Smith, J. v. Glaab, T.

• Court: Superior Court of Pennsylvania
• Decided: January 13, 2025
• Docket: 984 WDA 2024
• Status: Unpublished

Opinion

J-A29003-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JEREMY SMITH : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TINA GLAAB : : : No. 984 WDA 2024 APPEAL OF: MELINDA LOCKARD AND : ARTHUR LOCKARD :

Appeal from the Order Entered July 23, 2024 In the Court of Common Pleas of Armstrong County Civil Division at No(s): 2011-0515-CIVIL

BEFORE: OLSON, J., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY OLSON, J.: FILED: JANUARY 13, 2025

Appellants, Melinda Lockard (“Grandmother”) and Arthur Lockard

(“Grandfather”) (collectively, “Paternal Grandparents”),1 appeal from the

order denying their petition to intervene in the custody action between Jeremy

Smith (“Father”) and Tina Glaab (“Mother”) (collectively, “Parents”). We

affirm.

Parents are the biological parents of K.S. (“the Child”), age 13. Parents

lived with Paternal Grandparents when the Child was born (February 2011).

On March 28, 2011, when the Child was approximately two months old, Father ____________________________________________

1 As the trial court pointed out, “Grandfather is actually Paternal Step-Grandfather.” Trial Court Opinion, 7/23/24, at 1, n.1. Grandfather, however, “did not testify or sign the Verification for the [p]etition to [i]ntervene” and, as such, Grandmother’s involvement in the Child’s life was the focus of the May 16, 2024 hearing, as well as the trial court’s subsequent analysis. Id. at 2. J-A29003-24

filed a complaint for custody. On May 6, 2011, “a consented-to order [was

entered,] granting [Parents] shared legal custody, Father primary [physical]

custody, and Mother partial [physical] custody.” Trial Court Opinion, 7/23/24,

at 1-2. Despite the aforementioned consent order, Parents reconciled and

resumed living together at Paternal Grandparents’ residence for

approximately 18 months. At this time, Grandmother took care of the Child

“during the day when [Parents] worked.” N.T. Hearing, 5/26/24, at 10.

Thereafter, Parents and the Child moved out of Paternal Grandparents’

residence and resided together as a family. Grandmother continued to “watch

[the Child at Paternal Grandparents’ residence] while [Parents] were at work

during the week” but Parents “had [the Child] on weekends.” Trial Court

Opinion, 7/23/24, at 4.

When the Child was three years old, Parents separated. Pursuant to the

May 2011 consent order, Father had primary physical custody of the Child.

The general custody arrangement, with some variation, was that [Parents alternated weekend custody of the Child]. Both parents worked during weekdays. Father would not get home from work until 1:00 or 2:00 a.m., so Father agreed to [] Grandmother’s suggestion that he leave [the Child] with her so as not to disrupt [the Child’s] sleep. On Sunday evenings, whichever parent had custody that weekend would return [the Child] to Paternal Grandparents. However, sometimes Mother had custody during the weekdays[] and would drop [the Child] off at Paternal Grandparents’ residence when she went to work. When [the Child] started kindergarten, the school bus picked him up at Paternal Grandparents’ residence. [From the time the Child started kindergarten until he entered fifth grade, he] lived with Mother every other week. Father would have custody during Mother’s non-custody week [and the Child stayed] with Paternal Grandparents’ during Fathers’ week.

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Id. at 4-5.

When the Child entered fifth grade in 2021, the custody arrangement

shifted due to the Child’s autism diagnosis. In particular, the “arrangement

went from a week on/week off schedule to [the Child] spending every

weekday, generally year-round, with Paternal Grandparents, with [Parents]

alternating weekends.” Id. at 5. The Child, however, still spent time with

Parents. In particular, if Mother “[were] off work during the weekdays, [the

Child] would spend time with her.” Id. In addition, in the summertime, the

Child would sleep at Father’s residence “as much as [possible].” N.T. Hearing,

5/16/24, at 49. The aforementioned arrangement continued until March 21,

2024, when Paternal Grandparents filed the instant petition to intervene,

seeking to obtain custody of the Child. After receiving the petition, Father did

not return the Child to Paternal Grandparents’ residence and, as such, the

Child has since resided primarily with Father. On May 15, 2024, the trial court

convened a hearing on Paternal Grandparents’ petition during which

Grandmother, Father, and Mother testified. On July 23, 2024, the trial court

entered an order denying Paternal Grandparents’ petition. This timely appeal

followed.

Paternal Grandparents raise the following issue for our consideration.

[Whether the trial court erred in determining that Paternal Grandparents lacked standing under 23 Pa.C.S.A. §§ 5324(2) and (3) in dismissing their petition to intervene in the underlying child custody matter?]

See generally Parental Grandparents’ Brief at 4-5.

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On appeal, Parental Grandparents’ challenge the trial court’s

determination that they lacked standing to intervene in the underlying custody

matter between Parents. Initially, Parental Grandparents argue that the trial

court erred in holding that they did not stand in loco parentis to the Child

under 23 Pa.C.S.A. § 5324(2). In the alternative, Parental Grandparents claim

that the trial court erred in concluding that they did not establish standing

under 23 Pa.C.S.A. § 5324(3). We will address each of Parental Grandparents’

claims in turn.

We are guided by the following principles when reviewing a case under

the Child Custody Act:2

In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court's deductions or inferences from its factual findings. Ultimately, the test is whether the trial court's conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

C.L. v. M.P., 255 A.3d 514, 520 (Pa. Super. 2021) (formatting altered and

citation omitted).

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2 23 Pa.C.S.A. §§ 5321-5340.

