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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
A.H.
No. 166 MDA 2017
Appeal from the Order Entered December 23, 2016
In the Court of Common Pleas of Berks County
Civil Division at No(s): 14-20382
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 15, 2017
T.R. (“Mother”) appeals the December 23, 2016 custody court order
that granted the petition to intervene filed by R.H. and S.H., the paternal
grandparents (“Grandparents”). We are constrained to quash the appeal.
A.B. was born during October 2008, of Mother’s marriage to A.H.
(“Father”). Mother filed a divorce complaint on October 20, 2014, which
included, inter alia, a complaint for custody of A.B. On August 18, 2015, the
trial court entered a final order that awarded Mother sole legal and physical
custody of A.B. and granted Father two hours supervised physical custody
per week. Neither party appealed that order.
On June 28, 2016, Grandparents filed a petition to intervene seeking
standing to exercise partial physical custody pursuant to 23 Pa.C.S.
* Former Justice specially assigned to the Superior Court.
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§ 5325(2). Mother noted her opposition, and following a hearing, the trial
court granted the petition. However, after our Supreme Court issued D.P.
v. G.J.P., 146 A.3d 204 (Pa. 2016), the trial court granted reconsideration in
light of the High Court’s holding that the portion of § 5325(2) that applied to
parents that have been separated for a period of at least six months was
constitutionally infirm. D.P. involved the direct appeal to the Supreme Court
from a trial court order that denied grandparents standing and expressly
invalidated a component of the standing provision. Effectively, Mother
asserted that the surviving clause in § 5325(2) relating to parents who
“have commenced and continued a proceeding to dissolve their marriage” is
unconstitutional under the equal protection and due process clauses of the
Fourteenth Amendment to the United States Constitution.1 23 Pa.C.S
§ 5325 (2).
On December 23, 2016, following the submission of briefs and
additional argument, the trial court entered the above referenced order
reaffirming Grandparents’ standing to intervene in the custody litigation
pursuant to § 5325(2). Mother filed a timely appeal and concomitantly filed
her concise statement of errors on complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
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1
On October 21, 2016, Mother provided notice of her constitutional
challenge to the Attorney General of Pennsylvania by certified mail pursuant
to Pa.R.A.P. 235.
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She raises two issues for our review:
1. Did the Trial Court err in granting Grandparents' Petition to
Intervene following the Supreme Court ruling in [D.P. v. G.J.P.,
146 A.3d 204 (Pa. 2016)].
2. Did the Trial Court's ruling and 23 Pa.C.S. [§] 5325 violate
Appellant's Equal Protection and Due Process rights to raise and
rear the minor child as a parent sees fit.
Mother’s brief at 4. Neither Father nor Grandparents filed a brief in this
case, and, as of the date that the certified record was transmitted to this
Court, Grandparents have neglected to pursue any form of partial physical
custody. Similarly, Father has failed to indicate either his support of or
opposition to Grandparents’ intervention.
At the outset, we address Grandparents’ application to dismiss the
appeal for lack of jurisdiction because the December 23, 2016 order granting
intervention was not a final order. We previously stated, “[a]n appeal lies
only from a final order, unless permitted by rule or statute.” Stewart v.
Foxworth, 65 A.3d 468, 471 (Pa.Super. 2013). Pursuant to Pa.R.A.P.
341(b)(1), “[a] final order is any order that . . . disposes of all claims and all
parties[.]” As it relates to custody cases, an order is final and appealable
only when it is: (1) entered after the court has completed its hearings on the
merits; and (2) intended by the court to constitute a complete resolution of
the custody claims pending between the parties. G.B. v. M.M.B., 670 A.2d
714 (Pa.Super. 1996).
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As noted, Grandparents assert that the December 23, 2016 order was
not final because the trial court anticipated further proceedings to determine
whether awarding them some form of partial custody of A.B. was in the
child’s best interest. Mother counters that the order granting standing is
final pursuant to Pa.R.A.P. 341(b) because “there is no open case or further
litigation pending in front of the trial court[.] Application for Relief Pursuant
to Pa.R.A.P., 3/16/17, at 2. Stated another way, Mother posits that, since
Grandparents have not yet pursued a motion to modify the existing custody
order, the order granting standing is final. We disagree.
Mother’s argument is contrary to reason. Grandparent’s decision
whether or not to immediately pursue partial physical custody is irrelevant to
the determination of finality. Rather, finality is controlled by the nature of
the order, i.e., whether the order puts a litigant out of court or disposes of
all claims and all parties. Thus, having granted Grandparents standing to
pursue partial physical custody of A.B. pursuant to § 5325(2), the order put
neither Grandparents nor Mother out of court, and it did not resolve the
ultimate question of custody. It is beyond peradventure that, under
Pennsylvania jurisprudence, an order granting a petition to intervene in a
custody action is interlocutory and not an appealable final order under Rule
341(b). Beltran v. Piersody, 748 A.2d 715 (Pa.Super. 2000); K.W. v.
S.L., 157 A.3d 489, 502 (Pa.Super. 2017) (“Father concedes that the [order
granting standing] is not a final order pursuant to Pa.R.A.P. 341(b)”). Thus,
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we reject Mother’s assertion that Grandparents’ procrastination in filing a
request for relief after the order granting standing transformed the
interlocutory award of standing into a final order appealable under Rule 341.
