C.F. & B.F. v. L.C. and E.G.

J-A06015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.F. AND B.F., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellants

v.

L.C. AND E.G.,

Appellees No. 1373 WDA 2017

Appeal from the Order Entered August 22, 2017
In the Court of Common Pleas of Indiana County
Civil Division at No(s): 12752 CD 2015

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 03, 2018

C.F. and B.F. (Maternal Grandparents) appeal from the order, dated

August 21, 2017, and entered August 22, 2017, that inter alia granted the

petition for special relief filed by E.G. (E.G. or Intervenor), awarding her

primary physical custody and legal custody of the children, who are the subject

of this custody litigation. Additionally, the order directed that “[i]n accordance

with [Pa.R.A.P.] 341(C)…, the [c]ourt determines that an immediate appeal of

this [o]rder will facilitate a resolution of the entire case.” Order, 8/21/17.

After review, we deny the motion to quash and affirm the order on appeal.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A06015-18

In a prior appeal, this Court’s memorandum provided a summary of

the factual and procedural history of this case.

N.C. (Mother) and F.C. (Father) were the biological parents
of two children, M.C. (born in 2004) and N.C. (born in 2011)
(collectively, Children). Mother died in 2012. After Mother’s
death, Father and E.G. began dating and eventually came to live
together. Father died on December 18, 2015. On the same day,
Maternal Grandparents filed a petition for emergency custody of
Children, which was granted. On December 21, 2015, L.C.
(Paternal Grandmother) filed a petition for emergency custody.
By agreement, the December 18, 2015 order was vacated and
Maternal Grandparents and Paternal Grandmother were provided
equal shared legal and physical custody.

On January 22, 2016, E.G. filed a petition for leave to
intervene, arguing that she stood in loco parentis to Children. On
February 12, 2016, Maternal Grandparents filed a complaint for
custody requesting primary physical custody of Children.

On April 4, 2016, the trial court granted E.G. permission to
intervene, and on April 20, 2016, E.G. filed preliminary objections
to Maternal Grandparents’ complaint. On April 28, 2016, Maternal
Grandparents filed an amended complaint for custody. In the
amended complaint, Maternal Grandparents contended they have
standing to seek primary physical and legal custody of Children
pursuant to 23 Pa.C.S. § 5324(2).1 They also averred they have
standing to seek partial physical custody of Children pursuant to
23 Pa.C.S. § 5325(1).2

1 Thatstatue provides as follows. “The following
individuals may file an action under this chapter for
any form of physical custody or legal custody … (2) A
person who stand in loco parentis to the child.” 23
Pa.C.S. § 5324(2).

2 That statue provides that grandparents may
file for partial physical custody or supervised physical
custody “where the parent of the child is deceased.”
23 Pa.C.S. § 5325(1).

E.G. again filed preliminary objections. Specifically, she
argued that Maternal Grandparents did not have standing to

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J-A06015-18

pursue custody pursuant to 23 Pa.C.S. § 5324(2) because they
did not stand in loco parentis to Children. The trial court held a
hearing on the preliminary objections, and on October 25, 2016,
the trial court entered an order sustaining E.G.’s preliminary
objections, concluding that Maternal Grandparents did not stand
in loco parentis to Children and therefore could not pursue primary
physical and legal custody pursuant to 23 Pa.C.S. § 5324(2).

C.F. & B.F. v. L.C., E.G., No. 1713 WDA 2016, unpublished memorandum at

1-3 (Pa. Super. filed May 24, 2017) (C.F. I).

Maternal Grandparents filed an appeal to this Court from the October

2016 order. However, based upon the fact that the trial court had not included

the required language as directed by Pa.R.A.P. 341(c)1 and because the order

____________________________________________

1 The pertinent statutory language contained in Rule 341 states:

(b) Definition of final order.—A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) RESCINDED

(3) is entered as a final order pursuant to paragraph (c) of this
rule.

(c) Determination of finality.—When more than one claim for
relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim or when multiple parties are
involved, the trial court or other government unit may enter a final
order as to one or more but fewer than all of the claims and parties
only upon an express determination that an immediate appeal
would facilitate resolution of the entire case. Such an order
becomes appealable when entered. In the absence of such a
determination and entry of a final order, any order or other form
of decision that adjudicates fewer than all the claims and parties
shall not constitute a final order.

Pa.R.A.P. 341(b), (c).

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J-A06015-18

was not a final order resolving all custody claims between the parties, this

Court quashed the appeal, i.e., this Court did not have jurisdiction over the

appeal.

