Thompson, D. v. Davis, J. ( 2021 )

J-A05029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANIEL THOMPSON AND MARIA : IN THE SUPERIOR COURT OF
THOMPSON : PENNSYLVANIA
:
:
v. :
:
:
JOHN D. DAVIS, IV, TASHYA BAYLIS, :
AND KIMBERLY CARTER : No. 1726 EDA 2020
:
APPEAL OF: KIMBERLY CARTER
Appeal from the Order Entered August 13, 2020
In the Court of Common Pleas of Delaware County Civil Division at
No(s): No. CV-2020-002385
DANIEL THOMPSON AND MARIA : IN THE SUPERIOR COURT OF
THOMPSON : PENNSYLVANIA
:
v. :
:
:
JOHN D. DAVIS, IV, TASHYA BAYLIS, :
AND KIMBERLY CARTER :
: No. 1727 EDA 2020
:
APPEAL OF: KIMBERLY CARTER
Appeal from the Order Entered August 13, 2020
In the Court of Common Pleas of Delaware County Civil Division at
No(s): No. CV-2020-002385
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 17, 2021
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A05029-21
Appellant Kimberly Carter,1 the former paramour of John D. Davis, IV,
(Father), appeals from the trial court’s orders sustaining the preliminary
objections filed by Tashya Baylis (Mother) and dismissing Appellant’s counter
complaint for custody of Child, based on Appellant’s lack of in loco parentis
standing.2 Appellant challenges both the trial court’s legal conclusions and
the weight of the evidence. We affirm.3
The trial court summarized the underlying facts of this matter as follows:
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1 We use the parties’ names in the caption “as they stood upon the record of
the trial court at the time the appeal was taken” pursuant to Pa.R.A.P. 904(b).
We note that recent changes to our Rules of Appellate Procedure provide that
“[i]n an appeal of a custody action where the trial court has used the full name
of the parties in the caption, upon application of a party and for cause shown,
an appellate court may exercise its discretion to use the initials of the parties
in the caption based upon the sensitive nature of the facts included in the case
record and the best interest of the child.” Pa.R.A.P. 904(b)(2); see also
Pa.R.A.P. 907 (stating that “[w]hen an appeal is filed in a custody action, upon
application of a party and for cause shown the appellate court may make a
determination that using the parties’ initials in the caption is appropriate after
considering the sensitive nature of the facts included in the case record and
the child's best interest”). These changes to our Rules were approved on
October 22, 2020 and became effective January 1, 2021, after the current
appeal was filed. Moreover, no party has applied to this Court for the use of
initials in the caption. We will, however, refer to the minor involved in this
custody dispute as “Child” throughout our decision so as to protect his identity.
2 The trial court also entered a temporary custody order that granted joint
legal custody of Child to Mother and Father, maintained Mother’s primary
physical custody schedule, and awarded Father partial physical custody of
Child from Sunday to Wednesday, time that Appellant previously cared for
Child under a prior temporary custody order. However, that order is not
before us on appeal.
3 This Court previously granted Appellant’s motion to consolidate the appeals
from the trial court’s August 13, 2020 orders. Therefore, we address both
appeals together.
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On March 10, 2020, Daniel and Maria Thompson, (Paternal
Grandparents) filed a complaint for custody seeking custody of
[Child]. On April 8, 2020, Paternal Grandparents filed an amended
complaint for custody to name [Appellant as a party] and seeking
primary physical and joint legal custody of [Child] for Appellant.
On April 16, 2020, Appellant filed an answer to the amended
complaint for custody with counter-complaint for custody seeking
joint legal and primary physical custody of Child.
On April 16, 2020, Appellant filed an ex parte emergency petition
for custody seeking temporary sole legal and primary physical
custody of [Child] and alleging she had been [C]hild’s de facto
primary physical custodian and thus had standing to sue for
custody.
A hearing was held on May 13, 2020 . . . on Appellant’s petition
for custody, and an order was entered on May 19, 2020 granting
Appellant’s petition, awarding Mother and Father temporary joint
legal custody and Mother primary physical custody, and
[awarding] Appellant partial physical custody without prejudice to
Mother’s position on standing.
[Both Appellant and Father filed motions for reconsideration of the
May 19, 2020 temporary custody order, both of which were denied
by the trial court on June 3, 2020.]
On June 25, 2020, Mother filed preliminary objections to
[Appellant’s] counter-complaint for custody, objecting to
Appellant’s pleadings for lack of standing pursuant to Pa.R.C.P.
5324. On May 28, 2020, Appellant filed an answer . . . alleging
she had acted in loco parentis to Child and thus had standing to
sue for custody.
Trial Ct. Op., 10/5/20, at 1-3 (footnotes omitted).
On July 20, 2020, the trial court conducted a hearing on Mother’s
preliminary objections and the issue of Appellant’s standing to pursue custody,
which the trial court summarized as follows:
Mother previously testified that she is a truck driver. N.T.,
5/13/2020 at 167 ¶ 1-4. Mother testified that she went on the
road July of 2014 and was traveling across the country in different
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states. N.T., 5/13/2020 at 182 ¶ 4-5; at 16-17. Mother testified
that she currently works for a company locally and works Monday
through Friday 8:30 to 4:30. N.T., 5/13/2020 at 167 ¶ 5-9. At
the July 20, 2020 hearing on Appellant’s standing to pursue
custody of the minor child, [Child], the [c]ourt heard testimony
about the timeline of where [Child] resided and with whom.
Appellant testified that her [sic] and Father began dating for the
second time in the middle of 2013. N.T., 7/20/2020 at 41 ¶ 24-
25. Appellant testified that she and Father resided at
Appellee[s]/Paternal Grandparents[’] [home] with [Child] through
2014 and into 2015. N.T., 7/20/2020 at 42 ¶ 1-2; at 16-19.
Appellant testified that, in 2014, [Child] regularly lived with her
and Father at the home of Appellee[s]/Paternal Grandparents
while Mother was on the road for work. N.T., 7/20/2020 at 43 ¶
6-8. Appellant testified that she purchased and moved into a
home in August 2015 with Father and [Child]. N.T., 7/20/2020 at
43 ¶ 9-20. Appellant testified that [she,] Father, and [Child] lived
there until February 2019 when [she] and Father broke up. N.T.,
7/20/2020 at 43 ¶ 21-23. After Appellant and Father’s break up,
from February 2019 to April 2020, Appellant testified that [Child]
lived primarily with her. N.T., 7/20/2020 at 49 ¶ 17-24. Appellant
testified that on average Father would have [Child] one night a
week, although not consistently. N.T., 7/20/2020 at 50 ¶ 2-10.
Appellant testified that on average Mother had [Child] for one
overnight a week, although not consistently. N.T., 7/20/2020 at
50 ¶ 11-16.
From February 2019 to early-to-late fall [of] 2019, Mother
testified that she received no texts from Appellant regarding
where [Child] was living and with whom. N.T., 7/20/20, at 35 ¶
15-22. Appellant testified that she sent a text to Mother on
February 8, 2019 (Exhibit R1) advising her that Father was
vacating the residence that they shared.
Mother believed that Father moved out of the home he shared
with Appellant in August or September 2019. N.T., 7/20/20, at
31 ¶ 9-13.
Mother testified that from February 2019 to approximately early
Fall of 2019, she believed that Father was still living in Appellant’s
home with [Child]. N.T., 7/20/20, at 32 ¶ 12-19. Father notified
Mother verbally [and] told her that he had found a new residence
in September or October [of 2019]. N.T., 7/20/20, at 32 ¶ 8-11.
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Mother testified that between August, September, [and] October
[of 2019], after Father moved out of Appellant’s home, she picked
up [Child] for her custodial time equally from Father’s barbershop
or Appellant’s home. N.T., 7/20/20, at 33 ¶ 7-25.
During August, September, [and] October [of] 2019, Mother
believed that [Child] was living in Appellant’s home, while Father
was in the process of getting [Child] a bed for his new home. N.T.,
7/20/20, at 34 ¶ 3-9.
Between when Father moved out of Appellant’s home in early fall
of 2019 and March [of] 2020, Mother testified that she discussed
with Father him moving out and leaving [Child] with Appellant,
and that she disagreed with it. N.T., 7/20/20, at 34 ¶ 10-25.
Mother testified [that,] when she left Child while she went out on
the road as an overland trucker, she believed she was leaving
[Child] with Father, not Appellant. N.T., 7/20/20, at 34 ¶ 10-25.
Appellant testified that Father moved out of her home on February
4, 2019. N.T., 7/20/20, at 49 ¶ 17-20. From February 4, 2019
to April 11, 2020, [Child] primarily resided with Appellant. N.T.,
7/20/20, at 49 ¶ 21-24.
Appellant testified that Mother consented to [Child] remaining in
her home. N.T., 7/20/20, at 54 ¶ 2-4. Appellant testified that her
[sic] and Mother had several conversations and exchanged text
messages. N.T., 7/20/20, at 54 ¶ 6-7. Specifically, Appellant
testified: “There were many comments made directly to me by her
that gave consent for [Child] to be with me.” N.T., 7/20/20, at
54 ¶ 7-9. Appellant and Mother had a conversation at Mother’s
home where Mother told [Appellant] that she would like to get
[Child] more, but, according to Appellant, that didn’t happen after
the conversation. N.T., 7/20/20, at 54 ¶ 15-20.
Mother testified that she appreciates Appellant being there for her
child, helping [Child] and Father out, and helping him with
homework. N.T., 7/20/20, at 36 ¶ 23-25; at 37 ¶ 1-3. Mother
testified that she was appreciative of Appellant standing in her
place when she was not present, however Mother testified: “she
could have stood in the place as a nanny. A caregiver. Never a
mother.” N.T., 7/20/20, at 38 ¶ 14-23. Mother testified that she
did not like the fact that [Child] remained with Appellant. N.T.,
7/20/20, at 39 ¶ 7-9. Mother testified she did not file any custody
action, because she did not feel it was necessary since she could
see [Child]. N.T., 7/20/20, at 39 ¶ 10-13. Mother filed [a custody
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action] once Father denied Mother from getting him. N.T.,
7/20/20, at 39 ¶ 14-16.
Appellant testified during the period from February 2019 to April
2020, she oversaw [Child]’s homework, attended his medical and
dental appointments, [sic] [and] parent teacher conferences,
oversaw his hygiene, purchased his food and clothing,
communicated with his teachers, and attended school events,
signed him up for extracurricular activities and attended the
activities. N.T., 7/20/20, at 50 ¶ 20-25; at 51 ¶ 1-25; at 52 ¶ 1-
2.
[Child] attends Ardmore Avenue Elementary School in Lansdowne
based on Paternal Grandparents’ address, not Appellant’s,
although Appellant is located within the residency boundaries of
that school. N.T., 7/20/20, at 64 ¶ 20-25; at 65 ¶ 1-15. When
Father first registered [Child] for school, he and Appellant were
residing with Paternal Grandparents. N.T., 7/20/20, at 65 ¶ 1-8.
Id. at 3-6 (some formatting altered).
On August 13, 2020, the trial court issued an order sustaining Mother’s
preliminary objections and an order denying Appellant’s counterclaim for
custody.4 On September 10, 2020, Appellant filed timely notices of appeal
and Pa.R.A.P. 1925(a)(2)(i) statements.5 Appellant also filed a motion for
reconsideration of both orders, which the trial court denied on October 2,
2020. The trial court issued a Rule 1925(a) opinion addressing Appellant’s
claims.
____________________________________________
4 The trial court also entered a temporary order amending the physical and
legal custody of Child. However, Appellant did not appeal from that order.
5 On October 16, 2020, Appellant filed a petition to stay the orders pending
the outcome of this appeal, which the trial court denied on November 5, 2020.
Appellant subsequently filed a petition to stay the orders with this Court on
November 16, 2020, which was denied on December 7, 2020.
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On appeal, Appellant raises the following issues:
1. Did the trial court commit an error of law in finding that
Appellant did not have in loco parentis standing to pursue legal
and/or physical custody of the minor child pursuant to 23 Pa.
C.S. § 5324(2)?
2. Was the trial court’s decision sustaining Mother’s preliminary
objections and dismissing Appellant’s counter-complaint for
custody against the weight of the evidence?
Appellant’s Brief at 6.6
Jurisdiction
Initially, we must determine whether this appeal is properly before us.
See K.W. v. S.L., 157 A.3d 498, 501-02 (Pa. Super. 2017) (stating that “since
we lack jurisdiction over an unappealable order it is incumbent on us to
determine, sua sponte when necessary, whether the appeal is taken from an
appealable order” (citation omitted and formatting altered)).
In order to be appealable, an order must be: (1) a final order; (2) an
interlocutory order appealable by right or permission pursuant to 42 Pa.C.S.
§ 702(a)-(b), Pa.R.A.P. 311-312; or (3) a collateral order, as set forth in
Pa.R.A.P. 313. In the Interest of J.M., 219 A.3d 645, 650-51, 55 (Pa.
Super. 2019). “[A] custody order will be considered final and appealable only
if it is both: 1) entered after the court has completed its hearings on the
merits; and 2) intended by the court to constitute a complete resolution of the
____________________________________________
6 Paternal Grandparents filed a brief adopting Appellant’s claims on appeal.
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custody claims pending between the parties.” G.B. v. M.M.B., 670 A.2d 714,
720 (Pa. Super. 1996) (footnotes omitted).
However, we have explained that
the “collateral order doctrine” exists as an exception to the
finality rule and permits immediate appeal as of right from
an otherwise interlocutory order where an appellant
demonstrates that the order appealed from meets the
following elements: (1) it is separable from and collateral
to the main cause of action; (2) the right involved is too
important to be denied review; and (3) the question
presented is such that if review is postponed until final
judgment in the case, the claimed right will be irreparably
lost. See Pa.R.A.P. 313.
J.M., 219 A.3d at 655 (some citations omitted).
Our Supreme Court has held that an order denying intervention in a
child custody case based on a party’s lack of standing is appealable as a
collateral order. See K.C. v. L.A., 128 A.3d 774, 780 (Pa. 2015). Therefore,
Appellant’s appeals are properly before us.
Standing
Both of Appellant’s claims challenge the trial court’s conclusion that she
did not have in loco parentis standing to pursue custody of Child. Appellant’s
Brief at 38. First, Appellant asserts that “the record overwhelmingly reflects
that [she] assumed parental status and discharged parental duties from the
time that the child, who is now eleven years old, was only four years old.” Id.
at 40. Relying on this Court’s decision in M.J.S. v. B.B., 172 A.3d 651, 657
(Pa. Super. 2017), Appellant contends that she was “not required to prove
that one of child’s parents relinquished a parental role to her – only that she
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assumed a parent-like status and discharged parental duties.” Id. at 48.
However, she also asserts that she “had Father’s explicit consent to the
assumption of parental duties and discharge of parental duties from the time
that he moved into [Appellant’s] home with the child to live as a family unit,
if not before.” Id. at 55. Further, she claims that she “likewise had Mother’s
consent through Mother’s long-standing failure to act in a manner inconsistent
with consent.” Id.
Appellant also argues that the trial court’s conclusions were against the
weight of the evidence. Id. at 55. Specifically, Appellant claims that the trial
court mischaracterized her role in Child’s life as that of a “childcare provider,”
which was not supported by the record. Id. at 59. Further, she asserts that
the trial court erred in failing to consider the effect of her relationship with
Child on Child’s best interest. Id. at 65.
In custody cases under the Act, our standard of review is as follows:
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 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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
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“Determining standing in custody disputes is a threshold issue that must
be resolved before proceeding to the merits of the underlying custody action.”
C.G. v. J.H., 193 A.3d 891, 898 (Pa. 2018) (citing K.C., 128 A.3d at 779).
Standing “is a conceptually distinct legal question which has no bearing on the
central issue within the custody action-who is entitled to physical and legal
custody of a child in light of his or her best interests.” Id. (citation omitted
and formatting altered). Issues of standing are questions of law; thus, the
standard of review is de novo and the scope of review is plenary. K.W., 157
A.3d at 504.
Section 5324 of the Domestic Relations Code provides that the following
parties have standing to pursue custody of a child: “(1) a parent of the child[;]
(2) a person who stands in loco parentis to the child[; and] (3) a grandparent
of the child who is not in loco parentis to the child[,]” under certain
circumstances. 23 Pa.C.S. § 5324.
This Court has explained:
The term in loco parentis literally means ‘in the place of a parent.
A person stands in loco parentis with respect to a child when he
or she “assum[es] 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.” Critical to our discussion here, “in loco
parentis status cannot be achieved without the consent and
knowledge of, and in disregard of [,] the wishes of a parent.”
K.W., 157 A.3d at 504-05 (citations omitted and formatting altered); see
also T.B. v. L.R.M., 786 A.2d 913, 917 (Pa. 2001) (emphasizing that a third
party cannot achieve in loco parentis status in defiance of the parents’
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wishes); M.J.S., 172 A.3d at 657 (concluding that the grandmother had in
loco parentis status where she assumed parental status, discharged parental
duties, and the child’s father did not oppose her assumption of parental duties
at any point).
Here, in concluding that Appellant lacked in loco parentis standing, the
trial court explained:
Appellant should not be granted in loco parentis standing.
Appellant’s claim for in loco parentis standing is based on her
performance of childcare duties both during and after the
relationship with Father. The evidence does not support her claim
of standing for either time period.
All parties agree that Child lived with Father and Appellant from
August 2015 until his father left the residence in 2019. During
that period of time, Appellant performed various caregiving duties
at Father’s behest, including: supervising homework, attending
medical [appointments], attending parent teacher conferences
and school events, and paying for household groceries, clothes
and extra-curricular activities for which she was reimbursed by
Father. N.T., 7/20/20, at 44 ¶ 5-25; 45 ¶ 1-25; 94 ¶ 23-25; 100
¶ 1. Appellant testified that she and Paternal Grandmother are
both listed as emergency contacts for school, extra-curricular
activities, and medical providers but that both parents are on the
forms as well. N.T., 7/20/20, at 81 ¶ 18-25; at 82 ¶ 1-5. She
further testified that she never executed any legal documents for
Child, never made any independent medical decisions for Child,
and only conveyed information learned at medical appointments
to Father, who made any necessary legal decisions. N.T.,
7/20/20, at 83 ¶ 17-25; at 84 ¶ 1-20. Appellant also testified that
in the beginning of her relationship with Father, that he would
communicate with [Mother;] however, beginning in approximately
2018, Father asked her to directly communicate with Mother,
which she did. N.T., 7/20/20, at 63 ¶ 16-25. Although Appellant’s
home is in Child’s school district, Child has been registered from
the Paternal Grandparents’ home since he began living in
Appellant’s home. N.T., 7/20/20, at 23 ¶ 2-14. Neither parent
ever changed Child’s home address for school purposes, and
neither ever gave Appellant the authority to do so.
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. . . [N]othing in the instant record indicates that the parents ever
intended for [C]hild to reside permanently with Appellant and that
the living arrangement was temporary based on Father living in
the same residence.
Appellant and Father lived together in a romantic relationship for
approximately four years[;] therefore, it is natural to expect that
as part of their relationship, that she would perform some
caregiving for the child who lived in her home. The record
supports the finding that Appellant, as the child’s father’s
paramour, helped [Father] with Child when requested. Although
Father never sought Mother’s explicit permission or consent for
Appellant to provide those duties, she was aware of them and
never voiced an objection. However, assistance at one parent’s
behest and with the other parent’s knowledge does not
automatically confer in loco parentis standing. Between 2015 and
2019, neither of the parents relinquished any parental duties or
legal rights to Appellant[;] they maintained complete supervision
and control over the child’s safety, health and wellbeing, and any
favors that Appellant performed for Father were solely a result of
their romantic relationship. Mother appreciated that Appellant
assisted Father, but she never told or asked her to engage in any
caregiving duties, and she credibly testified that when she went
on the road, she left her son with his father, not with Appellant.
N.T., 7/20/20, at 34 ¶ 15-20. Appellant also never made any
independent legal decisions about the child’s education or medical
care and was never given authority to do so by either parent. The
[c]ourt finds that substantial credible evidence was presented
which support the finding that Appellant acted only at Father’s
request and not as an independent permanent parental authority.
