Rose, J. v. Rose, E.

J-S37033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JUSTIN ROSE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIZABETH ROSE N/K/A ELIZABETH :
BLAUKOVITCH :
: No. 1562 EDA 2022
:
APPEAL OF: JAMES E. ROSE JR. :
Appeal from the Order Entered June 8, 2022
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
2013-FC-1269
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 30, 2022
Appellant, James E. Rose, Jr., appeals pro se from the order entered on
June 8, 2022 that denied his motion for visitation rights on grounds that
Appellant, paternal grandfather to L.G.R.1 (a female born March, 2011)
(Child), lacked standing to seek physical custody, legal custody, partial
physical custody, or supervised physical custody of Child. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On August 22, 2018, the trial court entered a final custody order
regarding Child, granting shared legal and physical custody to Justin Rose
(Father) and Elizabeth Rose n/k/a Elizabeth Blaukovitch (Mother). On
February 4, 2022, Appellant filed a pro se motion for grandparent visitation
____________________________________________
1 We will refer to the minor involved in this case by her initials or as “Child”
to protect her identity.
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rights. Following a remote video hearing held on June 8, 2022, the trial court
entered an order denying relief after determining that Appellant lacked
standing. On June 9, 2022, Appellant filed a timely pro se notice of appeal.
On June 13, 2022, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on July 5, 2022. On July 22, 2022, the trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a). In its opinion, the trial court initially
determined that Appellant waived all of his issues on appeal because his Rule
1925(b) statement, which raised 110 allegations of error, was not concise.
Alternatively, the trial court relied upon the reasons it expressed at the June
8, 2022 hearing as ground for denying relief.
Initially, we note that Appellant’s pro se brief to this Court is woefully
undeveloped. This Court has previously determined:
[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101.
This Court may quash or dismiss an appeal if the appellant fails to
conform to the requirements set forth in the Pennsylvania Rules
of Appellate Procedure. Id.; Commonwealth v. Lyons, 833 A.2d
245 (Pa. Super. 2003). Although this Court is willing to liberally
construe materials filed by a pro se litigant, pro se status confers
no special benefit upon the appellant. Id. at 252. To the contrary,
any person choosing to represent himself in a legal proceeding
must, to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing. Commonwealth v.
Rivera, 685 A.2d 1011 (Pa. Super. 1996).
The Pennsylvania Rules of Appellate Procedure provide guidelines
regarding the required content of an appellate brief as follows:
Rule 2111. Brief of the Appellant
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(a) General Rule. The brief of the appellant, except as
otherwise prescribed by these rules, shall consist of the
following matters, separately and distinctly entitled and in
the following order:
(1) Statement of jurisdiction.
(2) Statement of both the scope of review and the standard
of review.
(3) Order or other determination in question.
(4) Statement of the question involved.
(5) Statement of the case.
(6) Summary of the argument.
(7) Argument for the appellant.
(8) A short conclusion stating the precise relief sought.
(9) The opinions and pleadings specified in Subdivisions (b)
and (c) of this rule.
(10) In the Superior Court, a copy of the statement of the
matters complained of on appeal filed with the trial court
pursuant to Rule 1925(b), or an averment that no order
requiring a Rule 1925(b) statement was entered.
Pa.R.A.P. 2111(a)(1)-(10) (emphasis added). Additionally, Rules
2114 through 2119 specify in greater detail the material to be
included in briefs on appeal. See Pa.R.A.P. 2114-2119.
Commonwealth v. Adams, 882 A.2d 496, 497–498 (Pa. Super. 2005).
Moreover, this Court has stated:
Parties to an appeal are required to submit briefs in conformity, in
all material respects, with the requirements of the Rules of
Appellate Procedure, as nearly as the circumstances of the
particular case will permit. Pa.R.A.P. 2101. Rules 2111 and 2114
through 2119 detail the specific requirements relevant to the brief
of an appellant. Of particular importance is the provision of Rule
2119(a) that a brief must contain a developed argument
augmented by citation to pertinent authorities. Arguments not
appropriately developed are waived. It is not the duty of the
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Superior Court to act as an appellant's counsel, and it is an
appellant's responsibility to establish both the purported errors
and any entitlement to relief therefrom.
Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (some
citations omitted).
