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[U] In re S.P.

Superior Court of Pennsylvania

December 13, 2013

IN THE INTEREST OF: S.P., A MINOR APPEAL OF: D.A., MATERNAL GRANDMOTHER IN THE INTEREST OF: A.P., A MINOR APPEAL OF: D.A.

NON-PRECEDENTIAL DECISION

Appeal from the Order entered April 12, 2013, in the Court of Common Pleas of Berks County, Orphans' Court at No(s): CP-06-DP-0000082-2013

BEFORE: BENDER, P.J., WECHT, and FITZGERALD [*], JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, D.A. ("Maternal Grandmother"), appeals from the order entered in the Berks County Court of Common Pleas finding that she does not have standing to intervene in the dependency actions concerning her grandchildren, S.P. and A.P. (collectively "Children").[1] Maternal Grandmother contends the court erred in (1) finding she did not have standing to intervene in the dependency action because she stood in loco parentis to Children, (2) finding she was required to comply with recommendations made by the Berks County Children and Youth Services ("BCCYS"), (3) failing to hold a full dependency hearing, and (4) finding a stipulated custody order granting her legal and physical custody was voidable. We affirm. The trial court summarized the facts and procedural history of this case:

On April 2, 2013, [BCCYS] filed petitions requesting that [S.P. and A.P.] be declared dependent. BCCYS averred that [C]hildren were in the care of their mother, J.N. [Mother], and that it would be contrary to the welfare, safety and health of [C]hildren to remain in Mother's care. In their petitions, BCCYS alleged that Mother's conduct, including her conflict with Maternal Grandmother, domestic violence issues with G.P.[, Children's father] (hereinafter "Father"), inability to assume primary responsibility for [C]hildren's care, and her mental health issues, placed [C]hildren at risk. BCCYS further alleged that it had implemented numerous safety plans with Mother in an attempt to avoid dependency; however, violations of the safety plans as well as new concerns led BCCYS to be unable to assure [C]hildren's continued safety. Two days later, on April 4, 2013, the Court granted BCCYS emergency protective custody of [C]hildren.
[Maternal Grandmother], through counsel, filed a PETITION TO INTERVENE IN DEPENDENCY on April 10, 2013. In her petition, Maternal Grandmother requested that she be granted permission to participate in the dependency proceedings in a "limited fashion" in order to show that Mother and Father stipulated to her having legal custody of [C]hildren. Maternal Grandmother provided that she filed an action in custody on March 28, 2013, before she had any knowledge of the filing of the dependency petitions. On April 8, 2013, a stipulated custody order, granting Maternal Grandmother legal and primary physical custody of [C]hildren, was signed by all parties and approved by the Honorable Judge James Bucci.[2] Furthermore, Maternal Grandmother also argued in her petition that she "has stood in loco parentis of [C]hildren" and "has had custody and care of [C]hildren."
A hearing was held on April 10, 2013, to address BCCYS' petitions and Maternal Grandmother's request to intervene in the dependency proceedings. At the conclusion thereof, the Court entered orders declaring [C]hildren dependent and transferring legal custody to BCCYS for placement purposes. The Court also entered an order declaring that Maternal Grandmother does not have standing to participate in the dependency proceedings. Lastly, the Court entered an order finding that Judge Bucci's custody order is not enforceable to the extent that it contracts with this Court's dependency order.

Trial Ct. Op., 6/6/13, at 1-2 (footnote and citation omitted).

This timely appeal followed. Maternal Grandmother filed a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court filed a responsive opinion.

