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.
CONCURRING OPINION BY BOWES, J.: FILED: August 15, 2018
My colleagues present a cogent expression of rationale which interprets
the statutory framework as resolving the question of a grandparent’s standing
to pursue any form of physical or legal custody pursuant to 23 Pa.C.S §
5324(3), as a matter of fairness between the rights of the litigants, S.J. and
R.J. (“Maternal Great-Grandparents”), and potential interveners, G.P. and J.P.
(“Paternal Grandparents” or “Appellants”), respectively. However,
approaching this case from the perspective of promoting the interest of the
child, J.P., rather than evenhandedness between third-party litigants, I agree
with the trial court’s finding that Appellants failed to establish that J.P. was
J-A09028-18
“substantially at risk due to parental abuse, neglect, drug or alcohol abuse or
incapacity,” as required by the statute, when they sought to intervene in the
custody dispute. See 23 Pa.C.S. § 5324(3)(iii)(B). Specifically, contrary to
the majority, I believe that the statute requires an actual risk of harm rather
than an amorphous “ongoing” harm associated with the fact that Father
retained his parental rights.
Notwithstanding my perspective of the conditional language in
subsection 5324(3)(iii)(B), as I discuss infra, I observe that Appellants have
standing to pursue custody under the newly-fashioned provisions that were
recently added to the Child Custody Law at subsection 5324(4).1 Accordingly,
while I respectfully disagree with the majority’s legal analysis, I concur with
the learned majority’s decision to reverse the order dismissing Appellants’
petition to intervene.
J.P. was born during 2010, and he lived with Mother at Maternal Great-
Grandparents’ home recurrently throughout his life. As of October 2015, J.P.
resided at Maternal Great-Grandparents’ home exclusively. Father initiated
this custody case during May 2016, by filing a complaint against Mother for
partial physical custody. On July 26, 2016, Mother and Father entered a
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1 As the new provision became effective on July 3, 2018, Appellants did not
have the opportunity to raise it in their brief or during the oral argument before
this Court. Nevertheless, I observe that standing in a child custody case is
variable, and the revised statute categorically provides Appellants a viable
pathway to achieve standing in this dispute.
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consent decree dividing the physical custody between them. However, four
days later, Maternal Great-Grandparents filed a petition for emergency
custody and a petition to intervene. They invoked standing pursuant to
§ 5324(3)(iii)(B), in order to protect their great-grandson from the tangible
risk of harm stemming from Father’s inappropriate sexual behavior with the
child. The trial court vacated the July 2016 consent decree and awarded
emergency custody to Maternal Great-Grandparents without a hearing.
Appellants did not invoke standing under § 5324 at that time or seek to
intervene in the ensuing custody proceedings between their son and Maternal
Great-Grandparents.
In August 2016, the trial court expressly granted Maternal Great-
Grandparents’ petition to intervene in the custody litigation. Following a
December 2016 mediation conference, Maternal Great-Grandparents and
Father entered a consent order that granted Maternal Great-Grandparents
primary physical custody of J.P. and permitted Father to exercise one-hour of
supervised physical custody per week at a facility operated by the CARE Center
of Indiana County (“CARE”). The consent order provided that, after five
successful visits, CARE could elect to remove the supervision requirement,
and Father would exercise overnight custody on alternating weekends. While
it is not documented in the certified record, CARE seemingly relaxed the
supervision requirement. Appellants did not seek to participate in the
conference and they were not parties to the consent decree.
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In May 2017, Maternal Great-Grandparents filed a petition for special
relief seeking to impose a requirement that Father submit to drug screens and
requesting that Father’s interactions with J.P. be limited to supervised
visitations. The custody court entered an interim order that suspended
Father’s periods of unsupervised custody and directed that a family member
supervise Father’s custodial periods pending the evidentiary hearing. After
Father failed to appear at the ensuing hearing, the trial court entered an order
continuing the force and effect of the interim order “until further Order of
Court.” Trial Court Opinion, 10/10/17, at 2.
On June 28, 2017, almost one year after Maternal Great-Grandparents
first reacted to Father’s alleged sexual behaviors toward J.P. by petitioning to
intervene pursuant to § 5324(3)(iii)(B), and subsequently alleviating that risk
by exercising primary physical custody for six months, and approximately two
months after Maternal Great-Grandparents renewed their alarm following
discovery of Father’s substance abuse, Appellants filed a petition to intervene
pursuant to § 5324(3)(iii)(B). Appellants requested partial physical custody
of J.P., shared legal custody, and the authority to oversee any periods of
supervised visitation Father could receive in the future. Maternal Great-
Grandparents filed preliminary objections to Appellants’ petitions, which the
trial court sustained without a hearing. This appeal followed.
