A.S.S. v. J.S. ( 2015 )

J-S01045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.S.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
J.S.
Appellee No. 1526 WDA 2014
Appeal from the Order August 25, 2014
In the Court of Common Pleas of Mercer County
Civil Division at No(s): 2014-1477
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 08, 2015
Appellant, A.S.S., appeals pro se from the order entered in the Mercer
County Court of Common Pleas, which dismissed his petition for contact with
his minor brother, M.S. (“Child”), for lack of standing. Appellant is serving a
term of three to six years’ imprisonment for aggravated assault. On May 21,
2014, Appellant filed a petition for contact with Child in the form of letters
and phone calls. Appellee, J.S., is Appellant’s and Child’s adoptive mother;
Appellee opposed Appellant’s request for contact. Following a hearing, the
court dismissed Appellant’s petition on August 25, 2014, for lack of standing.
On September 12, 2014, Appellant timely filed a pro se notice of appeal.1
____________________________________________
1
Appellant did not file a concise statement of errors contemporaneously with
his notice of appeal per Pa.R.A.P. 1925(a)(2)(i). On September 16, 2014,
(Footnote Continued Next Page)
J-S01045-15
Section 5324 of the Child Custody Act provides that only the following
individuals can file an action for any form of physical or legal custody of a
child: (1) a parent of the child; (2) a person who stands in loco parentis to
the child; or (3) a grandparent of the child who is not in loco parentis to the
child (in certain situations). 23 Pa.C.S.A. § 5324. Based on the clear
language of the statute, siblings lack standing to bring an action for custody
or visitation. Id. See also Ken R. on behalf of C.R. v. Arthur Z., 546 Pa.
49, 682 A.2d 1267 (1996) (holding appellant lacked standing to bring action
for visitation with her half-sisters; standing analysis in custody actions
applies to actions for visitation); D.N. v. V.B, 814 A.2d 750 (Pa.Super.
2002) (holding appellant lacked standing to seek custody, partial custody, or
visitation with her minor siblings; where legislature enacts specific statute
addressing custody and visitation and does not include right of siblings to
seek court-ordered custody or visitation with their siblings, we are bound to
follow legislature’s directive and exclude persons not explicitly pronounced);
Weber v. Weber, 524 A.2d 498 (Pa.Super. 1987), appeal dismissed as
improvidently granted, 517 Pa. 458, 538 A.2d 494 (1988) (holding adult
_______________________
(Footnote Continued)
the court ordered Appellant to file a Rule 1925(b) statement, and Appellant
complied. We decline to find waiver for Appellant’s technical noncompliance
with the rules. See J.P. v. S.P., 991 A.2d 904 (Pa.Super. 2010) (explaining
failure to file concise statement with notice of appeal constitutes defective
notice of appeal, which court can dispose of on case-by-case basis; declining
to find waiver of issues for technical violation of procedural rules outlined in
Rule 1925(a)(2)(i)).
-2-
J-S01045-15
sister lacked standing to bring action for partial custody of minor sibling over
objections of minor child’s parents).2
Instantly, Appellant is Child’s brother. Appellant makes no assertion
that he is Child’s parent, grandparent, or stands in loco parentis to Child.
Thus, Appellant lacks standing to bring an action for custody or visitation
with Child.3 See 23 Pa.C.S.A. § 5324; Ken R., supra; D.N., supra;
Weber, supra. The court properly dismissed Appellant’s petition for contact
with Child, based on Appellant’s lack of standing. Accordingly, we affirm.
Order affirmed.
____________________________________________
2
Ken R., D.N., and Weber relied on former statutes governing standing in
custody matters (see 23 Pa.C.S.A. §§ 5301-5315; repealed effective
January 24, 2011, by Act of November 23, 2010, P.L. 1106, No. 112, § 1),
which contained language similar to the standing provisions in the current
statute.
3
Appellant relies on New Jersey law for the proposition that the trial court
should have considered Child’s best interests when ruling. In Ken R.,
supra, the Supreme Court considered a similar argument and rejected it,
stating: “In light of our case law and the principles of statutory construction,
we are constrained to find that siblings do not have standing to seek court
ordered visitation with their siblings in Pennsylvania.” Ken R., supra at 53,
682 A.2d at 1270.
-3-
J-S01045-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2015
-4-