RM v. Baxter ex rel. TM

• Decision Date: 21 August 2001
• Citation: 777 A.2d 446,565 Pa. 619
• Parties: R.M. v. Barbara S. BAXTER, Guardian Ad Litem for T.M., Huntingdon County Children's Services, M.E.M., Mother, N.M.M., Father, John and Jane Doe, Foster Parents. Appeal of Barbara S. Baxter, Guardian Ad Litem for T.M. and Huntingdon County Children's Services.
• Court: Pennsylvania Supreme Court

777 A.2d 446

565 Pa. 619

R.M. v. Barbara S. BAXTER, Guardian Ad Litem for T.M., Huntingdon County Children's Services, M.E.M., Mother, N.M.M., Father, John and Jane Doe, Foster Parents.

Appeal of Barbara S. Baxter, Guardian Ad Litem for T.M. and Huntingdon County Children's Services.

Supreme Court of Pennsylvania.

Argued December 4, 2000.

Decided August 21, 2001.

Barbara S. Baxter, Huntingdon, for guardian ad litem, Peter McManamon, Huntingdon, for Huntingdon County Child Services.

Robert Ferguson, Lewistown, for E.M., Elaine J. Novacco, Warriors Mark, for R.M.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA, Justice:

We granted allocatur to determine whether 23 Pa.C.S. § 5313 confers standing upon a grandparent to file a complaint for custody and/or visitation of a grandchild after the child has been adjudicated dependent. The trial court held that a grandparent lacks standing under these circumstances and dismissed the complaint. The Superior Court reversed and remanded, holding that the statute confers automatic standing upon a grandparent to seek physical and legal custody of a grandchild. For the reasons that follow, we affirm.

T.M. was born on March 9, 1996. The child resided with his biological parents from the date of his birth until June 26, 1996, when he was seriously injured as a result of shaken baby syndrome. While T.M. was hospitalized, Huntingdon County Children's Services (the Agency) obtained an emergency protective order to prevent T.M. from being returned to his parents' home. T.M.'s mother subsequently pled guilty to the offense of endangering the welfare of a child. With the consent of his parents, T.M. was declared to be a dependent child and was placed in the legal custody of the Agency on July 16, 1996. T.M. was subsequently placed with foster parents. The goal in the dependency action is adoption.¹

On September 2, 1997, T.M.'s paternal grandmother, R.M. (Grandmother), filed a Complaint for Custody or Partial Custody and/or Visitation.² Therein, she alleged that she has genuine care and concern for her grandson and that it was in his best interests to be in her care and custody. Grandmother asserted that her relationship with T.M. began with the consent of both of his parents and that she has continuously visited him when she was permitted to do so. She further asserted that she deems it necessary to assume responsibility for T.M. due to his mother's criminal conviction for endangering his welfare.

T.M.'s guardian ad litem and the Agency (hereinafter Appellants)³ filed preliminary objections to the complaint. They contended that Grandmother failed to satisfy the standing requirements of Section 5313, which provides as follows

§ 5313. When grandparents may petition.

(a) Partial custody and visitation.—If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.

(b) Physical and legal custody.—A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent. This subsection applies to a grandparent

(1) who has genuine care and concern for the child;

(2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and

(3) who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. The court may issue a temporary order pursuant to this section.

23 Pa.C.S. § 5313 (emphasis added).

The trial court sustained Appellants' preliminary objections and dismissed Grandmother's complaint. It held that subsection (a) of Section 5313 did not confer standing because T.M. never resided with Grandmother. It found that Grandmother met the criteria of subsections (b)(1) and (b)(2) because she pled that she had genuine care and concern for the child and that her relationship began with the consent of the child's parents. It held, however, that Grandmother failed to plead the existence of one of the three sets of circumstances conferring standing in subsection (b)(3). Specifically, the court held that T.M. was not "substantially at risk due to parental abuse" because he had already been declared dependent and was outside of the abusive parental home.

The Superior Court reversed and remanded. R.M. v. Baxter, 725 A.2d 775 (Pa.Super.1999). It agreed that subsection (a) did not apply and that Grandmother satisfied the requirements of subsections (b)(1) and (b)(2). The court held, however, that the fact that T.M. had been declared dependent did not prevent Grandmother from satisfying the language in subsection (b)(3) regarding T.M. being "substantially at risk due to parental abuse." The court reasoned that otherwise, anytime an agency sought dependent status for a child, a grandparent's ability to seek custody of his grandchild would be negated. The court concluded that such result would be in clear opposition to the mandate of the statute, which unequivocally states that a "grandparent has standing to bring a petition for physical and legal custody of a grandchild." Id. at 779.

In ruling on whether preliminary objections should have been granted, an appellate court must determine whether it is clear from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief. Pennsylvania AFL-CIO v. Commonwealth of Pennsylvania, 563 Pa. 108, 757 A.2d 917 (2000). Here, the facts are undisputed. The issue of whether the statute confers standing upon a grandparent to seek custody and/or visitation is purely one of law, over which our review is plenary. Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995).

Initially, we note that prior to the 1996 enactment of Section 5313(b), a grandparent had no right to seek visitation or partial custody of a grandchild unless a parent was deceased, 23 Pa.C.S. § 5311, the parents' marriage was dissolved or the parents separated, id. at § 5312, or the child had resided with the grandparent for 12 months or more and was subsequently removed from the home by his parents, id. at § 5313. See also Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983)

(grandparents have no right to visit child where neither parent was deceased, parents' marriage was not dissolved, and child had not resided with grandparent for 12 months or more).

The 1996 amendment changed the heading title of Section 5313 (from "When child has resided with grandparents" to "When grandparents may petition"), designated the former text as subsection (a) and added the text set forth in subsection (b). The new subsection (b) recognized a grandparent's claim for "physical and legal custody" of a grandchild, rather than the previous reference to "partial custody and visitation." Thus, the 1996 legislation expanded grandparents' rights and specifically addressed the issue of grandparent standing in a custody matter.

In previous case law discussing third-party suits for visitation or partial custody, a stringent test for standing arose out of a respect for the traditionally strong right of parents to raise their children as they see fit. Ken R. v. Arthur Z., 438 Pa.Super. 114, 651 A.2d 1119 (1994). The courts generally found standing in third-party visitation and custody cases only where the legislature had specifically authorized the cause of action. Id. We must determine whether section 5313 serves as such authority in this case.

Appellants argue that the legislature did not authorize Grandmother to petition for visitation and/or custody at any time after T.M. was adjudicated dependent. They assert that standing could not arise from 23 Pa.C.S. § § 5311 and 5312 because Grandmother's son, T.M.'s father, was not deceased, nor did T.M.'s parents separate or divorce. They also assert that Section 5313(a) does not confer standing because T.M. never resided with Grandmother. These conclusions are undisputed.

The crux of the argument lies with Section 5313(b). Contrary to the holding of the Superior Court, Appellants contend that this section does not give all grandparents automatic standing, but instead only confers standing to those grandparents who satisfy the specific requirements stated therein. According to Appellants, there are three requirements to afford a grandparent standing to petition for physical and/or legal custody of his/her grandchild: (1) the grandparent has genuine care and concern for the child; (2) the relationship began with the consent of a parent or pursuant to a court order; and (3) any one of the following: (I) the grandparent has in loco parentis status; (ii) the grandparent assumes responsibility for a grandchild who has been adjudicated a dependent child under 42 Pa.C.S. Ch. 63; or (iii) the grandparent assumes or deems it necessary to assume responsibility for a grandchild who is substantially at risk because of parental abuse, neglect, drug or alcohol abuse or mental illness.

Thus, ...