Raymond, K. & Hannis, B. v. Raymond, M. ( 2022 )

J-A10017-22
2022 PA Super 124KIM RAYMOND AND BRIAN HANNIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
MARCY RAYMOND : No. 1186 MDA 2021
Appeal from the Order Entered August 10, 2021,
in the Court of Common Pleas of Lackawanna County,
Civil Division at No(s): 2021-40327.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
OPINION BY KUNSELMAN, J.: FILED: JULY 20, 2022
In this matter, we must determine whether a third-party can assert a
claim for custody against a child’s guardian, whom the child’s parent selected
as the caregiver upon the parent’s death.
Appellants Kim Raymond and Brian Hannis, the maternal
Grandparents,1 sought custody of their five-year-old granddaughter, M.I. (the
Child). The Lackawanna County Court of Common Pleas dismissed their
complaint for lack of standing under the Child Custody Act. See 23 Pa.C.S.A.
§ 5324(4). Specifically, the trial court determined that the Grandparents met
the first two prongs of the statute, but failed to establish that “[n]either parent
has any form of care and control of the child” under Section 5324(4)(iii). The
court determined the Child’s parent exercised a posthumous “form of care and
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1 The Appellants are the biological maternal grandmother and the step-
grandfather of the Child.
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control,” because he had selected Marcy Raymond (the Great-Aunt2) to be the
Child’s guardian upon his death. After careful review, we vacate the order
and remand for further proceedings.
The record discloses a complex factual and procedural history. From
the outset, we clarify that the current dispute is between the Grandparents
and the Great-Aunt. How these parties became the Child’s prospective
caregivers is as follows:
The Child came to the trial court’s attention in 2016 when the
Lackawanna County Office of Children and Family Services initiated
dependency proceedings against the biological parents. When the court
removed the Child from her parents’ care, the court initially placed the Child
with the Great-Aunt for a short time, before ultimately placing her with the
paternal grandparents, Amy and Michael Isernia, Sr. In September 2017, the
Child’s biological mother died. In March 2018, the court terminated the rights
of the Child’s biological father. Following the termination, the paternal
grandparents adopted the Child and became her legal parents. (Hereafter,
we refer to the paternal grandparents as the Adoptive Parents to reflect their
legal status.)
The Adoptive Parents and the Grandparents then entered into a
Voluntary Post-Adoption Contact Agreement pursuant to the Act of Oct. 27,
2010, P.L. 961, No. 101 codified as amended 23 Pa.C.S.A. §§ 2731-2742
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2Marcy Raymond is the sister of the biological maternal grandfather, who is
not a party.
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(commonly referred to as an “Act 101 Agreement”). Under the terms of the
Act 101 Agreement, the Grandparents received eight weeks of annual
visitation, comprising of a two-week block and a six-week summer block.
Two years later, in July 2020, the Adoptive Mother passed away. In
early 2021, Adoptive Father was diagnosed with terminal cancer. This
diagnosis prompted the Grandparents to file an emergency petition for
custody and formal custody complaint against Adoptive Father.3 In their
complaint, the Grandparents sought standing under Section 5324(3)(iii)(B)
and under Section 5324(4) of the Child Custody Act, alleging that the Adoptive
Father’s illness prevented him from caring for the Child. See 23 Pa.C.S.A. §
5324(3)(iii)(B), (4). The motions judge denied the request for emergency
custody but scheduled the underlying custody complaint before a master.
The master held a hearing on April 7, 2021. During the hearing,
Adoptive Father raised the issue of standing; the master apparently then
terminated the proceeding and directed the parties to submit briefs on
standing. See Report and Recommendation, 5/6/21, at *1 (not paginated).
After reviewing the briefs, the master issued a report and recommendation on
May 6, 2021. The master determined many facts were not disputed. The
master concluded that the terms of the Act 101 Agreement governed and that
the Grandparents lacked standing. The master recommended that the
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3 Typically, a child’s adoption severs the rights of grandparents to seek
custody. However, when the child is adopted by another grandparent – as
was the case here – the petitioning grandparents retain the right to seek
custody. See 23 Pa.C.S.A. § 5326 (“Effect of adoption”).
