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M.S. v. J.D.

Superior Court of Pennsylvania

July 12, 2019

J.D. APPEAL OF: E.A.S., Intervenor

          APPEAL OF: E.A.S., Intervenor: Appeal from the Order Entered December 26, 2018 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2013-CV-06988-CU

          BEFORE: LAZARUS, J., MURRAY, J., and STEVENS [*] , P.J.E.


          LAZARUS, J.

         E.A.S., paternal grandmother (Grandmother), appeals[1] from the trial court's order denying her petition to intervene in the underlying custody action for lack of standing. Appellees, M.S. and J.D., are the natural parents of the subject minor child (Child) (born 8/12). After careful review, we affirm.

         Child's parents, M.S. (Father) and J.D. (Mother), were never married. Grandmother has been actively involved in Child's life. Mother has consented to Grandmother's involvement in Child's life, including permitting Child to spend weekends, as well as the entire summer of 2018, at Grandmother's house. N.T. Petition to Intervene Hearing, 10/4/18, at 14. In August 2013, Father filed a custody complaint against Mother. In August 2016, Grandmother filed a petition to intervene; Mother and Father filed a response and preliminary objections to the petition. On September 1, 2016, following a custody conference, Mother and Father agreed to the following custody arrangement: parents share legal custody of Child; Mother has primary physical custody of Child; and Father has partial physical custody of Child, subject to an agreed-upon custodial schedule. Custody Order, 9/1/16. On January 3, 2017, Mother filed an emergency petition seeking sole custody of Child alleging that Father had been physically abusive toward Child. On January 4, 2017, the trial court entered an order granting Mother's emergency petition and awarding her temporary primary physical custody and shared legal custody pending a hearing scheduled on January 24, 2017.

         On February 6, 2017, the trial court denied Grandmother's petition to intervene. In June 2017, Father's custodial rights to Child were suspended "pending an investigation by Dauphin County Children and Youth Services and an evaluation of [Father] under [s]ection 5329[2] to determine if [Father] poses a threat of harm to [C]hild." Trial Court Order, 6/22/17. The order further mandated that the evaluation should be conducted by a licensed psychologist at Father's expense and that the psychologist's report be sealed and sent to the trial judge. Id. The order suspending Father's custody rights was precipitated by the filing of criminal charges against Father and the issuance of a temporary Protection from Abuse order to protect Father's spouse and her children. On June 27, 2017, the trial court amended its June 22, 2017 order, temporarily suspending Father's partial custody rights under the parties' prior custody order dated September 1, 2016, subject to the same psychological evaluation requirement.[3] On August 3, 2017, Grandmother filed a second petition to intervene. However, Mother and Grandmother reached an agreement regarding custody and Grandmother withdrew her petition on March 19, 2018.

         On August 13, 2018, Grandmother filed the instant petition, her third, seeking to intervene and obtain custody of Child, arguing she has legal standing to seek custody pursuant to 23 Pa.C.S. §§ 5324(4) and 5325(2). In her petition, Grandmother seeks primary physical custody or, in the alternative, partial physical custody of child in order "to be able to attend to [his] educational needs ... in addition to seeing to his personal and emotional welfare." Petition to Intervene and for Custody, 8/13/18, at ¶ 30. Grandmother also avers in her petition that she has a "sustained, substantial, and sincere interest in the welfare of the minor Child." Id. at ¶ 29. Grandmother asserts that she is "gravely concerned" for Child's well[-]being since Mother has permitted Father to exercise custody after his rights were suspended by court order, is concerned that neither Mother nor Father "h[as] a genuine interest in. . . Child's well[-]being nor any form of care and control of . . . Child," and believes "it is in the best interest of the minor child to allow [her] to intervene and be granted primary physical custody of [C]hild." Id. at ¶¶ 33-34, 37, 43. On October 4, 2018, the trial court held a hearing on Grandmother's petition; the parties were directed to file briefs in support of their respective positions.

         On December 26, 2018, the trial judge, the Honorable Edward M. Marsico, Jr., entered an order denying Grandmother's petition to intervene pursuant to 23 Pa.C.S. §§ 5324(3), 5324(4), and 5325(2) of Pennsylvania's Child Custody Act (the Act).[4] Grandmother filed a timely petition to reconsider, which was denied on January 16, 2019. On January 25, 2019, Grandmother filed a timely notice of appeal and contemporaneous Pa.R.A.P. 1925(a)(2) concise statement of errors complained of on appeal.[5]Grandmother presents three issues for our consideration:

(1) Whether the trial court erred by finding that Intervenor Paternal Grandmother failed to show that the minor child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.
(2) Whether the trial court erred in failing to consider that presumptively fit parents act in the child's best interests when finding that Intervenor Paternal Grandmother did not meet the requirements for standing under section 5325(2).
(3) Whether the trial court erred in finding that Intervenor Paternal Grandmother failed to show that neither parent has any form of care and control of the child as required under section 5324(4).

Appellant's Brief, at 4 (renumbered for ease of disposition).

         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 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. 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. D.G. v. D.B., 91 A.3d 706 (Pa. Super. 2014). In M.W. v. S.T., 196 A.3d 1065 (Pa. Super. 2018), our Court emphasized:

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.

Id. at 1069 (citation 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." Id., citing K.W., 157 A.3d at 504. Grandparents may seek any form of physical or legal custody under section 5324 of the Act, which provides, in pertinent part:

The following individuals may file an action under this chapter for any form of physical ...

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