J.L.B. and S.B. v. J.B. v. E.K. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
J.L.B. AND S.B., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
v. :
:
J.B., :
:
v. :
:
E.K., : No. 2032 WDA 2013
Appeal from the Order entered November 26, 2013,
Court of Common Pleas, Beaver County,
Civil Division at No. 11039 of 2012
J.L.B. AND S.J.B., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
J.B. AND E.K., :
:
APPEAL OF: E.K. : No. 14 WDA 2014
Appeal from the Order November 26, 2013,
Court of Common Pleas, Beaver County,
Civil Division at No. 11039 of 2012
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 09, 2014
J.L.B. (“Grandfather”) and S.J.B. (“Step-Grandmother”) (collectively,
“Grandparents”) appeal from the order of court awarding primary physical
and legal custody of L.B. (“Child”) to E.K. (“Father”). Father has filed a
cross-appeal, challenging the trial court’s determination that Grandparents
have standing to seek custody of Child. For the reasons discussed herein,
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we reverse the trial court’s determination that Grandparents have standing
to pursue custody of Child and vacate the November 26, 2013 order
granting them partial custody.
The relevant background in this case, which is lengthy and abysmal, is
as follows. J.B. (“Mother”) was living in Florida when she became pregnant
with Child.1 Mother and Father, who never married, have an historically
difficult and allegedly abusive relationship. When Mother was approximately
four months pregnant, she moved into Grandparents’ home in Beaver
County. Between the time Mother moved in with Grandparents and gave
birth to Child, she was in contact with Father via email. Father asked Mother
whether he could attend Child’s birth, but Mother refused this request based
on Father’s rancorous relationship with Grandfather. Following Child’s birth
in late 2011, Mother and Child resided in Grandparents’ home for the first
two months of Child’s life. Mother and Child then moved into the home of
Mother’s brother and his family. During this time, Step-Grandmother would
watch Child during the day while Mother worked.
The spring after Child’s birth, Grandparents suggested that Mother
visit her other child in Florida and offered to pay for her to travel there at
the end of May. However, on May 16, 2012, Mother’s brother kicked her out
of his home, having her removed from his house by the police.
1
Mother moved to Florida as a teenager. Mother and Father are the
parents to another, older child. Father and Mother’s biological mother, who
also lives in Florida, share custody of that child.
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Grandparents refused to allow Mother and Child stay in their home and
instead bought Mother a one-way bus ticket to Florida. Mother left Child
with Grandparents and went to Florida. While she was gone, Mother called
Step-Grandmother multiple times a day to check on Child. Step-
Grandmother stopped answering Mother’s calls after the first week.
On May 31, 2012, while Mother was out of state, Grandparents filed a
complaint for custody and a petition for emergency relief seeking temporary
physical and legal custody of Child. On the same day, the trial court granted
Grandparents’ petition. The only attempt Grandparents made to serve
Mother with these documents was mailing them to the brother’s house,
where they knew Mother was not living.2 Grandparents made no attempt to
serve Father with the custody complaint at all, as they contend that they did
not know he was Child’s father at that time.
On or about June 5, 2012, Mother and Father returned to
Pennsylvania. They went to Grandparents’ house to retrieve Child. Fearing
that there would be problems, Mother arrived with the local police.3 Step-
Grandmother refused to give Child to Mother, and for the first time, provided
2
Grandparents claim that they could not serve Mother in Florida because
they did not know where Mother was residing. However, they admit that
they had telephone contact with Mother during this time. N.T., 9/12/12, at
55. Their assertion that they could not know where Mother was located is
utterly unsupported by the record.
3
In acknowledgment of his strained relationship with Grandfather, Father
did not approach the house but remained in a location down the road while
Mother attempted to obtain Child.
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her with the emergency custody order. Mother and Father returned to
Florida without Child.
On June 22, 2012, Father filed a motion to join Grandparents’ custody
action as an additional defendant and included a counterclaim for primary
legal and physical custody of Child. He also filed preliminary objections to
Grandparents’ complaint, arguing that it must be dismissed because, inter
alia, they lacked standing to seek custody of Child. The trial court joined
Father as an additional defendant and, following a hearing, determined that
Grandparents stood in loco parentis to Child and therefore that they could
pursue custody pursuant to 23 Pa.C.S.A. § 5324. Subsequently, on
November 26, 2013, at the conclusion of a two-day custody trial, the trial
court awarded Father primary physical and legal custody of Child. The trial
court designed the transfer of custody such that the Child would spend
increasingly longer periods with Father over a period of approximately six
months, in order to ease the transition on Child, with the transfer of custody
being complete by May 23, 2014. Grandparents were awarded partial
custody of Child in the form of one weekend per month with additional time
over some holidays and the summer. See Trial Court Order, 11/26/13.