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custody complaint be dismissed. The Grandparents filed exceptions before
the trial court.
In May 2021, while those exceptions were pending, the Adoptive Father
died.4 In June 2021, the Great-Aunt filed her own petition for emergency
custody. She retained the same attorneys who represented the Adoptive
Father in the custody action with the Grandparents. The emergency petition
included the caption “In re M.M.I,” and left the docket number blank. The
Great-Aunt alleged that she stood in loco parentis, because the Adoptive
Father had asked her to care for the Child, which she had been doing since
early 2021, when the Adoptive Father was diagnosed with cancer. The Great-
Aunt further alleged that Adoptive Father named her to be the Child’s guardian
in his will.
The trial court granted the Great-Aunt’s emergency petition and
scheduled the matter for a hearing the following week. See Order of Court,
6/3/21. In doing so, the court changed the proposed “In re M.M.I.” caption
to reflect the ongoing litigation between the Grandparents and Adoptive
Father. The court effectively joined the Great-Aunt.5 The Great-Aunt then
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4 The Grandparents then filed a second emergency petition for custody to
reflect the changed circumstances. The court denied this second petition for
lack of standing. See Order of Court, 5/21/21. The Grandparents filed for
reconsideration, which the court also denied. See Order of Court, 5/24/21.
Evidently, the court intended to address the impact of the Adoptive Father’s
death on the custody case when it heard the pending exceptions from the
Grandparents’ custody complaint.
5 We have amended the caption to reflect the true parties in interest in this
litigation.
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filed a formal custody complaint the next day, on the same docket as the
pending action, and she served the Grandparents. The Grandparents
contested the Great-Aunt’s complaint, and the court stayed the final hearing,
pending the resolution of Grandparents’ exceptions on the standing issue. See
T.C.O. at 4.
On August 3, the trial court held an oral argument on the exceptions.
The court ultimately concluded that the Grandparents failed to establish
standing under either Section 5324(3) or (4). On August 10, 2021, the court
dismissed the exceptions and adopted the master’s report and
recommendation. The Grandparents appealed.
On appeal, the Grandparents raise an excessive number of errors.6
Many are duplicative, or they are an inaccurate characterization of the trial
court’s rulings, or they represent hypothetical errors depending on our
decision, or they are moot in light of the Adoptive Father’s death. “It is well
established that the appellate courts of this Commonwealth will not decide
moot or abstract questions.” WFIC, LLC v. LaBarre, 148 A.3d 812, 819 (Pa.
Super. 2016) (citing Commonwealth v. Smith, 486 A.2d 445, 447 (Pa.
Super. 1984)); see also In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002)
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6 The Grandparents raised 24 issues in their concise statement of errors
complained of on appeal; in their Brief, they reduced that number to 21
questions involved. We caution Grandparents’ counsel that a concise
statement, which is too vague or voluminous could lead to waiver. See, e.g.,
Commonwealth v. Vurimindi, 200 A.3d 1031 (Pa. Super. 2018); see also
Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002) (“Even if
the trial court correctly guesses the issues [an] appellant raises on appeal and
writes an opinion pursuant to that supposition the issues [may] be waived.”).
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(“An issue before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.”). We decline to address such
issues.7 We consider only the following four questions involved, which we
reorder for ease of disposition:
1. Whether the trial court erred in law and/or abused
its discretion in failing to preside over an
evidentiary hearing and apply the statutory factors
[under 5324(4)] to the matter before [the trial]
court, when neither [the trial] court nor the
custody master presided over an evidentiary
hearing.
2. Whether the trial court erred in law and/or abused
its discretion in concluding that the [Grandparents]
lack standing to seek custody of the Child,
pursuant to 23 Pa.C.S.A. § 5324(4)[.]
3. Whether the trial court erred in law and/or abused
its discretion when it found that [Great-Aunt] stood
in loco parentis to the Child without holding an
evidentiary hearing on the same?
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7 More specifically, we decline to address issues pertaining to 23 Pa.C.S.A. §
5326 (“Effect of adoption”), supra. Contrary to the Grandparents’ assertion,
neither the master nor the trial court concluded that Section 5326 prevented
the Grandparents from seeking custody.
