J-A09028-18
2018 PA Super 229
G.A.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.M.W. :
:
: No. 1694 WDA 2017
v. :
:
:
S.J. AND R.J. :
:
:
APPEAL OF: G.P. AND J.P., :
PATERNAL GRANDPARENTS :
Appeal from the Order Entered October 10, 2017
In the Court of Common Pleas of Indiana County Civil Division at No(s):
No. 10862 C.D. 2016
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
OPINION BY DUBOW, J.: FILED AUGUST 15, 2018
Appellants, G.P. and J.P. (“Paternal Grandparents”), appeal from the
October 10, 2017 Order, which, inter alia, dismissed Paternal Grandparents’
Petition to Intervene after the trial court concluded that Paternal Grandparents
did not have standing to pursue custody rights of their grandchild, J.P.
(“Child”). After careful review, we hold that notwithstanding a child’s custodial
situation, the Custody Act grants standing to grandparents to file for any form
of physical or legal custody when their grandchild is substantially at risk due
to the parental behaviors stated in 23 Pa.C.S. § 5324(3)(iii)(B). Accordingly,
we reverse.
J-A09028-18
The subject of the instant custody dispute is now 7-year-old Child, who
currently resides with Appellees S.J. and R.J. (“Maternal Great-
Grandparents”). Child’s parents, Appellees G.A.P. (“Father”) and J.M.W.
(“Mother”), both have a history of drug abuse; Father also has a criminal
history. Child has lived with Maternal Great-Grandparents on and off
throughout his entire life, and continuously since October 2015.
On May 2, 2016, Father filed a Complaint for Custody. On July 26, 2016,
Mother and Father entered a Custody Consent Order, which granted shared
legal custody to both parents, primary physical custody to Mother, and partial
physical custody to Father.
On August 1, 2016, Maternal Great-Grandparents filed a Petition for
Emergency Custody alleging that Child had been residing with them
continuously since October 2015 and that Child was not safe during periods of
partial physical custody with Father, including allegations that Child reported
inappropriate sexual acts between Father and Child. Maternal Great-
Grandparents also filed a Petition to Intervene in Child’s custody matter.
On the same day, the trial court granted Maternal Great-Grandparents’
Petition for Emergency Custody, awarded sole physical custody of Child to
Maternal Great-Grandparents, vacated the July 26, 2016 Custody Consent
Order, suspended Father’s partial physical custody, and scheduled a hearing.
On August 15, 2016, per agreement of the parties, the trial court
granted Maternal Great-Grandparents’ Petition to Intervene, upheld the
August 1, 2016 Custody Order, awarded Mother supervised physical custody
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at Maternal Great-Grandparents’ discretion, and scheduled a custody
mediation conference.
On December 19, 2016, following a custody mediation conference at
which Mother did not appear, Maternal Great-Grandparents and Father
entered a Custody Consent Order. The Order awarded Maternal Great-
Grandparents and Father shared legal custody, Maternal Great-Grandparents
primary physical custody, and Father supervised physical custody that could
be modified by recommendation of the CARE Center, the organization that
was responsible for supervising visits.
On May 2, 2017, Maternal Great-Grandparents filed a Petition for Special
Relief, which alleged that Father had relapsed in his drug use, requested that
Father submit to drug screens, and requested that Father’s visitation be
limited to supervised physical custody of Child.
On May 5, 2017, the trial court suspended Father’s unsupervised partial
physical custody of Child, ordered supervised physical custody, and scheduled
a hearing.
Most relevant to this appeal, on June 29, 2017, Paternal Grandparents
filed a Petition to Intervene requesting partial physical custody of Child. In
the Petition, Paternal Grandparents asserted that they had standing to pursue
physical custody of Child because “the child is substantially at risk due to
parental abuse, neglect, drug or alcohol abuse or incapacity” pursuant to 23
Pa.C.S. § 5324(3)(iii)(B). On July 5, 2017, Maternal Great-Grandparents filed
Preliminary Objections asserting that Paternal Grandparents did not have
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standing to pursue physical custody of Child pursuant to 23 Pa.C.S. §
5324(3)(iii)(B) because Child was not currently “substantially at risk” since
Maternal Great-Grandparents had primary physical custody of Child.