The parties subsequently filed the present appeal and cross-appeal.
We begin by acknowledging our scope and standard of review:
In reviewing a custody order, our scope is of the
broadest type and our standard is abuse of
discretion. We must accept findings of the trial court
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that are supported by competent evidence of record,
as our role does not include making independent
factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we
must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand. However, we
are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the
test is whether the trial court’s conclusions are
unreasonable as shown by the evidence of record.
We may reject the conclusions of the trial court only
if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011).
Because it is dispositive, we begin with the issue raised by Father in
his cross appeal. Father argues that the trial court erred in determining that
Grandparents had standing to seek custody of Child. Appellant’s Brief at 12.
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[,] [i]n 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.
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D.G. v. D.B., 91 A.3d 706, 708 (Pa. Super. 2014) (citations omitted).
Section 5324 of the Custody Act governs who may pursue custody of a child.
It provides as follows:
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.
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23 Pa.C.S.A. § 5324. It must be recognized, however, that “standing
established by virtue of in loco parentis status does not elevate a third party
to parity with a natural parent in determining the merits of custody dispute.”
Jacob v. Shultz-Jacob, 923 A.2d 473, 477 (Pa. Super. 2007). Rather,
the natural parent has a prima facie right to custody,
which will be forfeited only if clear and convincing
reasons appear that the child’s best interest will be
served by an award to the third party. Thus, even
before the proceedings start, the evidentiary scale is
tipped, and tipped hard to the biological parents’
side.
J.F. v. D.B., 897 A.2d 1261, 1273 (Pa. Super. 2006)(citation omitted).
In the present case, the trial court found that Grandparents attained in
loco parentis status when Mother left Child with them and went to Florida in
May 2012. Trial Court Opinion, 1/30/14, at 4-6. “The status of ‘in loco
parentis’ embodies two ideas: first, the assumption of a parental status, and
second, the discharge of parental duties. The rights and liabilities arising out
of an in loco parentis relationship are, as the words imply, exactly the same
as between parent and child.” D.G., 91 A.3d at 708-09 (citation omitted).
However, it is well established that “a third party … cannot place himself in
loco parentis in defiance of the parents’ wishes and the parent/child
relationship.” Id. at 709. Furthermore,
[t]he requirement of a natural parent's participation
and acquiescence is critical to the determination of
whether to accord a third party in loco parentis
status. See McDonel v. Sohn, 762 A.2d [1101,]
1106 (Pa. Super. 2000)] (recognizing that there can
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be no in loco parentis status for a third party if the
natural parent’s actions conflict with such a finding).
The law simply cannot permit a third party to act
contrary to the natural parent’s wishes in obtaining
custody and then benefit from that defiant conduct in
a subsequent custody action.
J.F. at 1275-76. Quite simply, a third party may not assume in loco parentis
status when either natural parent opposes it. Id. at 1274 (citing B.A. v.
E.E., 741 A.2d 1227, 1229 (Pa. 1999)).4
We find J.F. instructive to the situation we face in the present case.
J.F. involved a gestational carrier who was not biologically related to the
triplets she carried for the father, J.F., and his wife.5 Shortly after giving
birth to the triplets, the gestational carrier decided that J.F. and his wife
would not be fit parents and so she absconded from the hospital with the
babies and refused to return them to J.F. As soon as J.F. learned that this
had occurred, he filed a complaint for custody, naming the carrier as the
defendant. When the gestational carrier responded by filing a counter-claim
for custody, Father challenged her standing. The trial court found that the
gestational carrier stood in loco parentis to the children, but this Court
disagreed. We hewed to the well-settled principle that “that there can be no
4
As Justice Nigro eloquently stated in his concurring opinion in B.A., “The
stakes are simply too high and the rights of the non-consenting parent too
substantial to allow one parent to confer in loco parentis status on a third
party.” B.A., 741 A.2d at 1229 (Nigro, J. concurring).
5
J.F.’s wife was not biologically related to the triplets, as they were
conceived in vitro with J.F.’s sperm and ovum from an egg donor.
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finding of in loco parentis status where the third party obtains her status in
defiance of the natural parent’s wishes” and determined that the trial court
erred in concluding that the gestational carrier had in loco parentis status.
Id. at 1276. Of importance, we note that J.F. made his opposition to the
gestational carrier’s relationship with the children known immediately upon
becoming aware that she had taken them home with her and refused to
return them to him.
Similarly, it is without question that Father has opposed Grandparents’
assumption of parental duties for Child and their attempt to obtain custody
of Child from the moment he learned of their efforts. As noted above, the
trial court determined that Grandparents assumed all parental duties for
Child when Mother left him in their care and went to Florida. Trial Court
Opinion, 1/30/14, at 4-6. The trial court discredited Mother’s testimony that
she intended to return to Pennsylvania, and that is a determination that this
Court cannot disturb. See Busse v. Busse, 921 A.2d 1248, 1256 (Pa.
