Opinion
J-A25040-19 No. 632 MDA 2019
03-16-2020
C.L.A. v. P.K. AND G.M. APPEAL OF: P.K.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered April 2, 2019 in the Court of Common Pleas of Columbia County
Domestic Relations at No(s): 2018-CV-0000348-CU BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
P.K. ("Mother") appeals from the Order determining that C.L.A. ("Partner"), who is Mother's former same-sex partner, has in loco parentis standing as to O.E.K. (the "Child," a male born in March 2013). We affirm.
Child's father, G.M. ("Father"), has not filed an appeal, nor has he filed a brief in the instant appeal.
In its Opinion and Order, the trial court skillfully set forth the factual background and procedural history of this appeal up to the entry of its September 17, 2018 Opinion and Order, which we adopt and incorporate herein. See Trial Court Opinion, 9/17/18, at 1-9.
Following the trial court's entry of the September 17, 2018 Order determining that Partner had in loco parentis status, the court-appointed special master held a custody conference with the parties. On December 6, 2018, the special master filed his report and recommendations in the trial court. By Order, the trial court adopted the report and recommendations on an interim basis, awarding shared legal custody to Partner and Mother, primary physical custody to Mother, and partial physical custody to Partner in accordance with Partner's and Mother's schedules. Mother proceeded to file Exceptions to the recommendations, and specifically challenged the finding that Partner had in loco parentis standing.
Following a pre-trial conference, the trial court entered its final Order on April 2, 2019, regarding Partner's in loco parentis standing and the parties' custody award. In the Order, the trial court adopted the parties' stipulation to the substance of the interim Order, with the sole exception being Mother's ongoing objection to the granting of in loco parentis status to Partner. The parties also waived a full custody trial on Mother's Exceptions to the Order, and waived the necessary findings that would follow a non-jury trial. On April 23, 2019, Mother timely filed the instant Notice of Appeal, along with a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
We observe that an appeal will lie only from a final order. Stewart v. Foxworth , 65 A.3d 468, 471 (Pa. Super. 2013). Here, the trial court specifically indicated in the stipulated April 2, 2019 Order that the custody Order was to be regarded as the trial court's final Order. See Trial Court Order, 3/26/19, at 1. Thus, we address only the issue of Partner's in loco parentis status in this appeal. See G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996) (stating that "a custody order will be considered final and appealable only if it is both: 1) entered after the court has completed its hearings on the merits; and 2) intended by the court to constitute a complete resolution of the custody claims pending between the parties.").
Mother raises the following issue on appeal:
Did the trial court abuse its discretion and misapply the law when it determined that [Partner] stands [in loco parentis] to [Child], when [Partner] did not have any part in the conception, pursued another partner and attempted to adopt another child up until one month before [Child's] birth[; Partner] used her education and background as a social worker to take advantage of [Mother; Partner] was never listed as guardian or emergency contact on any of [Child's] executed paperwork[; Partner] [] never cared for [Child] by herself[;] and [Partner] never made any medical, educational, or religious decisions for [Child]?Mother's Brief at 4.
Mother asserts that the trial court abused its discretion and/or committed an error of law in determining that Partner had in loco parentis standing to pursue custody of Child. Id. at 24-25. Mother argues that the facts of the present case are distinguishable from the facts in the three primary cases upon which the trial court relied in rendering its decision: A.J.B. v. A.G.B., 180 A.3d 1263 (Pa. Super. 2018); T.B. v. L.R.M., 786 A.2d 913 (Pa. Super. 2001); and J.A.L. v. E.P.H., 682 A.2d 1314 (Pa. Super. 1996). Mother's Brief at 27. Rather, Mother asserts that the facts of the instant case are more akin to those in C.G. v. J.H., 172 A.3d 43 (Pa. Super. 2017). Mother's Brief at 42. Mother provides, as her reasons for requesting that this Court vacate the trial court's Order, the following: Partner did not have any part in the conception of Child; Partner pursued another partner and attempted to adopt another child up until one month prior to Child's birth; Partner used her education and background as a social worker to take advantage of Mother; Partner was never listed as guardian or emergency contact on any of Child's executed paperwork; Partner never cared for Child by herself; and Partner never made any medical, educational, or religious decisions for Child. Id. at 24.
Our standard of review over questions of in loco parentis standing is well settled:
Threshold issues of standing are questions of law; thus, our standard of review is de novo and our scope of review is plenary.K.W. v. S.L., 157 A.3d 498, 504-05 (Pa. Super. 2017) (some emphasis added; some citations and quotation marks omitted; brackets omitted).
Generally, the Child Custody Act[, 23 Pa.C.S.A. §§ 5321-5340,] 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 [ id.] § 5324(3); [] 5325. In fact, unless a person seeking custody is a parent, grandparent, or great-grandparent of the child, the Act allows for standing only if that person is "in loco parentis." [ Id.] § 5324(2).
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 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. Critical to our discussion here, in loco parentis status cannot be achieved without the consent and knowledge of, and in disregard of, the wishes of a parent.
This Court has explained that:
[t]he presumption [favoring a custody award to the parent over a third party] is rebuttable by clear and convincing evidence, which we have defined as presenting evidence that is so clear, direct, weighty, and convincing so as to enable the trier of fact to
come to a clear conviction, without hesitation, of the truth of the precise facts in issue.M.J.S. v. B.B., 172 A.3d 651, 660 (Pa. Super. 2017) (emphasis, citations and quotation marks omitted).
* * *
As suggested by our Supreme Court's discussion in T.B., supra , in loco parentis status merely provides a third party an opportunity to establish that maintaining that relationship supersedes the birth parent's opposition. The High Court observed, [w]here [a] relationship is shown, our courts recognize that the child's best interest requires that the third party be granted standing so as to have the opportunity to litigate fully the issue of whether that relationship should be maintained even over a natural parent's objections. Significantly, neither the Supreme Court's discussion in T.B. nor the text of § 5327(b) indicates that in loco parentis status effectively places a third-party on equal footing with a birth parent. To the contrary, § 5327 provides that the presumption applies [i]n any action regarding the custody of a child between a parent of the child and a non-parent[.] If our legislature desired to carve an exception to the presumption when the nonparent attained in loco parentis status, it could have done so; however, it did not.
The trial court adequately summarized the cases Mother relies on, ably considered her claim, and determined that Partner is entitled to in loco parentis standing. See Trial Court Opinion, 9/17/18, at 9-15. It compared the instant facts to the facts in A.J.B., T.B., and C.G., and determined that Partner performed parental duties, and participated in medical, religious, speech therapy, and other educational decisions for Child. Id. at 15. In particular, the trial court credited the time that Partner, Mother, and Child lived together; their intent to jointly raise Child as a family; Partner's presence for Child's birth; Mother's decision to give Child Partner's last name on his birth certificate; Partner's payment of expenses for both Mother and Child; Partner's performance of parental duties; Mother's express written intent for Partner to take Child as her own; and Mother's recordings of Child expressing his parental affection for Partner as evidence supporting its determination of in loco parentis status for Partner. Id. at 11-13.
Our review confirms that the trial court's determination is supported by competent evidence in the record, and we will not disturb the credibility and weight determinations of the trial court. See C.R.F., 45 A.3d at 443. We find no abuse of the trial court's discretion, nor do we find any error of law on the part of the trial court in rejecting Mother's contention that the facts of this case are more closely aligned with those in C.G., such that C.G. should control the outcome of this case. Accordingly, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion, 9/17/18, at 1-16.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/16/2020
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