Findley, T. v. Kennedy, A.

J-S12016-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
TAYLOR M. FINDLEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ARIANNA KENNEDY, BRIAN C. : No. 1482 MDA 2022
PINCIN, DARLENE & ROBERT SWIFT :
Appeal from the Order Entered October 3, 2022
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-22-01398
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 15, 2023
In this case, we must decide whether a third party — specifically, a 25-
year-old paternal cousin of a minor child — has established standing to pursue
a custody action pursuant to the Child Custody Act.1 Taylor Findley
(Appellant), appeals from the order entered October 3, 2022, in the Lancaster
County Court of Common Pleas, sustaining the preliminary objections of
Appellees, Darlene Swift (Paternal Grandmother) and Robert Swift (Paternal
Grandfather) (collectively, Paternal Grandparents),2 and dismissing her
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* Retired Senior Judge assigned to the Superior Court.
1 See 23 Pa.C.S. §§ 5321-5340.
2 While Robert Swift is Appellant’s and Child’s step-grandfather, Appellant
testified that she considered him her grandfather. See N.T., 9/8/22, at 11.
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complaint for custody of A.L.P. (Child), born in July 2016, with prejudice.3
After review, we vacate and remand.
The trial court summarized the factual and procedural history of this
matter, in part, as follows:
[Child] is the minor biological child of Brian C. Pincin
[(Father)] and Arianna Kennedy [(Mother), (collectively,
Parents)]. [C]hild was born out of wedlock. Throughout the life
of [ ] Child, [Parents] have struggled with drug addictions and
[Father with] intermittent incarceration. Paternal Grandparents
have been [ ] Child’s primary caretakers since approximately
March of 2017.[4] [Appellant, Child’s paternal cousin,] first began
interacting with Child when [he] was approximately five [or] six
months old. Her initial visit[] with [ ] Child occurred at the home
of Steven and Angela Findley, who are [ ] Child’s [p]aternal
[u]ncle and [a]unt [(Paternal Aunt and Uncle)].[5]
Trial Ct. Op., 11/22/22, at 2.
Appellant visited with Child at the homes of Paternal Aunt and Uncle and
Paternal Grandparents. See N.T. at 10. Appellant then resided with Paternal
Aunt and Uncle from the end of 2018 until August 2020. See id. at 11-12.
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3As an appeal lies from a final order, unless permitted by rule or statute, and
a final order is one that disposes of all claims and all parties, this matter is
properly before this Court. See Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.
Super. 2013); see also Pa.R.A.P. 341(b).
4At some point thereafter, at least three years prior to the hearing, Parents
executed a guardianship agreement. See N.T. at 25, 69, 93-94.
5 Appellant’s mother is Father’s and Angela Findley’s sister. As such, Father
is her maternal uncle; Paternal Grandparents are her maternal grandparents;
and Paternal Aunt and Uncle are her maternal aunt and uncle. See N.T. at 9.
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Child was in the home “pretty much every night,” and Appellant would interact
with him “on a daily basis.”6 Id. at 11, 13.
After Appellant moved into her own home in August 2020, she testified
to not seeing Child as frequently initially. She then continued seeing Child
through Paternal Aunt and Uncle and Paternal Grandparents, including
occasional overnights. See N.T. at 14-15. Beginning in the summer of 2021,
she began taking Child Tuesdays through Thursdays and every other
weekend. See id. at 17, 57. Child has had a bedroom in Appellant’s home
since September 2021. See id. at 19. Appellant stated that Child has routine
and structure in her home. She feeds and bathes Child and ensures he
brushes his teeth during his time with her. See id. at 38-40.
In March 2022, Appellant had a conversation with Paternal
Grandparents about Child living with her permanently, after which Paternal
Grandfather suggested a trial period. See N.T. at 22, 100. Subsequently,
[Appellant] detailed a precipitating event that raised
questions in her mind about the ability of [Paternal] Grandparents
to care for [] Child.[7] As a result of the incident, she contacted
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6Appellant described an extended period of time following Child’s first birthday
where Paternal Grandparents kept Child from her and Paternal Aunt and Uncle.
See N.T. at 34-35, 57.
7 Shortly after Child spent an extended period of time with Appellant, Paternal
Grandfather declined to allow Child to go with Appellant and began screaming
profanities at her. See N.T. at 23-25. Appellant noted concerns as to a threat
to sever her relationship with Child, as well as the lack of care for Child’s teeth.
