains contact and communication with
the Children, albeit to a limited extent due to her incarceration.
Accordingly, we conclude that (1) the trial court correctly ruled in the
Standing Order that Paternal Grandmother lacks standing under 23
Pa.C.S.A. § 5324(3)(iii)(B) at this time; and (2) she is therefore precluded
from challenging the Custody Order. Moreover, we need not address
Paternal Grandmother’s remaining issues on appeal, since her lack of
standing precludes her from challenging these matters.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2015
4
Though section 5324 does not define the term incapacity, we conclude that
incarceration of a parent alone does not meet the definition of incapacity
under any of the statutory or rule-based definitions of this term cited by
Paternal Grandmother. See Pa.R.C.P. 2051, supra; 23 Pa.C.S.A. § 5602
(section of the Pennsylvania Standby Guardianship Act defining incapacity as
“[a] chronic and substantial inability, resulting from a mental or organic
impairment, to understand the nature and consequences of decisions
concerning the care of the designator’s dependent minor and a consequent
inability to care for the minor.”) (emphasis added).
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M.S. v. M.I.S. & T.W.
Combined Opinion