Following the issuance of this Court’s decision in C.F. I in May of 2017,

the trial court scheduled a hearing on Intervenor’s emergency petition for

special relief for August 21, 2017. However, before the hearing was held,

Maternal Grandparents filed three motions/petitions: (1) a motion to stay

custody action, (2) a petition for expert custody evaluation, and (3) a petition

to prohibit relocation. On the date of the scheduled hearing, the trial court

issued the order presently on appeal. In that order, the court dismissed

Maternal Grandparents’ three motions/petitions. The order also granted

Intervenor’s petition for special relief, awarding primary physical and legal

custody to Intervenor, E.G., as she is the only person determined to have

standing. The order also granted partial custody rights to Maternal

Grandparents and Paternal Grandmother. Additionally, the order provided

that “an immediate appeal of this Order will facilitate a resolution of the entire

case[,]” pursuant to Rule 341(c). Order, 8/21/17, at 2 ¶ 5. A motion for

reconsideration was denied and the instant appeal followed.

-4-
J-A06015-18

Initially, we must resolve Intervenor’s second motion to quash this

appeal.2 Intervenor contends that the August 21, 2017 order is not a final

order and, therefore, is not appealable. She identifies this Court’s docketing

statement filed by Maternal Grandparents that acknowledges that the order

appealed from is not a final order, but contends that Maternal Grandparents

erroneously assert that permission to appeal was granted pursuant to

Pa.R.A.P. 1311, which requires the appellant to petition the appellate court for

permission to appeal. Although we agree with Intervenor that the procedure

pursuant to Rule 1311 was not followed, Intervenor overlooks the trial court’s

statement in its August 21, 2017 order indicating that an immediate appeal

will facilitate a resolution of the entire case under Pa.R.A.P. 341(c). The Notes

following Rule 341 specifically state that “[p]aragraph (c) permits an

immediate appeal from an order dismissing less than all claims or parties from

a case only upon an express determination that an immediate appeal would

facilitate resolution of the entire case.” Obviously, the trial court made such

a statement. Moreover, no requirement exists in connection with this rule

that requires a party to seek permission from the appellate court to file an

appeal. Therefore, we are compelled to deny Intervenor’s second motion to

quash.

____________________________________________

2 Intervenor’s first motion to quash was denied without prejudice to again
raise the quashal request after the appeal was assigned to a merits panel.
See Per Curiam Order, 12/29/17.

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J-A06015-18

We now turn to Maternal Grandparents’ four issues they raise on appeal:

1. Did the [t]rial [c]ourt err in refusing to allow any of the parties
to this action to submit testimony (including that of the
children) and/or other evidence with regards to their best
interest and the custody factors at the August 21, 2017
hearing, resulting in an [o]rder that is not in the best interest
of the minor children?

2. Did the [t]rial [c]ourt err in failing to consider the then-existing
status quo and the second complaint for custody filed by
[Maternal Grandparents] in November 2016, at which point in
time they had been sharing custody of the minor children and
discharging parental duties for a period in excess of six (6)
months?[3]

3. Did the [t]rial [c]ourt err in refusing to consider
Appellee/Intervenor’s request for custody as a relocation in
light of the fact that Appellee/Intervenor resides in another
town and another school district from [Maternal Grandparents]
and Appellee/Paternal Grandmother refusing to analyze any of
the custody factors with regards to relocation as set forth in 23
P[a.]C.S.[] [§] 5337?

4. Did the [t]rial [c]ourt err in failing to consider any of the three
(3) motions prepared by [Maternal Grandparents], despite the
fact that it was conveyed by [c]ourt [a]dministration that these
would be heard on August 21, 2017?

Maternal Grandparents’ brief at 10.

We note our scope and standard of review. Appellants’
challenge to the propriety of the trial court’s order denying their
motion for standing to file a custody complaint involves a question
of law. Thus, our review is de novo and our scope is plenary.

P.T. v. M.H., 955 A.2d 814, 817 (Pa. Super. 2008).

____________________________________________

3 The trial court docket does not contain any reference to a second complaint
filed by Maternal Grandparents in November of 2016.

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J-A06015-18

We have reviewed the certified record, the briefs of the parties, the

applicable law, and both thorough, well-reasoned opinions authored by the

Honorable Joseph A. Nickleach, Senior Judge of the Court of Common Pleas of

Indiana County, one dated October 25, 2016, and the other dated October 18,

2017. We conclude that Judge Nickleach’s opinions properly dispose of the

standing issue in conjunction with the issues raised by Maternal Grandparents.