We decline to address issues relating to 23 Pa.C.S.A. § 5328(a). The trial
court did not, indeed could not, analyze the best interests of the Child without
determining the threshold inquiry of standing.
We decline to address issues concerning 23 Pa.C.S.A. § 5324(3)(iii)(B). The
question of whether Adoptive Father’s terminal illness constituted “parental
incapacity” under 5324(3)(iii)(B) was rendered moot upon the Adoptive
Father’s death.
Finally, we decline to address issues concerning what effect that the Act 101
Agreement had on the ability of the Grandparents to seek custody. The
Adoptive Father’s death also rendered this question moot.
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4. Whether the trial court erred in law and/or abused
its discretion when it found that [Great-Aunt] stood
in loco parentis to the minor child.
See generally Grandparents’ Brief at 5-10 (capitalization adjusted).
In their first appellate issue, the Grandparents claim the trial court erred
when it appointed a master to resolve the question of standing; they argue
further that the trial court compounded its error when, following their
exceptions to the master’s report, the court denied their request for an
evidentiary hearing.
We begin by observing that a challenge to a court’s process is a question
of law for which our standard of review is de novo and our scope of review is
plenary. See S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation
omitted).
We agree with the Grandparents’ assertion that the motion judge should
never have scheduled their complaint for sole custody before the master.
While the Rules of Civil Procedure authorize the appointment of a hearing
officer8 to adjudicate actions for partial custody, it is well-settled that actions
for primary custody must be heard by a trial court judge. See Pa.R.C.P.
1915.4-1(a), 1920(a)(2)(ii); see also Littman v. Van Hoek, 789 A.2d 280,
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8 The Explanatory Comment to this Rule provides that the term “conference
officer” and “hearing officer” are functional equivalents. In this instance, so
is the term “master.” We also note that “master” is now a disfavored term
and should be replaced by “hearing officer.” See Pa.R.C.P. 1920.51. For the
sake of continuity, we use the term “master.”
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282 (Pa. Super. 2001); and see Van Dine v. Gyuriska, 713 A.2d 1104 (Pa.
1998).
However, the trial court cured this mistake when it effectively conducted
a de novo review of the standing claim. A de novo trial court review occurs
when the court “determine[s] the merits of the [legal question] and issue[s]
its own findings of fact and conclusions of law.” See City of Clairton v.
Zoning Hearing Board of City of Clairton, 246 A.3d 980, 906 (Pa. Cmwlth.
Ct. 2021) (citation omitted); see also T.B. v. L.R.M., 753 A.2d 873, 881-82
(Pa. Super. 2000) (en banc) (“[T]he trial court is required to make an
independent review of the record to determine whether the hearing officer’s
findings and recommendations are appropriate.”) (emphasis added) aff’d 786
A.2d 913 (Pa. 2001) (infra).
This type of review is precisely what the court conducted following the
Grandparents’ exceptions. The exceptions proceeding was ostensibly a review
of the master’s decision; in actuality, the trial court considered all that had
transpired since the master’s report – specifically, the fact that Adoptive
Father had died, and that the Great-Aunt had joined the litigation, obtained in
loco parentis status, and was awarded sole custody. The court considered
these facts, concluded that none of the salient facts were disputed, applied
those facts to render new legal conclusions and independently determined the
merits of the Grandparents’ claims. See T.C.O. at 14.9
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9We acknowledge that the trial court’s August 10, 2021 order “adopted” the
master’s report and recommendation, but we give little credence to the pro
(Footnote Continued Next Page)
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Thus, the trial court’s exceptions review was akin to an adjudication of
standing in the first instance. In that sense, not only did the trial court cure
its erroneous master appointment, but the court was also able to dispose of
the standing issue without conducting an evidentiary hearing. “When no
issues of fact are raised, the court shall dispose of the preliminary objections
as a matter of law on the basis of the pleadings alone.” R.M. v. J.S., 20 A.3d
496, 508-09 (Pa. Super. 2011) (citation omitted); see also C.G. v. J.H. 172
A.3d 43, 54 (Pa. Super. 2017) (observing that while standing claims
commonly necessitate an evidentiary hearing to resolve the factual dispute,
some standing issues can turn on pure questions of law), aff’d 193 A.3d 891(Pa. 2018) (infra). Here, the essential facts were uncontested, and the
standing issue turned on a pure question of law.