Additionally, although Mother does not argue that the order was a
collateral order appealable as of right pursuant to Pa.R.A.P. 313(a), 2 we
observe that the collateral order doctrine does not apply herein. 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.” Instantly,
the December 23, 2017 order fails to satisfy the requirements of the
collateral order doctrine insofar as Mother’s challenge to Grandparents’
standing will not be irreparably lost if review of that issue is postponed until
the entry of a final custody order. See Beltran, supra (order granting
intervenor status 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 Grandparents some form of partial physical
custody of A.B., Mother will be able to appeal that final order and, at that
time, she can challenge the trial court’s determination that Grandparents
____________________________________________
2
As Mother refused to acknowledge that the order was interlocutory, she
neglected to seek to certify the interlocutory order for appeal or assert that
the interlocutory order was appealable of right pursuant to Pa.R.A.P. 311.
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had standing pursuant to § 5325(2). Until custody is altered, however, it is
difficult to characterize Mother as an aggrieved party since there is no
imposition upon her fundamental right to parent A.B. without interference
and there is no intrusion on her ability to exercise sole legal and primary
physical custody over her daughter, subject only to Father’s two-hour period
of supervised physical custody per week.
Moreover, we observe that the posture of the case at bar is
substantively different from the facts of K.W. v. S.L., 157 A.3d 498
(Pa.Super. 2017), where 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 desired to
to adopt the father’s daughter without his consent. The salient facts in K.W.
are as follows. K.W. unknowingly fathered a daughter, who was placed for
adoption. Two days after birth, the adoption agency placed her with a
prospective family where she remained. When the agency established
contact with the father two months after placement, he refused to consent
to the adoption. Eventually, the father and the prospective parents filed
countervailing custody complaints, and the father filed preliminary objections
that challenged the prospective parents’ standing to pursue custody. In the
interim, the prospective parents exercised primary physical custody and
father exercised periods of partial custody. The parties shared legal custody.
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After a hearing on the father’s preliminary objections, the trial court
granted the prospective parents in loco parentis standing to sue for legal and
physical custody under § 5324(2). The father appealed, arguing that a
third-party cannot be conferred in loco parentis standing in contravention of
a parent’s wishes.
On appeal, this Court addressed the threshold issue of jurisdiction,
i.e., whether the interlocutory order granting standing was appealable. The
father conceded that the order granting standing was not a final order
appealable under Rule 341(b), but he contended that the order was
appealable under the collateral order doctrine codified in Rule 313(a) and
(b). In relation to the third-prong of the doctrine, upon consideration of the
father’s fundamental constitutional right to parent his child and the fact that
the father had been deprived that right without any due process protections,
we concluded that his claim would be irreparably lost if review was
postponed until the trial court entered a final custody order. In sum, we
reasoned,
Under the unique circumstances of this case, where Father was
deprived of Child by a private adoptions agency without the
benefit of a hearing or other due process protections, this Court
could not hope to fully vindicate or restore Father’s rights by the
time of his second appeal. We therefore conclude that the . . .
order [granting third-party standing] satisfies . . . the collateral
order doctrine, and that Father’s appeal is properly before us.
Id. at 504. We were particularly frustrated by the fact that the trial court
permitted the proceedings to continue when “Father ha[d] been deprived of
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Child without any evidence in the record that he [was] an unfit parent, and
without the benefit of due process protections.” Id. at 507.
Thus, we reviewed the merits of the trial court’s interlocutory order
granting the prospective parents in loco parentis status and found that the
court erred in concluding that a third-party could attain in loco parentis
status against the father’s wishes. Accordingly, we reversed the order and
remanded the matter with directions to sustain the father’s preliminary
objections to the prospective parent’s custody complaint.
Presently, Mother is not facing similar impediments to her ability to
exercise her fundamental rights as a parent. First, she was not deprived of
any due process protections at any point during the custody dispute.
Moreover, unlike the Father in K.W., supra, whose parental authority had
been supplanted against his will by third-party intervenors who continued to
exercise primary physical custody of his daughter despite the unresolved
question of their standing, Mother’s fundamental right to parent remains
unimpeded by the order recognizing Grandparents’ standing to pursue
partial custody at some point in the future. Unless and until the trial court
awards Grandparents some form of partial physical custody, there is no
tangible grievance for Mother to vindicate. Again, while the father in K.W.
would have been forced to continue to share legal custody and to forego
additional periods of physical custody with his daughter had this Court not
permitted an immediate appeal under the collateral order doctrine, neither of
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those concerns is implicated herein. Mother maintains sole legal custody of
A.B., and while her domain is subject to Father’s brief period of supervised
partial physical custody, she is not beholden to Grandparents’ custody
requests in any regard. Thus, we find that the facts of this case does not
present a similar set of unique circumstances that required us to review the
interlocutory order in K.W., supra.
As the December 23, 2016 order denying Mother’s motion for
reconsideration from the prior order granting Grandparents standing to
pursue partial physical custody pursuant to §5325(2) is neither a final order
nor an appealable collateral order, we lack jurisdiction to address the merits
of Mother’s constitutional challenge. Accordingly, we grant Grandparents’
motion to dismiss the appeal for lack of jurisdiction, and we quash the
appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2017
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