J-A22004-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DAWN BROWN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : OFFICE OF CHILDREN AND YOUTH : No. 297 WDA 2023 AND COURTNEY DINGLE :
Appeal from the Order Entered February 16, 2023 In the Court of Common Pleas of Erie County Civil Division at No(s): 10317-2022
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: December 15, 2023
Dawn Brown appeals from the February 16, 2023 custody order that
announced the court’s finding that she lacked standing to pursue physical
custody of her biological granddaughter, O.O., following the child’s adoption
by an individual that was not a stepparent, grandparent, or great-
grandparent, and dismissed with prejudice her petition to modify custody. We
dismiss the appeal as moot.
In May 2019, O.O. was born out of wedlock to Courtney Dingle (“Birth
Mother”) and M.O., whose death preceded the child’s birth. Appellant is O.O.’s
biological paternal grandmother. Erie County Office of Children and Youth
(“OCY”) obtained emergency care of the child on January 17, 2020, and the
juvenile court adjudicated her dependent approximately two weeks later.
O.O. reunited with Birth Mother, briefly, during October 2020, but the juvenile J-A22004-23
court subsequently removed her and adjudicated her dependent for the
second time on December 7, 2020. O.O. has remained in the pre-adoptive
kinship home with two of her three siblings since that time.
On February 2, 2022, the juvenile court granted the agency’s petition
to change O.O.’s permanency goal to adoption. Three weeks later, OCY filed
a petition to involuntarily terminate Birth Mother’s parental rights, and on June
1, 2022, Birth Mother voluntarily relinquished her parental rights to O.O.
Appellant neglected to appeal any of the juvenile court decisions.
Instead, on February 8, 2022, between the dates of the juvenile court’s goal
change order and OCY’s petition to terminate Birth Mother’s parental rights,
Appellant pro se filed a custody complaint at the above-captioned civil docket
number seeking sole physical custody of O.O. The complaint named both OCY
and Birth Mother as defendants. The portion of the complaint dedicated to
stating why the custody order would serve O.O.’s best interest asserted,
“[O.O.] was born after the death of her father. Since then[,] there had been
OCY involvement. At this time[,] they are getting a goal for adoption. [O.O.]
should be with her family.” Complaint for Custody, 2/8/22, at 3. As it relates
to standing, Appellant pled, “[w]ith my son [M.O.] being deceased[,] I feel I
should have custody of [O.O.] I am her grandmother and have done a home
study and everything OCY told me to do. But they will not give me my
granddaughter.” Id.
The trial court summarized the ensuing custody proceedings as follow:
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The parties were present for a custody pretrial settlement conference in front of this [c]ourt on May 3, 2022. However, due to the pending appeal by [Birth Mother] challenging the change of goal and the pending involuntary termination trial, this Court found it was in the child’s best interest to hold Appellant’s complaint for custody in abeyance until after the matter concluded in dependency court. This Court further reasoned, and the child’s [guardian ad litem (“GAL”)] agreed, that a custody trial at this juncture would be premature and not in the child’s best interest. Shortly after, [Birth Mother] discontinued her appeal and voluntarily relinquished her parental rights.
On June 16, 2022, despite this Court’s order holding Appellant’s complaint for custody in abeyance, Appellant filed a custody modification petition [that largely repeated the prior best- interest allegations and added as to standing “The father of the child is deceased The Mother of the child has terminated rights.” Modification Petition, 6/15/22 at 3]. A custody trial was held before [a different custody judge, who] ultimately dismissed Appellant’s modification petition. Unsatisfied with the result, Appellant filed her third request [to modify] custody on October 26, 2022.[1] While that petition was pending, O.O.’s adoption was finalized on December 9, 2022[, and the child was discharged from the care and supervision of OCY.2]
Trial Court Opinion, 4/6/23, at 2-3.
