K.L. v. A.G.

J-A21019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
A.G. AND W.G. : No. 577 EDA 2020

Appeal from the Order Entered January 27, 2020
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): No. 0C1901676

BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 13, 2020

Appellant, K.L. (“Father”), appeals from the January 27, 2020 Order

that, inter alia, granted A.G. and W.G. (“Maternal Grandmother” and

“Maternal Grandfather” collectively, “Maternal Grandparents”) standing to

pursue custody of K.L (“Child”) and awarded Maternal Grandparents partial

physical custody of Child. Upon review, we vacate the Order and remand for

further proceedings in accordance with this Memorandum.

Father and B.G. (“Mother”) are parents to Child, who was born in

September 2017. Mother has a history of substance abuse. Parents lived

together with Child at Mother’s house until January 2018, when the

Philadelphia Department of Human Services (“the Agency”) became involved

after receiving a report that Mother left Child unattended while Father was at

work. As part of a safety plan, Child lived with Maternal Grandparents until

Father obtained his own housing. In March 2018, Child returned to Father’s
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care. Maternal Grandparents continued to be involved in Child’s life, although

the parties disagree to what extent.

In 2019, the Agency received a second report after Mother and Maternal

Grandparents had an altercation in Maternal Grandparents home. The Agency

received incorrect contact information for Father, could not initially contact

him, and proceeded to file a dependency petition based on Mother’s inability

to care for Child. On September 20, 2019, after a hearing where Father was

present, DHS withdrew the dependency petition and the trial court confirmed

legal and physical custody of Child in Father.

A day prior to the adjudicatory hearing, on September 19, 2019, the

Maternal Grandparents filed a Petition for Custody averring that they had

standing to pursue custody under Sections 5324 and 5325 of the Custody Act

because Child lived with them for most of her life. In the Petition, Maternal

Grandparents requested that the trial court award them full or partial custody

of Child.

On September 20, 2019, Father filed a pro se Motion to Dismiss for Lack

of In Loco Parentis Standing averring that Maternal Grandparents did not have

standing to pursue custody because, inter alia, Child has always lived with

parents except for a short time in 2019.

On January 27, 2020, the trial court held a hearing. Father appeared

pro se and counsel represented Maternal Grandparents. In sum, Father

testified that since March 2018 Child has lived “back and forth” with both him

and Mother, that he always provided for Child by buying pampers and formula,

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that Child has lived solely with him since September 2019, that he has been

allowing Child to visit with Maternal Grandparents every week but he wants

visitation to remain his decision rather than the court’s decision. N.T. Hearing,

1/27/20, at 6-12, 20-27. Importantly, Father denied that Child was living

with Maternal Grandparents for an extended period. Id. at 28.

Counsel for Maternal Grandparents proffered that Child lived with

Maternal Grandparents from November 2017 until January 2018, Mother has

been in and out of Maternal Grandparents’ home, Mother has a continuing

substance abuse problem, Maternal Grandparents provided Child with food,

clothing, and went to her medical appointments, Maternal Grandparents have

been serving as the Child’s parents for most of Child’s life, and Maternal

Grandparents were not requesting full custody of Child but wanted a more

formalized visitation agreement. Id. at 13-14. Counsel did not formally call

Maternal Grandmother or Maternal Grandfather to testify as witnesses or ask

either of them any direct questions. However, in response to questions from

the court, Maternal Grandmother informed the court that Mother was getting

ready to enter a drug rehab and stated, “[w]e had a relationship with [Child]

since the day she was born.” Id. at 16, 26. Maternal Grandfather sua sponte

informed the court, “I’d like to have my granddaughter experience what my

other granddaughters have done and my children which is having us being –

being with family.” Id. at 26.

At the conclusion of the hearing, the trial court denied Father’s Motion

to Dismiss, found that Maternal Grandparents had standing, and awarded

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Maternal Grandparents partial physical custody of Child every Monday and

every third Saturday.

Father timely appealed. Both Father and the trial court complied with

Pa.R.A.P. 1925.1

Father raises the following issues on appeal:

1. Did the court properly apply § 5324 or § 5325 when granting
Maternal Grandparents standing to pursue custody as a matter
of law?

2. Did the court err in granting Maternal Grandparents standing
to pursue custody?

3. Did Judge Furlong’s order eliminate standing for Maternal
Grandparents?

Father’s Br. at 4 (some capitalization omitted).

“Determining standing in custody disputes is a threshold issue that must

be resolved before proceeding to the merits of the underlying custody

action.” C.G. v. J.H., 193 A.3d 891, 898 (Pa. 2018). Whether an individual

has standing in a custody dispute “is a conceptually distinct legal question

which has no bearing on the central issue within the custody action—who is

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1 Father failed to file a Rule 1925(b) Statement of Errors Complained of on
Appeal contemporaneously with his Notice of Appeal, see Pa.R.A.P.
1925(a)(2)(i), (b), but we decline to dismiss on this basis because no party
asserted prejudice. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)
(holding that the failure to file a rule 1925(b) statement contemporaneously
with a notice of appeal in a children's fast track case will result in a defective
notice of appeal which this Court will address on a case by case basis, avoiding
the extreme action of dismissal when the defect does not prejudice any party)

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entitled to physical and legal custody of Child in light of her best interests[.]”

K.C. v. L.A., 128 A.3d 774, 779 (Pa. 2015).

