J-S13045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.L.F., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
T.L.F., P.H., :
:
Appellees : No. 1691 WDA 2018
Appeal from the Order Entered November 5, 2018
in the Court of Common Pleas of Butler County
Civil Division at No(s): F.C. NO. 17-90320-C2
BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 17, 2019
T.L.F. (Paternal Grandmother) appeals from the November 5, 2018
order, dismissing her complaint for custody of her minor grandson, J.M.F.
(Child), on the basis that she lacked standing. We reverse and remand for
further proceedings.
Child was born in March 2017 to Paternal Grandmother’s son, T.L.F.
(Father), and P.H. (Mother). Although the details are not entirely clear from
the record, Mother and Father commenced a custody case shortly after Child’s
birth, resulting in an order of court dated July 13, 2017. N.T., 11/2/2018, at
32. The order awarded the parents shared legal and physical custody of Child,
based on a “2-2-3” schedule.1 Id. At that time, and for the majority of this
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1 The 2-2-3 day schedule imposed by the trial court meant the parties
continually alternated days in two and three day increments. For example,
Father would have custody on Monday and Tuesday, Mother would have
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* Retired Senior Judge assigned to the Superior Court.
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case, Father resided with Paternal Grandmother, who provided the actual care
for Child during Father’s periods of custody. Id. at 30-33. In September
2017, a dispute arose during which Father and/or Paternal Grandmother
refused to return Child to Mother’s care. Id. at 33-34. On October 6, 2017,
Paternal Grandmother, acting pro se, filed a custody complaint, in which she
averred that she had been Child’s primary caretaker since September 8, 2017,
and requested sole legal and physical custody.
The parties participated in a custody conference before a conciliator on
October 10, 2017. During the conference, the parties reached an agreement
that Mother and Father would exercise shared legal custody of Child and that
Father would exercise primary physical custody. The agreement provided that
Mother would exercise partial physical custody one day per week, which would
increase over time if her boyfriend completed a criminal record/abuse history
affidavit, and the affidavit did not reveal any problems. The agreement also
provided that Paternal Grandmother’s complaint “shall be held in abeyance at
this time. The parties acknowledged at the time of the conference that the
Paternal Grandmother has contact with the minor child during the Father’s
custodial time and is the primary caregiver for the child.” Agreement,
10/10/2017, at ¶ IX. The trial court entered the agreement as an order on
October 13, 2017, and scheduled a review conference before the conciliator.
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custody on Wednesday and Thursday, and Father would have custody on
Friday through Sunday. Then the following week, Mother would have custody
on Monday and Tuesday, Father would have custody on Wednesday and
Thursday, and Mother would have custody on Friday through Sunday.
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The court modified the order slightly on October 18, 2017. Subsequently,
Paternal Grandmother retained counsel, who entered his appearance on her
behalf on January 3, 2018.
On January 10, 2018, Mother filed preliminary objections to Paternal
Grandmother’s complaint, challenging standing. Paternal Grandmother filed
an amended complaint on January 16, 2018, requesting primary legal and
physical custody of Child and asserting that she possessed standing pursuant
to 23 Pa.C.S. § 5324(3)(iii)(B), on the basis that Child was substantially at
risk due to abuse, neglect, substance abuse, or incapacity. In support of this
assertion, Paternal Grandmother relied on Mother’s frequent address changes,
her involvement with Butler County Children and Youth Services (CYS), and
her allegedly limited parenting abilities. Paternal Grandmother also averred
that Father had “admitted in previous proceedings that he is not able to care
for [C]hild at this time.” Amended Complaint, 1/16/2018, at ¶ 13(c).
The parties participated in a review conference on January 16, 2018,
but were unable to reach a new agreement. The trial court entered an order
on January 18, 2018, adopting the conciliator’s recommendations. The order
awarded both parents shared legal custody and awarded Father primary
physical custody. The order awarded Mother partial physical custody every
Wednesday from 10:00 a.m. until Thursday at 10:00 a.m., and every Friday
from 10:00 a.m. until Saturday at 10:00 a.m.
