In the Interest of: G.K., a Minor

J-A29020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: G.K., A MINOR IN THE SUPERIOR COURT
OF
PENNSYLVANIA

APPEAL OF: C.M.K., MOTHER

No. 1350 EDA 2017

Appeal from the Order Entered March 30, 2017
in the Court of Common Pleas of Philadelphia County
Family Court at No.: CP-51-DP-0001734-2016

BEFORE: LAZARUS, J., PLATT, J.,* and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 08, 2017

C.M.K. (Mother) appeals from the order and decree of the Court of

Common Pleas of Philadelphia County, entered March 30, 2017, that

terminated dependency court supervision of her son G.K. (Child) (born 9/07)

and awarded primary physical and legal custody of Child to M.K. (Maternal

Grandmother). We remand to the trial court with instructions.

The record before us supports the following recitation of the facts of this

case. On August 11, 2016, Philadelphia’s Department of Human Services

(DHS) received a general protective services report that alleged that Child had

been left unattended in a hot car in a Wal-Mart parking lot. Two days later,

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* Retired Senior Judge assigned to the Superior Court.
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on August 13, 2016, DHS received an additional report that Child had made

allegations of physical abuse as to Mother and allegations of both physical and

sexual abuse as to Mother’s husband, who resided with Mother.1 The report

further alleged that Child had been found walking alone in the street with a

dog and cat asking strangers how to get home to Florida.

DHS obtained an order of protective custody for Child on August 14,

2016. On that same day, DHS took Child for a forensic interview at

Philadelphia Children’s Alliance because of the allegations of physical and

sexual abuse. DHS also took him to St. Christopher’s Hospital for Children to

receive medical attention for abrasions on his legs and knees. When asked

whether any family resources were available to serve as a kinship placement

resource for Child, Mother mentioned Child had a Maternal Great-Aunt in

Pennsylvania, but she lived two hours away. Child reported to the DHS

investigator that he wanted to return to Florida to live with Maternal

Grandmother. He had lived most of his life with Maternal Grandmother in

Florida. (See page 6, infra). DHS made contact with Maternal Grandmother,

who thereafter traveled from Florida to Philadelphia to serve as a placement

resource for Child. Mother told DHS she would prefer that Child be placed in

general foster care rather than with either of the two available kinship

resources because she believed Maternal Grandmother had coached Child to

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1 Mother’s husband is not Child’s father.

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make false allegations against her. Child was placed in general foster care on

August 14, 2016.

At a shelter care hearing on August 17, 2016, the trial court ordered

Child to remain temporarily committed to DHS and placed in his foster home

pending further investigation. Both Mother and Maternal Grandmother

appeared at this hearing. Mother was not to have any visitation until further

order of the court. The court noted that Maternal Grandmother had expressed

an interest in caring for Child.

Maternal Grandmother filed a petition for custody in Florida on August

19, 2016. (See N.T. Hearing, 3/02/17, at 5). She remained in Philadelphia

to support Child and seek to have Child transferred from general foster care

to a kinship placement with Maternal Great-Aunt, who resided in Hanover,

Pennsylvania.

The trial court adjudicated Child dependent on September 7, 2016, by

the agreement of all parties that Mother was presently unable to provide Child

with the proper care necessary for his physical, mental or emotional health.

Mother and Maternal Grandmother were offered supervised visits, and DHS

was ordered to plan concurrently for Child to be placed with Maternal

Grandmother in Florida via the procedures set forth in The Interstate Compact

on the Placement of Children (ICPC).

Maternal Great-Aunt had appeared at the adjudicatory hearing and at

several subsequent hearings as a ready and willing kinship resource. Maternal

Grandmother also filed an emergency petition for special relief in the

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dependency matter in Philadelphia on October 6, 2016, requesting an

emergency hearing to argue that she should be granted custody of Child and

that he be immediately removed from general foster care. The trial court

scheduled a hearing on the petition for October 19, 2016.

