In the Interest of: A.M., a Minor

J-S02031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: L.F., GRANDMOTHER :
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:
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: No. 928 EDA 2017
Appeal from the Order February 21, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0001077-2013
IN THE INTEREST OF: R.C.-E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: L.F., GRANDMOTHER :
:
:
:
: No. 929 EDA 2017
Appeal from the Order February 21, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002538-2015
IN THE INTEREST OF: G.C.-E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: L.F., GRANDMOTHER :
:
:
:
: No. 930 EDA 2017
Appeal from the Order February 21, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002539-2015
BEFORE: BOWES, J., NICHOLS, J., and RANSOM*, J.
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* Retired Senior Judge assigned to the Superior Court.
J-S02031-18
MEMORANDUM BY RANSOM, J.: FILED APRIL 27, 2018
Appellant, L.F. (“Grandmother”), appeals from the order dated
February 21, 2017, denying her motion to intervene pursuant to Pa.R.J.C.P.
1133 in the dependency proceedings for her three grandchildren: A.M., born
in October 2004; R.C.-E., born in September 2012; and G.C.-E., born in
September 2013 (collectively, “the Children”). We affirm.
In its opinion, entered June 9, 2017, the trial court fully and correctly
set forth the relevant facts and procedural history of this case. See Trial
Court Opinion, 6/9/17, at 1-7. Therefore, we have no reason to restate
them here at length.
For the convenience of the reader, we simply note that Grandmother
filed a motion to intervene in dependency, claiming that she had standing as
a grandparent. In the motion to intervene, Grandmother sought “sole
physical and sole legal custody” of the Children. Mot. to Intervene in
Dependency, 2/21/17, at 2 ¶ 6. Grandmother did not file complaints in
custody; no custody actions exist for the Children – only the dependency
and termination of parental rights actions. The trial court denied
Grandmother’s motion to intervene.
In her timely appeal, Grandmother raises one issue for our review:
Did the [trial] court commit an error of law and/or abuse of
discretion in denying Grandmother[]’s Motion to Intervene and
petition for custody of the [Children], who were in the custody of
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the Department of Human Services (DHS) pursuant to an
adjudication of dependency.
Grandmother’s Brief at 4.1
In [In re] L.Z., [111 A.3d 1164 (Pa. 2015),] the Supreme Court
stated:
“The standard of review in dependency cases requires an
appellate court to accept findings of fact and credibility
determinations of the trial court if they are supported by
the record, but does not require the appellate court to
accept the lower court’s inferences or conclusions of law.”
In re R.J.T., 608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa.
2010). We review for abuse of discretion.
L.Z., 111 A.3d at 1174. In addition, we have observed:
In dependency proceedings our scope of review is broad.
... Although bound by the facts, we are not bound by the
trial court’s inferences, deductions, and conclusions
therefrom; we must exercise our independent judgment in
reviewing the court’s determination, as opposed to its
findings of fact, and must order whatever right and justice
dictate.
In re C.B., 861 A.2d 287, 294 (Pa. Super. 2004) (quoted
citation omitted)[.]
In Interest of J.M., 166 A.3d 408, 416 (Pa. Super. 2017).
Grandmother alleges that the “Custody Act unambiguously gives [her]
the right to petition for custody of [the Children] and to be heard on the
merits of that petition” and that the trial court’s “conclusion that [she] failed
to file a petition for custody is patently incorrect.” Grandmother’s Brief at
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1 On October 6, 2017, we granted the motion of the Philadelphia Department
of Human Services (“DHS”) for an extension of time to file its brief. We
ordered that the brief be filed by October 20, 2017; as of the date of this
memorandum, DHS has not filed a brief with this Court.
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24, 26. However, irrespective of how Grandmother now is labelling her
motion to intervene as a “petition for custody,” id., Grandmother never
actually filed a complaint for custody.2 Notes of Testimony (N. T.), 2/21/17,
at 41-42. As Grandmother did not file a custody complaint, we can only
address Grandmother’s standing as it applies in a dependency action where
a motion to intervene is filed.3
[T]his Court [has] identified the only three classes of individuals
that are conferred standing to participate, introduce evidence, be
heard on their own behalf, and cross-examine witnesses during a
dependency hearing: (1) the parents of the juvenile whose
dependency status is at issue; (2) the legal custodian of the
juvenile whose dependency status is at issue, or (3) the person
whose care and control of the juvenile is in question.
In re J.S., 980 A.2d 117, 122 (Pa. Super. 2009) (citation and internal
quotation marks omitted). Grandparents do not have standing in
dependency proceedings when they do not meet any of the categories for
“party” status. In re F.B., 927 A.2d 268 (Pa. Super. 2007); see also In re
D.M., 995 A.2d 371, 379 (Pa. Super. 2010); In re L.C. II, 900 A.2d 378,
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2 At the time this action was decided by the trial court, Pa.R.C.P. 1915.3 and
1915.4 controlled the procedure for the commencement and disposition of a
custody action under the Custody Act. A custody action had to be
commenced by a verified complaint. Thus, Paragraph 6 and the “wherefore”
clause in Grandmother’s petition to intervene in dependency requesting that
the trial court grant “sole physical and sole legal custody of the [C]hildren”
to her were insufficient to fulfill the requirements for custody, contrary to
Grandmother’s contention in her brief to this Court. Grandmother’s Brief at
26-27.
3Had Grandmother properly filed for custody, she would have had standing
pursuant to 23 Pa.C.S. § 5324(3)(iii).
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380, 382 (Pa. Super. 2006). A child’s grandparents do not have standing in
dependency proceedings when they do not have legal custody of the child.
D.M., 995 A.2d at 377.
Here, Grandmother clearly does not have standing to intervene,
because she is not a parent of the Children, does not stand in loco parentis
to the Children, and does not have care or control over the Children. N. T.,
2/21/17, at 39. It is undisputed that the Children were removed from
Mother and not from Grandmother in September 2015, when the
Philadelphia Department of Human Services (“DHS”) obtained orders of
protective custody. The Children were later adjudicated dependent and
custody had remained with DHS.
Furthermore, Grandmother had been present at multiple review
hearings and even testified as a witness on December 19, 2016, and
February 21, 2017. Yet, she took no action to challenge the trial court’s
previous orders at prior review hearings in order to obtain custody of the
Children. Grandmother waited until after DHS had filed petitions for
involuntary termination of Mother’s parental rights to the Children in order to
file her challenge. Even then, she waited sixty days after learning that DHS
filed its petitions in order to file her motion to intervene.
As Grandmother has no standing to file petitions to intervene and
never filed complaints for custody, the trial court did not abuse its discretion
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in dismissing Grandmother’s petition to intervene. See J.M., 166 A.3d at
416.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/18
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