J-A02026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.S. and R.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
C.D. :
:
Appellant : No. 1502 WDA 2019
Appeal from the Order Entered September 17, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD 12-7609-008
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 30, 2019
C.D. (“Mother”) appeals from the interim custody order dated
September 6, 2019 and entered on September 17, 2019 which declared, in
part, that P.S. and R.S. (“Appellees”) have standing to pursue a complaint for
custody of S.B. who was born in February, 2010 (“Child”). As this is an
interlocutory order, we are constrained to quash Mother’s appeal.
Mother and D.B. (“Father”), who never married, are the biological
parents of Child. In 2012, primary custody of Child was awarded to Father.
Although Mother was not awarded formal custody, she often exercised partial
custody. Moreover, Mother and Father lived together on and off throughout
the years following the award of primary custody to Father in 2012.
In July 2017, Appellees became acquainted with Father who served as
their automobile mechanic. Appellee, R.S., later worked as a housekeeper
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and babysitter for Child, both in Appellees’ home and in Mother’s and Father’s
home.
On November 17, 2017, Father, who was diagnosed with leukemia, was
hospitalized. That same day, Child moved in with Appellees. On February 6,
2018, Appellees filed a complaint in confirmation of custody seeking
confirmation of their primary physical and legal custody of Child. In a consent
order entered February 6, 2018, Mother agreed to allow Appellees to have
both primary physical custody and legal custody of Child until such time as
Father was released from the hospital and could care for Child.
When Father was released from the hospital in February 2018, he moved
into Appellees’ home and continued to reside there with Appellees and Child
until his death in April 2019. On April 24, 2019, Appellees filed a complaint
for custody as intervenors alleging that they stood in loco parentis to Child.
Following a hearing on September 6, 2019, the trial court found that Appellees
stood in loco parentis to Child and, therefore, had standing to intervene. The
trial court also entered an interim order, later amended, which awarded
Appellees primary physical custody of Child and shared legal custody with
Mother. Mother filed a timely appeal from the interim order and concomitantly
filed her concise statement of errors complained of on appeal (“concise
statement”) pursuant to Pa.R.A.P. 1925(b). In her concise statement, Mother
sought “appellate review of the [t]rial [c]ourt’s collateral determination that
[Appellees] have standing to pursue their [c]omplaint for [p]rimary [p]hysical
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and [l]egal [c]ustody of [Child]”. Concise Statement of Errors Complained of
on Appeal, 1/4/19, at 1.
On October 18, 2019, the trial court filed its opinion pursuant to
Pa.R.A.P. 1925(a) in which it concluded that Mother’s appeal should be
quashed as the interim order of September 17, 2019 granting Appellees
standing and awarding them primary physical and legal custody was an
interlocutory order. After careful consideration, we agree.
In her brief, Mother concedes that the order at issue is not a final order
under Pa.R.A.P. 341 nor is the order an interlocutory order appealable by
permission under Pa.R.A.P. 312 or an interlocutory order appealable as of right
under Pa.R.A.P. 311. Appellant’s Brief at 22-23. Instead, Mother argues that
the order is appealable as a collateral order under Pa.R.A.P. 313. Specifically,
Mother asserts that the order in question meets the three-prong test set forth
in Rule 313.
Pursuant to Rule 313(b), “[a] collateral order is an order separable from
and collateral to the main cause of action where the right involved is too
important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost”. Pa.R.A.P. 313(b). Instantly, the September 17, 2019 order
fails to satisfy the requirements of the collateral order doctrine insofar as
Mother’s challenge to Appellees’ standing will not be irreparably lost if review
of that issue is postponed until the entry of a final custody order. Beltran v.
Piersody, 748 A.2d 715 (Pa. Super. 2000) (order granting intervenor status
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did not qualify as a collateral order because denial of immediate review would
not cause claim to be irreparably lost). Indeed, if the trial court eventually
awards Appellees custody of Child, Mother will be able to appeal that final
order and, at that time, she can challenge the trial court’s determination that
Appellees had in loco parentis standing.
In arguing that the collateral order doctrine is applicable, Mother relies
upon this Court’s opinion in K.W. v. S.L., 157 A.3d 498 (Pa. Super. 2017).
Mother’s reliance on this decision is misplaced.
In K.W., this Court found that a father’s fundamental right to parent his
child required immediate review of the interlocutory order granting in loco
parentis standing to third-party intervenors who wanted to adopt the father’s
daughter without his consent. Specifically, in K.W., the appellant
unknowingly fathered a child who was placed for adoption two days after she
was born. When the adoption agency finally contacted the father two months
after the placement, he refused to consent to the adoption. Eventually, the
father and the prospective adoptive parents filed competing custody
complaints. The trial court granted the prospective adoptive parents in loco
parentis standing to pursue custody of the child and the father appealed. This
Court held that the trial court’s standing order was immediately appealable
pursuant to the collateral order doctrine because the father’s challenge to the
prospective parents’ standing would be irreparably lost if review of that issue
were postponed until the entry of a final custody order. In reaching this
conclusion, this Court noted the “unique circumstances” of the case, i.e., a
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father was deprived of his child by a private adoption agency without the
benefit of a hearing or other due process protections. Id. at 504. Such unique
circumstances are not present in the instant case. Here, Mother has been
actively involved in custody proceedings involving Child, Father and Appellees
for many years and continues to have partial physical and shared legal custody
of Child. Her challenge to Appellees’ in loco parentis standing will not be
irreparably lost if she is required to wait to raise the issue in any appeal
following a final custody order. As the third prong of the collateral order
doctrine has not been met, the interim order of September 17, 2019 is an
interlocutory order.1 Accordingly, we are constrained to quash Mother’s
appeal.
Appeal quashed.
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1 This Court’s recent memorandum decision in C.F. v. D.S., 2019 WL 5853229
(Pa. Super. Nov. 7, 2019) supports our conclusion. In C.F., mother and father
had two children. After they parted ways, mother and father shared custody
of the children by mutual agreement. Mother died following a protracted
battle with cancer. At the time of her death, the children were living with
mother. Maternal aunt filed a petition to intervene and sought custody of the
children. The trial court granted maternal aunt’s petition to intervene. The
trial court also entered a temporary order granting custody of the children to
maternal aunt pending a hearing. Father was given periods of partial custody.
Father appealed the order granting maternal aunt’s petition to intervene. This
Court quashed the appeal, as it was an appeal from an interlocutory order.
Like Mother, the appellant in C.F. relied upon K.W. v. S.L., supra in arguing
that the order was a collateral order and, therefore, immediately appealable.
We rejected that argument on the basis that extraordinary circumstances
existed in K.W. that did not exist in the current case. Moreover, father’s claim
would not be irreparably lost if review were postponed. Thus, we quashed
father’s appeal. We rely upon C.F. for its persuasive value. See Pa.R.A.P.
126(b) (unpublished non-precedential memorandum decisions of the Superior
Court filed after May 1, 2019 may be cited for their persuasive value).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2019
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