Lacer, J. v. Selb, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNIFER L. LACER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES P. SELB :
:
: No. 48 WDA 2022
APPEAL OF: ROBERT SELB AND :
CHUDI M. SELB :
Appeal from the Order Entered December 8, 2021
In the Court of Common Pleas of Erie County Civil Division at No(s):
13299-2015
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: June 14, 2022
Robert Selb and Chudi M. Selb (“Grandparents”) appeal from the order
granting the preliminary objections filed by Jennifer Lacer (“Mother”) to
Grandparents’ petition to intervene in the custody action. Grandparents
maintain the court erred in finding they lacked standing under 23 Pa.C.S.A. §
5325(2). We affirm.
Mother filed a custody complaint against J.B. (“Father”) in 2015. In
December 2020, the court ordered that Mother “shall be entitled to make
health, schooling, and other major decisions on behalf of” O.L., born August
2013, (“Child”). Custody Order, filed Dec. 4, 2020. It further ordered that
Father “shall be entitled to information concerning the child’s well-being and
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* Retired Senior Judge assigned to the Superior Court.
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mother shall keep the father informed of the child’s health, progress in school,
and general welfare” and “is entitled to receive directly from schools, health
care providers, or other relevant sources, information concerning the child,”
but he could not “communicat[e] with the child directly or indirectly through
school online platforms or through school or healthcare personnel.” Id. Father
was “granted access to online school platforms so long as [he did] not
communicate directly with the child, and so long as the child remain[ed]
unaware of father’s online presence.” Id. The order further provided that
“[w]hile the Final Protection from Abuse [(“PFA”)] Order remains in place, the
child shall reside with the mother, and the mother shall have sole physical
custody of the child.” Id. The PFA order is in place until May 2023.
In August 2021, Grandparents filed a petition to intervene pursuant to
23 Pa.C.S.A. § 5325(2). Grandparents alleged they were the paternal
grandparents of Child. They alleged that in 2017, Father had been granted
additional custody time and exercised partial custody for a three-night block
each week. Starting in 2017, Grandparents, who live approximately six hours
from Child, had at least 17 visits with Child. However, since the grant of a
temporary PFA in March 2020, Grandparents have not had contact with Child.
Grandparents allege Father is not able to continue to facilitate their
relationship with Child, but that Father desires that Grandparents speak to
and see Child while Mother has sole custody.
Mother filed preliminary objections, including a preliminary objection
alleging Grandparents lacked standing. She alleged that Father “is estopped
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from asserting, advocating, and/or participating in any decision about the best
interests of . . . [C]hild, including whether or not it would be in [C]hild’s best
interest for the paternal grandparents to have custody.” Preliminary
Objections to Petition to Intervene, filed Oct. 1, 2021, at ¶ 2a. She argues
that under Section 5325(2)(ii), the parents’ disagreement must be in the
present tense, and currently Father “can have no input as to the best interests
of [C]hild.” Id.
The trial court held a hearing on the objections, and the parties filed
briefs. In December 2021, the trial court sustained Mother’s objection to
Grandparents’ standing, reasoning Father’s current custody rights did not
allow for disagreement:
[Grandparents] move for intervention on the basis of 23
Pa.C.S.A. §5325(2). An essential element to grandparent
standing pursuant to Section 5325(2) is that the parents of
the subject child “do not agree as to whether the
grandparents or great-grandparents should have custody.”
23 Pa.C.S.A. § 5325(2)(ii). The Superior Court of
Pennsylvania recently held that the Child Custody Law does
not extend standing to grandparents under Section 5325(2)
when the predicate disagreement does not currently exist.
See E.A. v. E.C., 259 A.3d 497, 504-505 (Pa.Super. 2021)
(denying standing to grandparents when the at-issue child’s
father died as the father’s death eliminated the father’s
ability to either assent or oppose the mother’s decisions
regarding grandparent custody). The record is clear that the
present state of [Father’s] rights with regard to the Child
will not allow a current disagreement between the Child’s
parents regarding whether [Grandparents] should have
custody. Specifically, [Grandparents] admit that Father has
no custodial rights to the Child and, due to a PFA Order
entered following a finding of abuse against Father and
prohibiting Father’s contact with the Child for three years,
he lacks the ability to facilitate the Child’s relationship with
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[Grandparents]. [Grandparents] further admit that [Mother]
retained sole physical and legal custody of the Child
pursuant to a December 4, 2020 Custody Order made in
relation to the PFA Order and a July 22, 2020 Founded
Report of Abuse by Child Protective Services. While
[Grandparents] are correct that the terms of the Custody
Order govern the parents’ custodial rights, not the
grandparents’ rights, the impact of the Order eliminated
Father’s decision-making authority regarding the Child.
Accordingly, as in E.A. v. E.C., only the opinion of one
parent is at issue, rendering it impossible for
[Grandparents] to satisfy a necessary element for standing
pursuant to the sole section under which they intend to
proceed.