As this Court previously explained,
In the area of child custody, principles of standing have been
applied with particular scrupulousness because they serve a dual
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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. v. D.B., 91 A.3d 706, 708 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H.,
682 A.2d 1314, 1318 (Pa.Super. 1996)). Standing in child custody cases is
fluid and, in some circumstances, it may be revisited as the facts of the case
evolve throughout the litigation. M.G. v. L.D., 155 A.3d 1083, 1087 n.5
(Pa.Super. 2017); see e.g., In re D.M., 995 A.2d 371, 375-76 (Pa.Super.
2010) (mother whose parental rights had been terminated could have
standing as third-party to seek custody); Morgan v. Weiser, 932 A.2d 1183,
1186-87 (Pa.Super. 2007) (biological father whose parental rights had been
terminated could only seek custody or visitation if he could establish standing
as a third-party); McNamara v. Thomas, 741 A.2d 778, 781 (Pa.Super.
1999) (biological mother could attempt to demonstrate third-party standing
after death of adoptive parent).
At the time that Appellants filed their petition to intervene, the Child
Custody Law extended standing to pursue any form of physical or legal
custody to :
(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;
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(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.
Thus, the question before us is whether Appellants had standing to
pursue physical custody of J.P. pursuant to § 5324(3)(iii)(B) based upon the
factual scenario at the time they filed their petition to intervene, i.e., whether
“the child is substantially at risk due to parental abuse, neglect, drug or alcohol
abuse or incapacity.”2 Id.
In my view, Appellants failed to demonstrate the requirements for
standing pursuant to 23 Pa.C.S. § 5324(3)(iii)(B), inasmuch as they did not
attempt to assume responsibility for J.P. until after Maternal Great-
Grandparents had filled the parental void and alleviated the substantial risk of
____________________________________________
2The parties agree that Appellants established the threshold requirements
under § 5324(3)(i) and (ii).
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harm that is the sine qua non of standing under this subparagraph. Stated
plainly, thanks to Maternal Great-Grandparents’ quick intervention, J.P. is no
longer substantially at risk due to parental abuse, neglect, drug or alcohol
abuse or incapacity.
Unlike my colleagues, I would not characterize the present factual
scenario as a zero-sum race between the parties to file for standing first, i.e.,
a situation where a win for one side necessarily entails a corresponding loss
for the other side. It is axiomatic that the haste to file is not to bar an
opponent’s participation; rather, it is to ensure the child’s best interests by
alleviating the risk of harm at the earliest possible stage. Indeed, Appellants
could have, but neglected to, file a petition to intervene in the underlying
custody litigation at the outset, when Maternal Great-Grandparents first
identified the safety concerns contemplated in § 5324(3)(iii)(B). They
declined to intervene at the critical juncture when J.P.’s safety was in the
balance. Instead, Appellants waited for Maternal Great-Grandparents to
intercede and provide the safety net that the statute was intended to create.
Only after the tangible and identifiable risks were removed did Appellants seek
to intervene. Stated another way, Appellants were not barred by Maternal
Great-Grandparents’ swift response to the obvious risk of harm; they were
barred because the risk had subsided when they eventually acted.
Essentially, I disagree with the majority’s reliance upon Martinez v.
Baxter, 725 A.2d 775 (Pa.Super. 1999) for the proposition that the
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“substantial risk of parental abuse” condition includes theoretical future harms
associated with a parent’s retention of parental rights. As the majority
phrases its holding, “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.” Majority Opinion at 9. However,
from my perspective, what may or may not happen between J.P. and Father
at some unidentified point in the future is of no import to the determination
of whether Paternal Grandparents can satisfy the statutory grounds for
standing at this juncture.
In Martinez, supra, the trial court granted the preliminary objections
filed by Children and Youth Services (“CYS") that challenged a grandmother’s
standing to petition for custody of her dependent grandson. The grandmother
sought standing pursuant to § 5313(b), the predecessor to § 5324(3). The
trial court sustained CYS’s preliminary objections, concluding that the
grandmother failed to plead the existence of one of the three sets of
circumstances set forth in § 5313(b)(3).3 As it relates to the issue in the case
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3 Section 5313(b) provided:
(b) Physical and legal custody.--A grandparent has standing
to bring a petition for physical and legal custody of a grandchild.