Here, Appellant’s appellate brief is a diatribe that enumerates 97
stream-of-conscience bullet points. Of all of the above-cited appellate rules,
Appellant only complied with the directives to file a copy of the trial court
opinion and provide a short conclusion stating the relief sought. Appellant,
however, failed to include a statement of jurisdiction, statement of scope and
standard of review, statement of questions involved, statement of the case,
an argument or summary of the argument, or a copy of his Rule 1925(b)
concise statement and order in question in his appellate brief. Moreover,
Appellant’s brief contains no citations to authority and makes no specific
reference to the certified record. See Pa.R.A.P. 2119(b)-(c). On these bases,
we could quash or dismiss Appellant’s appeal for failure to comply with our
Rules of Appellate Procedure. See Pa.R.A.P. 2101.
Moreover, this Court has previously determined that
issues not raised in a Rule 1925(b) statement will be deemed
waived for review. An appellant's concise statement must
properly specify the error to be addressed on appeal. In other
words, the Rule 1925(b) statement must be specific enough for
the trial court to identify and address the issue an appellant
wishes to raise on appeal.
A concise statement which is too vague to allow the court to
identify the issues raised on appeal is the functional equivalent of
no concise statement at all. The court's review and legal analysis
can be fatally impaired when the court has to guess at the issues
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raised. Thus, if a concise statement is too vague, the court may
find waiver.
Commonwealth v. Scott, 212 A.3d 1094, 1112 (Pa. Super. 2019) (internal
citations, quotations and brackets omitted). Here, the trial court determined
that Appellant’s Rule 1925(b) statement was vague instead of concise and,
therefore, concluded Appellant waived all of his appellate issues. We could
dismiss Appellant’s appeal on this basis, as well.
However, after our review of the certified record, Appellant’s pro se brief
and applicable law, we conclude that Appellant is not entitled to relief for the
reasons that follow. As gleaned from Appellant’s brief, Appellant alleges that
he has a strained relationship with his son, Father. Essentially, Appellant
claims that Father falsely accused Appellant of being a criminal, threatened to
sue Appellant in federal court, and used Child “as a pawn to punish []
Appellant.” See Appellant’s Pro Se Brief at ¶¶ 5-7, 12, and 80. Baldly
referencing the 14th Amendment to the United States Constitution and the
Equal Protection Clause, Appellant claims he was not afforded the same rights
of visitation that maternal grandparents were given because he is black, and
they are white. Id. at ¶¶ 2, 12-15, 22-26, 78, 82, and 89.
“[A]ppellate courts possess a broad scope of review in partial custody
and visitation cases, [but] they may not, and in fact cannot, substitute their
own findings of fact with respect to the parties' emotional feelings and
attitudes towards one another.” Com. ex rel. Zaffarano v. Genaro, 455
A.2d 1180, 1183 (Pa. 1983). “[G]randparents bear the burden of proving to
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the court that it would be in their grandchild's best interest for the
grandparents to have custody of the child away from his or her parent for
limited periods of time.” Id. Our Supreme Court has determined:
Our scope of review in a custody matter is of the broadest type,
and we are not bound by deductions or inferences made by a trial
court.... We must exercise an independent judgment based on the
evidence and make such an order on the merits of the case as
right and justice dictate.
Id. (citation omitted).
This Court has previously determined:
Well-settled Pennsylvania law provides that persons other than a
child's biological or natural parents are third parties for purposes
of custody disputes. In addition, natural parents have a prima
facie right to custody. Except via dependency proceedings, third
parties lack standing to seek custody as against the natural
parents unless they can demonstrate a prima facie right to
custody. Even when standing to seek custody is conferred upon
a third party, the natural parent has a prima facie right to custody,
which will be forfeited only if clear and convincing reasons appear
that the child's best interest will be served by an award to the
third party. Thus, even before the proceedings start, the
evidentiary scale is tipped, and tipped hard to the biological
parents' side.
There is a stringent test for standing in third-party suits for...
custody due to the respect for the traditionally strong right of
parents to raise their children as they see fit. The courts generally
find standing in third-party visitation and custody cases only
where the legislature specifically authorizes the cause of action.
A third party has been permitted to maintain an action for custody,
however, where that party stands in loco parentis to the child.
***
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
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formality of a legal adoption.... The third party in this type of
relationship, however, cannot place himself in loco parentis in
defiance of the parents' wishes and the parent/child relationship.
This Court has also specifically stated:
An important factor in determining whether a third party has
standing is whether the third party lived with the child and
the natural parent in a family setting, irrespective of its
traditional or nontraditional composition, and developed a
relationship with the child as a result of the participation and
acquiescence of the natural parent.