N.T., 7/20/20, at 63 ¶ 16-25; at 64 ¶ 1-3.
Therefore, the [c]ourt finds that Appellant does not have in loco
parentis standing based on her caregiving duties from 2015
through 2019.
The parties had vastly different testimony as to the length of time
that Appellant cared for Child after Father vacated their joint
residence. Appellant testified that she sent a text to Mother on
February 8, 2019 (Exhibit R1) advising her that Father was
vacating the residence that they shared. Appellant testified that
she had multiple conversations with Mother after February 8,
2019, during which Mother gave her consent for child to remain
living primarily with her, see id. at 54 ¶ 2-20, however, Mother
testified that, when she learned from Father that he had moved
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out, he informed her that [Child] would also be moving out to live
with him. Id. at 16 ¶ 11-20. Father testified that he vacated
Appellant’s residence during the week of February 4, 2019, that
he told Mother about his move in February 2019, and that he sent
her texts containing photos of him building a bunkbed for the
child. Id. at 90 ¶ 21-25; at 91 ¶ 1-14. Mother testified that she
eventually learned that the child was still living with Appellant and
confronted Father multiple times about the child’s living
arrangement, to which his response was that he needed to buy
the child a bed for his new home. Id. at 16 ¶ 21-25; at 17 ¶ 1-
12. Mother further testified that she believed that Father was still
living with Appellant until the fall of 2019. Id. at 31 ¶ 9-25; at 32
¶ 1-19.
Mother was credible in her general description of the timeline and
information that was provided to her by both Father and
Appellant. The [c]ourt finds that Father failed to provide Mother
with a complete plan about where the child would live once the
relationship was over. The [c]ourt also finds that the February 8,
2019 text sent by Appellant to Mother does not state that Father
was vacating her home and only informs her of the potential
breakup. Although the [c]ourt finds that Father neglected to keep
Mother fully apprised of the child’s living arrangements, the
[c]ourt does not find it credible that Mother initially learned that
Father vacated the home in the Fall of 2019. Id. at 31 ¶ 9-25; at
32 ¶ 1-19. At an earlier hearing, Mother testified that the only
reason why she did not remove the child from Appellant’s home
after Father left was so that he could complete the school year at
his longtime school, see N.T., 5/13/20 at 170 ¶ 19-25; 171 ¶ 1-
8, which naturally means that she knew that Father had left before
the end of the 2019-2020 school year. However, that decision by
Mother also does not result in in loco parentis status for Appellant.
The record shows that Father, in essence, strung Mother along
with promises that Child would be moving in with him once he got
Child a bed. The [c]ourt does not find Father credible in his claims
that he was building Child a bed and that, upon completion of that
act, Child would move in with him. According to Father, he began
building a bed in February 2019[;] however, as of April 2020, the
bed was not finished, and [Child] was still living at Appellant’s
home. Even if the [c]ourt were to find it credible that Father was
building a bed for thirteen (13) months, the fact that he told
Mother that his plan was for Child to vacate Appellant’s home and
live with him is evidence that he intended to maintain the parental
role and not to relinquish it to Appellant.
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Father testified at the earlier hearing that the only reason why he
wants his son to primarily live with Appellant is because she was
a “straight A student” who was better equipped to help Child with
his schoolwork, even though [Father] can contact the teachers
directly. N.T., 5/13/20 at 145 ¶ 6-25; at 146 ¶ 1-25; at 147 ¶ 1-
11. Father additionally testified that there is no abuse or neglect
in his home, that he also helps Child with his schoolwork, and that
he had previously hired a tutor for Child. N.T., 5/13/20 at 141 ¶
1-25.
Therefore, the [c]ourt finds that Appellant does not have in loco
parentis standing based on her caregiving duties from February
2019 through April 2020.