Having concluded that the trial court’s procedure did not constitute
reversible error, we turn to the merits of the court’s decision on standing. In
their second appellate issue, the Grandparents challenge the court’s
conclusion that they lacked standing under Section 5324(4)(iii).
Threshold issues of standing are questions of law; thus, our standard of
review is de novo and our scope of review is plenary. See e.g., K.W. v. S.L.,
157 A.3d 498, 504 (Pa. Super. 2017) (citing Johnson v. American
Standard, 8 A.3d 318, 326 (Pa. 2010)).
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forma language contained in the order. The master’s report was predicated
upon the terms of the Act 101 Agreement and the fact that the Adoptive Father
was still alive. Upon its review, all the court adopted was the master’s end
result - i.e., that the Grandparents lacked standing.
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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. See 23 Pa.C.S.A. §§ 5324(3), 5325 (“Standing for
partial physical custody and supervised physical custody.”). A person standing
in loco parentis may also seek custody. See 23 Pa.C.S.A. § 5324(2).
“The term in loco parentis literally means ‘in the place of a parent.’”
K.W., 157 A.3d at 504-05 (citing Black’s Law Dictionary, 791 (7th Ed. 1991))
(further citation omitted). A person stands in loco parentis with respect to a
child when he or she “assumes the obligations incident to the parental
relationship without going through the formality of a legal adoption. The
status of in loco parentis embodies two ideas; first, the assumption of a
parental status, and, second, the discharge of parental duties.” Id. at 505(citation omitted).
In 2018, the Child Custody Act was amended to grant standing to
another class of individuals. See 23 Pa.C.S.A. § 5324(4). Section 5324(4)
provides that the following individuals may file for any form of physical or legal
custody:
(4) […] an individual who establishes by clear and
convincing evidence all of the following:
(i) The individual has assumed or is willing to assume
responsibility for the child.
(ii) The individual has a sustained, substantial and
sincere interest in the welfare of the child. In
determining whether the individual meets the
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requirements of this subparagraph, the court may
consider, among other factors, the nature, quality,
extent and length of the involvement by the individual in
the child's life.
(iii) Neither parent has any form of care and
control of the child.
23 Pa.C.S.A. § 5324(4) (emphasis added).10
To establish standing, a petitioner must satisfy all three of these prongs.
Here, the trial court opined that the Grandparents met the first two prongs.
See T.C.O. at 9. Thus, the Grandparents’ claim turns on the third prong,
whether “[n]either parent has any form of care and control of” the Child. 23
Pa.C.S.A. § 5324(4)(iii). The trial court determined that the Grandparents
failed to establish this element:
When [Adoptive Father] underwent cancer treatment in
early 2021, he took the necessary steps to find an
appropriate caretaker for the [C]hild. [A]ny parent
(biological or adoptive) has a right to designate a caretaker
for their minor child if he or she is sick. Further, at the time
of the [Adoptive Father’s] death, caretaker [the Great-Aunt]
stepped in and acted in loco parentis for the minor child, at
[the Adoptive Father’s] direction. [Adoptive Father’s] care
and control of the minor child continued after his death by
providing a suitable caretaker for the minor child.
T.C.O. at 10.
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10 We note that Section 5324(4) also includes disqualifying criteria. Section
5324(4) will not apply if: (1) a dependency proceeding involving the child has
been initiated or is ongoing, or (2) there is an order of permanent legal
custody under 42 Pa.C.S.A. § 6351(a)(2.1) or (f.1)(3)(relating to the
disposition of dependent children). See 23 Pa.C.S.A. § 5324(5)(i)-(ii). Neither
of these disqualifying conditions were present in this case.