Super. 2007) (holding that this Court “do[es] not reverse credibility
determinations on appeal.”). However, this does not account for the fact
that Father has never consented to Grandparents’ assertion of in loco
parentis status. The record does not reveal when, precisely, Father became
aware that Mother left Child in Grandparents’ care, but it clear that within
approximately two weeks, Father attempted to take Child home with him
and out of Grandparents’ care. When Grandparents refused to return Child
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to him, Father promptly sought to be joined in this matter, sought primary
custody of Child and challenged Grandparents’ standing. From these
actions, it is eminently clear that Father did not consent to Grandparents’
assumption of parental duties for Child; therefore, they could not have
attained in loco parentis status. As such, the trial court erred as a matter of
law in its conclusion otherwise.
The trial court finds that Father gave “implied consent” to
Grandparents’ in loco parentis status because he “did nothing to exercise his
parental rights for the first five and one-half months of [Child’s] life.” Trial
Court Opinion, 1/30/14, at 3. This reasoning is flawed, as Father’s failure to
fulfill parental duties for the first five months’ of Child life, while Child was in
Mother’s custody in a distant state, is irrelevant to whether he consents to a
third party assuming parental duties for Child. Moreover, given the very
young age of Child, the distance between Father and Mother’s residences,
and the fact that Father and Grandfather – with whom Mother and Child
were living for the first months of Child’s life – had such a horrendous
relationship that Father could not be present for the birth of Child, Father’s
failure to have acted sooner to become involved in Child’s life cannot trump
his status as Child’s biological parent, who has a prima facie right to
custody. See J.F., 891 A.2d at 1273. As stated multiple times above, when
a biological parent does not consent, a third party cannot obtain in loco
parentis status. Father made his opposition to Grandparents’ attempts to
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assume in loco parentis status known, if in no other way, by the filing of his
claim for primary custody and preliminary objections challenging their
standing. Father filed these documents just over one month after Mother
left Child with Grandparents (which the trial court has determined to be the
date Grandparents assumed in loco parentis status) and approximately two
weeks after finding out that Grandparents were attempting to obtain custody
of his son. We find this to be prompt and unequivocal refusal of consent to
Grandparents obtaining in loco parentis status. Any delay in action should
not be charged against Father, as Grandparents made no effort to serve him
with their custody complaint, intentionally keeping him in the dark as to
their maneuverings. In the context of the facts of this case, it was error for
the trial court to rely on what it viewed as “implied consent” when Father, at
the first opportunity, immediately voiced his objection to Grandparents’ in
loco parentis status.
We note that in response to Father’s preliminary objections,
Grandparents asserted not only that they stood in loco parentis, but also
that they had standing by virtue of Section 5324(3). Brief in Opposition to
Additional Defendant’s Preliminary Objections, 7/31/12, at 6-7. Although
set forth above, we reiterate that this subsection provides that a
grandparent who does not stand in loco parentis may have standing to
pursue custody if the “relationship with the child began either with the
consent of a parent of the child or under a court order;” the grandparent
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“assumes or is willing to assume responsibility for the child” and 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.A. § 5324(3).
The trial court did not address this provision in its opinion, but our
review of the record reveals that Grandparents have failed to establish that
they satisfy its criteria. While there is evidence to support findings that
Grandparents’ relationship with Child started with Mother’s consent and that
they are willing to assume responsibility for Child, there is no evidence of
record that Child has been declared dependent; that Child is substantially at
risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity;6 or
6
There was testimony providing that Mother and Father have had a
physically abusive relationship, but no evidence of abuse of Child or any
other child by Mother or Father. Both Mother and Father denied drug or
alcohol abuse and submitted to drug tests during the course of these
proceedings. Both were found to be clean of illegal substances. Mother
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that Child resided with Grandparents for 12 consecutive months before being
removed by a parent. Grandparents could not successfully assert standing
under this subsection.
In conclusion, the trial court erred in concluding that Grandparents had
standing pursuant to § 5324. Because Grandparents did not have standing,
we do not reach the issues raised in their appeal, which challenge the trial
court’s failure to award them primary custody of Child. See J.F., 897 A.2d
at 1273 (holding that upon conclusion that gestational carrier had no
standing to pursue custody, sole custody would vest in biological parent and
this Court need not reach challenge to trial court’s award of custody).
Accordingly, we reverse the trial court’s determination that Grandparents
have standing to pursue custody of Child and vacate the November 26, 2013
order granting them partial custody.
Order vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
admits that she is on medication for mental health issues, and this was the
only drug found in her drug screen.
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