S.O. v. D.W. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
S.O., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 2871 EDA 2019
:
D.W. AND F.W. :
Appeal from the Order Entered September 11, 2019,
in the Court of Common Pleas of Delaware County
Civil Division at No. CV-2018-001256
BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 08, 2020
S.O. appeals from the September 11, 2019 order entered in the Court
of Common Pleas of Delaware County that denied her emergency petition for
legal and physical custody of J.W., female child born in March 2008
(the “Child”), for want of standing. We affirm.
The trial court set forth the following:
After the filing of an Emergency Custody Petition in
this matter, the [trial] court ordered an investigation
by Delaware County Children and Youth Services
(CYS). As a result of the investigation, at a hearing
held October 4, 2018, the court barred [appellant]
from having any contact with [the Child].
At the [trial] court’s March 27, 2019 hearing on
[a]ppellant’s standing to pursue legal and physical
custody of the [Child], the [trial] court heard
testimony from Ms. Maura Gray, a supervisor at CYS.
Ms. Gray had conducted a forensic interview of [the
Child] and determined that it “was not in [the Child’s]
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best interest to see [appellant].” There was concern
regarding the relationship between [the Child and
appellant] because [appellant] had taken the [C]hild
on trips to Florida without her parents’ knowledge. In
addition, [the Child] reported that she would often go
to one of [appellant’s] friend’s home[s] who was
subsequently convicted of sexual abuse of children.
[The Child] would have sleepovers there. The friend
had a daughter [the Child’s] age. [The Child] did not
report any abuse that occurred in the home. In
addition, [the Child] reported that she often slept with
[appellant] and missed cuddling with her. Ms. Gray
testified: “. . . it was, you know a little bit alarming
coming from a 10-year-old. . . [.]” It was also placed
on the record that there was a letter sent to the [trial]
court in September of 2018 indicating that [appellant]
had made a statement to a police officer in response
to something that he told her regarding the [C]hild
stating, “I guess this is why people kidnap kids.”
[D.W. (“Mother”) and F.W. (“Father”)] are married
and reside [in] Delaware County, Pennsylvania. They
are the parents of six children all of whom currently
live with them. [The Child] is the fourth of their
six children. [The Child] was born [in] March [of]
2008 and is currently 11 years old and in the
fifth grade. The family moved to [their current
residence with Mother’s mother] when [the Child] was
approximately one year old.
At the time of the June 5, 2019 hearing in this matter,
[a]ppellant testified that she was the 28-year-old
neighbor of [Mother and Father]. Appellant’s
residence had three bedrooms and the residents
included her mother, her sister, and herself. There
was no designated bedroom for [the Child] but there
was a finished basement with designated space for
[the Child]. Appellant testified: “she would sleep with
me often at nights, but she did have her own bed.”
At the June evidentiary hearing, there were significant
differences between the parties’ testimony on many
issues including the length of time that [the Child]
stayed with [a]ppellant. Appellant testified that in the
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beginning, “[I]t was more so they asked me to take
her to help them out. It wasn’t like can you take her
for this amount of time or that amount of time.” The
parties had vastly different testimony as to the length
of time [appellant] cared for [the Child]. [Mother]
testified that [appellant] overestimated the time [the
Child] stayed with [appellant].
[Mother] testified that although [appellant] was
buying school supplies and school clothes for [the
Child,] there was no need for her to do so because
[Mother] always had supplies and clothing for her at
her home. [The Child] “wanted to use the pretty frilly
things that [appellant] bought her and not the stuff
that [Mother] bought her or she would use both.”
[Father] testified that he attended almost all of [the
Child’s] doctors’ appointments, from the time that
[the Child] was 4-9 years old. When [Father] was
asked whether over the years, that [the Child] stayed
and lived with [appellant] was that with his
permission, he responded “No.” He testified that he
and [Mother] scheduled doctor and dentist
appointments and then permitted [appellant] to take
[the Child] to the doctor visits. When asked on
cross-examination whether [appellant] was acting in
a parental role, he responded: “[N]o, I seen [sic] it
as a friend, I didn’t -- we were her parents. I did not
expect or see any of that coming my way. No, I did
not.”
[Appellant] testified at length as to the close
relationship she had with [the Child]. She testified on
direct that she financially supported the [C]hild. On
cross-examination, she testified that the only request
for monies she made of [Mother and Father] was for
reimbursement of camp. In direct testimony,
[appellant] testified that the doctors of CHOP knew
her to be the [C]hild’s parent. On cross-examination,
[appellant] testified that they knew she was a family
friend. [Appellant] testified that she never had a
physical health insurance card for [the Child] but she
had a picture of the card. [Appellant] testified that
[the Child] “would sleep with me often at nights, but
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she did have her own bed . . . [s]he would be scared
to sleep by herself, having bad dreams or scared.”