“Issues of standing are questions of law; thus, the standard of review is

de novo and the scope of review is plenary.” C.G. v. J.H., 193 A.3d at 898.

“The concept of standing is vital in ensuring that cases are presented to the

court by an individual who has a genuine, and not merely a theoretical,

interest in the matter.” M.S. v. J.D., 215 A.3d 595, 598 (Pa. Super. 2019).

“Thus, the traditional test for standing is that the proponent of the action must

have a direct, substantial and immediate interest in the matter at hand.” Id.

“In the area of child custody, principles of standing have been applied with

particular scrupulousness because they serve a dual 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.”

M.W. v. S.T., 196 A.3d 1065, 1069 (Pa. Super. 2018) (citation omitted).

The Custody Act provides two separate provisions for grandparents

seeking custody of their grandchildren. Relevant to this appeal, pursuant to

Section 5324, a grandparent can seek “any form of physical or legal custody”

if they “stand in loco parentis to the child.”2 23 Pa.C.S. § 5324(2). Also, a
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2 “The term in loco parentis literally means ‘in the place of a parent.’ . . . The
status of in loco parentis embodies two ideas; first, the assumption of a
parental status, and, second, the discharge of parental duties.” Peters v.
Costello, 891 A.2d 705, 710 (Pa. 2005) (citations omitted).

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grandparent who does not stand in loco parentis to the child can seek custody

if the grandparent meets certain conditions. 23 Pa.C.S. § 5324(3).

Specifically, Section 5324 provides:

§ 5324. Standing for any form of physical custody or legal
custody

The following individuals may file an action under this chapter for
any form of physical custody or legal custody:

(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;

(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 (emphasis added).

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Pursuant to Section 5325, a grandparent can seek “partial physical

custody or supervised physical custody” of a child in three situations, including

(1) when a parent is deceased, (2) when custody proceedings are underway

and the parents do not agree regarding grandparent custody, or, relevant to

this appeal:

[(3)] when 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, an action must be filed within six
months after the removal of the child from the home.

23 Pa.C.S. § 5325 (1), (2), (3).

In his first issue, Father avers that the trial court erred when it granted

Maternal Grandparents partial physical custody of Child because they failed to

establish standing under either Section 5324 or Section 5325. Father’s Br. at

10. We agree.

In its Rule 1925(a) Opinion, the trial court opined, without any factual

findings or further explanation, that it awarded Maternal Grandparents partial

physical custody pursuant to Section 5325. Trial Ct. Op., filed 4/15/20, at 5.

Our review of the record reveals that neither parent is deceased or initiated

custody proceedings. Accordingly, in order for Maternal Grandparents to have

standing pursuant to Section 5325, the evidence of record had to demonstrate

that Child lived with Maternal Grandparents for 12 consecutive months and

the parents removed Child from Maternal Grandparents’ home. See 23

Pa.C.S. § 5325(3). Upon review, the evidence does not support the trial

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court’s conclusion that Maternal Grandparents have standing pursuant to

Section 5325.

Father testified at the hearing that since March 2018, Child has lived

“back and forth” between him and Mother, and that he always provided Child

with necessities. While Counsel for Maternal Grandparents proffered that

Maternal Grandparents provided Child with necessities, attended Child’s

medical appointments, and served as Child’s parents for most of Child’s life,

it is axiomatic that “arguments of counsel are not evidence.” In Interest of

J.B., 189 A.3d 390, 406 n.19 (Pa. 2018). The only evidence presented to

rebut Father’s testimony was Maternal Grandmother’s testimony that she has

had a relationship with Child since Child’s birth. Upon review, the evidence

presented during the hearing simply did not establish that Child lived with

Maternal Grandparents for 12 consecutive months, or that the parents

removed Child from Maternal Grandparents home. Accordingly, the trial court

erred when it found that Maternal Grandparents had standing to pursue

custody of Child pursuant to Section 5325.

Moreover, we agree with Father that the Maternal Grandparents did not

establish standing to pursue custody of Child pursuant to Section 5324.

Maternal Grandparents’ brief testimony fell short of demonstrating that they

stood in loco parentis to Child pursuant to Section 5324(2). Likewise, Maternal

Grandparents failed to prove that any of the necessary conditions existed to

pursue custody under the Section 5324(3)(iii). Specifically, there was no

adjudication of dependency, no evidence that Child was substantially at risk

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in Father’s care, and, as discussed above, no evidence that Child resided with

Maternal Grandparents for 12 consecutive months. See 23 Pa.C.S. §

5324(3)(iii). Accordingly, Maternal Grandparents did not establish that they

had standing pursuant to Section 5324.

In sum, the evidence does not support the trial court’s finding that

Maternal Grandparents had standing to pursue custody of Child. Standing is

a threshold issue, and absent standing, a trial court cannot proceed to the

merits of the underlying custody action. Thus, we are constrained to vacate

the January 27, 2020 Order, which found that Maternal Grandparents had

standing to pursue custody of Child and awarded partial physical custody of

Child to them, and we instruct the trial court to dismiss Maternal

Grandparents’ Petition for Custody upon remand.3 In light of our disposition,

we decline to address Father’s remaining issues.

Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

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3 Our finding today would not preclude the trial court from concluding that
Maternal Grandparents have standing if the evidence at a future hearing
supported such a finding.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/13/2020

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