If it is in the best interest of the child not to be in the custody of
either parent and if it is in the best interest of the child to be in
the custody of the grandparent, the court may award physical and
legal custody to the grandparent. This subsection applies to a
grandparent:
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at bar, the trial court determined that the child was not “substantially at risk”
under § 5313(b)(3), because he had been adjudicated dependent and placed
in CYS’s protective custody.
We reversed, and focusing on the provision’s opening statement, “A
grandparent has standing to bring a petition for physical and legal custody of
a grandchild,” we held that § 5313(b) conferred “automatic standing” on
grandparents to petition for physical custody by virtue of their familial
relationship to the child. Id. at 778. The Martinez Court reasoned that even
though CYS had custody pursuant to a protective order, that fact did not
deprive the grandmother of her automatic standing under § 5313(b). We
explained,
This subsection is a clear mandate which allows a grandparent to
seek custody, indeed to have standing to do so, over the status of
third parties who have no familial relationship with a child. We
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(1) who has genuine care and concern for the child;
(2) whose relationship with the child began with the consent of
a parent of the child or pursuant to an order of court; and
(3) who for 12 months has assumed the role and responsibilities
of the child’s parent, providing for the physical, emotional and
social needs of the child, or who assumes the responsibility for
a child who has been determined to be a dependent child
pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters) or
who assumes or deems 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. The court may
issue a temporary order pursuant to this section.
23 Pa.C.S. § 5313(b) (repealed effective January 24, 2011).
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will not interpret this statute to deprive grandparents of this
privileged status merely because CYS has stepped in before the
grandparent has had an opportunity to assert her interest in
raising her grandchild.
Martinez, supra at 778. Significantly, we specifically declined to interpret
the ostensibly qualifying language in subparagraphs (1), (2), and (3) as
conditions precedent to standing. Instead, we reasoned that the situations
enumerated in those subparagraphs were merely factors for the fact-finder to
consider in addressing the merits of the grandparent’s custody claim, i.e., “to
determine ‘If it is the best interest of the child not to be in the custody of
either parent and if it is in the best interest of the child to be in the custody
of the grandparent[.]’”4 Id. Thus, having found the grandparent had
automatic standing, to the extent that the Martinez Court interpreted the
statute’s reference to a child who is “substantially at risk due to parental
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4 Our High Court affirmed our order, utilizing identical reasoning that
§ 5313(b) conferred automatic standing to grandparents by virtue of their
familial relationship notwithstanding the statute’s conditional language. R.M.
v. Baxter ex rel. T.M., 777 A.2d 446, 451 (Pa. 2001) (unqualified language
of statute provides that grandparent has standing to bring petition for physical
and legal custody of grandchild).
In enacting § 5325 of the Child Custody Law, the legislature corrected
the courts’ interpretation of the prior statute as conveying “automatic
standing” and expressly conditioned grandparent standing on the
prerequisites outlined in the statute. Significantly, § 5325(3)(A) of the new
statute addressed the factual scenario at issue in Martinez by expressly
extending custody to grandparents of children who have been adjudicated
dependent. Thus, it alleviated the Martinez Court’s noted concern, that
“anytime CYS sought dependent status for a child, a grandparent’s ability to
seek custody of his grandchild would be negated[.]” Martinez, supra at 778.
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abuse” in relation to whether a grandparent has standing, that discussion is
dicta.
Furthermore, while the language in the current statute tracks the earlier
enactment, the Martinez Court’s dicta was non-persuasive. Specifically, in
my view, the majority’s invocation of an “ongoing” harm based upon
speculation that Father might place J.P. at risk in the future is unconvincing.
Unlike the majority, I believe that the fact that either parent retained his or
her parental rights is of no consequence to the determination regarding
whether either parent presents a substantial risk to the child’s wellbeing.
Moreover, while my colleagues discount the fact that J.P. currently is not at a
substantial risk of any harm, much less a speculative harm resulting from the
possibility of future parental abuse, neglect, substance abuse, or incapacity
because Father’s rights have not been terminated, I would find that inquiry to
be the most relevant determination.5 My perspective is comparable to the
position the dissent articulated in Martinez, i.e., “because the child was
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5 In this vein, the majority’s preoccupation with Father’s retention of his
parental rights is misplaced. As a dependency-related custody case that pitted
family members against a government agency, it was necessary for the
Martinez Court to consider the potential dispositions available to the juvenile
court in the child-welfare proceedings. The countervailing possibilities of
either reunification under the Juvenile Act or the termination of parental rights
under the Adoption Act were particularly relevant to how the custody case
would proceed in family division. However, in a non-dependency custody case
between two sets of relatives, like the case at bar, there is no superseding
concern regarding the ultimate disposition of the governmental action.