Order, filed Dec. 8, 2021. The court dismissed the petition to intervene.
Grandparents filed an appeal.
Grandparents raise the following issue:
Whether the [t]rial [c]ourt committed an error of law and/or
abused its discretion in sustaining [Mother’s] second
preliminary objection, pursuant to Pa.R.C.P. 1028(a)(5),
and dismissing [Grandparent’s] Petition to Intervene, where
it found that where []Mother maintains sole physical and
legal custody of [C]hild, that the state of []Father’s rights
will not allow a current disagreement between [C]hild’s
parents regarding whether [Grandparents] should have
custody pursuant to 23 Pa.C.S. § 5325(2).
Grandparents’ Br. at 5.
Grandparents argue that the trial court’s “interpretation of Section
5325(2)(ii) was in error as it interjects a new meaning into a clear and
unambiguous statute.” Grandparents’ Br. at 13. They claim that Section
5325(2)(ii) requires the parents to currently disagree; it “does not require
parents with shared legal custody to disagree.” Id. They argue that if the
General Assembly had intended to add a requirement of shared legal custody,
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it would have done so. Grandparents note that this Court has interpreted the
term “parent” to include “biological and adoptive parents,” and Section 5325
“does not restrict the term ‘parent’ any further.” Id. at 17. They claim the
facts of the instant case, “where one parent lacks the custodial rights to be
able to facilitate a relationship between the child and the grandparents, would
be an example of a situation Section 5325(2) is meant to address.” Id.
The issue Grandparents raise “involves statutory interpretation, which
is a question of law, and our review is plenary and non-deferential.” A.S. v.
Pa. State Police, 143 A.3d 896, 903 (Pa. 2016). “[T]he Statutory
Construction Act directs courts to ascertain and effectuate the intent of the
General Assembly.” Id. “The statute’s plain language generally provides the
best indication of legislative intent.” Id. (citation omitted). Further, “[w]hen
interpreting a statute, courts should read the sections of a statute together
and construe them to give effect to all of the statute’s provisions.” Roethlein
v. Portnoff Law Assoc., Ltd., 81 A.3d 816, 822 (Pa. 2013) (citing 1
Pa.C.S.A. § 1921(a)). “In giving effect to the words of the legislature, we
should not interpret statutory words in isolation, but must read them with
reference to the context in which they appear.” Id.
The Child Custody Act1 defines “[l]egal custody” as “[t]he right to make
major decisions on behalf of the child, including, but not limited to, medical,
religious and educational decisions.” 23 Pa.C.S.A. § 5322. It defines “[s]ole
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1 23 Pa.C.S.A. § 5321, et al.
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legal custody” as “[t]he right of one individual to exclusive legal custody of
the child.” Id.
The Act further provides paths for grandparents to have standing to seek
partial physical and supervised physical custody of a grandchild. One such
path provides that grandparents have standing where they have a relationship
with the child that began with the consent of a parent, the parents have
commenced a custody proceeding, and the parents “do not agree as to
whether the grandparents . . . should have custody under this section”:
In addition to situations set forth in section 5324 (relating
to standing for any form of physical custody or legal
custody), grandparents and great-grandparents may file an
action under this chapter for partial physical custody or
supervised physical custody in the following situations:
...
(2) where the relationship with the child began either with
the consent of a parent of the child or under a court order
and where the parents of the child:
(i) have commenced a proceeding for custody; and
(ii) do not agree as to whether the grandparents or
great-grandparents should have custody under this
section[.]
23 Pa.C.S.A. § 5325(2).
In E.A. v. E.C., 259 A.3d 497, 504 (Pa.Super. 2021), this Court
concluded that the requirement that the parents “do not agree” was in the
present tense, requiring a current disagreement, noting the words “do not
make an exception to consider past disagreements.” We concluded that
“regardless of any prior disagreements between parents about a
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grandparent’s ability to exercise partial custody, the Child Custody Law does
not extend standing to grandparents to file for partial physical custody under
this section when the predicate disagreement no longer exists.” Id.Here, when construing the Act, and giving effect to all of its provisions,
it is clear that where a parent has sole legal custody, such that they have the
sole right to make “major decisions on behalf of the child,”2 there can be no
current disagreement between the parents about whether grandparents
should have custody under the Act. Therefore, the trial court did not err in
finding Grandparents lacked standing under Section 5325(2). We note that,
as we have stated in prior cases, the concept of standing in child custody cases
is “fluid” and can be re-evaluated if factual changes in circumstances occur.
E.A., 259 A.3d at 501; M.W. v. S.T., 196 A.3d 1065, 1071 (Pa.Super. 2018).
Order affirmed.
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2 The Pennsylvania Supreme Court has concluded that “Section 5325 burdens
the right of parents to make decisions concerning the care, custody and
control of their children” and “that such right is a fundamental one[.]” See,
e.g., D.P. v. G.J.P., 146 A.3d 204, 210 (Pa. 2016).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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