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The Great-Aunt advances a slightly different rationale in support of the
trial court’s decision. She argues that she effectively became “a parent” for
purposes of Section 5324(4)(iii), by virtue of her in loco parentis status
combined with the fact that the Adoptive Father’s will named her to be the
Child’s caregiver upon his death. Accordingly, she also concludes the
Grandparents could not establish that “neither parent has any form of care or
control of the child.” 23 Pa.C.S.A. § 5324(4)(iii).
To support her argument, Great-Aunt relies on Chapter 25 of the
Probate, Estates and Fiduciaries Code. That section provides in relevant part:
(a) Guardian of the person.-- A person competent to
make a will, being the sole surviving parent or adopting
parent of any unmarried minor child, may appoint a
testamentary guardian of the person of such child during
his minority, or for any shorter period except that no
parent who, for one year or upwards previous to his
death, shall have willfully neglected or refused to
provide for his child, or who, for a like period, shall have
deserted the child or willfully failed to perform parental
duties, shall have the right to appoint a testamentary
guardian of the person of such child.
20 Pa.C.S.A. § 2519(a)(“Guardian of the person”); c.f. § 2519(b) (“Guardian
of the estate”). The Great-Aunt also relies on this Court’s decision in In re
Slaughter, 738 A.2d 1013 (Pa. Super. 1999).
In Slaughter, a 12-year-old child was orphaned after her father died.
In his will, the father named the child’s aunt and uncle to be the child’s
guardians. The father chose these relatives, and not the child’s 26-year-old
brother, primarily because the father wanted the brother to focus on his career
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and not be burdened with raising his sister. Slaughter, 738 A.2d at 1014.
The brother wanted to care for his sister and petitioned to be appointed as her
guardian. The lower court treated the matter as if it were a custody dispute
and denied the brother’s petition, finding that it was in the child’s best interest
to be in the care of aunt and uncle. The brother appealed.
On appeal, we noted that the lower court’s decision to treat the case as
a custody dispute was reasonable, but ultimately misguided because Section
2519 controlled. Id. at 1016-17 (footnoted omitted). We then sought to
ascertain and effectuate the legislative intent behind Section 2519. Id. at
1017; see also 1 Pa.C.S.A. § 1921. We explained that the word “may” in the
statute meant that the appointment of a testamentary guardian by a parent
is a right granted by the legislature. Id. “We cannot, however, reasonably
read the term to mean that enforcement of the testamentary guardianship is
optional on the courts.” Id. To do so would render 20 Pa.C.S.A. § 2519 an
absurdity, because it would give the parent a right that has no enforceable
value. Id.
We reasoned that the statute compelled us to ask: “Who better than the
surviving parent should make the choice as to who might care for her child
after her death?” Id. We concluded that Section 2519 grants this right. Id.
However, we concluded that this right is not unassailable. We held that
Section 2519 necessarily raised a prima facie presumption in favor of the
testamentary appointment. However, that appointment may be defeated
where another petitioner for guardianship can show convincing reasons as to
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why the testamentary appointment should not stand. Id. (citing Ellerbe v.
Hooks, 416 A.2d 512, 513 (Pa. 1980)). We cautioned that the burden was a
heavy one. Id. Ultimately, we determined the court did not err in upholding
the testamentary appointment.
Great-Aunt’s reliance on Slaughter is misplaced. Slaughter was
simply a contest between testamentary guardians and another potential
guardian. The issue was not whether a third-party could seek custody against
a testamentary guardian. Under the prior iteration of the Child Custody Act,
the brother had no standing to seek custody. See, e.g., D.N. v. V.B., 814
A.2d 750 (Pa. Super. 2002) (holding that a half-sibling had no legal standing
to seek custody of her minor siblings, because the half-sibling did not qualify
under the standing statutes enacted by the Legislature, §§ 5311-5313.).
Indeed, under the prior iteration of the Child Custody Act, only grandparents
could petition for custody when a parent was deceased. See 23 Pa.C.S.A. §
5311 (repealed).