Accordingly, we adopt the court’s opinions as our own and affirm the order

appealed from on that basis.

Motion to quash denied. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/3/2018

-7-
 Circulated 03/13/2018 03:04 PM

IN THE COURT OF COMMON PLEAS
INDIANA COUNTY, PENNSYLVANIA

Plaintiffs, NO. 12752 CD 2015
vs.
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MEMORANDUM PURSUANT TO P.A.R.P. 1925(a)(2){ii)

C.F. and B.F., (Maternal Grandparents), appeal this Court's Order dated August 21,

2017, wherein E.G.' s,(lntervenor' s), Petition for Special Relief seeking primary physical and
,.
legal custody of the children, M.M.C. and N.A.C., (children), was granted and various

motions and petitions filed by Maternal Grandparents were denied.

The basis for the Court's decision is found in this Court's Opinion and Order dated

October 20, 2016, which held that Maternal Grandparents had no standing to seek primary

physical or legal custody of the children. The Court determined that Maternal Grandparents'
Motion to Stay this Custody Action, Petition to Prohibit Relocation and Petition for Expert

Custody Evaluation should be dismissed because Maternal Grandparents lack standing to seek

primary custody.
23 P·a.C.S.A. §5324 designates who may sue for physical or legal custody. Therefore,

standing becomes a jurisdictional prerequisite to the action. See. Grom v, Burgeon, 672 A.2d

823, 824-825 (Pa. Super. 1996). The Court views the aforementioned motions as vehicles to

pursue physical and legal custody. Since Maternal Grandparents had no standing to bring
1
 these motions, they were dismissed. Since Intervenor was the only person in this case with

standing due to the prior judicial determination that she stood in loco parentis, her Petition for

Special Relief seeking primary physical and legal custody was granted.
Appellants, Maternal Grandparents, also claim that this Court erred in failing to

recognize Maternal Grandparents in loco parentis status by virtue of their having shared

physical custody since December 22, 2015. As stated in its Opinion, the Court believes that
Maternal Grandparents had no standing to file the initial custody petition to begin with,

In the Court's view, Maternal Grandparents' action in securing physical and legal

custody of the children, was done by illegitimate means. They had no contact with the

children for a six (6) week period from mid-July until the end of August, 201 S, when an issue

arose between Maternal Grandparents and Father concerning the raising of the children. Then,

three and a half (3�) months later, on December 18, 2015, the same day that Father died,

Maternal Grandparents, without having standing to do so, presented a Petition for Emergency

Custody and Court Order giving them legal and physical custody of the children. The Petition

itself was filled out by the Prothonotary and the Petition and Order of Court were filed after

. the Prothonotary's Office was closed for the day. Moreover, there was no emergency

necessitating such an immediate change of custody.

The Petition set forth by Maternal Grandparents failed to mention that the children

were in custody of Father's fiance, Intervenor, with whom they had been living as a family for

over two (2) years. The Court believes these actions were disingenuous and were designed to

secure physical custody when they had no standing to do so. Thus, their wrongful custody of

the children should not be utilized to determine in loco parentis status.

In order for a party to stand in loco parentis to a child, that
party must first assume parental status through some legaJly
2
 cognizable means. The requirement that assumption ofparental
status be accomplished through legally cognizable means is
absolutely essential.for It prevents persons who have gained
physical possession of a minor child through illegitimate means
from using tiie judicial system lo legitimize their wrongful
possession of the child.

(Emphasis supplied), In re Adoption o/11�C.K, 2000 Pa. Super. 68 (1999).
Maternal Grandparents seem to claim that, because of their extended period of

physical custody since December, 2015, they should be granted in loco parentis status. Again,
as pointed out above, Maternal Grandparents cannot use the judicial system to legitimize their

wrongful possession. Moreover, the extended period in this case was caused by Maternal

Grandparents' filing of an interlocutory appeal, which stayed all proceedings in this Court for

a period of eight (8) months.

ln conclusion, the Court believes for the reasons set forth in its Opinion of October 20,

2016, that Maternal Grandparents had no standing to seek physical and legal custody under ±.

§5324 of the Custody Act and did not acquire standing by virtue of their illegitimate use of

the judicial system to gain custody of the children.

Respectfully Submitted.

3
 Circulated 03/13/2018 03:04 PM

,=======
13. ,:-:� • and

Plain tiffs,
: IN THE COURT OF COMMON PLJtAS
: INDIANA COUNTY, PENNSYLVANIA

vs NO. 12752 CD 2015

Defendant,
\'S

1:---,? ,·· ,·· '.
Intervenor. . ��
, - .-

OPINION AND ORDER OF COURT

NICK.LEACH, S . .J.