In other words, a third party may not intervene and assume in
loco parentis status where the natural parent opposes such
intervention.
J.F. v. D.B., 897 A.2d 1261, 1273–1274 (Pa. Super. 2006) (internal citations,
quotations, brackets omitted).
Pursuant to 23 Pa.C.S.A. § 5324, the following individuals are eligible to
exercise standing to file an action for any form of physical or legal custody:
(3) A grandparent of the child who is not in loco parentis to the
child:
(i) whose relationship with the child began either with the
consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for
the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent
child[;]
(B) the child is substantially at risk due to parental abuse,
neglect, drug or alcohol abuse or incapacity; or
(C) the child has, for a period of at least 12 consecutive
months, resided with the grandparent, excluding brief
temporary absences of the child from the home, and is
removed from the home by the parents, in which case
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the action must be filed within six months after the
removal of the child from the home.
23 Pa.C.S.A. § 5324(3).
Moreover,
[i]n addition to situations set forth in [S]ection 5324 (relating to
standing for any form of physical custody or legal custody),
grandparents and great-grandparents may file an action under
[Section 5325] for partial physical custody or supervised physical
custody in the following situations:
(1) where the parent of the child is deceased, a parent or
grandparent of the deceased parent may file an action under this
section;
(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;
or
(3) when the child has, for a period of at least 12 consecutive
months, resided with the grandparent or great-grandparent,
excluding brief temporary absences of the child from the home,
and is removed from the home by the parents, an action must be
filed within six months after the removal of the child from the
home.
23 Pa.C.S.A. § 5325.
Here, the trial court determined that pursuant to Section 5324,
Appellant failed to establish that Child had been adjudicated dependent, at
risk of abuse or neglect, and/or that Child ever resided with Appellant. See
N.T., 6/8/22, at 4. Father testified that the last time Appellant saw Child was
“around Christmas time when she was about 10 months old” and that Child
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had no meaningful recollection of Appellant. Id. at 7. Additionally, neither
Mother nor Father is deceased, Appellant does not stand in loco parentis, and
both parents testified at the June 8, 2022 hearing that they did not consent
to an order of visitation for Appellant. Id. at 5-8. Moreover, when the trial
court denied Appellant’s request for visitation based upon his lack of standing,
Appellant replied, “if they say they don’t want me to see their daughter, well,
it breaks my heart, but I’ll honor their wishes.” Id. at 11. Currently, Appellant
does not contest the trial court’s finding that he lacks standing pursuant to
Sections 5324 and 5325, as set forth above. Finally, Appellant’s challenges
to the credibility of Father and Mother are not supported by the record and
rest largely on matters wholly irrelevant to Child’s custody.
We note, in closing, that Appellant raises an equal protection argument
for the first time on appeal. “Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Regardless, the Equal Protection Clause provides that “[n]o State shall ... deny
to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. Amend. XIV, § 1. “The essence of the constitutional principle of equal
protection under the law is that like persons in like circumstances will be
treated similarly.” Curtis v. Kline, 666 A.2d 265, 267 (Pa. 1995). “Equal
protection analysis requires that we find state action that denies a person
‘equal protection of the laws’ because it constrains only the actions of the
State not of private persons.” Uniontown Newspapers, Inc. v. Roberts,
839 A.2d 185, 200 (Pa. 2003), citing U.S. Const. Amend. XIV, § 1, cl. 4.
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Appellant cannot assert equal protection claims against Father or Mother since
such claims lack the essential component of state action. Moreover, in
determining that Appellant did not meet the threshold to establish standing
under Sections 5324 and 5325, as set forth above, the trial court neither
considered Appellant’s race nor compared Appellant’s claim or status to Child’s
maternal grandparents.2
Accordingly, based upon our standard of review and our examination of
the certified record and applicable law, we discern no abuse of discretion or
error of law by the trial court’s denial of Appellant’s request for visitation of
Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2022
____________________________________________
2 The trial court held a hearing on Appellant’s motion for visitation, so
Appellant had notice and an opportunity to be heard and there is no viable
claim that he was denied due process of law. Moreover, from our review of
the certified record, there have been no filings, orders, or trial court decisions
regarding visitation by Child’s maternal grandparents. Mother and Father did
not testify regarding the relationship between Child and her maternal
grandparents at the hearing on Appellant’s request for visitation. As such,
there is no record evidence that Appellant was treated differently under the
law than “persons in like circumstances.”
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