Mother filed preliminary objections to Paternal Grandmother’s amended
complaint on March 5, 2018, once again challenging Paternal Grandmother’s
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standing. On March 13, 2018, Mother filed a petition for special relief, in which
she averred that Father was allowing Paternal Grandmother to care for Child
during his custody time, and that Paternal Grandmother was leaving Child with
inappropriate caregivers. The trial court entered a consent order on May 4,
2018, which increased Mother’s physical custody of Child. The order awarded
custody to Mother from noon every Tuesday until Thursday at 10:00 a.m.,
and every Friday at 10:00 a.m. until Saturday at 10:00 a.m.
On August 30, 2018, the trial court entered an order indicating that it
convened a hearing on Mother’s preliminary objections and petition for special
relief on August 27, 2018. However, the parties agreed to continue the matter
generally until either party filed a motion requesting that the court take further
action. On September 14, 2018, Paternal Grandmother filed an emergency
motion for civil contempt and sanctions. She averred that Mother was refusing
to return Child pursuant to the custody order. The court entered an order that
same day directing Mother to return Child to Paternal Grandmother. The order
further provided that Mother would exercise only supervised partial physical
custody of Child every Tuesday and Friday from 5:00 p.m. until 7:00 p.m.
On October 18, 2018, Paternal Grandmother filed a motion requesting
that the trial court conduct a hearing on Mother’s challenge to standing. The
court conducted a hearing on November 2, 2018, at which Mother and Paternal
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Grandmother appeared, but Father did not.2 In support of her claim that Child
is at substantial risk, Paternal Grandmother testified that Mother had changed
residences repeatedly during the year and a half since Child’s birth, including
incidents during which she “became homeless at different times, [and had]
been kicked out.” N.T., 11/2/2018, at 9. Mother’s current residence was her
fifth during that time. Id. at 9-13. Mother resided in DuBois, Pennsylvania,
in the home of the mother of her boyfriend, T.L. Id. at 13. Paternal
Grandmother reported that CYS had been involved with Mother due to her lack
of stable housing as recently as July 2018.3 Id. at 18-19.
Paternal Grandmother further testified that Mother had a warrant out
for her arrest and that T.L. had two warrants out for his arrest. Id. at 14.
She explained that both Mother and T.L. had warrants due to “a break in at
their previous address” and that T.L.’s second warrant was due to “a hit and
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2 In a consent order entered October 19, 2018, the trial court indicated that it
would conduct a hearing on both standing and Paternal Grandmother’s request
for a finding of contempt. At the start of the hearing, the parties agreed to
limit the proceeding to standing only. N.T., 11/2/2018, at 4-6.
3 Paternal Grandmother indicated that Child was “extremely underweight”
when he was a few months old. N.T., 11/2/2018, at 17. Mother addressed
Child’s weight with a feeding plan, but continued to “always worry about him
being overweight.” Id. Paternal Grandmother further suggested, without
providing supporting details, that Mother was neglecting Child, based on the
“condition that he was in” when he would return from Mother’s care. Id. at
36-37.
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run with [Mother] and [Child] in the vehicle.”4 Id. She presented the trial
court with criminal docket sheets in support of these allegations.5 Id. at 15.
Finally, Paternal Grandmother expressed concern that Mother engaged
in illegal drug use. Paternal Grandmother explained that she visited one of
Mother’s previous residences around the time when Mother was moving out.
Id. at 19-20, 23. There, in an alleyway outside Mother’s door, she observed
“needles” and “a crack pipe” lying adjacent to a stroller and bags of children’s
clothes. Id. at 19-20. She explained, “when I say an alleyway, there is, like,
this little entrance, and then you walk down two steps into her door.” Id. at
21. Paternal Grandmother added that the items appeared “[f]ive steps” from
Mother’s door in total and that the area was not accessible to other apartments
but “led into the basement where she was living.” Id. at 22. She presented
pictures to the trial court, purporting to show these items. Id. at 21-22.
The trial court then heard the testimony of Mother. Mother testified that
she changed residences frequently for a variety of reasons, including moving
closer to her job. Id. at 41-43. She stated that she left her previous residence
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4 Paternal Grandmother stated that she learned Mother and Child were in the
vehicle because “[t]he person that they actually hit was very close friends with
somebody I know who had told me.” N.T., 11/2/2018, at 17. Mother’s counsel
did not object to this testimony. Paternal Grandmother’s counsel indicated
that T.L. actually “has gotten two bench warrants from this court for failure to
appear on his hit-and-run case. And so those are still outstanding.” Id. at
16. Mother denied that she was in the vehicle when the accident occurred.
Id. at 48.
