Wells, T. v. Wells, B.

J-S01016-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TIMOTHY WELLS AND LORINE : IN THE SUPERIOR COURT OF
WELLS : PENNSYLVANIA
:
:
v. :
:
:
BRANDON WELLS :
: No. 844 WDA 2022
:
v. :
:
:
DANIELLE WALTERS :
:
:
APPEAL OF: BRANDON WELLS
Appeal from the Order Entered June 27, 2022,
in the Court of Common Pleas of Venango County,
Civil Division at No(s): No. 2022-00267.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 27, 2023
Brandon Wells (Father), pro se, appeals the order granting the request
of Danielle Walters (Maternal Aunt) to intervene in the custody matter
between Father and Paternal Grandparents, Timothy and Lorine Wells. This
custody case, involving Father’s two children, began after Father’s arrest for
the murder of Bierlie Walters (Mother). On appeal, Father argues the Venango
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01016-23
County Court of Common Pleas erred when it determined Maternal Aunt had
in loco parentis standing. After review, we quash.
Given our disposition, we abbreviate the factual and procedural history
as follows: The Children at the center of this case are Father’s three-year-old
son and two-year-old daughter. In March 2022, Father was arrested for his
alleged murder of Mother. Father was charged with, inter alia, first-degree
murder,1 drug delivery resulting in death,2 and three counts of endangering
the welfare of a child.3 Venango County Children and Youth Services (CYS)
obtained an emergency order and placed the Children with Maternal Aunt.4
In April 2022, Paternal Grandparents and Father entered into a custody
stipulation, which resulted in an order granting custody to the Paternal
Grandparents. The court issued this order notwithstanding the existence of
the juvenile court order placing the Children with Maternal Aunt. In May 2022,
____________________________________________
1 18 Pa.C.S.A. § 2502(a)
2 18 Pa.C.S.A. § 2606(a)
3 18 Pa.C.S.A. § 4303(a)(1).
Presumably, the three separate endangerment charges relate to Mother’s
three children: the two subject children; and a third child, O.W., who was
Mother’s daughter from a previous relationship. O.W. now resides with
Maternal Aunt. O.W. has no blood relationship to Father, and she is not a
subject of these proceedings.
4The placement was designated as a kinship placement. Maternal Aunt is the
spouse of Mother’s brother, Maternal Uncle. At the time of the proceedings,
Maternal Aunt and Maternal Uncle were separated, but co-parenting.
-2-
J-S01016-23
Maternal Aunt sought to intervene in the ongoing custody case involving
Paternal Grandparents and Father.5
On June 16, 2022, the trial court held a hearing on Maternal Aunt’s
petition. The trial court granted Maternal Aunt’s request after concluding that
Maternal Aunt had standing to seek any form of custody under Section
5424(2) of the Child Custody Act. See Findings of Fact and Order of Court,
dated 6/16/22 and entered 6/17/22; see also 23 Pa.C.S.A. § 5324(2)
(providing standing to “[a] person who stands in loco parentis to the child.”).
In its findings, the trial court distinguished the instant case from our Supreme
____________________________________________
5The record before us suggests that the court was at odds with itself, by virtue
of the competing orders addressing custody. One order, out of juvenile court,
granted legal custody to CYS and placed the Children with Maternal Aunt. The
other order – i.e., the custody stipulation filed in family court – granting
custody to the Paternal Grandparents.
The dependency records were not transmitted with the custody record.
Without those records, we cannot ascertain precisely when or how the
Children were placed with Maternal Aunt; we cannot tell whether the juvenile
court adjudicated the Children dependent, or whether the Paternal
Grandparents sought to intervene in the dependency proceedings. Moreover,
we cannot discern why the parties, the court, and evidently CYS, chose to
proceed in family court, as opposed to dependency court. Father alleges in
his pro se Brief that CYS took the position that the Paternal Grandparents
should have custody. But we cannot determine the veracity of this allegation.
In any event, the custody proceedings took precedence over the dependency
proceedings after the court’s July 1, 2022 orders, which terminated juvenile
court supervision (discussed infra).
