In the Int. of: J.M. and J.M., Appeal of: E.M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M. and J.M., : IN THE SUPERIOR COURT OF
MINOR CHILDREN : PENNSYLVANIA
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APPEAL OF: E.M., GRANDMOTHER :
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: No. 2392 EDA 2018
Appeal from the Order Entered July 24, 2018
In the Court of Common Pleas of Delaware County
at No(s): CP-23-DP-0000185-2016
CP-23-DP-0000186-2016
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 23, 2019
Appellant, E.M. (“Maternal Grandmother”), appeals pro se from the July
24, 2018 Orders that adjudicated her grandchildren J.M. (“Child 1”) and J.M.
(“Child 2”) (collectively “the Children”) dependent and placed them in foster
care.1, 2 After careful review, we conclude that that Maternal Grandmother
does not have standing and, therefore, we dismiss this appeal.
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1 The Orders are dated July 11, 2018 and were docketed on July 18, 2018.
However, the prothonotary did not serve notice of the Orders until July 24,
2018. See Pa.R.A.P. 108(b) (“The date of entry of an order in a matter subject
to the Pennsylvania Rules of Civil Procedure shall be the day on which the
clerk makes the notation in the docket that notice of entry of the order has
been given[.]”). We have changed the caption accordingly.
2 Maternal Grandmother filed a Notice of Appeal that named both Child 1 and
Child 2 but only listed one docket number. On September 5, 2018, this Court
issued a Rule to Show Cause why this appeal should not be quashed as
Maternal Grandmother was taking one appeal from two orders in violation of
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A detailed recitation of the factual and procedural history is unnecessary
to our disposition. Briefly, the family has an extensive history with CYS. The
Children’s mother passed away in 2014. CYS investigated multiple reports of
abuse and neglect while the Children were living with Maternal Grandmother
in 2014 and 2016.
In March of 2018, the Children began to reside with their biological
father, R.B. (“Father”). On March 29, 2018, CYS received a report that Child
1 had been sexually abused by Maternal Grandmother’s paramour. On May
3, 2018, CYS received a report that Child 2 was truant from school. CYS
attempted to provide services to Father and the Children but Father was
uncooperative. In June of 2018, Father sent the Children to stay with a family
friend who, in turn, returned the Children to the care of Maternal Grandmother
without Father’s knowledge. On June 29, 2018, CYS obtained an Order for
Emergency Protective Custody to remove the Children from the care of Father
but the Children’s whereabouts remained unknown.
On July 2, 2018, Delaware County Children and Youth Services (CYS)
filed Dependency Petitions alleging, inter alia, that the Children’s mother was
deceased and the Children’s father had an extensive criminal history, had a
warrant out for his arrest, had not been a consistent caretaker for the
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Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). In light of the fact
that Maternal Grandmother’s Notice of Appeal only listed one docket number,
and that this Court denied Maternal Grandmother’s Application to Amend, we
decline to quash this appeal pursuant to Walker.
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Children, and was unable to care for the Children due to feeling depressed.
The Dependency Petitions also alleged that the Children were truant from
school. The Dependency Petitions listed Father as the Children’s parent and
did not list any additional legal guardians.
On July 10, 2018, Maternal Grandmother surrendered the Children at
the scheduled adjudicatory hearing. CYS took custody of the Children and the
trial court continued the adjudicatory hearing until the next day.
On July 11, 2018, the trial court held an adjudicatory hearing and
adjudicated the Children dependent based on lack of proper parental care and
made a finding that it was in the Children’s best interest to be removed from
Father’s home and placed in foster care.3 On July 17, 2018, Maternal
Grandmother filed a pro se Motion for Reconsideration. On July 23, 2018,
Maternal Grandmother filed a pro se Petition for Writ of Habeas Corpus. CYS
filed responses to both the Motion and the Petition, asserting that Maternal
Grandmother lacked standing.
On August 7, 2018, before the trial court ruled on Maternal
Grandmother’s Motion and Petition, Maternal Grandmother filed a pro se
Notice of Appeal. Both Maternal Grandmother and the trial court complied
with Pa.R.A.P. 1925.
Maternal Grandmother raises the following issues on appeal:
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3The Orders are dated July 11, 2018 and were docketed on July 18, 2018.
However, the prothonotary did not serve notice of the Orders until July 24,
2018.
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1. Whether the lower court and [CYS] committed reversible error in
[failing] to acknowledge that [Maternal Grandmother] has legal
standing as a grandparent in custody, dependency, and
adjudicatory matters pursuant to Title 23§5313 (a) – (b), (1-3) et
seq [sic].
2. Whether the lower court committed reversible error by prohibiting
and depriving [Maternal Grandmother] of procedural and
substantive due process in the failure to allow [Maternal
Grandmother] as primary and sole custodian of the [C]hildren
herein, the constitutional right be present and to contest to the
dependency and adjudication process of her two grandchildren,
not limited to, but including the right to offer mitigating and
exculpatory evidence, present witness, testimony documents,
cross examine adverse witnesses et seq., pursuant to 237 Pa.Code
Rule 1128 [sic].
