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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.E.N. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CUMBERLAND COUNTY CHILDREN AND
YOUTH SERVICES
No. 1880 MDA 2015
Appeal from the Order Entered October 13, 2015
In the Court of Common Pleas of Cumberland County,
Civil Division, at No(s): 2015-2460
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 19, 2016
T.E.N. (“Paternal Grandmother”) appeals, pro se, from the order
entered October 13, 2015, in the Court of Common Pleas of Cumberland
County, dismissing her custody complaint with regard to L.N. (“Child”), born
in February 2013. We affirm.
The trial court summarized the relevant procedural and factual history,
in part, as follows:
Subsequent to the [c]ourt’s April 16, 2015 Order denying
[Paternal] Grandmother’s Motion to Modify Placement,[1]
[Paternal] Grandmother filed a Custody Complaint on April 30,
2015. . . seeking full legal and physical custody of L.N.[2] In
response, the [c]ourt [o]rdered a custody conciliation to take
1
This trial court entered this order in the separate but related dependency
proceedings at Docket Number CP-21-DP-0000105-2013.
2
Paternal Grandmother sought sole legal and sole physical custody of Child
pursuant to 23 Pa.C.S. § 5324. SeeComplaint for Custody, 4/30/15.
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place on June 9, 2015. However, [Paternal] Grandmother’s
Custody Complaint failed to join [Foster Parents] to the custody
action. This [c]ourt found them to be necessary parties to the
conciliation under Pennsylvania Rule of Civil Procedure 1915.6,
so the custody conciliation was continued,[3] and eventually
rescheduled for July 14, 2015. At the July 14, 2015 conciliation,
all parties appeared and were unable to reach an agreement to
settle the custody action. Nevertheless, the Custody Conciliator
recommended, and this [c]ourt so ordered, that [Paternal]
Grandmother be awarded visitation with the Child every third
week in a visitation center. A full custody hearing was scheduled
for November 20, 2015.
On June 26, 2015, this [c]ourt entered an Order in the
dependency docket noting that the dependency proceedings and
the custody proceedings run collaterally to one another, and that
the commencement of the custody proceedings would not
prevent the dependency proceedings from moving forward
toward adoption. Before the November 20, 2015 custody
hearing could occur, L.N.’s adoption by [Foster Parents] was
finalized on October 2, 2015. . . .
3
This order was initially entered on the related dependency docket, instead
of the custody docket, in error. By order dated December 22, 2015, and
entered December 23, 2015, the trial court corrected the docketing error.
Order, 12/23/15.
Trial Court Opinion, 12/23/15, at 8-9 (footnotes omitted).
Given the Child’s adoption of Child by Foster Parents, on October 9,
2015, Cumberland County Children and Youth Services (the “Agency”) filed a
petition to be dismissed as a defendant and/or dismiss Paternal
Grandmother’s custody complaint. In addition, on that same date, Foster
Parents also filed a motion to dismiss Paternal Grandmother’s custody
complaint. By order entered October 13, 2015, because of the adoption, and
in consideration of 23 Pa.C.S. § 5326, the trial court granted Foster Parents’
motion and dismissed Paternal Grandmother’s custody complaint. The court
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also cancelled the scheduled pre-trial conference and custody trial. By
further order entered October 15, 2015, the trial court deemed the Agency’s
petition moot.
On October 26, 2015, Paternal Grandmother filed, pro se, a notice of
appeal.4 Although Paternal Grandmother did not file a separate statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b),
her notice of appeal contains alleged errors.5 Paternal Grandmother
essentially challenges the dismissal of her complaint for custody and avers
violation of Pa.R.C.P. 1915.4.
As the disposition of this appeal involves a pure question of law, our
standard of review is de novo, and our scope of review is plenary. See In re
Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc); Harrell v.
Pecynski, 11 A.3d 1000, 1003 (Pa. Super. 2011).
The trial court reasoned that Paternal Grandmother’s complaint for custody
was appropriately dismissed pursuant to 23 Pa.C.S. § 5326, due to Child’s
4
Paternal Grandmother also filed a separate appeal with regard to the
related dependency matter at Superior Court Docket Number 1872 MDA
2015, and which is addressed in a separate memorandum.
5
We note that Paternal Grandmother’s brief does not include a statement of
questions involved, for which we could find waiver. See Krebs v. United
Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super.
2006). However, Appellees do not raise this concern or request such relief.
We, therefore, review the issues raised by Paternal Grandmother.
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adoption by Foster Parents. See Trial Court Opinion, 12/23/15, at 12. The
court stated:
In the case at bar, L.N. was adopted by [Foster Parents]
on October 2, 2015. [Foster Parents] are not L.N.’s step-parents,
grandparents or great-grandparents. They are a new mother and
new father to the Child. Thus, [Paternal] Grandmother’s right to
seek custody of L.N. under Section 5324 was extinguished as of
the date of the adoption, October 2, 2015, pursuant to the
express terms of 23 Pa.C.S. § 5326. As a result, this [c]ourt
properly dismissed [Paternal] Grandmother’s Custody Complaint
in an Order dated October 12, 2015.