See id. at 36.
(Footnote Continued Next Page)
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Lancaster County Children and Youth Agency.[8] [Appellant]
ultimately filed a [c]omplaint for [c]ustody on March 11, 2022.[9]
Following the filing of the Complaint and presentation of the
Complaint in Family Business Court, attended by [P]aternal
[G]randparents with [c]ounsel, th[e trial c]ourt entered a
temporary Order dated March 21, 2022 granting shared legal
[c]ustody to [ ] Appellant and Paternal Grand[mother], and
granted [Appellant] periods of partial custody.[10] On April 7,
2022, Paternal Grandparents filed preliminary objections,
challenging [Appellant]’s right to seek custody of the minor child.
...
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Appellant further expressed concerns regarding Paternal Grandparents’
drug use. See N.T. at 24, 27, 36. 24, 27, 36. Specifically, Appellant testified
to witnessing Paternal Grandfather with a powdery substance, which she
assumed was “meth,” four years ago, id. at 28-29, as well as a conversation
only months ago where Paternal Grandfather stated that he “had done drugs
and sold drugs” Appellant’s whole life, id. at 29-30. Appellant also indicated
that Paternal Grandmother participated in a methadone program. See id. at
30. Paternal Grandmother acknowledged being on methadone due to past
OxyContin use. See id. at 91-93. Likewise, Paternal Grandfather conceded
to past drug use. While he stated that he had been sober for “over a year,”
he noted a prescription for OxyContin and confirmed positive drug testing in
March 2022. Id. at 109-111.
8 Paternal Grandfather testified that a child services investigation was
conducted and closed. See N.T. at 110-11.
9 Appellant sought primary physical and sole legal custody of Child, asserting
standing pursuant to 23 Pa.C.S. § 5324(2) and (4). See Complaint for
Custody, 3/11/22, at ¶¶ 40-41.
10 The court awarded Appellant physical custody every Tuesday from 9:00
a.m. to Thursday at 7:00 p.m., every other weekend from Friday at 7:00 p.m.
to Sunday at 7:00 p.m., and other times as agreed. The court further awarded
Parents supervised physical custody as agreed and supervised by Paternal
Grandmother. See Order, 3/21/22, at 1-2 (unpaginated); see also N.T. at
25-26.
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Trial Ct. Op. at 3. Appellant sought the necessary medical and dental
treatment for Child, including overdue vaccinations, and enrolled Child in
school and attended school functions. See N.T. at 40-44.
The court conducted a hearing on Paternal Grandparents’ preliminary
objections on September 8, 2022. Appellant, Paternal Grandparents, and
Parents were all present. Appellant and Paternal Grandparents were
represented by counsel, while Parents appeared pro se. Appellant, Paternal
Grandparents, and Mother all testified on their own behalf. Additionally,
Appellant presented the testimony of Paternal Uncle.11
By order dated September 26, 2022, and entered October 3, 2022,12
the court sustained Paternal Grandparents’ Preliminary Objections and
dismissed Appellant’s complaint for custody with prejudice. On October 13,
2022, Appellant, through counsel, filed a timely notice of appeal, along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
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11 Following the evidentiary hearing, the trial court requested the submission
of letter briefs. See N.T. at 114-18. We observe that the letter briefs were
not docketed or included with the certified record.
12 The subject order was dated September 26, 2022. However, notice
pursuant to Pa.R.C.P. 236(b) was not provided until October 3, 2022. Our
appellate rules designate the date of entry of an order as “the day on which
the clerk makes the notation in the docket that notice of entry of the order
has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,
our Supreme Court has held that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).
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1925(a)(2)(i) and (b).13 The trial court filed an Opinion pursuant to Rule
1925(a) on November 22, 2022.
On appeal, Appellant raises the following issues for our review:
1. Did the trial court err in finding that [Appellant] lacked standing
to pursue custody of the minor child, when [Appellant] had
assumed and was willing to assume responsibility of the minor
child; has a sustained, substantial and sincere interest in the
welfare of the child and neither parent had any form of care and
control of the child, establishing the elements necessary for
standing pursuant to 23 Pa.C.S. § 5324(4) by clear and convincing
evidence?
2. Did the trial court err in finding that [Appellant] lacked standing
to pursue custody of the minor child pursuant to 23 Pa.C.S. §
5324(2), when [Appellant] had a parent-like relationship with the
minor child, enjoyed a strong bond with the minor child and
performed parental duties for the minor child on a regular basis?