____________________________________________
1 Appellant’s third petition for modification did not assert any new facts. Appellant simply proffered the following narrative:
I have had a steady on-going relationship with [O.O.] since birth. She is my granddaughter and also a niece, cousin, etc. She deserves to be with her family that loves her. [O.O.] and I have a great relationship and I miss her as I’m sure she misses me. I feel children should always have their family.
Modification Petition, 10/26/22, at 3. Appellant failed to plead facts that would establish that she had standing pursuant to 23 Pa.C.S. §§ 5324 or 5325.
2 Notably, Appellant did not intervene in the orphans’ court’s proceedings, challenge Birth Mother’s voluntary relinquishment of parental rights, or appeal the adoption decree.
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Thereafter, on January 30, 2023, OCY filed a motion to dismiss
Appellant’s custody action due to a lack of standing pursuant to 42 Pa.C.S.
§ 5326, which we discuss infra, following the adoption by an individual that
was not the child’s “stepparent, grandparent, or great-grandparent.” The trial
court granted the motion summarily, but it subsequently vacated that order
and scheduled a hearing to allow Appellant to develop the record.
During the ensuing hearing, Appellant did not challenge the application
of § 5326 or assert any form of standing under the Child Custody Act. Instead,
she sought to assail OCY’s stewardship of O.O.’s best interest in the now-
closed dependency proceedings. Specifically, she challenged the agency’s
decision to place O.O. in the pre-adoptive kinship home rather than place her
in Appellant’s care. See N.T., 2/15/23, at 6-8. Appellant asserted, “The
problem lies with [the fact that] this started before I had to file for custody
because kinship wasn’t honored.” Id. at 6. She continued, “It goes to family.
I’m her biological grandmother. How did she end up at [pre-adoptive kinship
parent’s] house would be the better question.” Id. at 7-8.3
3 Ignoring for the sake of argument that Appellant failed to appeal the juvenile
court decisions that she sought to challenge in the custody proceedings, Appellant’s position was founded upon the misapprehension that “kinship care” requires some degree of biological consanguinity. It does not. The statutory regime governing the use of family finding and kinship care defines “Kin” as “[a]n individual [21 years of age or older] with a significant, positive relationship with the child or family.” 67 Pa.C.S. § 7502.
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Following the hearing, the trial court granted OCY’s motion and
dismissed OCY as a named defendant in the custody proceedings, dismissed
Appellant’s petition for custody, and cancelled the pending custody trial. This
timely appeal followed.
Both Appellant and the trial court complied with Pa.R.A.P. 1925;
however, as the trial court observed in discussing the child custody order,
Appellant’s Rule 1925(b) statement was laden with claims that “attempt[ed]
to re-litigate what occurred in dependency court and/or other proceedings.”
Trial Court Opinion, 4/6/23, at 2.
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J-A22004-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DAWN BROWN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : OFFICE OF CHILDREN AND YOUTH : No. 297 WDA 2023 AND COURTNEY DINGLE :
Appeal from the Order Entered February 16, 2023 In the Court of Common Pleas of Erie County Civil Division at No(s): 10317-2022
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: December 15, 2023
Dawn Brown appeals from the February 16, 2023 custody order that
announced the court’s finding that she lacked standing to pursue physical
custody of her biological granddaughter, O.O., following the child’s adoption
by an individual that was not a stepparent, grandparent, or great-
grandparent, and dismissed with prejudice her petition to modify custody. We
dismiss the appeal as moot.
In May 2019, O.O. was born out of wedlock to Courtney Dingle (“Birth
Mother”) and M.O., whose death preceded the child’s birth. Appellant is O.O.’s
biological paternal grandmother. Erie County Office of Children and Youth
(“OCY”) obtained emergency care of the child on January 17, 2020, and the
juvenile court adjudicated her dependent approximately two weeks later.
O.O. reunited with Birth Mother, briefly, during October 2020, but the juvenile J-A22004-23
court subsequently removed her and adjudicated her dependent for the
second time on December 7, 2020. O.O. has remained in the pre-adoptive
kinship home with two of her three siblings since that time.