Before the Court for decision are Preliminary Objections filed by the Intervenor,

t1•••••••••·
F, &.
to an Amended Complaint for Custody filed by Plaintiffs, 7£1 C
(!_, .,::.�

••1Pand:••7:r.
F 1
11i.iliill•at.,
T
{!ilafe.r,za,/ tlr�d..p,1..re.,f\f., ) . . 6-, ;{+-if.t;;
q). The Preliminary Objections raise the issue ofthetl?•l•IP
tY/ . e._, • N, e•
standing to seek primary physical custody of the children, 'and

(children). Hearing on the issue was held on July 25, 2016. Briefs were subsequently filed and

the case is now ready for decision.

HISTORY

The case began on December 18, 2015, when th�••••••
e who are the maternal
1
grandparents, filed a Petition for Emergency Custody of the children. The children's father

died earlier that day. Their mother had previously died on June 7, 2012. There were no other

allegations in the Petition. On the same day, December 18, 2015. the Petition was granted.

I h is noted that the wherefore clause: of the Petition requests "the Court to grant Custody (or) visitation (Dr)

Partial Custody c,!.' rh·: child lo Petitioner." There was no designation as TO which form of custody was sought.
 J.., .d.,
On December 2 l , 2015 ,liJ••
: •m•t1•111;•P••r•,t the paternal grandmother, filed a
J::: -r "ff, F c s
similar Petition for Emergency Custody with the same request as •••••petition. By
r!..,F.-rtf.F. J.. .e:
agreement of the® 1'I and W · bigi, a Court Order was entered on December 22, 2015
C:F: sf B'.f. L. I, F.'6
The Preliminary Objections in this case raise the issue of the B • standing to seek
primary physical custody of the children.

The Custody Act 23 Pa. C.S. §5324 sets forth the requirements for standing where

primary and/or legal custody is sought:

§5324. Standing for any form of physical custody or legal custody.

The following individuals may file an action under this chapter for any form of
physical custody 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) 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);

,:'._
u
 (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 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.

J
The initial determination for the Court is whether thea
.r.-r i.rstand
Q
. in loco parentis to
the children.
Q. F:-t 15J:
•••aver three ways in which in loco parentis is established. They argue first that

since they were awarded joint legal and physical custody by Court Order of December 22,

2015, and since that Order was not appealed, their standing was established. They rely

primarily on Campbell v. Campbell, 448 Pa. Super. 640, 672 A.2d 835 (] 996), for their

position.

In Campbell, 672 A.2d 835, Mother and Father, an alcoholic, moved frequently during

their marriage. They subsequently divorced. Mother and the children lived with grandparents

for a time. She left the residence with the children and later asked the grandparents to come and

get the children. Mother granted grandparents temporary legal and physical custody in

February 1991. The children resided with grandparents from February, 1991 until August,

1991 when Mother took the children and moved to an undisclosed location. Upon locating

Mother, grandparents sought partial custody. On March 23, 1994, pursuant to a negotiated

agreement, an order was entered granting shared legal custody and partial physical custody.

This order. was never appealed. Subsequently, grandparents sought primary physical custody of

the children. Mother raised the issue of their standing. In finding that grandparents had

7
 standing the Court held that the prior Court Order which was not appealed clearly granted

standing. Campbell, 672 A.2d 835.

I believe Campbell is distinguishable from the facts of the instant case. Here, the action

was instituted by Petitions for Emergency Custody. No notice was given, no hearing was held,

no considerations were given as to whether or not there were other parties in interest. In point
k,&:' d.r: f- 6,r:.
of fact, a third party did exist in the Intervenor,V & who was known to p & when they

sought custody.

Ft t•
d,f.-r"ff.f
did not comply with the Rules of Civil Procedure in securing their Order of

Custody. Pa. R.C.P. 1915.1 provides that all actions for legal and physical custody of minor

children including habeas corpus proceedings are governed by these rules. Rule 1915.3 ( a)

provides that an action shall be commenced by filing a verified Complaint. Rule 1915.3 ( e)

requires that a grandparent not in loco parentis who is seeking physical and/or legal custody

must set forth in the Complaint facts establishing their standing. Rule 1915 .13 provides that at

any time after commencement of an action, the court may on application or on its own motion,

grant interim or special relief, which may include temporary legal or physical custody.
l,'(. f 'f;.f i
Since ? £ procedure in obtaining custody did not comply with the rules, the granting of the
order in and of itself, should not confer in loco parentis standing. Moreover, this order is not

and was never intended to be a final order and should not afford in loco parentis standing.