At the October 19, 2016 hearing, Maternal Grandmother’s counsel

argued that Child should be placed with Maternal Great-Aunt in Hanover,

Pennsylvania, if the trial court would not grant Maternal Grandmother

immediate custody. The Child Advocate joined in the request. DHS and

Mother objected, arguing that the move would disrupt reunification attempts.

The trial court ordered this option explored, and granted Maternal

Grandmother’s motion to intervene in the dependency matter stating, “The

[Maternal] [G]randmother is given status to intervene in this case based upon

the in loco parentis status that she has with [Child].” (N.T. Hearing, 10/19/16,

at 16).

After a hearing was continued on several occasions, DHS presented

testimony on December 8, 2016, but time constraints resulted in a

continuance, and there was no final determination regarding case disposition

and the contested issue of placement.

Child moved into a different foster home on an emergency basis in late

December 2016, after he presented at a visit with unexplained facial bruising,

in addition to pre-existing concerns of inadequate supervision and allegations

that Child was the victim of bullying by an older youth in the home.

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Child had not had any reported behavioral or academic issues in Florida,

but began failing all classes, frequently absconding from school, stealing, and

breaking into his former foster home. He also burned his new foster brother

with a clothing iron and subsequently tried to burn down his new foster home.

On March 2, 2017, the trial court held a Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA) telephonic conference during a

permanency review hearing. All parties were represented at the conference

with the Tenth Judicial Circuit for Highlands County Florida. After extensive

discussion, all parties agreed that Florida would not exercise jurisdiction over

the case and the trial court would exercise jurisdiction pursuant to the UCCJEA

to preside over the issues of custody and dependency. The trial court accepted

jurisdiction and advised all parties that the custody matter would be

entertained at the next hearing.

After the UCCJEA conference, Child testified that he wanted to return to

the care of Maternal Grandmother, that he did not like the school he was

attending, that he was getting in fights, and would not feel good if the judge

decided he should live with Mother. (See N.T. Hearing, 3/02/17, at 42-48).

He testified, “I don’t like living with my mother, but I like living with my

brother and sisters.” (Id. at 44). He was scared of returning to Mother’s

home because her husband was doing “bad stuff,” including, “hitting me” and

“touching me in a bad way.” (Id. at 47). He clarified for the court that he

calls Maternal Grandmother, Mom, and Mother by her first name. (See id.).

The trial court found that it was in Child’s best interest to be immediately

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removed from general foster care and placed with Maternal Great-Aunt, and

awarded her temporary legal custody pending determination of the custody

matter at the next hearing. The trial court reminded all parties that it would

entertain the issue of custody at the next hearing, and twice highlighted to all

parties that counsel would not be appointed given that this would become a

private custody matter after the anticipated discharge of the Dependency

Petition.

The trial court discharged the dependency on March 30, 2017, excused

the parties that were involved solely in the dependency proceeding, and

granted the Child Advocate’s request to represent Child in the custody case.

The trial court provided all parties with copies of the Florida petition and noted

that jurisdiction had been properly conferred on the trial court based on the

UCCJEA procedure allowing for such a transfer.

Maternal Grandmother was the first witness to testify in the custody

proceeding. She testified that Child had been living with her since his birth in

September of 2007. (See N.T. Hearing, 3/30/17, at 18). Although Mother

initially resided in the home with Child, Maternal Grandmother explained that

Mother moved out in January of 2008, leaving Child in her care. (See id. at

17). Maternal Grandmother testified that, since that time, she and her

husband had, until the events of the past year, created a stable life for Child

in Florida, where Child was known locally as a baseball “all star” and thrived

socially, academically, and athletically. (Id. at 25; see id. 25-35).