On October 10, 2017, the trial court sustained Maternal Great-
Grandparents’ Preliminary Objections and dismissed Paternal Grandparents’
Petition to Intervene for lack of standing.
Paternal Grandparents timely appealed.1 Paternal Grandparents and the
trial court complied with Pa.R.A.P. 1925.
Paternal Grandparents raise the following issue on appeal: “Whether
the [t]rial [c]ourt erred in denying Petitioners, Paternal Grandparents,
standing to pursue custody rights of [Child].” Paternal Grandparents’ Brief at
7.
An issue regarding standing is a threshold issue that is a question of
law. K.W. v. S.L., 157 A.3d 498, 504 (Pa. Super. 2017). Moreover, the
interpretation and application of a statute is also a question of law. C.B. v.
J.B., 65 A.3d 946, 951 (Pa. Super. 2013). As with all questions of law, we
must employ a de novo standard of review and a plenary scope of review to
determine whether the court committed an error of law. Id.
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1 The trial court’s October 10, 2017 Order is an appealable collateral order
pursuant to Pa.R.A.P. 313. See K.C. v. L.A., 128 A.3d 774, 778-81 (Pa. 2015)
(holding that an order denying intervention in a child custody case due to a
lack of standing meets all three prongs of the collateral order doctrine).
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When interpreting a statute, this court is constrained by the rules of the
Statutory Construction Act of 1972 (the “Act”). 1 Pa.C.S. §§ 1501-1991. The
Act makes clear that the goal in interpreting any statute is to ascertain and
effectuate the intention of the General Assembly while construing the statute
in a manner that gives effect to all its provisions. See 1 Pa.C.S. § 1921(a).
The Act provides: “[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.” 1 Pa.C.S. § 1921(b). Moreover, it is well settled that “the
best indication of the General Assembly's intent may be found in a statute's
plain language.” Cagey v. Commonwealth, 179 A.3d 458, 462 (Pa. 2018).
Additionally, we must presume that the General Assembly does not intend a
result that is absurd, impossible of execution, or unreasonable and does
intend to favor the public interest over any private interest. See 1 Pa.C.S. §
1922(1) and (5) (emphasis added).
Instantly, this court must interpret a section of the Child Custody Act,
23 Pa.C.S. §§ 5321-5340, which governs all custody proceedings commenced
after January 24, 2011. E.D. v. M.P., 33 A.3d 73, 77 (Pa. Super. 2011). The
Child Custody Act provides standing to third parties seeking custody under
certain circumstances. See 23 Pa.C.S. § 5324 (effective July 3, 2018). At
issue in this appeal is Section 5324(3) pertaining to grandparents, great-
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grandparents, and persons “in loco parentis.”2 See 23 Pa.C.S. § 5324(3); 23
Pa.C.S. § 5325. Section 5324(3) provides standing to 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);
(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.
23 Pa.C.S. § 5324(3).
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2 “The term in loco parentis literally means ‘in the place of a parent.’ A person
stands in loco parentis with respect to a child when he or she assumes the
obligations incident to the parental relationship without going through the
formality of a legal adoption. The status of in loco parentis embodies two
ideas; first, the assumption of a parental status, and, second, the discharge
of parental duties.” K.W., supra at 504-05 (internal citations and quotation
marks omitted).
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Instantly, Maternal Great-Grandparents concede that Paternal
Grandparents are the grandparents of Child, have a relationship with Child
that began with the consent of a parent, and are willing to assume
responsibility for Child pursuant to 23 Pa.C.S. § 5324(3)(i) and (ii). See
Preliminary Objections, dated July 5, 2017. Therefore, the only question is
whether “the child is substantially at risk due to parental abuse, neglect, drug
or alcohol abuse or incapacity” pursuant to 23 Pa.C.S. § 5324(3)(iii)(B).