Maternal Grandmother raises the following issues for our review:

1. Did the Honorable Trial Court err in finding that [M]aternal [G]randmother had no standing to intervene in the dependency action when she was present at the hearing, filed a motion to intervene prior to the hearing, and has standing to participate in the proceeding with a right to be heard pursuant to 42 Pa.C.S. § 6336.1?
2. If in fact [M]aternal [G]randmother had no standing as the Court ruled, and she was not a party to the action, did the Court commit a due process violation in finding that [she] shall cooperate with a mental health evaluation and casework services and any recommendations made by [BCCYS] when these services were not stated on the record?
3. Did the Honorable Trial Court err in failing to hold a full hearing on the allegations of dependency on the record for [Children] prior to adjudicating [Children] dependent?
4.Did the Honorable Trial Court err in determining that the stipulated custody order granting [M]aternal [G]randmother custody of [Children] was voidable, and that it was preferable to place [Children] in foster care?

Maternal Grandmother's Brief at 3-4.

We address issues 1. and 4. together because they are interrelated. Maternal Grandmother argues that because she stood in loco parentis to Children, the trial court abused its discretion in denying her standing to participate in the underlying dependency proceedings and in finding the stipulated custody order granting her custody of Children was voidable. Id. at 9, 16. She avers that she was Children's primary caregiver until their removal from her home by Mother on March 19, 2013. Id. at 9.

An "issue regarding standing to participate in a dependency proceeding is a question of law warranting plenary review." In re D.M., 995 A.2d 371, 375 (Pa.Super. 2010). "[O]ur scope of review is plenary, and our standard of review is de novo." Id.

(a) General rule.-The court shall direct the county agency or juvenile probation department to provide the child's foster parent, preadoptive parent or relative providing care for the child with timely notice of the hearing. The court shall provide the child's foster parent, preadoptive parent or relative providing care for the child the right to be heard at any hearing under this chapter. Unless a foster parent, preadoptive parent or relative providing care for a child has been awarded legal custody pursuant to section 6357 (relating to rights and duties of legal custodian), nothing in this section shall give the foster parent, preadoptive parent or relative providing care for the child legal standing in the matter being heard by the court.

42 Pa.C.S. § 6336.1(a).

This Court has noted that the term "party" is not defined by the Juvenile Act. However, this Court has conferred that status of "party" in a juvenile proceeding on three classes of persons: "(1) the parents of the juvenile whose dependency status is at issue; (2) the legal custodian of the juvenile whose dependency status is at issue; or (3) the person whose care and control of the juvenile is in question."

In re A.J., 29 A.3d 1, 3 (Pa.Super. 2011) (citations omitted). This Court has opined:

[T]he trial court correctly determined that [the g]randmother is neither the legal parent nor the legal custodian of the [c]hildren. Moreover, she is not the person whose care and control of the [c]hildren was in question during the dependency proceeding. Therefore, the trial court properly found that [the g]randmother is not entitled to legal status as a party in the dependency proceedings.

Id.

Persons acting in loco parentis do not have standing to intervene in a dependency proceeding, because they do not fit into any of the aforementioned three categories. In re F.B., 927 A.2d 268, 273 (Pa.Super. 2007).

In In re D.K., 922 A.2d 929 (Pa.Super. 2007), we held that a person who happened to stand in loco parentis to a child had standing to participate in a dependency proceeding. Our decision, however, was based upon the additional facts: (1) that the appellant had been the children's primary caregiver for the period immediately preceding the dependency proceeding; and (2) that it was the appellant's care and control which was the subject of the dependency proceeding. Id. at 933. Accordingly, it was one or more of the enumerated categories that conferred standing, not the in loco parentis status.

In re S.H.J., ____A.3d ____, ____, 2013 WL 5690149, at *3 (Pa.Super. Oct. 21, 2013) (emphasis added).