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Maternal Grandmother testified that she and her husband have provided

the caretaking duties for Child throughout his life, including, but not limited to

ensuring that they met his school, medical, emotional, and other needs. (See

id. at 25-26). She described a typical day for Child while in her care in Florida

and emphasized his passion for baseball. (See id. at 25-28). Maternal

Grandmother testified that Child’s teachers, baseball coaches, and friends

regard Maternal Grandmother and her husband as Child’s primary “parental”

resources. (Id. at 31; see id. at 29).

Maternal Grandmother supported her testimony regarding her parental

role with a notarized affidavit executed July 6, 2010, between Maternal

Grandmother and Mother that formalized their mutual agreement, at that

time, that Maternal Grandmother would have legal and physical custody of

Child, along with full authority over making any and all of his medical and

educational decisions. (See id. at 38-40). Mother objected to the entry of

this affidavit stating, “The purpose of that document is because I had a

warrant out for my arrest and I knew I was going to be incarcerated for about

three months.” (Id. at 40). After Mother confirmed that she had signed the

document, the trial court overruled her objection and admitted the affidavit.

(See id. at 41). Maternal Grandmother testified that the rights conferred to

her in the affidavit had never been revoked. (See id. at 39).

In explaining how the events leading to Child’s adjudication began,

Maternal Grandmother testified that on July 6, 2016, Mother showed up at her

house and stated that she was taking Child to Philadelphia for a few weeks,

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but promised to return him in time for school in early August. (See id. at 22-

23).

Describing her relationship with Child as compared to Mother’s

relationship with him, Maternal Grandmother testified, “[Child] only knows my

husband and I [sic] as his parents. My daughter, when she—she lives in the

same town we do, a small community, when she has come over, she doesn’t

make a real effort to interact with him. It’s more like a sister brother

relationship.” (Id. at 53).

Maternal Grandmother further testified that she had recently spoken to

Child, who had expressed his continuing desire to return with her to Florida.

(See id. at 61). She stated that Child was afraid of returning to Mother’s care

and that she was aware of the fact that Child had recently been refusing his

visits with Mother. (See id.). Maternal Grandmother indicated her eagerness

to be again able to provide a stable, safe, consistent life for Child, explaining,

“I have been doing it from the day he was born. . . . [W]e would always be

there to take care of him[.]” (Id. at 34). Maternal Grandmother emphasized

that Child had no family support or community ties to Philadelphia besides

Mother. (See id. at 33). On the other hand, he has relationships with a

variety of extended family members, friends, and baseball coaches, and

teachers in Florida.

Describing Child’s life in Florida with her, Maternal Grandmother

emphasized that, “baseball is his passion.” (Id. at 28). Maternal

Grandmother and her husband support this passion by enabling him to play

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ten months out of the year, registering him with a travel team, paying for all

of his equipment and associated fees, and attending his games. (See id. at

28-29). On the other hand, she testified that Mother had never helped defray

these costs or supported or encouraged Child’s love of baseball in any

capacity. (See id. at 30). Despite frequently being within ten miles of the

field where Child often played and practiced, Mother never attended any of

Child’s games. (See id. at 29). During cross-examination, Maternal

Grandmother acknowledged that Mother attended one of Child’s practice

sessions with her step-children and husband, but never attended any of his

games. (See id. at 57).

Marni Stone, Child’s child advocate social worker, testified that she had

formed a close relationship with Child in the months since the case opened

through frequent contact via visits and telephone. (See id. at 66). Ms. Stone

testified that Child had expressed on numerous occasions his desire to go back

to Florida and live with Maternal Grandmother. (See id. at 67). In fact, she

noted that Child recently confided in her that, if he were placed with Mother

and not Maternal Grandmother, he would run away again. (See id.). Ms.

Stone opined that it would be in Child’s best interest to return to Florida to

live with Maternal Grandmother, the person he views as his mother. (See

id.). Finally, Ms. Stone presented a letter, dated February 28, 2017, written

by Child, in which he explained, “all I want to do is go back home with mommy

who is my grand mom. I am scard (sic) to go back to [Mother]’s.” (Id. at

Child Advocate Exhibit 1; see id. at 70).