Here, by contrast, the Grandparents are permitted to seek custody if
they obtain standing under Section 5324(4). Great-Aunt would have us rule
that once a testamentary guardian obtains custody of a child, that guardian is
immune from third-party custody actions. But if a third-party can seek
custody against a parent under the Child Custody Act, they should certainly
be able to seek custody against a guardian. To rule otherwise would produce
an absurd result - namely that the rights of guardians are superlative to the
rights of parents.
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We recognize that parents have a right to appoint a testamentary
guardian under 20 Pa.C.S.A. § 2519. However, courts must “presume that
the General Assembly is familiar with extant law when enacting legislation.”
C.B. v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (citing White v. Conestoga
Title Ins. Co., 53 A.3d 720, 731 (Pa. 2012)). Therefore, we must presume
that the General Assembly intended for 23 Pa.C.S.A. § 5324(4) to coexist with
20 Pa.C.S.A. § 2519; and neither statute precludes a third-party action
against a testamentary guardian.
To resolve whether the Grandparents have standing in this case, we
initially ascertain and effectuate the Legislature’s intent in promulgating
Section 5324(4). When interpreting a statute,
we are constrained by the rules of statutory interpretation,
particularly as found in the Statutory Construction Act. 1
Pa.C.S.A. §§ 1501–1991. The goal in interpreting any
statute is to ascertain and effectuate the intention of the
General Assembly. Our Supreme Court has stated that the
plain language of a statute is in general the best indication
of the legislative intent that gave rise to the statute. When
the language is clear, explicit, and free from any ambiguity,
we discern intent from the language alone, and not from the
arguments based on legislative history or “spirit” of the
statute. We must construe words and phrases in the statute
according to their common and approved usage. We also
must construe a statute in such a way as to give effect to
all its provisions, if possible, thereby avoiding the need to
label any provision as mere surplusage.
Under Section 1921(c), the court resorts to considerations
of “purpose” and “object” of the legislature when the words
of a statute are not explicit.... Finally, it is presumed that
the legislature did not intend an absurd or
unreasonable result. In this regard, we ... are permitted to
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examine the practical consequences of a particular
interpretation.
C.B., 65 A.3d at 951 (citations omitted).
As noted, courts must not interpret a statute in a manner that leads to
an absurd result. Id. at 953; see also Wilson v. Central Penn Indus., Inc.,
452 A.2d 257, 259 (Pa. Super. 1982) (“A construction which fails to give effect
to all provisions of a statute or which achieves an absurd or
unreasonable result must be avoided.”) (citations omitted); and see
Commonwealth v. Sloan, 907 A.2d 460, 467 (Pa. 2006) (“[O]ur rules of
statutory construction [forbid] absurd results.”).
With these principles in mind, we return to the various rationales set
forth by the trial court and the Great-Aunt. The trial court opined that
Adoptive Father’s care and control of the child “continued after his death.”
See T.C.O. at 10 (citing 23 Pa.C.S.A. § 5324(4)(iii)). However, the statute
uses the present tense to evaluate care and control: “Neither parent has any
form of care or control of the child.” Thus, the question is whether either
parent has, presently, at the time of the decision, any form of care or control
of the child. We find the use of the present verb tense to be “clear, explicit,
and free from any ambiguity.” See C.B., supra. Upon his death, it cannot
be said that the Adoptive Father still has such control.11 We conclude the
court’s rationale does not comport with the plain reading of the statute.
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11See M.W. v. S.T., 196 A.3d 1065, 1071 (Pa. Super. 2018) (holding that
while the grandparent originally had standing at the time she filed the custody
complaint, the trial court did not err when it dismissed the complaint for lack
(Footnote Continued Next Page)
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Alternatively, the Great-Aunt argues that she should be treated as “a
parent” for purposes of Section 5324(4)(iii), because she stands in loco
parentis and because Adoptive Father named her to be the Child’s guardian in
his will. The Great-Aunt’s interpretation would require us take the term from
Section 5324(2)(“a person who stands in loco parentis”) and insert it next to
the word “parent” in Section 5324(4)(iii). But although we may interpret a
statute, we may not re-write it.