Despite the absence of the dependency records, our review of Father’s appeal
is not impeded. None of the parties raised any issues with the dual
proceedings. In fact, CYS advised this Court that it was not submitting an
appellate brief because it was “not an active participate in this [custody]
proceeding” and that the Children “are no longer dependent with our agency.”
-3-
J-S01016-23
Court’s Opinion In Support of Affirmance, In re G.C., 735 A.2d 1226 (Pa.
1999), which affirmed this Court’s decision that foster parents lacked in loco
parentis standing to contest awards of custody concerning their foster
children. Here, the trial court concluded that, for purposes of an in loco
parentis analysis, there was a substantive distinction between foster parents
and kinship placements.6 See Findings of Fact and Order of Court, at 5-6.
On June 16, 2022, the same day that the court granted Maternal Aunt’s
petition to intervene, the Paternal Grandparents, Maternal Aunt, and Father
reached a custody agreement. The parties agreed that Maternal Aunt and
Paternal Grandparents would share physical custody, so long as the Paternal
Grandparents remained in Pennsylvania; otherwise, Maternal Aunt would have
primary physical custody.7 The parties further agreed that Maternal Aunt and
the Paternal Grandparents would share legal custody. The trial court
memorialized the agreed upon arrangement in its Custody Order, dated June
16, 2022.
____________________________________________
6 “Kin” is defined as “[a]n individual 21 years of age or older who is one of the
following: […] (3) An individual with a significant, positive relationship with
the child or the family.” 67 Pa.C.S.A. § 7502 (Definitions); cf. 67 Pa.C.S.A. §
3102 (Definitions) (repealed January 3, 2023). A “foster parent” is defined as
“[a]n individual approved by a public or private foster care agency to provide
foster family care services to a child who is temporarily separated from the
child’s legal family and placed in the legal custody of an agency.” 67 Pa.C.S.A.
§ 7502.
7Paternal Grandparents reside in Idaho but are living in Pennsylvania while
Father’s criminal trial is pending.
-4-
J-S01016-23
Following the entry of this consented to custody order, the juvenile court
issued orders closing the respective dependency cases and terminating CYS
involvement. See Orders of Court, dated 7/1/22. In its orders terminating
juvenile court supervision, the court stated that the Children were not
dependent, because Maternal Aunt and Paternal Grandparents obtained
custody by virtue of the June 16, 2022 order. Id.
Father filed this appeal challenging the order that granted Maternal
Aunt’s request to intervene. However, Father did not appeal the custody
order. In his pro se Brief, Father raises five issues. He claims the trial court
erred or abused its discretion for the following reasons:
1. By not properly considering standing under the
Juvenile Act, 42 Pa.C.S.A. §§ 6301, 6336.1.
2. In finding that [Maternal Aunt] had in loco parentis
status under 23 Pa.C.S.A. § 5324(2).
3. In finding that [Maternal Aunt] had standing to
intervene in the custody case under 23 Pa.C.S.A. §
5324(4), which is subject to 23 Pa.C.S.A. § 5324(5).
4. By granting [Maternal Aunt] standing to intervene in
the custody case. Standing in child custody cases is
a matter of constitutional significance. As our
Supreme Court has emphasized, “the right to make
decisions concerning the care, custody, and control of
one’s children is one of the oldest fundamental rights
protected by the “due process clause” of the
Fourteenth Amendment.
5. By considering kinship care as separate and unrelated
to foster care.
Father’s Brief 2-4.
-5-
J-S01016-23
At the outset, we observe the effects that Father’s pending criminal case
has on this custody matter. The Child Custody Act provide, “[n]o court shall
award custody, partial custody or supervised physical custody to a parent who
has been convicted of murder under 18 Pa.C.S.A. § 2502(a) (relating to
murder) of the other parent of the child who is the subject of the order unless
the child is of suitable age and consents to the order.” 23 Pa.C.S.A. § 5329(b).
Because Father has not been convicted, or pleaded guilty or pleaded no
contest to the pending murder charge, Section 5329(b) does not deprive
Father of asserting his custody rights.