Finally, the issue of standing must be determined as of the initiation of the action in December,

2015. The issue of standing is not retroactive nor is it waivable. It is a jurisdictional

prerequisite to the filing of the action, K.B.II v. C.B.F., 833 A2d 767, (2003):

·, [ W]hen a statute creates a cause of action and designates who may sue, the
issue of standing becomes interwoven with that of subject matterjurisdiction,
Standing then becomes a jurisdictional prerequisite to any action. It is well
settled that the: question of subject matter jurisdiction may be raised at
 any time, by any party, or by the Court sua sponte." K.B.II v. C.B.F., 833
A2d 767.

e,r. -r?.F.
g J also argue that because both parents are deceased, a relaxed standard for
standing is to be applied in this case. They cite Kellogg v. Kellogg, 646, A2d 1246, 1249-50

(Pa. Super 1994), for the proposition that a clear and convincing showing that a sustained,

substantial and sincere interest in the welfare of the child will establish standing. However, to

quote Steelers coach, Mike Tomlin, who said it in a different context, "the standard is the

standard". The legislature has set down the standard in §5324 of the Custody Act. There are

no provisions in §5324 which mentions a different standard where both parents are deceased.3

"A common law doctrine may not, after a statutory pronouncement on the same
subject, continue to develop in a manner inconsistent with the statute. In cases of
conflict between legislation and the common law, legislation will govern because it is
the latest expression of the law." T.B. v. L.R.M. 786 A2d 913, 920-921 (Saylor J.
dissenting).

By enacting §5324(3) the legislature did afford grandparents an alternative means of

attaining standing when they do not meet' in loco parentis status. To achieve standing under
(!, ,,::. t '8'. 'F.
this provision, however. must satisfy the three conditions enumerated in the statute.
l,f.t lJ,f:
Under the evidence presented, S fo not satisfy §5324(3)(iii). They fail to meet any of the
e . F.,. 15'. r::-
thre e conditions set forth in that subsection. Conseqnently,? S can only achieve standing

by proving the)' stood in loco parentis when this action was filed.

"The phrase 'in loco parentis' refers to a person who puts oneself in the situation
of a lawful parent by assuming the obligations incident to the parental
relationship without going through the formality of a legal adoption. The status
of "in loco parent is" embodies two ideas: first, the assumption of parental
status and, second, the discharge of parental duties. [citations omitted). The
rights and liabilities arising out of an "in loco parentis" relationship are, as the
words imply, exactly the same as between parent and child. [citation omitted]
The third party in this type of relationship, however, cannot place himself "in

3
§532.5( l ) however, permits an action for partial physical custody and supervised physical custody where a parent
is deceased. As stared earlier...... does not contest - right to seek partial physical custody
�.&-: e,r.'t'�.f.s
9
 loco parentis" in defiance of the parents' wishes and the parent/child
relationship. [citations omitted] T.B. v. L.R.Ivl., 567 Pa. 222,228-229 (2001);
786 A2d 913, 916-917 (2001).

{(. +- o.K. frl .c.
The evidence shows that th,. had an involvement with the child, 116 a
beginning with her birth. Father and Mother were living in Virginia at the time and Mrs.
�.F hl,c!..'-s
• Ii Iived with them for several months assisting the parents in % .... £ care. In late

January, Mother and Father moved to Pennsylvania and from late January until June 2005 lived
�.F,1·E,F." o.F: m.�.
with the-. Again, • f assisted Mother and Father with1slf as both parents

were employed. In June, 2005, Father returned to Virginia and upon his return in July, Father,
M·l, L,l.,
Mother and? I T stayed with 6 ] until November 2005 when Father, Mother and
,Q} '12 · moved into their own house. From November 2005 until Mother' s death in June 2012,
i.J,c!,...
they and, after he was born,.._., lived continuously in their home as a family. In June 2013
Ii\.�. 10,l.
Father, and ... moved to Home, Pa. At about that time, Father began a relationship
'{; ' a, ' [;" . C!r.
with and in July 2013 they became engaged. In November 2013, S moved into
m,a. JJ,e. 1:;;.�.
Father's house and he, I p ,... and& § lived continuously as a family until Father's

death in December 2015.
t.f;�l[.f.'. .
- always had a relationship with the children from the time they were born until
l :F.r'l), 'F. i: