Opinion
J-A33028-16 No. 603 WDA 2016
04-10-2017
A.A.L. Appellant v. S.J.L. AND M.L.A.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated March 30, 2016
In the Court of Common Pleas of Cambria County
Civil Division at No(s): 2015-450 BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J. MEMORANDUM BY SOLANO, J.:
Retired Senior Judge assigned to the Superior Court.
Pro se Appellant, A.A.L. ("Maternal Grandmother"), appeals from the order dismissing her petition for special relief because she lacked standing. On appeal, she contends, among other things, that the court erred by preventing her from presenting evidence supporting her petition. We affirm.
On January 29, 2015, Maternal Grandmother filed a pro se complaint seeking primary physical custody of S.L. (born February 2012) ("Child"), from S.J.L. ("Father") and M.L.A. ("Mother"). Maternal Grandmother's complaint was a form complaint intended to be completed by pro se grandparents or third parties. Compl., 1/29/15. Paragraph 10 of the form complaint that she filed reads as follows:
Mother is not a party to this appeal. It does not appear Father and Mother married.
10. (a) If the plaintiff is a grandparent who is seeking physical and/or legal custody pursuant to 23 Pa.C.S. § 5324, you must plead facts establishing standing pursuant to 23 Pa.C.S. [§] 5324(3)Id. at ¶ 10 (italics reflect Maternal Grandmother's handwritten insert). Maternal Grandmother did not write anything on the line below paragraph (b).
See attached: Petition for Emergency Custody__________
(b) If the plaintiff is a grandparent or great-grandparent who is seeking partial physical custody or supervised physical custody pursuant to 23 Pa. C.S. §5325, you must plead facts establishing standing pursuant to §5325.
The trial court set forth the facts and subsequent procedural history as follows:
On the same day [as she filed her custody complaint], Maternal Grandmother filed a "Petition for Emergency Custody Order" seeking immediate temporary legal and physical custody of the [C]hild. Maternal Grandmother alleged various instances of the [C]hild's mistreatment, as well as the parents' alleged mental health, alcohol abuse, and substance abuse.
Following a Hearing on Maternal Grandmother's "Petition for Emergency Custody Order," the trial court issued an Opinion and Interim Order dated March 19, 2015, stating:
[Father and Mother] having failed a court-administered drug test [on March 19, 2015], it is hereby ORDERED and DECREED that temporary
physical custody of [the Child] is hereby vested in [Maternal Grandmother] pending further Order. [Maternal Grandmother, Mother, and Father] shall have shared legal custody of the minor [C]hild. Cambria County Children and Youth Services ["CYS"] is DIRECTED to investigate this matter and to determine if the [C]hild is dependent under the Child Protective Services Act. This Order is without prejudice for Children and Youth Services to make another Order for custody after full investigation.
Trial Ct. Op., 6/29/16, at 1-3 (some citations omitted). Apparently, no party challenged Maternal Grandmother's standing to bring the January 29, 2015 custody action.
Interim Order dated Mar. 19, 2015, pgs. 1-2.
On April 20, 2015, Hearing Officer Paul Eckenrode conducted a Custody Hearing and recommended that the parties share legal custody, that Maternal Grandmother maintain primary physical custody, and that Mother and Father have partial physical custody. The trial court executed the Hearing Officer's Recommended Interim Order on April 24, 2015.
Meanwhile, CYS continued its investigation. Upon completing that investigation, the trial court held an Initial Adjudication hearing on June 30, 2015, during which it heard testimony from Maternal Grandmother, the family's CYS caseworker, a licensed psychologist who evaluated Father and Maternal Grandmother, and a doctor who conducted a psychological evaluation of S.L. At the conclusion of the hearing, the court determined that S.L. was not dependent, and it therefore returned custody to Father. Thus, Maternal Grandmother had custody of the child from March 19, 2015 until June 30, 2015, a period of slightly more than three months.
On July 27, 2015, Mother and Maternal Grandmother filed a joint appeal from the June 30, 2015 order. On September 2, 2015, the court issued a Rule 1925(a) opinion in which it explained that "the evidence established that Father was ready, willing, and able to take custody of S.L." and that, "after conducting an investigation into him CYS believed he was able to provide adequate care for S.L., that it was in her best interests to be placed in Father's care, and that no services were required." Trial Ct. Op., No. CP-11-DP-0000084-2015, 9/2/2015, at 10. Because a parent was available to take custody, the court believed placement with Maternal Grandmother was not an option. See id. at 10-11. However, the court also recounted concerns regarding Maternal Grandmother's mental health and her failure to treat it. See id. at 5-6.
On November 23, 2015, this Court dismissed the appeal because Mother and Maternal Grandmother, acting pro se, failed to comply with this Court's order to file a brief and reproduced record. Order, No. 1232 WDA 2015, 11/23/15. Mother and Maternal Grandmother did not seek leave to appeal to the Pennsylvania Supreme Court.
On January 7, 2016, Maternal Grandmother filed a pro se Petition for Special Relief under Pa.R.C.P. 1915.13, which sought clarification of Child's "custody and visitation provisions." Pet., 1/7/16, at 1-2. Maternal Grandmother's petition noted that it "appears," Mother has "abandoned any personal formal legal efforts to acquire visitation privileges for partial custody of any kind for this child." Id. at 2 (unpaginated). Maternal Grandmother requested that the trial court "schedule a hearing to determine custody and visitation provisions" so Child could "be permitted contact with all family members." Id. On February 25, 2016, the trial court ordered a hearing; the order did not impose any limitations on the introduction of evidence or testimony.
Rule 1915.13 states:
At any time after commencement of the [custody] action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include, but is not limited to, the award of temporary legal or physical custody; the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a direction that a person post security to appear with the child when directed by the court or to comply with any order of the court.Pa.R.C.P. 1915.13. We note that because the trial court's June 30, 2015 order disposed of Maternal Grandmother's custody complaint and all appeals from that order were exhausted, the language of Rule 1915.13 suggests that Maternal Grandmother may no longer have been eligible to seek relief under this Rule because she no longer had a pending custody action. No party has raised this issue and we therefore render no opinion with respect to it.
The hearing was held on March 28, 2016. During it, Father's counsel made an oral "motion that there is a lack of standing in this matter, under the fact [that Maternal Grandmother] does not have standing to bring this action." N.T., 3/28/16, at 2. The court responded that this "case was initiated in February of 2015. It does not appear that the motion was previously addressed; is that correct?" Id. at 2-3. Father's counsel noted that he was retained after the March hearing, briefly summarized the history of the case, and reiterated that Maternal Grandmother "doesn't have the standing requisite to continue at this time to bring this action." Id. at 3.
The court swore Maternal Grandmother in and began questioning her about the basis of her petition and whether she had standing under Section 5324 of the Domestic Relations Code, which provides:
The following individuals may file an action under this chapter for any form of physical custody or legal custody:
* * *
(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
23 Pa.C.S. § 5324. Maternal Grandmother contended, without objection by Father, that she fulfilled the requirement in Section 5324(3)(i), because her relationship with Child began under a court order, and that, with respect to Section 5324(3)(ii), she is willing to assume responsibility for the Child. N.T. at 5. She further contended that she had standing under Sections 5324(3)(iii)(B) and (iii)(C), but, with respect to Subsection (C), the court pointed out that Maternal Grandmother's petition was filed on January 7, 2016, more than six months after Child was removed from her custody on June 30, 2016.(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.
In addition to testifying, Maternal Grandmother was permitted to introduce evidence that she contended would establish that Child was at risk under Section 5324(3)(iii)(B). The trial court instructed Maternal Grandmother to give a copy of her proposed "evidence packet" and exhibits to Father's counsel. N.T., 3/28/16, at 8. Father's counsel objected to her "Exhibit A," a document dated March 10, 2015, that was considered at the June 30, 2015 dependency hearing. The court said that Maternal Grandmother could not rely on evidence "approximately one year old" to establish the child was presently at risk. Id. at 9. Maternal Grandmother countered that "just that document" was dated March 10th, that some of the other documents "barely exceed" twelve months' old, and the majority of her documents "are within the 12-month period." Id. at 9-10. She claimed she was unable to present that evidence at the June 30, 2015 hearing. Maternal Grandmother conceded that she did not have any evidence more recent than July 2015. Id. at 11-12. In response to Maternal Grandmother's attempt "to get this evidence viewed and get the truth out there," N.T., 3/28/16, at 13, the court then stated:
And unfortunately. I don't have the ability to do that. It is not appropriate for the custody court to review a matter that the dependency court, in other words, Judge Krumenacker in the Children and Youth Services realm has determined. You don't get two bites at the apple that way and the only way[s] you can enter this courtroom as a grandparent are by the means that I explained to you, and unfortunately, you don't meet those tests for standing at this time.Id. at 13-14. In sum, the trial court did not admit Maternal Grandmother's evidence both because it was not sufficiently recent (and therefore did not tend to establish Child was currently at risk) and because her evidence improperly sought reconsideration of a dependency ruling with which she disagreed.
The court entered an order on the same day as the hearing that dismissed Maternal Grandmother's Petition for Special Relief with prejudice for lack of standing. In its decision, the court made the following findings of fact:
(1) [Maternal Grandmother] is the minor child's maternal grandmother.Trial Ct. Op., 3/28/16, at 1-2 (citation omitted).
(2) Maternal Grandmother's relationship with the child began with the consent of one or both of the parents.
(3) On March 19, 2015, [the trial court] awarded custody of the minor child to Maternal Grandmother when Mother and Father each failed a court-administered drug test. The [trial court] referred the case to [CYS] for investigation.
(4) On June 30, 20[15], CYS returned custody of the minor child to Father.
(5) Maternal Grandmother asserts that the minor child is at risk because, inter alia, Mother and Father use illegal drugs. Maternal Grandmother acknowledges that she has no current evidence to substantiate her claims.
(6) Maternal Grandmother does not stand in loco parentis to the child.
(7) Maternal Grandmother is willing to assume responsibility for the child.
(8) The child has not been determined to be a dependent child under 42 Pa.C.S. Ch. 63.
(9) The child is not substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity.
(10) The child has not resided with Maternal Grandmother for a period of 12 consecutive months.
On April 1, 2016, Maternal Grandmother Filed a "Motion for Exceptions /Reconsideration of Dismissal of Special Relief Petition - March 28, 2016 Order." On April 6, 2016, the trial court scheduled oral argument on the motion for May 10, 2016; the court's order stated that evidence would not be accepted and only oral argument would be entertained. Order, 4/6/16. On April 26, 2016, Maternal Grandmother filed her Notice of Appeal. On May 11, 2016, the trial court granted Maternal Grandmother's request to continue the oral argument on the motion for reconsideration because the appeal would deprive the trial court of jurisdiction to act on the motion. See Trial Ct. Op., 6/29/16, at 3 (explaining that court granted the motion "because the trial court lacks jurisdiction over the case while Maternal Grandmother's appeal to the Superior Court is pending").
Maternal Grandmother's motion for reconsideration asserted that her January 7, 2016 Petition for Special Relief (which she erroneously contended was filed on December 31, 2015), had been based on 23 Pa.C.S. § 5324 only, even though it said it sought clarification of Child's "custody and visitation provisions" ( see Pet., 1/7/16, at 1-2). Maternal Grandmother's Mot. for Reconsideration, 4/1/16, at 1. Her motion attached the exhibits that the trial court had refused to admit.
Under Appellate Rule 1701(b)(3)(ii), the court would have had authority to grant reconsideration up to May 26, 2016, but not thereafter. Because the trial court did not grant reconsideration within the appeal period, Maternal Grandmother's appeal is properly before this Court. See M.O. v. J.T.R., 85 A.3d 1058, 1060 n.1 (Pa. Super. 2014).
On appeal, Maternal Grandmother presents the following issues:
1. Was [M]aternal [G]randmother . . . improperly disallowed the opportunity to make a record supporting her Petition?
2. Was [M]aternal [G]randmother's Petition adequate to support claim for relief?
3. Were [M]aternal [G]randmother's efforts to seek relief, obstructed by the record keeping practices of the Cambria County Prothonotary office?Maternal Grandmother's Brief, at 7 (unpaginated).