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already taken out of the parents’ home, the child was no longer at risk.”
Martinez, supra at 779 (Joyce, J. dissenting).
Thus, for all of the foregoing reasons, I would affirm the trial court’s
finding that Appellants failed to establish that they had standing pursuant to
23 Pa.C.S. § 5324(3)(iii)(B). In sum, notwithstanding any of the theoretical
harms that may or may not occasion a parent’s future actions, I agree with
the trial court’s finding that J.P. currently is not “substantially at risk due to
parental abuse, neglect, drug or alcohol abuse or incapacity[.]”
23 Pa.C.S. § 5324(3)(iii)(B).
However, as I noted at the outset, since I believe that Appellants would
have standing to pursue any form of physical custody or legal custody of J.P.
under the recently enacted § 5324(4) effective, July 3, 2018, I agree with the
result reached in this case. As revised to include an additional ground for
standing in custody disputes between third parties, § 5324(4) now extends
standing to:
(4) Subject to paragraph (5) [which applies to children involved
in dependency proceedings], an individual who establishes by
clear and convincing evidence all of the following:
(i) The individual has assumed or is willing to assume
responsibility for the child.
(ii) The individual has a sustained, substantial and sincere
interest in the welfare of the child. In determining whether the
individual meets the requirements of this subparagraph, the
court may consider, among other factors, the nature, quality,
extent and length of the involvement by the individual in the
child’s life.
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(iii) Neither parent has any form of care and control of the child.
23 Pa.C.S. § 5324(4).
By invoking the requirement that a third party demonstrate “a
sustained, substantial and sincere interest in the welfare of the child,” §
5324(4)(ii) effectively codified our holding in Kellogg, supra, a case of first
impression that addressed “the requirements for standing of a non-custodial
third party vis-a-vis other third parties who have legal and physical custody
of the children.” Id. at 584.
In Kellogg, we were tasked with determining whether Debra Kellogg, a
deceased father’s first wife, had standing to pursue custody of the two young
sons he had with his second wife, who had been sentenced to twenty-five
years to life imprisonment for her role in the father’s murder. The children,
then ages four and five, spent significant time with their older half-siblings
from the father’s prior union with Debra. Following her arrest, the second wife
agreed to award physical and legal custody of the children to her mother and
stepfather, the Francises. Thereafter, Debra filed a custody complaint against
the Francises seeking custody of the two young children. The trial court
awarded Debra visitation, which the current law refers to as partial physical
custody.
On appeal, we upheld the trial court’s implicit determination that Debra
had standing to pursue custody against the Francises. In light of the dearth
of applicable precedent at that stage of our jurisprudence, we fashioned a test
that required third parties seeking standing in a custody action against a non-
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parent to “prove by clear and convincing evidence that he or she has shown a
sustained, substantial and sincere interest in the welfare of the child.” Id. at
588. Ultimately, we held that Debra had standing based upon the “clear and
convincing evidence that she has always shown and continues to show a
genuine interest in the welfare of these children.” Id. at 590.
Instantly, while Appellants did not act to alleviate the substantial risk of
harm implicated in § 5324(3)(iii)(B), they have always maintained a healthy
relationship with J.P., including their supervision of Father’s periods of partial
physical custody. Indeed, Maternal Great-Grandparents, who exercise legal
and physical custody of J.P., concede Appellants’ relationship with J.P. and
note that Appellants are willing to assume responsibility of their grandson.
Hence, although Appellants failed to satisfy the conditions of standing under
§ 5324(3), the certified record bears out that Appellants have standing
pursuant to § 5324(4).
Thus, in light of the new provisions of the Child Custody Law that afford
standing to third parties upon clear and convincing evidence of sustained,
substantial and sincere interest in the welfare of the child where, as here, a
third party is currently exercising primary custody, Appellants would have
standing to pursue any form of physical custody or legal custody of J.P. at this
juncture pursuant to § 5324(4). Hence, notwithstanding my disagreement
with the learned majority’s interpretation of the “substantially at risk”
condition outlined in § 5324(3)(iii)(B), I concur in the result of the decision to
reverse the trial court order dismissing Appellants’ petition to intervene.
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