3. Whether the lower court committed reversible error in prohibiting
and depriving [Maternal Grandparent] of her due right to be
present at the aforesaid adjudicatory hearing without explanation
or just cause, despite receiving mailed notices, orders, subpoenas
and petitions from the court acquiring her mandatory appearance
at such hearing and designating [Maternal Grandmother] as a
party to the proceedings.
4. Whether the lower court committed reversible error in the failure
to allow [Maternal Grandparent] to introduce mitigating and
contradictory evidence regarding false allegations made by
[Father] (the natural father of [Child 1]), and to demonstrate that
such allegations are altogether events that never transpired.
5. Whether the lower court committed reversible error by failure to
ascertain or allow [Maternal Grandmother] the opportunity to
assist in temporary family placement or family findings for her
(two grandson’s), who were both adjudicated to foster care.
6. Whether the court relied upon clear and convincing evidence in
[its] adjudication determination, and whether a child can be
adjudicated dependent where the non-custodial parent or
guardian is ready, willing, and able to provide adequate care for
the child.
7. Whether the [Children] in this matter received effective assistance
of counsel.
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8. Whether [the] Children in this matter [have] been subjected to
double jeopardy as they were adjudicated twice for dependency
and then adjudicated a third time for placement in a foster home
on the basis of false statements induced though constant beating,
threats, intimidation and coercion of [Children] by [Father] of
[Child 1].
Appellant’s Brief at 11-13 (some numeration added).
As an initial matter, we must determine whether we have jurisdiction to
consider this appeal. This Court has repeatedly held: “[w]hen a statute
creates a cause of action and designates who may sue, the issue of standing
becomes interwoven with that of subject matter jurisdiction. Standing then
becomes a jurisdictional prerequisite to an action.” K.B. II v. C.B.F., 833
A.2d 767, 774 (Pa. Super. 2003) (citation, quotation, and emphasis omitted).
A party seeking to appeal must, as a prerequisite, establish that they have
standing to appeal. In Interest of Garthwaite, 619 A.2d 356, 357 (Pa.
Super. 1993). An issue regarding standing to participate in dependency
proceedings is a question of law; our standard of review is de novo and our
scope of review is plenary. In re S.H.J., 78 A.3d 1158, 1160 (Pa. Super.
2013).
The Juvenile Act governs dependency proceedings. See 42 Pa.C.S. §
6301, et seq. “Under the Juvenile Act, attendance at and participation in
dependency proceedings are restricted.” In re L.C., II, 900 A.2d 378, 381
(Pa. Super. 2006). Hearings are closed to the general public and only a
“party” has the right to participate, to be heard on his or her own behalf, to
introduce evidence, and/or to cross-examine witnesses. Id.; see also 42
Pa.C.S § 6336(d); 42 Pa.C.S. § 6338(a). This Court has repeatedly held that
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in a dependency proceeding, “party” status is limited to three classes of
persons: (1) the parents of the juvenile whose dependency status is at issue;
(2) the legal custodian of the juvenile whose dependency status is at issue, or
(3) the person whose care and control of the juvenile is in question. In re
L.C., II, supra at 381; In re S.H.J., supra at 1160-61. “These categories
logically stem from the fact that upon an adjudication of dependency, the court
has the authority to remove a child from the custody of his or her parents or
legal custodian.” In re L.C., II, supra at 381 (citing 42 Pa.C.S. § 6351).
“Due process requires that the child's legal caregiver, be it a parent or other
custodian, be granted party status in order to be able to participate and
present argument in the dependency proceedings.” In re L.C., II, supra at
381 (citation omitted).
Importantly, the Juvenile Act specifically notes that absent legal
custody, a relative providing care for a child does not have standing to
participate in the proceedings. 42 Pa.C.S. § 6336.1(a).
Instantly, Maternal Grandmother does not fall within any of the
foregoing definitions of a “party.” It is undisputed that Maternal Grandmother
is not the Children’s parent. Moreover, our review of the record indicates that
Maternal Grandmother is not the legal custodian, and she is not the person
whose care and control of the Children is in question. On the contrary, the
trial court removed Children from the care and control of their Father, who
had legal custody of Children. See Adjudication Order, 7/18/18. While
Maternal Grandmother has cared for the Children in the past, a relative who
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is simply providing care for a child does not have standing to participate in the
proceedings. See 42 Pa.C.S. § 6336.1(a).
Maternal Grandmother argues that she has standing to participate in
Children’s dependency proceedings under the Custody Act, Section 5325,
which grants a grandparent standing to file for physical custody in certain
situations. See 23 Pa.C.S. § 5325. However, Maternal Grandmother’s
reliance on this statute is misplaced. While Section 5325 may, in fact, grant
her standing to file for custody of Children at a later date, it does not confer
standing for her to participate in dependency proceedings, which are governed
by the Juvenile Act, discussed supra.
Maternal Grandmother did not have standing to participate in the
adjudication of dependency hearing, and, therefore, we are without
jurisdiction to decide the merits of her issues. See K.V. II., supra at 774;
Garthwaite, supra at 358. Accordingly, we are constrained to dismiss this
appeal.4
Appeal dismissed.
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4This Court has received the July 11, 2018 transcript of the Adjudicatory
Hearing and admitted exhibits. In light of this, we deny Maternal
Grandmother’s Application for Writ of Mandamus as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/19
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