Turning to the issue of Maternal Aunt’s in loco parentis status, we
acknowledge that the Child Custody Act generally does not permit third parties
to seek custody of a child contrary to the wishes of that child’s parents. The
Act provides several exceptions to this rule, which apply primarily to
grandparents and great-grandparents. See 23 Pa.C.S.A. §§ 5324(3), 5325
(“Standing for partial physical custody and supervised physical custody.”). A
third person who stands in loco parentis may also seek custody. See 23
Pa.C.S.A. § 5324(2).
“The term in loco parentis literally means ‘in the place of a parent.’”
Raymond v. Raymond, 279 A.3d 620, 627 (Pa. Super. 2022); K.W. v. S.L.,
157 A.3d 498, 504-05 (Pa. Super. 2017) (citing Black’s Law Dictionary, 791
(7th Ed. 1991)) (further citation omitted). A person stands in loco parentis
with respect to a child when he or she “assumes the obligations incident to
the parental relationship without going through the formality of a legal
-6-
J-S01016-23
adoption. The status of in loco parentis embodies two ideas; first, the
assumption of a parental status, and, second, the discharge of parental
duties.” K.W., 157 A.3d at 505 (citation omitted).
In 2018, the Child Custody Act was amended to grant standing to
another class of individuals. See 23 Pa.C.S.A. § 5324(4). Section 5324(4)
permits any individual to file for any form of physical or legal custody, so long
as the individual meets certain criteria by clear and convincing evidence.
However, Section 5324(4) will not apply if, inter alia, a dependency
proceeding involving the child has been initiated or is ongoing. 23 Pa.C.S.A. §
5324(5)(i).
The more salient portion of Father’s appeal includes the argument that
Maternal Aunt could not have obtained standing under either Section 5324(2)
or 5324(4). Father maintains that Maternal Aunt could not have obtained in
loco parentis status under Section 5324(2), because the law does not bestow
such status to individuals who receive custody as part of a foster care
placement or a kinship placement. See Father’s Brief at 5 (citing In re G.C.,
supra). Moreover, Father argues that Maternal Aunt could not have obtained
standing under Section 5324(4), because under Section 5324(5)(i), a
dependency proceeding had been initiated. Although the court ultimately
terminated the dependency proceedings, it did so after – and indeed, because
of – the June 16, 2022 custody order. See Orders of Court, dated 7/1/22.
Ultimately, however, we do not reach Father’s challenges on standing,
nor do we review whether the trial court erred when it concluded that kinship
-7-
J-S01016-23
caregivers are distinguishable from foster parents in an in loco parentis
analysis. Although Father initially contested Maternal Aunt’s intervention in
the custody case, Father then consented to Maternal Aunt sharing custody of
the Children with Paternal Grandparents.8 We have long held, “[a] party who
has acquiesced in an order or judgment will not later be heard to challenge
it." Karkaria v. Karkaria, 592 A.2d 64, 71 (Pa. Super. 1991) (citing Brown
v. Commonwealth, Department of Health, 434 A.2d 1179 (Pa. 1981)
(“Ordinarily, a party who consents to, or acquiesces in, a judgment or order
cannot appeal therefrom.”)). By consenting to – or, at the very least,
acquiescing to – Maternal Aunt having custody of the Children, Father has also
acquiesced to her standing, and thus he cannot challenge it on appeal.9 Had
Father intended to preserve the standing issue, he should not have consented
to Maternal Aunt having custody; alternatively, he could have consented to
custody but he also had to specifically preserve the right to challenge standing
on appeal. That was not done here.
____________________________________________
8 It bears mentioning that Paternal Grandparents, who were parties to both
the petition to intervene as well as the ensuing custody agreement, did not
appeal.
9Importantly, we note that the trial court stated in its June 16, 2022 custody
order: “But for one (1) request, Father does not object to [the custody]
agreement. The court will cover that request later in this order.” See Custody
Order, dated 6/16/22, at 1. Upon review of that document, the basis of
Father’s objection is not apparent. Nevertheless, our analysis does not
change. Whatever reservation Father had with the custody order, he did not
appeal that order or even raise that issue in this appeal.
-8-
J-S01016-23
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2023
-9-