To explain, Section 5324 provides standing to four classes of individuals:
(1) a parent; (2) a person who stands in loco parentis; (3) a grandparent in
certain circumstances; and (4) any individual who establishes certain criteria
by clear and convincing evidence. See 23 Pa.C.S.A. § 5324(1)-(4). We decline
to treat these classes of individuals as interchangeable. Our approach is not
taken without guidance.
In C.G. v. J.H., 193 A.3d 891 (Pa. 2018), our Supreme Court declined
to treat a mother’s former same-sex partner as “a parent” for purposes of
Section 5324(1). Because Section 5324 does not define the term parent, the
High Court explained that “the popular and plain everyday sense of the term
must prevail.” C.G., 193 A.3d at 900 (citations omitted). The Court held that
“[t]he popular and everyday meaning of the term parent plainly encompasses
a biological mother and a biological father and persons who attain custody
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of standing; the court was free to consider the change in circumstances
between the grandparent’s complaint and the parents’ petition to dismiss.)
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through adoption….” Id. (citations omitted);12 cf. T.B. v. V.R.M., 786 A.2d
913, 915 (Pa. 2001) (holding that mother’s former same-sex partner stood in
loco parentis as evidenced by, inter alia, the mother’s decision to name the
partner as the child’s guardian in the mother’s will).
This Court has held that “[t]he rights and liabilities arising out of an in
loco parentis relationship are, as the words imply, exactly the same as
between parent and child.” In re B.L.J., Jr., 938 A.2d 1068, 1073 (Pa. Super.
2007) (citation omitted). The rights and responsibilities may be the same,
but the classes of individuals are not. See C.G., supra; see also 23 Pa.C.S.A.
§ 5327(b) (providing that in any action between a parent and a third party,
“there shall be a presumption that custody shall be awarded to the parent.”);
cf. § 5327(c) (providing that there is no presumption of custody in an action
between third-parties).
Accordingly, the plain language makes clear that for the purposes of
Section 5324: a “parent” is a “parent” and “a person who stands in loco
parentis” is “a person who stands in loco parentis.” Thus, the existence of an
individual with in loco parentis status has no bearing on the question of
whether “[n]either parent has any form of care or control of the child” under
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12 Importantly, the Supreme Court acknowledged “the reality of the evolving
concept of what comprises a family.” C.G., 193 A.3d at 900. But in that case,
the Supreme Court declined to further expand the definition of the “parent”
under Section 5324(1), because the former partner “did not jointly participate
in the child’s conception and hold [the child] out as her own.” Id. at 906. The
Court subsequently considered whether the former partner stood in loco
parentis.
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Section 5324(4)(iii). To rule otherwise would fail to give effect to all provisions
of the statute. C.B. 65 A.3d at 953.
To be clear, the Adoptive Father’s choice of the Great-Aunt to be the
Child’s caregiver is absolutely a consideration in the substantive custody
analysis under 23 Pa.C.S.A. § 5328(a)(“Factors to consider when awarding
custody”). See 23 Pa.C.S.A. § 5328(a)(16) (“Any other relevant factor”). We
further recognize that it is within the custody court’s purview to determine
which Section 5328(a) factors are “the most salient and critical.” E.B. v. D.B.,
209 A.3d 451, 468 (Pa. Super. 2019) (citation omitted). And we also note
that deference must be afforded to the custody court on matters concerning
credibility and weight of the evidence. E.B., 209 A.3d at 460. As such, we
could envision a scenario, where a court, after considering all the relevant
custody factors, gives dispositive weight to the fact that the deceased parent
left a will, explicitly naming a testamentary guardian, especially if the parent
contemplated the guardianship around the time of the death. But see 23
Pa.C.S.A. § 5328(a) (“[T]he court shall…giv[e] weighted consideration to
those factors which affect the safety of the child.”).13
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13Absent further guidance from our Supreme Court or from the Legislature,
we will not create a presumption in favor of the testamentary guardian as a
matter of law, when the Child Custody Act explicitly states there is no
presumption in a custody action between third-parties. 23 Pa.C.S.A. §
5327(c).
