M.W. v. S.T., 196 A.3d 1065 (2018)

Sept. 26, 2018 · Superior Court of Pennsylvania · No. 712 WDA 2018
196 A.3d 1065

M.W., Appellant
v.
S.T. and V.T., Appellees

No. 712 WDA 2018

Superior Court of Pennsylvania.

Submitted July 30, 2018
Filed September 26, 2018

David T. Leake, Somerset County Conflict Counsel, Somerset, for appellant.

Scott A. Walker, Somerset, for appellee.

Valerie M. Schwab, Somerset, for Children and Youth, participating party.

BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER, JJ.*

OPINION BY STRASSBURGER, J.:

M.W. (Grandmother) appeals from the order entered April 16, 2018, which dismissed her complaint for custody of her minor grandchildren, O.T. and S.T. (collectively, Children). We affirm.

We provide the following background. The biological parents of Children are Appellees, S.T. and V.T. (collectively, Parents). Grandmother is the biological mother of V.T., Children's father. According to Grandmother, Somerset County Children and Youth Services (CYS) placed Children in her care in May 2015, and they remained with her until November 2015. Complaint, 3/6/2017, at ¶ 7. During that placement, Children were adjudicated dependent.1 In November 2015, CYS removed Children from Grandmother's care and placed them in the care of their biological aunt.2 Subsequently, in July 2016, Children were moved again and placed with another set of biological grandparents. According to Grandmother, it was at this point that she stopped having visits with Children.

*1068On September 29, 2016, Grandmother filed a petition with the juvenile court to intervene in the dependency proceedings.3 N.T., 4/13/2018, at 12. Prior to disposition of Grandmother's petition, Children were returned to the care of their Parents in January 2017, but remained dependent. On February 2, 2017, argument was held on Grandmother's petition to intervene, and that petition was denied on February 8, 2017. Id. at 13. The order provided that Grandmother could re-file the petition in the civil division. On March 6, 2017, Grandmother filed a complaint for custody against Parents in the civil division.4

Efforts to hold a required custody conference between Grandmother and Parents were unsuccessful. The certified record reveals that a conciliation or mediation conference was scheduled for May 12, 2017. However, prior to that conference, all parties were required to attend a Families of Children Under Stress (FOCUS) seminar. As of May 12, 2017, neither Grandmother nor Parents had attended the FOCUS seminar, and the trial court rescheduled the conference to August 4, 2017.

Meanwhile, on June 21, 2017, "CYS determined that [Children] were no longer dependent, reunited [Children] with [Parents], and closed the CYS investigation and dependency proceedings." Trial Court Opinion, 5/25/2018, at 4. On August 4, 2017, Grandmother requested a continuance of the custody conference due to her health issues. The trial court granted the continuance and required Grandmother to file a praecipe to reschedule the conference. Grandmother filed a praecipe on September 29, 2017, and the conference was scheduled for December 8, 2017. Neither Grandmother nor Parents appeared for that conference, and the trial court entered an order permitting the case to be scheduled for non-jury trial upon praecipe of either party.

On December 12, 2017, Grandmother filed a praecipe. Counsel for Parents entered his appearance on February 27, 2018, and on March 7, 2018, Parents filed a petition to dismiss Grandmother's complaint. In that petition, Parents asserted that Grandmother does not have standing to seek custody of Children pursuant to 23 Pa.C.S. § 5324, because the juvenile court closed the dependency case on June 21, 2017, and Children and Parents were living together as an intact family.

Argument on the motion was scheduled for April 13, 2018. Both the day before argument and just prior to the argument itself, there were attempts to resolve the matter amicably. However, negotiations proved to be unsuccessful and argument on the petition to dismiss was held. See N.T., 4/13/2018, at 2-3. Parents contended that Grandmother's standing ended on June 21, 2017, when the juvenile court closed the dependency case. Grandmother argued that the trial court should determine the standing issue from the time she filed her complaint. Id. at 14. Alternatively, Grandmother contended that the statute permits a grandparent "to come back later on to sue for custody ... [because there is] the potential for [ ] issues [related to the prior dependency] to reoccur." Id. at 15.

At the close of argument, the trial court concluded that pursuant to the statute, Grandmother no longer had standing to seek custody of Children because they were no longer dependent and were residing with Parents. Accordingly, the trial court granted Parents' petition to dismiss *1069Grandmother's complaint for custody.5 Order, 4/16/2018.

Grandmother timely filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court filed an opinion in response.

On appeal, Grandmother argues the trial court erred in dismissing her complaint for lack of standing pursuant to 23 Pa.C.S. § 5324.6 See Grandmother's Brief at 3. We review this claim mindful of the following.

"Threshold issues of standing are questions of law; thus, our standard of review is de novo and our scope of review is plenary." K.W. v. S.L. , 157 A.3d 498, 504 (Pa. Super. 2017).

The concept of standing, an element of justiciability, is a fundamental one in our jurisprudence: no matter will be adjudicated by our courts unless it is brought by a party aggrieved in that his or her rights have been invaded or infringed by the matter complained of. The purpose of this rule is to ensure that cases are presented to the court by one having a genuine, and not merely a theoretical, interest in the matter. 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.
Moreover:
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.

D.G. v. D.B. , 91 A.3d 706, 708 (Pa. Super. 2014) (internal quotations omitted). "Generally, the Child Custody Act does not permit third parties to seek custody of a child contrary to the wishes of that child's parents. The Act provides several exceptions to this rule, which apply primarily to grandparents and great-grandparents." K.W. , 157 A.3d at 504.