[Appellant] testified that [the Child] slept with her in
the same bed until she was nine years old.
Trial court opinion, 11/25/19 at 2-5 (record citations omitted; some brackets
in original).
On September 11, 2019, the trial court entered the order denying
appellant’s emergency petition for legal and physical custody of the Child for
want of standing. Appellant filed a timely notice of appeal on October 4, 2019,
but failed to simultaneously file and serve a concise statement of errors
complained of on appeal as required by Pa.R.A.P. 1925(a)(2)(i). See
Pa.R.A.P. 1925(a)(2)(i) (requiring concise statement be filed and served with
notice of appeal in children’s fast track appeals). On October 9, 2019, the
trial court then ordered appellant to file a concise statement. Appellant filed
her concise statement on October 23, 2019. The trial court then filed an
opinion.
At the outset, we note that this court has recognized that the failure to
file a Rule 1925(a)(2)(i) concise statement contemporaneously with the notice
of appeal constitutes a defective notice of appeal to be disposed of on a
case-by-case basis. In re K.T.E.L., 983 A.2d 745, 747 (Pa.Super. 2009).
Where there has been substantial compliance with the rules and where there
is no allegation of prejudice, dismissal is not appropriate. See id. Here,
despite filing a defective notice of appeal, appellant has substantially complied
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with the rules. Additionally, Mother and Father do not allege prejudice.
Therefore, we will not dismiss this appeal
Appellant raises the following issue for our review:
Did the trial court abuse its discretion and err as a
matter of law in determining that there was
insufficient evidence or that the evidence presented at
the hearing on June 5, 2019 was not clear and
convincing to establish in loco parentis standing for
[a]ppellant, pursuant to 23 Pa.[C.S.A.] § 5324(2)[?]
Appellant’s brief at 3.
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).
M.S. v. J.D., 215 A.3d 295, 598 (Pa.Super. 2019) (parallel citations omitted).
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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.” Id. at
598-599. The Act, however, permits certain individuals to file a custody
action, including “[a] person who stands in loco parentis to the child.”
23 Pa.C.S.A. § 5324(2). Our supreme court has explained that:
In loco parentis is a legal status and proof of
essential facts is required to support a conclusion that
such a relationship exists. . . .
The phrase “in loco parentis” refers to a person who
puts oneself in the situation of a lawful parent by
assuming 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. 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. The
third party in this type of relationship, however, can
not place himself in loco parentis in defiance of the
parents’ wishes and the parent/child relationship.
C.G. v. J.H., 193 A.3d 891, 907 (Pa. 2018), quoting T.B. v. L.R.M., 786 A.2d
913, 916-917 (Pa. 2001).
In T.B., our Supreme Court instructed:
The scope of review applied by an
appellate court to a child custody order is
of the broadest type; the appellate court
is not bound by the deductions or
inferences made by the trial court from its
findings of fact, nor must the reviewing
court accept a finding that is not
supported by competent evidence.
However, this broad scope of review does
not vest an appellate court with the duty
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or privilege of making its own
independent determination. An appellate
court may not interfere with the trial
court’s factual conclusions unless they are
unreasonable in view of the trial court’s
factual findings and thus represent an
abuse of discretion.
786 A.2d at 916 (citations omitted). This scope of
review applies to trial court decisions regarding
standing. See id.; J.F. v. D.B., 897 A.2d 1261, 1273
(Pa.Super.), appeal denied, 909 A.2d 1290 (Pa.
2006); see also Silfies v. Webster, 713 A.2d 639,
642 (Pa.Super. 1998); J.A.L., 682 A.2d at 1318. In
this connection, we note that, “[o]n factual matters,
the hearing judge is far better able to assess
credibility and weight of testimony than” an appellate
court. Reilly v. Reilly, 280 A.2d 639, 640 (Pa Super.
1971). “[T]he ultimate test is ‘whether the trial
court’s conclusions are unreasonable as shown by the
evidence of record.’” Silfies, 713 A.2d at 642
(quoting Moore v. Moore, 634 A.2d 163, 168 n.4 (Pa.
1993)).
C.G. v. J.H., 172 A.3d 43, 52 (Pa.Super. 2017) (parallel citations omitted).
Here, appellant claims that the trial court “disregarded testimony and
evidence presented at the hearing” and “selected discrete portions of
testimony” to conclude that she lacked standing. (Appellant’s brief at 6-7.)
Appellant then sets forth her selected discrete portions of testimony in an
effort to persuade this court to reach a different result. We decline to do so.
It was for the trial court to assess credibility and weigh the evidence.
See C.G., 172 A.3d at 52. In its opinion, the trial court stated that the
testimony of the parties conflicted and it found that Mother and Father testified
credibly. (Trial court opinion, 11/25/19 at 10-12.) Our review of the record
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demonstrates that the trial court’s conclusions are reasonable as shown by
the evidence of record.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/20
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