5 None of Paternal Grandmother’s exhibits is present in the certified record.
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in Butler and moved to DuBois because a young child in Butler died recently
due to abuse and it was “just not a place for me and my kids. I needed a
better start.” Id. at 43. Later, Mother testified that she moved so frequently
because “I always felt like [Paternal Grandmother] was watching me, every
move that I was making.” Id. at 53. Mother conceded that her landlord had
been attempting to evict her prior to her move to DuBois, but stated that the
landlord’s case was dismissed. Id. at 56-57. She claimed that she had until
August 30, 2018, to leave her prior residence and that she completed her
move to DuBois in advance of that date. Id. at 45, 57. However, when she
returned to her prior residence on August 23, 2018, to retrieve some of her
remaining belongings, she discovered that her landlord had locked her out.
Id. at 44-47, 57. She then forced her way back into the residence, resulting
in criminal charges and the warrant for her arrest. Id. at 47-48, 58. Mother
explained that she knew about the warrant but had not yet done anything to
address it, “[f]or one, because I didn’t want to lose my job. And two, I have
a baby to take care of.” Id. at 48.
Additionally, Mother denied that any of the items appearing in Paternal
Grandmother’s photographs belonged to her, although she acknowledged that
the photographs depicted the alleyway outside of her prior residence. Id. at
46. Mother indicated that there was another door approximately ten feet from
the door of her prior residence, but she did not know where the door led. Id.
at 46-47. Mother further denied knowing that T.L. had warrants out for his
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arrest. Id. at 48. She asserted that she “looked into” T.L. at the start of their
relationship, but that she was unaware of the warrants because they had been
together for a year and “I don’t continue checking up on him.” Id. at 51-52.
On November 5, 2018, the trial court entered the order complained of
on appeal, sustaining Mother’s preliminary objections and dismissing Paternal
Grandmother’s complaint. The court issued an opinion, in which it explained
its conclusion that Paternal Grandmother had failed to prove that Child was
substantially at risk due to abuse, neglect, substance abuse, or incapacity,
pursuant to 23 Pa.C.S. § 5324(3)(iii)(B). The court reasoned as follows.
At the hearing, Paternal Grandmother expressed a number
of concerns, primarily based on frequent changes of address by
Mother and the issuance some weeks ago of a bench warrant for
[M]other’s arrest for failure to appear at a preliminary hearing;
she has apparently been charged with criminal trespass by her
former landlord.
Suffice it to say, that mere concerns do not prove a
substantial risk. Paternal Grandmother has failed to carry her
burden of proof.
Trial Court Opinion, 11/5/2018, at 2 (unnumbered pages) (footnote omitted).
Paternal Grandmother timely filed a notice of appeal on November 30,
2018, along with a concise statement of errors complained of on appeal. She
now raises the following claim. “Whether the trial court committed an abuse
of discretion and/or an error of law in dismissing Paternal Grandmother’s
complaint by concluding that Child was not substantially at risk due to parental
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abuse, neglect, drug or alcohol abuse[,] or incapacity pursuant to 23 Pa.C.S.
§ 5324(3)(iii)(B)?”6 Paternal Grandmother’s Brief at 4.
Because issues of standing and statutory interpretation are questions of
law, we adhere to a de novo standard of review and plenary scope of review.7
G.A.P. v. J.M.W., 194 A.3d 614, 616 (Pa. Super. 2018).
Our courts have emphasized the constitutional significance of standing
in child custody disputes. “‘[T]he right to make decisions concerning the care,
custody, and control of one’s children is one of the oldest fundamental rights
protected by the Due Process Clause’ of the Fourteenth Amendment.” K.W.
v. S.L., 157 A.3d 498, 502-03 (Pa. Super. 2017) (quoting Hiller v. Fausey,
904 A.2d 875, 885 (Pa. 2006)). Accordingly, “our law presumes that parents
are fit and make decisions in their children’s best interest, ‘absent factors such
as abuse, neglect, or abandonment.’” Id. at 503 (quoting D.P. v. G.J.P., 146
A.3d 204, 214 (Pa. 2016)).