*1070The most recent version of the Grandparent Custody and Visitation Act was enacted in 2010 and provides two separate provisions for grandparents seeking custody of their grandchildren.7 Any grandparent may seek any form of custody pursuant to 23 Pa.C.S. § 5324(3). In addition, for grandparents in certain situations, they may seek partial custody pursuant to section 5325.8 Here, there is no dispute that only subsection 5324(3) applies, and that section provides the following in relevant part.

§ 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.

In this case, Grandmother contends that the Children were "dependent from July 15, 2015 until June 21, 2017," and she filed her complaint for custody on March 6, 2017, while they were dependent. Grandmother's Brief at 17. Thus, she argues she *1071satisfies subsection 5324(3)(iii)(A) because "[children have] been determined to be [ ] dependent [children]."9 Id.

At the time Grandmother filed her petition, she clearly had standing to file a custody complaint pursuant to this statute because Children were dependent. However, during the course of the proceedings, the juvenile court determined Children were no longer dependent; thus, the trial court concluded that Grandmother lost her standing. See Trial Court Opinion, 5/25/2018, at 5. Grandmother disagrees with this interpretation, instead arguing that a "clear and plain reading of the statute provides no indication for termination of standing upon closing of the dependency proceedings." Grandmother's Brief at 20. Thus, Grandmother first argues that the trial court erred in concluding she no longer had standing because it evaluated her claim at the wrong time. According to Grandmother, the trial court should have looked back to the time she filed her complaint to evaluate standing. See Grandmother's Brief at 18-19.

While there are no custody cases directly on point, we have pointed out that "custody cases may be fluid under some circumstances." M.G. v. L.D. , 155 A.3d 1083, 1087 n.5 (Pa. Super. 2017). Furthermore, this Court has "re-evaluated a party's standing following a factual change in circumstances, i.e. , the termination of parental rights or adoption." Id. Finally, our rules permit parties to raise issues related to standing beyond the 20-day period provided for preliminary objections. See Pa.R.C.P. 1915.5(a) ("A party must raise any question of jurisdiction of the person or venue, and may raise any question of standing , by preliminary objection filed within twenty days of service of the pleading to which objection is made or at the time of the hearing, whichever first occurs.") (emphasis added).

Based on the foregoing, we conclude that Children's change in status from dependent to not dependent, and reunification with Parents, are relevant changes in circumstances that permit the re-evaluation of standing upon motion by a party. In fact, it would not make sense to permit a party to raise standing at any time, but then consider the factual circumstances as they existed at the time the complaint was filed for such fluid child custody cases. Accordingly, we hold the trial court did not err in considering the circumstances as they were at the time the petition to dismiss was filed when determining standing.10

Grandmother next argues that even if we were to consider the circumstances at the time the petition to dismiss was filed, the statute nevertheless permits a trial court to grant Grandmother standing *1072due to the potential for an unspecified future harm or future dependency adjudication. See Grandmother's Brief at 20. To the extent that this portion of the statute is ambiguous on this point,11 we consider it mindful of the following.

The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States' recognition of these changing realities of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States' nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from relationships with statutorily specified persons-for example, their grandparents. The extension of statutory rights in this area to persons other than a child's parents, however, comes with an obvious cost. For example, the State's recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship.

Troxel v. Granville , 530 U.S. 57, 64, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality). The United States Supreme Court observed that the "liberty interest ... of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court." Id. at 65, 120 S.Ct. 2054. Further, the Court has "recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66, 120 S.Ct. 2054. Thus, "so long as a parent adequately cares for his or her children (i.e. , is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Id. at 68-69, 120 S.Ct. 2054.

The Pennsylvania Supreme Court has recognized these principles as well.

[A]bsent factors such as abuse, neglect, or abandonment, the law presumes parents are fit and, as such, that their parenting decisions are made in their children's best interests. In the context of grandparent-initiated litigation, then, the rewritten Chapter 53 can only [apply] if the prerequisites to grandparent standing effectively filter out cases where there is little reason to believe the government may constitutionally exercise its parens patriae power by ordering partial custody over the parents' objections.

D.P. , 146 A.3d at 214 (internal citations omitted).

Our Supreme Court held that efforts to usurp a presumptively fit parent's rights to the upbringing of his or her children is subject to constitutional limitations. The Court concluded "the fact of a parental separation for six months or more does not render the state's parens patriae interest sufficiently pressing to justify potentially *1073disturbing the decision of presumptively fit parents concerning the individuals with whom their minor children should associate." Id. at 215.

Based on the foregoing, it is clear that Grandmother's argument, which relies upon bootstrapping a closed dependency adjudication in an effort to obtain visitation, fails.12 If Grandmother had concerns for Children's safety, she could have raised a subsection 5324(3)(iii)(B) (permitting grandparent standing where "the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity") argument before the trial court. She did not, and in fact, she essentially agreed that Children were being cared for adequately, and her goal with these proceedings was to have the court order periods of partial custody because Parents were not permitting her to see Children. N.T., 4/13/2018, at 18. That is not the purpose of section 5324 ; thus, we disagree with Grandmother that she should be permitted to bootstrap a prior dependency adjudication for this purpose.

Based on the foregoing, we conclude the trial court did not err in granting Parents' petition to dismiss Grandmother's complaint for custody.

Order affirmed.