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Kharyee Connors, Child’s Community Umbrella Agency (CUA) case

manager, testified that Child had expressed a desire to live with Maternal

Grandmother. (See id. at 81).

During her testimony, Mother admitted, “[Child] loves his grand mom.

There’s no denying that.” (Id. at 87). She stated that the allegations of

sexual and physical abuse first arose in 2009, and that she continues to have

to endure similar allegations being made against her husband. (See id. at

86). She opined that all of the allegations have come from Maternal

Grandmother and not Child, and that they are untrue. (See id.). Mother

stood by her testimony that Maternal Grandmother had coached Child to make

false allegations through the years despite evidence that Child had stood by

the truth of his allegations throughout the dependency proceeding, continuing

to report them independently in, for example, his Psychological Evaluation.

(See id. at Child Advocate Exhibit 2, Psychological Evaluation, at 11-13).

Mother testified that she has a “loving family” with her husband and that

“there’s nothing wrong in our household.” (N.T. Hearing, 3/30/17, at 102).

When directly asked if there had been incidents of domestic abuse or physical

or verbal abuse between her and her husband, Mother testified, “None at all.”

(Id. at 104). However, on cross-examination, Child’s counsel produced

reports from the Highland County Florida Sheriff’s Office for domestic incidents

that had occurred on January 14, 2015, July 2, 2015, June 6, 2013, December

19, 2011, and May 20, 2010. (See id. at 105-09). Mother conceded that the

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reports stated they pertained to incidents between herself and her husband.

(See id.).

Mother testified that she lived with Maternal Grandmother at the time

that Child was born, and subsequently obtained her own apartment, but after

two months, returned to Maternal Grandmother’s home and resided there until

she got married in 2011. (See id. at 83). She and her husband then moved

to Philadelphia for approximately a month. Mother, however, did not like

Philadelphia so they returned to Florida and resided with her husband’s sister.

According to Mother, the family then relocated to their own apartment where

they resided for the next year. Mother claimed that Child resided with her

during this entire time. (See id. at 83-84). Mother stated that, in 2012, she

and Maternal Grandmother agreed that Child would return to Maternal

Grandmother’s home, but, according to Mother, she was at Maternal

Grandmother’s home “every single day” up until the time that she took Child

from Maternal Grandmother in 2016. (Id. at 85).

On cross examination, Maternal Grandmother’s counsel questioned

Mother regarding her statement that she resided with Maternal Grandmother

until the time that she got married. Mother confirmed that statement was

correct. (See id. at 96). Counsel then proceeded to question Mother

regarding eleven addresses in Florida and Pennsylvania that were connected

with her name. (See id. at 96-100). When counsel suggested that it

appeared that she had not had stable housing during Child’s life, Mother

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responded that the statement was not correct as “I have had a roof over my

head[.] ” (Id. at 100).

Also, on cross-examination by Maternal Grandmother’s counsel, Mother

testified that she still believes Child was better off in foster care for the past

seven months rather than with kin, in spite of everything he had endured.

According to Mother, if Child had been placed with Maternal Great-Aunt during

the case, Maternal Great-Aunt would have manipulated Child in the same ways

she alleged Maternal Grandmother manipulated him. (See id. at 103).

Mother admitted that she had been involved with Children and Youth Services

in both Florida and in Pennsylvania. (See id. at 110). She was unaware that

Child had been diagnosed with “adjustment disorder with mixed disturbance

of emotion[,] conduct post-traumatic stress disorder, suspected victim of

sexual abuse, [and] suspected victim of physical abuse,” despite being present

at past hearings where Child’s psychological evaluation was discussed and

entered into evidence. (Id. at 109; see id. at 110).

On March 30, 2017, the trial court entered its order terminating court

supervision of Child and its decree awarding permanent physical and legal

custody of Child to Maternal Grandmother.