4. Was the paramount interest of establishing the best interest of the child satisfied by the due process afforded to the Petitioner in this matter?
"The issue of whether the statute confers standing upon a grandparent to seek custody and/or visitation is purely one of law, over which our review is plenary." R.M. v. Baxter ex rel. T.M., 777 A.2d 446, 449 (Pa. 2001) (construing statutory predecessor 23 Pa.C.S. § 5324, which governs when a grandparent may have standing to pursue custody).
[W]hen our legislature has designated who may bring an action under a particular statute, a court does not have jurisdiction over the action unless the party bringing the action has standing. . . .
K.B. II v. C.B.F., 833 A.2d 767, 774 (Pa. Super. 2003) (citations and emphasis omitted).[W]hen a statute creates a cause of action and designates who may sue, the issue of standing becomes interwoven with that of subject matter jurisdiction. Standing then becomes a jurisdictional prerequisite to an action. It is well-settled that the question of subject matter jurisdiction may be raised at any time, by any party . . . .
We summarize Maternal Grandmother's arguments for all of her issues. She contends that the trial court ruled on her petition before she could testify and introduce evidence that would have established her standing. Maternal Grandmother's Brief at 9 (unpaginated). Maternal Grandmother asserts that because she acted as the parent of Child for more than twelve months, she has standing. The trial court, Maternal Grandmother maintains, prevented her from creating a record on the "particulars outlined in [her] allegations" in the petition. Id. at 9-10 (unpaginated). The remainder of her brief argues that she is entitled to "liberal visitation" with Child. Id. at 10. Her supplemental appellate brief reiterates her belief that she was prevented from testifying before the court dismissed her petition. Maternal Grandmother's Supplemental Brief at 1 (unpaginated). In sum, Maternal Grandmother's arguments are focused on whether she had standing and whether the trial court's procedures improperly obstructed her right to prove she had standing.
Maternal Grandmother also apparently argues that (1) the prothonotary erred by returning paperwork for improper formatting, and (2) there was a broad violation of due process. Maternal Grandmother's Brief at 8 (unpaginated). Maternal Grandmother has waived both arguments as they are undeveloped in her brief. Commonwealth v. Blango , 150 A.3d 45, 48 (Pa. Super. 2016) (noting, "claims for which arguments are undeveloped are waived").
Maternal Grandmother does not contend that it was error for the trial court to decide the case on the basis of standing under Section 5324, even though she filed her petition under Rule 1915.13.
After careful review of the record, the parties' briefs, and the trial court's decision, we affirm on the basis of the trial court's opinions. See Trial Ct. Op., 6/29/16, at 3-7 (holding that (1) a hearing was held at which Maternal Grandmother testified and was permitted to introduce evidence; (2) Subsection 5324(3)(iii)(A) did not apply; (3) Maternal Grandmother had no current evidence that Child was currently at risk under subsection (B); and (4) Maternal Grandmother could not establish standing under subsection (C), as Child had not resided with Maternal Grandmother for twelve consecutive months and Maternal Grandmother did not file a petition within six months).
Maternal Grandmother's brief suggests a mistaken belief that the court improperly prevented her from testifying and introducing evidence. To the contrary, the trial court's February 25, 2016 order that scheduled the hearing on Maternal Grandmother's petition did not prohibit testimony or the introduction of evidence. Accordingly, at the hearing, Maternal Grandmother testified and sought to introduce evidence over the objection of Father's counsel. The trial court properly sustained that objection, but the court's ruling was not an improper bar against submission of evidence by Maternal Grandmother. The court's order regarding Maternal Grandmother's motion for reconsideration did state that only oral arguments would be permitted, Order, 4/6/16 (scheduling hearing on Appellant's reconsideration motion for May 10, 2016), but that is because such motions are not evidentiary proceedings.
