J-A19038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.M.V., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
A.T.D. :
v. :
: No. 646 EDA 2020
M.R.D.
Appeal from the Order Entered January 22, 2020
In the Court of Common Pleas of Lehigh County Civil Division
at No(s): No. 2019-FC-0692
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 3, 2020
L.M.V. (Mother) appeals from the order entered in the Lehigh County
Court of Common Pleas permitting M.R.D. (Paternal Grandmother), to
intervene in this child custody matter.1 After careful review, we remand for
the trial court to prepare a supplemental opinion.
The history of the case is as follows. J.R.D. (Child) was born in 2013.
On May 22, 2019, Mother filed a custody action in the Court of Common Pleas.
On May 28th, Mother and A.D. (Father) entered into a custody agreement,
filed in the court, which granted sole physical custody to Mother, while setting
forth a holiday schedule. Custody Agreement, 5/22/19, at 1-2.
____________________________________________
1 Paternal Grandmother has not filed an appellate brief.
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On July 29, 2019, Paternal Grandmother filed a petition to intervene in
the custody action, a petition for modification of the custody order, and a
petition for special relief. In these petitions, Paternal Grandmother averred
that throughout June of 2019, Child had been in her care five days a week,
and “for all of July[,] 7 days a week,” as Child was abandoned by Mother.
Paternal Grandmother’s Petition to Intervene, 7/29/19, at 2. The petitions
also averred that Child suffered physical abuse and neglect by Mother. Id.;
Paternal Grandmother’s Petition for Modification of a Custody Order, 7/29/19,
at 2. Paternal Grandmother requested emergency custody of Child. Paternal
Grandmother’s Petition for Special Relief, 7/29/19, at 1.
The court convened a hearing on Paternal Grandmother’s petition for
special relief on August 7, 2019. At that hearing, Paternal Grandmother, her
daughter P.D., Father, Mother, and Jessica Haldemann, an employee of Lehigh
County Children and Youth Services, testified. That same day, the court
entered an order granting Paternal Grandmother’s petition to intervene,
finding that Paternal Grandmother both stood in loco parentis to the child,
pursuant to 23 Pa.C.S. § 5324(2), and is the grandparent of a child not in loco
parentis, whose relationship with Child began with the consent of the parents
and Child was substantially at risk of abuse, pursuant to 23 Pa.C.S. § 5324(3)
(statute discussed infra). Id. at 1-2.
The trial court then convened a hearing on Paternal Grandmother’s
petition to modify custody on January 13, 2020. At this hearing, Paternal
Grandmother, P.D., Mother, Father, Mother’s paramour (J.W.), and K.R.,
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(mother’s mother), testified. At the conclusion of the hearing, the court
examined the sixteen statutory custody factors, see 23 Pa.C.S. § 5328(a)(1)-
(16), on the record, before awarding shared legal custody to Mother and
Paternal Grandmother, primary physical custody to Mother, and partial
physical custody to Paternal Grandmother. N.T., 1/13/20, at 132-43. On
January 22, 2020, the court issued the underlying final custody order
memorializing the same, and additionally providing vacation and holiday
scheduling. Order, 1/22/20, at 1- 3.
On February 20, 2020, Mother filed a timely notice of appeal and concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
On appeal, Mother raises the following issues for our review:
1. Whether the trial court erred in granting Paternal
Grandmother’s Petition to Intervene under 23 Pa.C.S. § 5324(2)
and (3)(iii)(B).[ ]
2. Whether 23 Pa.C.S. § 5323(d) requires a trial court to provide
a transcript of its reasons stated on the record.
3. Whether the trial court abused its discretion by failing to apply
the statutory presumption in favor of parents.
4. Whether the trial court abused its discretion by failing to
consider whether the award of partial physical custody interfered
with the parent-child relationship.
5. Whether the court abused its discretion by awarding shared
legal custody and partial physical custody to Paternal
Grandmother?
Mother’s Brief at 5.
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In her first issue, Mother contends the trial court erred by granting
Paternal Grandmother’s petition to intervene pursuant to both 23 Pa.C.S.
§ 5324(2) and § 5324(3), because the two subsections are mutually exclusive.
Mother’s Brief at 20-21. She avers the statute is unambiguous, and because
the two subsections are mutually exclusive, the order was entered in error.
Id.
We note the relevant standard of review:
An issue regarding standing is a threshold issue that is a question
of law. Moreover, the interpretation and application of a statute
is also a question of law. 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.
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.” 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) . . . .
G.A.P. v. J.M.W., 194 A.3d 614, 616-17 (Pa. Super. 2018) (some citations
omitted).
Section 5324 of the Child Custody Act provides, in relevant part,
standing to the following individuals to file an action for child custody:
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(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);
(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(2), (3)(i)-(iii).
We note the trial court did not issue a comprehensive opinion pursuant
to Pa.R.A.P. 1925(a). Instead, the trial court’s April 2, 2020, “Memorandum
Opinion” provides, in sum, that the reasons for its January 22nd custody order
“were stated on the record at the conclusion of the trial,” and “attached are
pages 132-151 of” the January 13, 2020, hearing notes of testimony.
Memorandum Opinion, 4/2/20. However, the cited transcript pages does not
reveal the court’s decision granting standing to Paternal Grandmother to
intervene in the custody matter. Additionally, at the August 7, 2019, hearing
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on Paternal Grandmother’s petition for special relief, the court did not provide
reasoning for granting her request under both sections of the statute, and did
not further explain its findings. See N.T., 8/7/19, at 29-31, 33-38.
Accordingly, we remand for the trial court, within thirty days of this
memorandum, to file an opinion clarifying, with discussion of the relevant
Section 5324 subsection, its reasons for granting standing to Paternal
Grandmother. The court shall also address any issue raised by Mother in this
appeal that may assist this panel’s review. The trial court prothonotary is
directed to certify and transmit the supplemental record containing the trial
court’s opinion within 7 days of receipt of the opinion.
Case remanded for trial court to prepare an opinion. Panel jurisdiction
retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/03/2020
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