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Standing “is a threshold issue that must be resolved before proceeding

to the merits of the underlying custody action.” C.G. v. J.H., 193 A.3d 891,

898 (Pa. 2018). Issues of standing involve questions of law and, as such, “our

standard of review is de novo and our scope of review is plenary.” K.W. v.

S.L., 157 A.3d 498, 504 (Pa. Super. 2017) (citation omitted omitted). In

general, 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[, however,]

provides several exceptions to this rule, which apply primarily to grandparents

and great-grandparents.” Id. (citation omitted). Indeed, Section 5324 of the

Child Custody Act provides, in relevant part, as follows:

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.

(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 under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or

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(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 the action must be filed within six months after the removal of the child from the home.

23 Pa.C.S.A. § 5324(2)-(3).

We first address Parental Grandparents’ contention that they stand in

loco parentis to the Child. In support of this claim, Parental Grandparents

aver that they satisfied “the Child’s daily physical, emotional and financial

needs for most, if not all, of the Child’s life.” Parental Grandparents’ Brief at

21. In addition, Parental Grandparents contend that they assumed in loco

parentis status with Parents’ consent. Id. at 25-28.

This Court previously explained:

“The term in loco parentis literally means ‘in the place of a parent.’” A person stands in loco parentis with respect to a child when he or she “assum[es] 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.” [Importantly,] “in loco parentis status cannot be achieved without the consent and knowledge of, and in disregard of[,] the wishes of a parent.”

K.W., 157 A.3d at 504–505 (internal citations omitted).

In this instance, the trial court held that Parental Grandparents did not

stand in loco parentis to the Child. In so doing, the trial court found that,

while Paternal Grandparents “assumed some parental obligations and

discharged [some] parental duties,” they “did so only as volunteers during

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weekdays to accommodate [P]arents’ work schedules and maintain some

consistency with [the Child’s] school schedule.” Trial Court Opinion, 7/23/24,

at 8. The Parents still “fulfilled their parental obligations and duties toward

[the Child] on weekends and oftentimes during weekdays” and did not, in any

way, “relinquish their parental obligations.” Id. Simply put, the trial court

determined that Paternal Grandparents “have not and are not acting in lieu of

[Parents].” Id. (emphasis added). Instead, they “simply did what most

grandparents or a regular babysitter would do – watch [the Child] while

[Parents] are at work.” Id. It is apparent, therefore, that the trial court

considered Paternal Grandparent’s actions to be consistent with helping

Parents through a period of need, which this Court has held does not establish

in loco parentis status. See D.G. v. D.B., 91 A.3d 706, 711 (Pa. Super. 2014)

(holding that, while grandmother’s “efforts on behalf of [the child were]

substantial and commendable,” they were “not consistent with an intent to

assume all of the rights and responsibilities of parenthood” and, as such, the

trial court erred in finding that the grandmother stood in loco parentis to the

child); see also Argenio v. Fenton, 703 A.2d 1042, 1045 (Pa. Super. 1997)

(accord). Because our case law and review of the record supports the trial

court’s finding, we conclude that the trial court did not abuse its discretion in

holding that Parental Grandparents did not stand in loco parentis to the Child.

We now turn to Parental Grandparents claim that the trial court erred in

holding that they did not meet the requirements of Section 5324(3).

Importantly, it was undisputed that the Child’s relationship with Parental

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Grandparents began with Parents’ consent and that Parental Grandparents are

willing to assume responsibility for the Child. See 23 Pa.C.S.A. § 5324(3)(i)

and (ii).3 The only issue, therefore, is whether the Child resided with Parental

Grandparents for “at least 12 consecutive months . . . excluding brief

temporary absences.” 23 Pa.C.S.A. § 5324(3)(iii)(C).

In this instance, the trial court recognized that “Paternal Grandmother

testified that Paternal Grandparents have been figures in [the Child’s] life for

a 12-month period, with the exception of a week here and there.” Trial Court

Opinion, 7/23/24, at 9. The trial court, however, also noted that “Father

testified that during summers since [the Child] was in fifth grade, [the Child]

stayed about half the time at his house. During the other half, [the Child]

would either be with Mother or Paternal Grandmother.” Id. Because the court

concluded that the periods in which the Child stayed at Father’s house were

“more than ‘brief temporary absences,’” it determined that the Child did not

reside with Parental Grandparents for 12 consecutive months and, as such,

Parental Grandparents failed “to meet the third prong of the statute.” Id.

Again, our review of the certified record confirms the trial court’s findings. To

the extent that Grandmother and Father presented conflicting testimony

regarding the periods in which the Child was absent from Paternal

Grandparents’ home, it is apparent that the trial court made a credibility ____________________________________________

3 Moreover, Paternal Grandparents do not assert that the Child was deemed a

dependent juvenile under 42 Pa.C.S. Ch. 63, or that the Child was substantially at risk due to parental abuse, neglect, or alcohol abuse or incapacity. See 23 Pa.C.S.A. § 5324(3)(iii)(A) and (B).

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determination and decided to credit Father’s testimony, as opposed to that of

Grandmother’s, which was within its province as fact-finder to do. We will not

disturb the trial court’s credibility determinations on appeal. See Johnson v.

Lewis, 870 A.2d 368, 372 (Pa. Super. 2005) (“The fact-finder is free to

believe all, part, or none of the evidence, and this Court will not disturb the

trial court's credibility determinations.”). Accordingly, we conclude that the

trial court did not abuse its discretion in concluding that Parental Grandparents

did not meet the requirements of Section 5324(3) and, thus, lacked standing

to intervene in the underlying custody action.

Based upon all of the foregoing, we affirm the trial court’s order denying

Paternal Grandparents’ petition to intervene for lack of standing.

Order affirmed.

DATE: 1/13/2025

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