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Be that as it may, the parent’s choice of guardian does not bar other
qualified individuals from seeking custody; the appointment of a guardian has
no effect on standing to file custody.14
Absent further guidance from our Supreme Court, we conclude that a
parent cannot posthumously exercise care and control of a child, and we
conclude further that a third-party’s in loco parentis status does not preclude
another third-party from seeking custody under Section 5324(4). Therefore,
we hold that the trial court erred as a matter of law when it determined that
the Grandparents failed to establish standing under Section 5324(4)(iii).
Adoptive Mother predeceased Adoptive Father, and once Adoptive Father died,
“neither parent has any form of care or control of the child.” The Great-Aunt’s
in loco parentis status had no bearing on this prong.
Lastly, we turn to the Grandparents’ third and fourth appellate issues.
The Grandparents argue the trial court erred when it determined that Great-
Aunt stood in loco parentis without conducting an evidentiary hearing. In the
alternative, the Grandparents argue that the court erred as a matter of law
when it determined the same.
Upon review, we conclude neither of these claims have merit. First, as
we explained in our discussion above, the trial court did not have to conduct
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14Such an appointment would mean, however, that a child is not a “dependent
child” under the Juvenile Act. See 42 Pa.C.S.A. § 6302 (Defining a “dependent
child” as “a child who: (4) is without a parent, guardian, or legal custodian).
Although this Child is without a parent, she is not without a guardian or legal
custodian.
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an evidentiary hearing on standing, because the facts were not in dispute.
See R.M., 20 A.3d at 508-09. The Grandparents conceded that the Great-
Aunt had been caring for the Child even before the Adoptive Father’s death.
Indeed, when the Grandparents initially filed for custody, under Section
5324(3)(iii)((B)(“the child is substantially at risk due to parental…incapacity”),
they acknowledged that Adoptive Father enlisted the Great-Aunt to care for
the Child after his terminal cancer diagnosis. Because of this, they argued
that Adoptive Father lacked the ability to parent. The Grandparents cannot
have it both ways; they cannot rely on the Great-Aunt’s assumption of the
parental role to demonstrate Adoptive Father’s incapacity under Section
5324(3)(iii)(B), but then claim that the Great-Aunt did not assume the
parental role to achieve in loco parentis status under Section 5324(2).
Second, and for this very reason, the trial court did not err as a matter
of law when it concluded that the Great-Aunt stood in loco parentis. The
Great-Aunt obtained in loco parentis status when the Adoptive Father asked
her to care for the Child, in her home, following his diagnosis and eventual
physical decline. At this point, Adoptive Father discharged his parental duties,
and those duties were assumed by the Great-Aunt. See K.W., 157 A.3d at
504.
Moreover, the Adoptive Father’s will appointed the Great Aunt to be the
Child’s caregiver following his death. Because the Child remained with the
Great-Aunt upon the death, and because the Adoptive Father was the sole
surviving parent, the will’s appointment necessarily gave the Great-Aunt the
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ability to assume parental duties. See 20 Pa.C.S.A. § 2519(a) (“Guardian of
the person”); also See T.B. 786 A.2d at 915 (recognizing the designation of
a guardian in a parent’s will as a reason why the would-be guardian stood in
loco parentis).
In sum, we conclude that the trial court did not err when it determined
that an evidentiary hearing on standing was unnecessary; the question of
standing, as it pertained to both the Grandparents and the Great-Aunt, was a
pure question of law. The court did not err when it concluded that the Great-
Aunt stood in loco parentis. However, the court erred as a matter of law when
it determined that the Grandparents failed to establish standing under 23
Pa.C.S.A. § 5324(4)(iii), when both of the Child’s Adoptive Parents were
deceased. All other appellate issues are dismissed, waived, or moot. We
vacate the August 10, 2021 order dismissing the Grandparents’ complaint for
custody, and direct the court to conduct further proceedings consistent with
this Opinion.15
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15 We clarify that our holding is limited to the question of standing to seek any
form of custody. We do not disturb the June 6, 2021 order granting custody
to the Great-Aunt, which appears to be the operating custody order. But
insofar as the June 6 order is the operating custody order, we direct the court
to treat the June 6 order as an interim custody order pending the final
resolution of the Grandparents’ custody complaint.
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Order vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2022
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