Appellant’s Brief at 6.14
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13 By order dated October 17, 2022, and entered October 18, 2022, the trial
court directed opposing counsel to file an Answer addressing those issues
raised in the Rule 1925(b) concise statement by November 7, 2022. Counsel
for Paternal Grandparents complied on November 14, 2022. Notably, he
further indicated that he no longer represented Paternal Grandparents and
referenced a praecipe to withdraw as counsel filed with this Court on
November 7, 2022. Paternal Grandparents’ Answer to Concise Statement of
Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(a)(2), 11/14/22,
at 2 (unpaginated). We observe that neither Paternal Grandparents nor
Parents have filed a brief with this Court.
14 While Appellant presents her issues differently than in her concise
statement, we conclude that she has preserved those issues raised. However,
to the extent Appellant raised claims in her concise statement that were not
included in her statement of questions involved, those issues are waived. See
In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (citations
omitted) (explaining, in part, this Court will not review an appellant’s claim
unless it is included in both the concise statement of errors complained of on
appeal and statement of questions involved).
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As to the relevant standard and scope of review, we have stated,
“Threshold issues of standing are questions of law; thus, our standard of
review is de novo and our scope of review is plenary.” Raymond v.
Raymond, 279 A.3d 620, 627 (Pa. Super. 2022) (citation omitted).
Further, with regard to third party cases arising under the Child Custody
Act, we note the following:
Generally, the Child Custody Act 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.[] §§ 5324(3), 5325 (“Standing for partial physical
custody and supervised physical custody.”). A person standing in
loco parentis may also seek custody. See 23 Pa.C.S.[] §
5324(2). [15]
“The term in loco parentis literally means ‘in the place of a
parent.’” 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
adoption. The status of in loco parentis embodies two ideas; first,
the assumption of a parental status, and, second, the discharge
of parental duties.” Id. 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.[] § 5324(4).
Section 5324(4) provides that the following individuals may file
for any form of physical or legal custody:
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15“The following individuals may file an action under this chapter for any form
of physical custody or legal custody: . . . (2) A person who stands in loco
parentis to the child. . . .” 23 Pa.C.S. § 5324(2) (italics added).
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(4) [. . .] an individual who establishes by clear and
convincing evidence all of the following:
(i) The individual has assumed or is willing to assume
responsibility for the child.
(ii) The individual has a sustained, substantial and
sincere interest in the welfare of the child. In
determining whether the individual meets the
requirements of this subparagraph, the court may
consider, among other factors, the nature, quality,
extent and length of the involvement by the individual
in the child’s life.
(iii) Neither parent has any form of care and control
of the child.
23 Pa.C.S.[ ] § 5324(4) [ ].
To establish standing, a petitioner must satisfy all three of these
prongs.
Raymond, 279 A.3d at 627 (emphasis omitted; footnote omitted).
However, a separate subsection of this statute provides that Section
5324(4) “shall not apply if: (i) a dependency proceeding involving the child
has been initiated or is ongoing; or (ii) there is an order of permanent legal
custody under 42 Pa.C.S.[] § 6351(a)(2.1) or (f.1)(3)(relating to the
disposition of dependent children).” 23 Pa.C.S. § 5324(5)(i)-(ii).
Noting that the trial court solely focused on Appellant’s standing under
Section 5324(2), Appellant argues that she established standing pursuant to
Section 5324(4), satisfying all three required statutory elements. See
Appellant’s Brief at 23. Appellant asserts that, “[t]hrough her words and
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actions[, she] has demonstrated she not only took responsibility for [ ] Child
but is willing to take responsibility for [ ] Child moving forward.” Id. at 25.