In their Brief, Paternal Grandparents aver that the trial court erred in its
interpretation of the statute. They disagree with the trial court’s conclusion
that Child is not “substantially at risk” because Maternal Great-Grandparents
have physical custody of Child, and argue that the plain language of Section
5324 specifically refers to risks “due to parental abuse, neglect, drug or
alcohol abuse or incapacity” without reference to the custodial situation of
Child. Paternal Grandparents’ Brief at 15-16 (emphasis added). Paternal
Grandparents also argue that the purpose of the statute is to grant
grandparents standing in custody matters, not “to create a situation where
grandparents are essentially in a race to file to receive standing” because the
grandparent who files first is the only one able to obtain standing in a custody
matter. Id. at 11. We agree.
Section 5324(3)(iii)(B) confers standing upon grandparents in cases
where “the child is substantially at risk due to parental abuse, neglect, drug
or alcohol abuse or incapacity,” when the requirements of Section 5324(3)(i)
and (ii) are also met. 23 Pa.C.S. § 5324(3)(iii)(B) (emphasis added). The
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words of this provision are clear and unambiguous, and they do not make an
exception for the custodial situation of a child. Simply, the plain language of
the statute confers standing to grandparents when a child is substantially at
risk due to ongoing parental behaviors.
In this case, the trial court previously determined that the conditions
necessary under Section 5324(3)(iii)(B), namely ongoing parental behaviors
that would put Child at substantial risk, were present in order to grant standing
to Maternal Great-Grandparents. Paternal Grandparents’ Brief at 19. Since
that determination, there has been no change in the substantial risk that the
parents created.
In an analogous case, Martinez v. Baxter, 725 A.2d 775, 778 (Pa.
Super. 1999), aff’d sub nom. R.M. v. Baxter ex rel. T.M., 777 A.2d 446
(Pa. 2001), this Court interpreted a previous version of the statute, which
provided a grandparent standing to pursue custody if that grandparent
“deem[ed] it necessary to assume responsibility for a child who is substantially
at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.”
This Court held that the fact that a child had been declared dependent and
placed in custody of the state, thus alleviating immediate safety concerns, did
not negate the grandmother’s standing to seek custody. Id. at 778. We
concluded that it was “of no moment” that child had only been adjudicated
dependent and parental rights were not terminated or relinquished because it
was still possible for a parent to seek reunification with the child. Id. As a
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result, the parents still created an ongoing risk to the child and the
grandmother had standing. Id.
Applying this Court’s reasoning in Martinez, supra, to the instant case,
it is irrelevant for purposes of standing that the trial court has already granted
custody to Maternal Great-Grandparents. Since parental rights have not been
terminated or relinquished, it is possible for either parent to seek custody of
Child. This possibility creates an ongoing risk to Child. See Martinez, supra,
at 778.
Moreover, we must presume that the General Assembly does not intend
a result that is absurd, impossible of execution, or unreasonable and does
intend to favor the public interest over any private interest. See 1 Pa.C.S. §
1922(1) and (5). It would most certainly be absurd, unreasonable, and
against public interest to create a race to file a custody petition and divest one
grandparent of his or her right to custody because another grandparent filed
a petition first. Rather, the trial court should have the opportunity to
determine which grandparent can best serve the child’s needs. The trial court
must consider in its analysis many custodial factors, including the impact of
moving the child from one grandparent to another one. The trial court,
however, should have the opportunity to consider all custodial options for the
child and this interpretation of the statute gives the trial court the discretion
to place the child with the grandparent best suited to care for the child and
does not limit the trial court’s decision to the grandparent who filed first.
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Therefore, we conclude that regardless of a child’s custody status, the
Custody Act grants standing to grandparents to file for any form of physical
or legal custody when their grandchild is substantially at risk due to “parental
abuse, neglect, drug or alcohol abuse or incapacity” pursuant to 23 Pa.C.S. §
5324(3)(iii)(B). Thus, the trial court erred as a matter of law in sustaining
Maternal Great-Grandparents’ Preliminary Objections, concluding that
Paternal Grandparents did not have standing to pursue custody of Child, and
dismissing Paternal Grandparents’ Petition to Intervene. Accordingly, we
reverse the trial court’s October 10, 2017 Order and remand this case for the
trial court to promptly hold a hearing on Paternal Grandparents’ Petition to
Intervene.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Murray joins the opinion.
Judge Bowes files a concurring opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2018
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