Mother filed her notice of appeal and concise statement of errors

complained of on appeal on April 24, 2017. The trial court filed an opinion on

June 19, 2017. See Pa.R.A.P. 1925.

Mother presents the following issues for our review:

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[1)] Whether the [trial] court erred by granting standing to the
[M]aternal [G]randmother in the custody [case] where she did not
have standing pursuant to Pennsylvania law to be a party to the
dependency or custody proceeding before the [trial] court and
[M]aternal [G]randmother did not file a petition for custody in
Philadelphia County?

2) Whether the trial court erred when it discharged the
dependency petition and awarded custody to [M]aternal
[G]randmother where it did not properly weigh and place on the
record the factors for determining custody pursuant to 23
Pa.C.S.[A]. § 5328(a)?

3) Whether the trial court erred when it discharged the
dependency petition and awarded custody to [M]aternal
[G]randmother where [Child] did not appear at the hearing to
express his desires to the [trial] court?

4) Whether the trial court erred when it discharged the
dependency petition and did not return [Child] to [M]other when
she was ready, willing and able to care for [Child] and had no
dependency issues in her house?

(Mother’s Brief, at 5).

Our scope and standard of review is as follows:

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.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

We have stated,

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[T]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).

The primary concern in any custody case is the best interests of the

child. “The best interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s physical,

intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 A.2d 509,

512 (Pa. Super. 2006) (citation omitted).

We must accept the trial court’s findings that are supported by

competent evidence of record, and we defer to the trial court on issues of

credibility and weight of the evidence. “[I]f competent evidence supports the

court’s findings, we will affirm even if the record could also support the

opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super.

2003) (citation omitted).

Additionally:

The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern of the
trial court is the best interest of the child. Appellate interference
is unwarranted if the trial court’s consideration of the best interest
of the child was careful and thorough, and we are unable to find
any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citation omitted).

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The trial court has written a comprehensive opinion setting forth, in

detail, the facts of this case and has explained the rationale for its decision to

return Child to his Maternal Grandmother’s care in Florida. However, we

observe that the trial court’s failure to explain its reasoning considering each

of the custody factors enumerated in 23 Pa.C.S.A. § 5328(a), prevents us

from considering the appeal at this time.

In ordering a custody modification, the trial court is required to consider

sixteen factors set forth in 23 Pa.C.S.A. § 5328(a). Section 5328(a) provides:

In ordering any form of custody, the court shall determine the
best interest of the child by considering all relevant factors, giving
weighted consideration to those factors which affect the safety of
the child, including the following:

(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.

(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating
to consideration of child abuse and involvement with
protective services).

(3) The parental duties performed by each party on behalf
of the child.

(4) The need for stability and continuity in the child’s
education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

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(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.

(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.

(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.

(14) The history of drug or alcohol abuse of a party or
member of a party’s household.

(15) The mental and physical condition of a party or
member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

After considering the sixteen custody factors enumerated in section

5328, a trial court may award one of several types of custody to a party. See

23 Pa.C.S.A. § 5323(a). Section 5323 mandates that, when the trial court

awards custody, it “shall delineate the reasons for its decision on the record

in open court or in a written opinion or order.” Id. at § 5323(d)

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(emphasis added); see C.B. v. J.B., et al., 65 A.3d 946, 951 (Pa. Super.

2013), appeal denied, 70 A.3d 808 (Pa. 2013). “All of the factors listed in

section 5328(a) are required to be considered by the trial court when entering

a custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super 2011)

(citation omitted; emphasis in original).

Our review of the record reveals that the trial court, while stating that

it considered all the factors, did not, in its opinion or on the record in open

court, discuss all the factors listed in section 5328(a), only those that it found

significant. We are constrained, therefore, to remand this matter to the trial

court with instructions to submit an opinion to this Court, within thirty days,

in which it discusses each of those factors. The order and decree of the trial

court shall remain in effect pending the trial court’s response to this Court.

Case remanded, with instructions. Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2017

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