Id. We agree.
Section 5326 provides:
Any rights to seek physical custody or legal custody rights and
any custody rights that have been granted under section 5324
(relating to standing for any form of physical custody or legal
custody) or 5325 (relating to standing for partial physical
custody and supervised physical custody) to a grandparent or
great-grandparent prior to the adoption of the child by an
individual other than a stepparent, grandparent or great-
grandparent shall be automatically terminated upon such
adoption.
(emphasis added).
Here, Paternal Grandmother sought custody of Child under 23 Pa.C.S.
§ 5324. However, Foster Parents thereafter adopted Child. Under the plain
and unambiguous language of § 5326, upon Child’s adoption on October 2,
2015, any custodial rights conferred on Paternal Grandmother, as well as her
standing to seek same, ceased and automatically terminated. See 15
Summ. Pa. Jur. 2d Family Law § 9:42 (2d ed.). Consequently, the trial court
appropriately dismissed Paternal Grandmother’s custody complaint.
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Further, the trial court suggested that it did not violate Pennsylvania
Rule of Civil Procedure 1915.4(a) in handling this custody matter. See Trial
Court Opinion, 12/23/15, at 10-11. On this topic, the court indicated as
follows:
The parental rights of L.N.’s parents were terminated on
September 24, 2014. [Foster Parents] filed a report of intention
to adopt on September 24, 2014. [Paternal] Grandmother filed
her custody Complaint against [the Agency] on April 30, 2015.
The custody conciliation was initially scheduled for June 9, 2015.
Therefore, on its face, Rule 1915.4(a) was not violated because
the original custody conciliation was scheduled to occur within 45
days of the filing of the custody complaint.
The [c]ourt then continued the conciliation because we
found that [Foster Parents] were a necessary party under
Pennsylvania Rule of Civil Procedure 1915.4(a).[6] This [c]ourt
notes that minds may differ as to the interpretation of case law
regarding the rights of pre-adoptive parents in custody actions,
particularly where, as here, court-ordered physical custody
remained with [the Agency]. Nevertheless, this [c]ourt would
still have ordered the continuation of the conciliation to provide
notice of the pendency of the action to [Foster Parents] pursuant
to Pennsylvania Rule of Civil Procedure 1925.6(b). . . .
Because [Foster Parents] stood to lose actual physical
custody of the child in the custody action, this [c]ourt ordered
the continuation of the conciliation so that [Foster Parents] could
take part in it. By doing so, this [c]ourt hoped that [Foster
Parents] and [Paternal] Grandmother would use the conciliation
to reach an agreement as to ongoing visitation with the child
even if [Foster Parents] were to be granted the right to adopt
L.N. Indeed, [Foster Parents] have worked with [Paternal]
Grandmother throughout the course of this case, and have
evidenced intent to continue to allow [Paternal] Grandmother to
be in L.N.’s life into the future. The [c]ourt therefore ordered
[Foster Parents] to be joined in the custody action. [Paternal]
6
We believe the trial court meant Pennsylvania Rule of Civil Procedure
1925.6(a).
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Grandmother’s claim that Rule 1915.4(a) was violated in the
custody matter is without merit.
Id. (citations omitted). Again, we agree.
Pennsylvania Rule of Civil Procedure 1915.4 states:
(a) Initial Contact With the Court. Depending upon the
procedure in the judicial district, the parties’ initial in-person
contact with the court (including, but not limited to a conference
with a conference officer pursuant to Rule 1915.4-2, a
conference with a judge, conciliation, mediation and/or
class/seminar) shall be scheduled to occur not later than 45 days
from the filing of a complaint or petition.
In addition, as to joinder, Pennsylvania Rule of Civil Procedure 1915.6
provides:
(a)(1) If the court learns from the pleadings or any other source
that a parent whose parental rights have not been previously
terminated or a person who has physical custody of the child is
not a party to the action, it shall order that the person be joined
as a party. Such person shall be served with a copy of all prior
pleadings and notice of the joinder substantially in the form
prescribed by Rule 1915.16(a).
(2) The person joined must file any objection to the order of
joinder within twenty days after notice of the order.
(3) The person joined may file a counterclaim asserting a right to
physical or legal custody in the form required for a complaint by
Rule 1915.3. A copy of the counterclaim shall be served upon all
other parties to the action as provided by Rule 440.
(b) If the court learns from the pleadings or any other source
that any other person who claims to have custodial rights with
respect to the child is not a party to the action, it shall order that
notice be given to that person of the pendency of the action and
of the right to intervene therein. The notice shall be substantially
in the form prescribed by Rule 1915.16(b).
Here, while the trial court cancelled the initial custody conciliation, it
had in fact been scheduled to occur within forty-five days of Paternal
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Grandmother’s filing. Moreover, this conciliation was only rescheduled due to
the failure to include Foster Parents as a party in the custody action and/or
notify Foster Parents.
Accordingly, for the foregoing reasons, we affirm the order of the trial
court dismissing Paternal Grandmother’s custody complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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T.E.N. v. Cumberland County C&Y
Combined Opinion