It is obvious to the [c]ourt that Father is impressed by Appellant’s
academic credentials and that, although they are no longer in a
romantic relationship, he feels that she can provide [Child] with
appropriate educational guidance. Unfortunately, [Father] does
not have such a high opinion of Mother[;] however, the instant
issue is not Mother’s parental capacity but whether or not
Appellant stands in loco parentis to the child. In February 2019,
Mother was no longer employed as a long-distance truck driver
and maintained her home and employment in the Philadelphia
area - she could have easily had the child in her home on a primary
basis, yet neither Appellant nor Father included her in the
planning, and both failed to keep her completely apprised of the
living situation. Mother is further credible in describing her
repeated attempts to confirm Child’s living arrangements with
Father following his move, and she was consistently assured by
[Father] that the child would be moving in with him expeditiously.
Father’s failure to honestly and succinctly communicate with
Mother was not because he had ever relinquished his parental role
to Appellant, but only because he held Mother and her parenting
skills in contempt.
In loco parentis status cannot be established absent the approval
of the child’s biological parents. Mother testified that, although
she knew that child still primarily resided with Appellant after
Father vacated the residence, she strongly disagreed with that
arrangement. She testified that they argued about that decision
and that she “felt like he just walked out, and you know, left him
with her.” N.T., 7/20/20, at 34 ¶ 10-25. The [c]ourt agrees with
Mother’s opinion and finds that Father’s somewhat relaxed view
of his parental role is the only precipitating factor for Appellant’s
assistance and that, although he left the child at [Appellant’s]
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home, he did not intend for [Child] to remain there. Although the
admitted nature of their joint caregiving for Child makes sense
under the former circumstances, there is no evidence that either
biological parent required [Appellant] to do so.
Here, Appellant, a third party, cannot place herself in loco parentis
status in defiance of the parents’ wishes. In loco parentis status
cannot be achieved in disregard of the wishes of a parent. Thus,
a third party may not intervene and assume [in loco parentis]
status with respect to a child where the natural parent opposes
such intervention.
Mother testified in no uncertain terms that she only viewed
Appellant as a caregiver or a nanny, see id. at 36 ¶ 23-25; 37 ¶
1-5; 38 ¶ 14-23; 39 ¶ 7-9, and Father clearly only regards her as
a free tutor with no intent for Appellant to assume all of the rights
and responsibilities of parenthood. Appellant’s in loco parentis
status cannot be established absent the approval of the child’s
biological parents. As [in K.W.], the biological parents’ express,
rather than implied consent is required for Appellant to have in
loco parentis standing. The biological parents in this matter never
gave express consent to Appellant to have in loco parentis
standing with respect to the child and, most importantly, never
admitted that they relinquished any parental role or status to
Appellant, and never intended for [Appellant, who is] Father’s
former paramour, to take on the permanent role of a parent.
Although Appellant may indeed be a well-meaning acquaintance,
she should not be permitted to usurp Mother’s parental role.
In conclusion, there was insufficient evidence to establish in loco
parentis standing [for Appellant,] Father’s former paramour.
Trial Ct. Op., 10/6/20, at 6-18.
Based on our review of the record, we agree with the trial court’s
conclusions. See K.W., 157 A.3d at 504. Although Mother knew the extent
of Appellant’s involvement in Child’s care, Mother did not view Appellant as a
parental figure. See Trial Ct. Op. at 18. Therefore, absent Mother’s express
consent, Appellant cannot establish in loco parentis standing to pursue
custody of Child on that basis. See K.W., 157 A.3d at 504-05; see also T.B.,
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J-A05029-21
786 A.2d at 917. Cf. M.J.S., 172 A.3d at 657 (finding that the grandmother
had in loco parentis status where she assumed parental status, discharged
parental duties, and the child’s father did not oppose her assumption of
parental duties at any point).
We also note that, contrary to Appellant’s claim, standing does not
require an evaluation of the Child’s best interests. See C.G., 193 A.3d at 898.
Further, the trial court’s conclusions are based on competent evidence
supported by the record. See C.R.F., 45 A.3d at 443. Therefore, to the
extent Appellant challenges the weight of the evidence and the credibility of
the witnesses, we will not disturb those determinations on appeal. See id.For these reasons, we conclude that the trial court properly sustained
Mother’s preliminary objections and dismissed Appellant’s counter complaint
based on Appellant’s lack of standing. See K.W., 157 A.3d at 504-05.
Accordingly, we affirm.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2021
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