On February 2, 2022, the juvenile court granted the agency’s petition
to change O.O.’s permanency goal to adoption. Three weeks later, OCY filed
a petition to involuntarily terminate Birth Mother’s parental rights, and on June
1, 2022, Birth Mother voluntarily relinquished her parental rights to O.O.
Appellant neglected to appeal any of the juvenile court decisions.
Instead, on February 8, 2022, between the dates of the juvenile court’s goal
change order and OCY’s petition to terminate Birth Mother’s parental rights,
Appellant pro se filed a custody complaint at the above-captioned civil docket
number seeking sole physical custody of O.O. The complaint named both OCY
and Birth Mother as defendants. The portion of the complaint dedicated to
stating why the custody order would serve O.O.’s best interest asserted,
“[O.O.] was born after the death of her father. Since then[,] there had been
OCY involvement. At this time[,] they are getting a goal for adoption. [O.O.]
should be with her family.” Complaint for Custody, 2/8/22, at 3. As it relates
to standing, Appellant pled, “[w]ith my son [M.O.] being deceased[,] I feel I
should have custody of [O.O.] I am her grandmother and have done a home
study and everything OCY told me to do. But they will not give me my
granddaughter.” Id.
The trial court summarized the ensuing custody proceedings as follow:
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The parties were present for a custody pretrial settlement conference in front of this [c]ourt on May 3, 2022. However, due to the pending appeal by [Birth Mother] challenging the change of goal and the pending involuntary termination trial, this Court found it was in the child’s best interest to hold Appellant’s complaint for custody in abeyance until after the matter concluded in dependency court. This Court further reasoned, and the child’s [guardian ad litem (“GAL”)] agreed, that a custody trial at this juncture would be premature and not in the child’s best interest. Shortly after, [Birth Mother] discontinued her appeal and voluntarily relinquished her parental rights.
On June 16, 2022, despite this Court’s order holding Appellant’s complaint for custody in abeyance, Appellant filed a custody modification petition [that largely repeated the prior best- interest allegations and added as to standing “The father of the child is deceased The Mother of the child has terminated rights.” Modification Petition, 6/15/22 at 3]. A custody trial was held before [a different custody judge, who] ultimately dismissed Appellant’s modification petition. Unsatisfied with the result, Appellant filed her third request [to modify] custody on October 26, 2022.[1] While that petition was pending, O.O.’s adoption was finalized on December 9, 2022[, and the child was discharged from the care and supervision of OCY.2]
Trial Court Opinion, 4/6/23, at 2-3.
____________________________________________
1 Appellant’s third petition for modification did not assert any new facts. Appellant simply proffered the following narrative:
I have had a steady on-going relationship with [O.O.] since birth. She is my granddaughter and also a niece, cousin, etc. She deserves to be with her family that loves her. [O.O.] and I have a great relationship and I miss her as I’m sure she misses me. I feel children should always have their family.
Modification Petition, 10/26/22, at 3. Appellant failed to plead facts that would establish that she had standing pursuant to 23 Pa.C.S. §§ 5324 or 5325.
2 Notably, Appellant did not intervene in the orphans’ court’s proceedings, challenge Birth Mother’s voluntary relinquishment of parental rights, or appeal the adoption decree.
-3- J-A22004-23
Thereafter, on January 30, 2023, OCY filed a motion to dismiss
Appellant’s custody action due to a lack of standing pursuant to 42 Pa.C.S.
§ 5326, which we discuss infra, following the adoption by an individual that
was not the child’s “stepparent, grandparent, or great-grandparent.” The trial
court granted the motion summarily, but it subsequently vacated that order
and scheduled a hearing to allow Appellant to develop the record.