Maternal Grandmother also complains that she has been deprived of visitation rights. Maternal Grandmother did not institute the present proceeding by filing a custody complaint under Sections 5324 or 5325 of the Domestic Relations Code, but instead by filing a petition under Rule 1915.13, which is intended "as a means to bring about emergency relief." Steele v. Steele , 545 A.2d 376, 378 (Pa. Super. 1988). "[T]he appropriate manner to bring about a change in a custody/visitation Order is by petition for modification, which would follow, generally[,] the procedure under Pa.R.C.P. 1915.3," which addresses commencement of a custody complaint. Id.
Instead of dismissing the Rule 1915.13 petition, the trial court opted — with Maternal Grandmother's acquiescence and no objection by Father — to construe her petition as a complaint for custody under Section 5324, and it then correctly held that Maternal Grandmother lacked standing under that provision. When Maternal Grandmother's inquired further about visitation at the March 28, 2016 hearing, the trial court told her she would have to bring "a different action" in which she would seek "partial physical custody." N.T., 3/28/16, at 14. We understand the court to have been referring to the fact that a grandparent who lacks standing under Section 5324 may still seek partial physical custody (that is, visitation) under Section 5325 of the Code, which states:
The relevant portion of the hearing transcript includes this exchange:
[Maternal Grandmother]: So I don't even qualify for visitation?N.T., 3/28/16, at 14-15.
The court: That is a different action. You are suing for a form of physical custody and this is what you have to prove. If you want to request partial physical custody, you would meet that standing, but that is a separate action.
[Maternal Grandmother]: Your Honor, I have not seen my grandchild in eight months. . . . I just want any access to this child and it will not be given to me unless you order it. There is no—
The court: And I don't have the authority to order it at this time, and again, it is clear that you are very sincere in your desire for what is best, but the rules and the laws are written a certain way, because parents are presumed, unless otherwise determined by a court of law, to have the child's best interests at heart and the rules were established to prevent third parties, even blood relatives, from interfering in the family relationships.
And, again, there are methods by which you may be able to proceed for some type of partial physical custody. I can't make a determination today, because that is not what you are here for, but I can say that I am going to grant the objection to the standing and no further action will be required.
Section 5322(b) of the Code, 23 Pa.C.S. § 5322(b), states:
(b) Other law.—In a statutory provision other than in this chapter, when the term "visitation" is used in reference to child custody, the term may be construed to mean:
23 Pa.C.S. § 5322(b). Although Chapter 53 eliminated the term "visitation," other statutes and rules still reference "visitation". See , e.g., Pa.R.C.P. 1920.1 (defining "'custody' [as including] partial custody and visitation"). This Court has observed that Section 5325 explicitly permits a grandparent to seek "visitation." R.M. v. J.S., 20 A.3d 496, 510 n.12 (Pa. Super. 2011).(1) partial physical custody;
(2) shared physical custody; or
(3) supervised physical custody.
In addition to situations set forth in section 5324 (relating to standing for any form of physical custody or legal custody), grandparents and great-grandparents may file an action under this chapter for partial physical custody or supervised physical custody in the following situations:
23 Pa.C.S. § 5325. The trial court told Maternal Grandmother at the hearing that she "would meet that standing," N.T. 3/28/16, at 14, but did not otherwise explain this statement. We express no view regarding whether Maternal Grandmother may be eligible for standing under Section 5325, as that issue is not currently before us. We conclude, however, that the trial court did not err in denying Maternal Grandmother visitation rights (that is, partial physical custody) under Section 5324, without prejudice to Maternal Grandmother's right to seek visitation under Section 5325 in an appropriate separate proceeding.(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;
(2) where the parents of the child . . . have commenced and continued a proceeding to dissolve their marriage; or
(3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-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.
We have omitted from this quotation a portion of Section 5325(2) that our Supreme Court held unconstitutional in D.P. v. G.J.P., 146 A.3d 204, 217 (Pa. 2016). --------
In sum, having discerned no error of law, we affirm. See R.M., 777 A.2d at 449. The parties are instructed to include the June 29, 2016 and September 2, 2015 trial court opinions in any filings referencing this Court's decision.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/10/2017
Image materials not available for display.