On appeal, Paternal Grandmother asserts that she has standing
pursuant to subsection 5324(3)(iii)(B) of our child custody statute, which
provides as follows.
The following individuals may file an action under this chapter for
any form of physical custody or legal custody:
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6 Neither Mother nor Father has filed a brief on appeal.
7While this Court has stated that issues of standing are questions of law, we
have also acknowledged that standing often turns on factual determinations.
C.G. v. J.H., 172 A.3d 43, 54 (Pa. Super. 2017).
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***
(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:
***
(B) the child is substantially at
risk due to parental abuse,
neglect, drug or alcohol abuse
or incapacity[.]
***
23 Pa.C.S. § 5324(3)(iii)(B).
Paternal Grandmother notes that little case law exists clarifying how
courts should define “substantial risk.” Paternal Grandmother’s Brief at 12-
13. Therefore, she directs our attention to various dependency cases, finding
relevant a parent’s history of unstable housing, criminal activity, and drug use.
Id. at 13-14. She asserts that all three of these circumstances applied to
Mother. Id. at 14-16. Paternal Grandmother also asserts that CYS had been
investigating Mother and that Mother remained in a relationship with T.L., who
himself was involved in serious criminal activity. Id. at 15-16. She observes
that the court failed to discuss Mother’s involvement with CYS, her possible
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drug use, and her relationship with T.L., which shows that the court’s findings
and conclusions were unreasonable and deficient. Id. at 17.
After careful review, we agree with Paternal Grandmother and conclude
that the trial court erred by finding that she lacks standing to seek custody of
Child.8 At the outset, the court failed to acknowledge in its analysis compelling
and uncontroverted evidence that Child was at risk of abuse or neglect. In its
opinion, the court acknowledged only that Paternal Grandmother had concerns
regarding Mother’s frequent address changes and the warrant pending for her
arrest. The court failed to consider the presence of drug paraphernalia only a
few feet away from the door of Mother’s previous residence. In addition, the
court failed to consider Paternal Grandmother’s testimony that T.L. had two
warrants out for his arrest, including one warrant resulting from a hit-and-run
accident that occurred while Mother and Child were in the vehicle. Troublingly,
Mother maintained that she was unaware of these warrants because she no
longer “check[s] up on” T.L.’s behavior. See In the Interest of H.K., 172
A.3d 71, 80 (Pa. Super. 2017) (observing that trial court may not engage in
the capricious disregard of competent and credible evidence).
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8 We focus our analysis on the third prong of subsection 5324(3), as it is clear
that Paternal Grandmother met her burden of proof as to the first and second
prongs. She began her relationship with Child with Father’s consent, and has
assumed, and is willing to assume, responsibility for Child. See 23 Pa.C.S.
§ 5324(3)(i)-(ii).
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We further observe that, by dismissing Paternal Grandmother’s evidence
of Mother’s conduct as “mere concerns,” the trial court appears to have
misunderstood the requirements of subsection 5324(3)(iii)(B). Our child
custody statute did not require Paternal Grandmother to prove that Child was
experiencing current abuse or neglect. Rather, it required only that Paternal
Grandmother prove Child was “substantially at risk” of experiencing abuse or
neglect. Given Mother’s transient housing, criminal charges and outstanding
warrant, the presence of drug paraphernalia immediately outside her prior
residence next to a child’s belongings, and her relationship with T.L., who had
his own pending legal troubles, Paternal Grandmother succeeded in proving
the existence of substantial risk.9
Based on the foregoing, we reverse the trial court’s November 5, 2018
order, dismissing Paternal Grandmother’s complaint for lack of standing, and
we remand for further proceedings consistent with this memorandum.
Order reversed. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
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9 In reaching this conclusion, we note that our holding does not require the
trial court to award custody of Child to Paternal Grandmother. We conclude
merely that the court must provide Paternal Grandmother with the opportunity
to prove that an award of custody to her would be in Child’s best interest.
See 23 Pa.C.S. § 5327(b) (“In any action regarding the custody of the child
between a parent of the child and a nonparent, there shall be a presumption
that custody shall be awarded to the parent. The presumption in favor of the
parent may be rebutted by clear and convincing evidence.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2019
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