During the ensuing hearing, Appellant did not challenge the application
of § 5326 or assert any form of standing under the Child Custody Act. Instead,
she sought to assail OCY’s stewardship of O.O.’s best interest in the now-
closed dependency proceedings. Specifically, she challenged the agency’s
decision to place O.O. in the pre-adoptive kinship home rather than place her
in Appellant’s care. See N.T., 2/15/23, at 6-8. Appellant asserted, “The
problem lies with [the fact that] this started before I had to file for custody
because kinship wasn’t honored.” Id. at 6. She continued, “It goes to family.
I’m her biological grandmother. How did she end up at [pre-adoptive kinship
parent’s] house would be the better question.” Id. at 7-8.3
3 Ignoring for the sake of argument that Appellant failed to appeal the juvenile
court decisions that she sought to challenge in the custody proceedings, Appellant’s position was founded upon the misapprehension that “kinship care” requires some degree of biological consanguinity. It does not. The statutory regime governing the use of family finding and kinship care defines “Kin” as “[a]n individual [21 years of age or older] with a significant, positive relationship with the child or family.” 67 Pa.C.S. § 7502.
-4- J-A22004-23
Following the hearing, the trial court granted OCY’s motion and
dismissed OCY as a named defendant in the custody proceedings, dismissed
Appellant’s petition for custody, and cancelled the pending custody trial. This
timely appeal followed.
Both Appellant and the trial court complied with Pa.R.A.P. 1925;
however, as the trial court observed in discussing the child custody order,
Appellant’s Rule 1925(b) statement was laden with claims that “attempt[ed]
to re-litigate what occurred in dependency court and/or other proceedings.”
Trial Court Opinion, 4/6/23, at 2. Appellant’s misapprehension of the
procedural posture of this appeal from the underlying custody order continues
in the presentation of her single issue for our review: “Whether the juvenile
court committed an abuse of discretion and/or error of law when it determined
kinship/foster care for the child [O.O.]” Appellant’s brief at unnumbered 1.
In its brief, OCY asserts, inter alia, that Appellant’s appeal from the
custody order dismissing her petition is moot because any potential custody
rights that Appellant may have possessed were extinguished on December 9,
2022, when the orphans’ court entered the decree finalizing O.O.’s adoption.
OCY’s brief at 22-21. For the following reasons, we agree.
Typically, “an actual case or controversy must exist at all stages of the
judicial process, or a case will be dismissed as moot.” In re D.A., 801 A.2d
614, 616 (Pa. Super. 2002) (en banc) (citation omitted). As we have
explained, “[a]n issue before a court is moot if in ruling upon the issue the
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court cannot enter an order that has any legal force or effect.”
Id. Nevertheless, we may reach the merits of an appeal if one of the following
exceptions applies: “1) the case involves a question of great public
importance, 2) the question presented is capable of repetition and apt to elude
appellate review, or 3) a party to the controversy will suffer some detriment
due to the decision of the trial court.” Id. (citations omitted).
As it relates to the effect of a third-party adoption on a grandparent’s
standing to pursue custody, § 5326 of Pennsylvania’s child custody statute
provides as follows:
Any rights to seek physical custody or legal custody rights and any custody rights that have been granted under section 5324 (relating to standing for any form of physical custody or legal custody) or 5325 (relating to standing for partial physical custody and supervised physical custody) to a grandparent or great- grandparent prior to the adoption of the child by an individual other than a stepparent, grandparent or great-grandparent shall be automatically terminated upon such adoption.
23 Pa.C.S. § 5326.
Considering the forgoing statutory provision, no case or controversy
currently exists in this appeal because, as a matter of law, Appellant was
divested of any potential rights to standing on December 9, 2022, when the
orphans’ court entered the final adoption decree. As Appellant no longer has
the right to pursue any form of standing in the underlying custody
proceedings, any ruling that this Court could enter addressing the merits of
the custody order dismissing with prejudice Appellant’s petition to modify
custody will have no legal force or effect. Moreover, Appellant does not invoke
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any of the above-mentioned exceptions and, frankly, none apply in this
situation. Thus, this appeal is moot and subject to dismissal pursuant to the
mootness doctrine.
Appeal dismissed as moot.
12/15/2023
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