She points to the increasing amount of time Child has spent at her home,
including regular, weekly time since summer 2021, and associated caretaking
duties. See id. at 23. She further indicates her discussion with Paternal
Grandparents regarding permanently caring for Child, her eventual filing for
custody due to suspected drug use, and her role in Child’s dental and medical
care and education since being granted temporary legal custody. See id. at
24-25. Appellant additionally affirms a sustained, substantial, and sincere
interest in Child borne of their lengthy relationship and bond. See id. at 25-
26. She underscores the importance of Child’s health and safety, again
referencing her filing for custody due to concern for suspected drug use,
Child’s lack of dental care, and threats to sever her relationship with Child, as
well as her engagement regarding Child’s medical and dental care and
education. See id. at 27-28. Appellant also emphasizes her discussion with
Paternal Grandparents involving Child permanently residing with her, which
she contends reflects Paternal Grandparents’ acknowledgment of this
heightened interest in Child’s welfare. See id. at 28. Likewise, she claims
that the trial court conceded her demonstrated interest in Child’s welfare
during the hearing and noted her bond and “significant time” with Child in its
Rule 1925(a) Opinion. Id. at 28-29. Lastly, Appellant contends that Parents
have no care or control with regard to Child. See id. at 29. She argues,
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“[P]arents are not a regular presence in [ ] Child’s life, and they have not been
involved in any parenting duties or medical care for [ ] Child.” Id. at 30.
Upon review, we conclude that the trial court erred in determining that
Appellant lacked standing under Section 5324(4). Initially, we address
together the first two prongs of this subsection since they interrelated — (1)
assumption of responsibility and (2) a sustained, substantial, and sincere
interest for Child’s welfare.
The record reveals an extended relationship between Appellant and
Child, beginning in Child’s infancy, whereby Child spent increasing time with
Appellant. See N.T. at 10-15. As noted supra, Child began spending
occasional overnights with Appellant after August 2020, see id., at 14-15,
and, since summer 2021, he has resided with Appellant Tuesdays through
Thursdays and every other weekend, see id. at 17, 57. In turn, during this
time, Appellant provided Child routine and structure and performed parental
duties. See id. at 38-40.
Appellant stated that she and Child are absolutely bonded and that she
loves Child “very much.” N.T. at 37, 45-46. She testified that she has
assumed responsibilities for Child and is willing to assume responsibility
moving forward. See id. at 45.
While Paternal Grandparents claimed ignorance as to Appellant’s
increasing time with Child and disputed that this custody schedule, however
formal or informal, arose prior to the trial court issuing its temporary custody
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order,16 see id. at 84-87, 96-99, 103, 105-08, Paternal Uncle confirmed
Appellant’s increasing time and close relationship with Child, see id. at 68-
69, 72. Moreover, the trial court credited Appellant’s testimony and indicated
that she “enjoyed a bond” with and spent “significant time” with Child and
“recently started performing caretaking duties.” Trial Ct. Op. at 6. Further,
during Appellant’s testimony, the court further indicated that she had proven
a sustained, substantial, sincere interest in Child.
[COUNSEL FOR APPELLANT]: I think I have to, obviously, establish
that my client has a sustained, substantial, and sincere interest in
the welfare of the child.
THE COURT: Okay. And you did that through your direct
examination.
N.T. at 75. As such, Appellant established that she has assumed or is willing
to assume responsibility for Child and has a sustained, substantial, and sincere
interest in the welfare of Child. See 23 Pa.C.S. § 5324(4)(ii).
Finally, as to the third prong of Section 5324(4), the record reveals a
lack of care or control by Parents. Parents have substance abuse issues and
left Child in the care of Paternal Grandparents in March 2017, with whom they
do not reside, as they were unable to care for him. See N.T. at 33-34, 84,
89-90, 112-13. Father has been “in and out” of jail and was incarcerated at
the time of the hearing. Id. at 31, 90, 96. They have not provided child care
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16 Paternal Grandparents likewise dispute any agreement related to Child
permanently residing with Appellant. See N.T. at 86-87, 99-100, 106-07.
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or been around Child unsupervised since that time. See id. at 13-14, 16, 47-
48, 88-90. As Appellant described, “[Parents] never . . . stepped up to take
control of [Child] . . . when they would come around.” Id. at 47-48. Hence,
Appellant established standing pursuant to Section 5324(4).17
Accordingly, the court erred as a matter of law by sustaining the
preliminary objections filed by Paternal Grandparents and dismissing
Appellant’s complaint for custody with prejudice. Therefore, we vacate the
October 3, 2022, order. We remand to the trial court for entry of an order
overruling Paternal Grandparents’ preliminary objections and for further
proceedings consistent with this memorandum.18
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2023
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17 Given the finding of standing pursuant to Section 5324(4), it is not
necessary to address Section 5324(2).
18Although we find Appellant has standing to pursue custody of Child, we
make no comment as to whether an award of custody in Appellant’s favor
under 23 Pa.C.S. § 5328 would be in Child’s best interest.
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