In the case sub judice, the trial court opined:

Maternal Grandmother does not fall into any of the three classes to which party status is granted. She is not a parent of [Children] nor is she [C]hildren's legal custodian. Judge Bucci approved a stipulated custody order [on April 8, 2013, ] granting Maternal Grandmother legal custody after and without knowledge of this [c]ourt's order [entered on April 4, 2013, ] granting BCCYS emergency protective custody of [Children]. Therefore, Judge Bucci's custody order did not confer legal custody upon Maternal Grandmother. Although Maternal Grandmother may have been [C]hildren's primary caregiver at some point prior to initiation of the dependency proceedings, this alone does not provide her standing or the right to be heard under § 6336.1(a). Lastly, it is not Maternal Grandmother's care and control of the minor children which is the subject of the dependency proceedings. . . .
This [court's emergency custody] order, entered four days prior to Judge Bucci's approval of the stipulated custody order, transferred custody from Mother and Father to BCCYS. Therefore, Judge Bucci's approval of the stipulated order[, ] transferring custody from Mother and Father to Maternal Grandmother[, ] was not valid since, at that time, Mother and Father did not have custody to transfer. Furthermore, the [c]ourt found that Judge Bucci was not made aware of BCCYS'[s] claim to custody prior to his approval.

Trial Ct. Op. at 4, 8 (emphasis in original). We agree.

Maternal Grandmother's claim that she stood in loco parentis to Children did not confer standing. See In re S.H.J., 2013 WL 5690149, at *3. Children were not in her care at the time of the dependency proceeding and her care and control was not in question at the hearing. Therefore, we agree with the trial court Maternal Grandmother did not have standing to intervene in the dependency proceeding. See id.; In re A.J., 29 A.3d at 3.

Moreover, to the extent that Maternal Grandmother asserts standing pursuant to Section 6336.1 of the Juvenile Act, we find such an assertion to be unavailing. In In re D.K., this Court reasoned:

Section 6336.1 does not confer legal standing on anyone. Rather, Section 6336.1 provides that notice of hearings and the opportunity to be heard shall be given to individuals providing care for a child, but expressly states that nothing in this section should be construed as giving said individuals legal standing in the proceedings unless they have been awarded legal custody pursuant to Section 6357.

In re D. K., 922 A.2d at 932. "[Section 6336.1] is silent regarding either the right to be heard or statutory standing for grandparents or relatives who at some time in the past served as primary caregiver for the child." In re L.C., II, 900 A.2d 378, 382 (Pa.Super. 2006) (emphasis in original).

As the trial court opined, Maternal Grandmother did not have legal custody of Children at any time prior to the dependency hearing on April 10, 2013; therefore, Section 6336.1 is of no consequence to Maternal Grandmother's claim to standing. See id.

In her second issue, Maternal Grandmother avers that, if she did not have standing to intervene in the dependency proceeding, the court committed a due process violation in finding she had to cooperate with a mental health evaluation, casework services, and any recommendations made by BCCYS.

The trial court stated that a hearing was held on this issue on June 5, 2013.[3] The trial court opined:

At this hearing, the [c]ourt provided Maternal
Grandmother with the opportunity to present testimony, exhibits, and argument contesting the necessity of services. Maternal Grandmother, through counsel, presented no testimony or exhibits. After brief argument from counsel, the [c]ourt modified its April 10th orders to reflect that Maternal Grandmother is only required to cooperate with the services if she presents as a placement resource for [C]hildren. Because the [c]ourt gave Maternal Grandmother the opportunity to present testimony, exhibits, and argument and she is only required to participate in services if she presents as a possible resource for [C]hildren, the [c]ourt did not err or violate due process and Maternal Grandmother's alleged error . . . has no merit.

Trial Ct. Op. at 7.

Maternal Grandmother's second issue no longer presents an actual case or controversy and, thus, the issue is moot. See In re Duran, 769 A.2d 497, 502 (Pa.Super. 2001) (stating "[i]f events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot") (citation omitted).

Third, Maternal Grandmother contends the trial court erred in failing to hold a full hearing on the record on the allegations of dependency prior to adjudicating [C]hildren dependent. "[I]f it is determined that [a party] does not have standing to seek the relief requested, we need not, and indeed cannot, address the merits of the substantive issues raised on [ ] appeal." Stilp v. Com., General Assembly, 940 A.2d 1227, 1232 (Pa. 2007). As Maternal Grandmother has no standing to intervene in the dependency proceeding, we do not address this issue. See id.

Order affirmed.

Judgment Entered.


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