J-A05035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P. AND M.L. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
S.K. AND R.L.
Appellees No. 1315 WDA 2016
Appeal from the Order August 2, 2016
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD14-005406-004
BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.
MEMORANDUM BY MOULTON, J.: FILED APRIL 25, 2017
P. and M.L. (“Grandparents”) appeal from the August 2, 2016 order of
the Allegheny County Court of Common Pleas denying Grandparents’
complaint for custody of H.K. (“Child”). We affirm.
The trial court set forth the following factual background:
[Child] is a two year old child, who has only lived in the
home of her foster parents, having been placed with them
upon her discharge from the hospital when she was two
weeks old. She had spent the first thirteen days of her
young life detoxing: Mother had tested positive for
Subutex. She does not know or have a relationship with
her [paternal] grandparents. Mother named R.L. as the
alleged Father shortly before the child was adjudicated
dependent on August 25, 2014. Father R.L. is currently
incarcerated. He did not sign an acknowledgement of
paternity, nor was his name on the birth certificate. Father
took a genetic test in November 2014; he was determined
to be the child’s biological Father on December 11, 2014.
From January 2015 to April 2016, Father did not have any
contact with [the Office of Children Youth and Families
(“CYF”)] or the Court despite receiving notice at his place
J-A05035-17
of incarceration. He did not hire an attorney, nor ask for
visitation, nor participate in court hearings. Mother signed
to voluntarily terminate her parental rights on April 15,
2016.
Only after the [termination of parental rights] petition
was filed, did Father seek counsel; counsel entered her
appearance on April 4, 2016. Counsel’s first appearance
on behalf of Father was at the July 11, 2016 permanency
review hearing. Paternal Grandparents filed a
“Grandparent Complaint for Custody” in April; their request
for visitation and issues related to custody were ultimately
deferred to the July 11, 2016 permanency review hearing.
See Order of Court, dated June 16. 2016.
Opinion, 9/26/2016, at 1-2 (“1925(a) Op.”).1 At the July 11, 2016 hearing,
the trial court heard testimony from CYF case supervisor Elizabeth Rider,
Father, Paternal Grandmother, and Child’s foster father.
Following this hearing, the trial court found that Child “shall remain
with” her foster parents. Perm. Rev. Order at 4. The court further found
that CYF shall “Offer Family Team Conferencing and Act 101 Mediation to
foster parents[.] NO visitation shall be scheduled with paternal
____________________________________________
1
Grandparents complaint sought “primary custody” of Child.
Grandparent Complaint for Primary Custody, filed Apr. 15, 2016. As the trial
court noted, Grandparents “presumably” were seeking primary custody
under 23 Pa.C.S. § 5324. 1925(a) Op. at 9.
-2-
J-A05035-17
grandparents . . . without approaching the court.”2 Id. On August 2, 2016,
the trial court issued an order denying Grandparents’ custody complaint.3
Grandparents raise the following issues on appeal:
I. The Trial Court committed abuse of discretion in failing
to apply the factors of 23 Pa.C.S.A. § 5328.
II. The Trial Court abused its discretion in its ruling that “it
would be traumatic to [Child] [both to] be reunited [with]
or introduced to people she does not know, given her
current age and her current level of [st]ability with her
current foster parents.”
III. The trial court erred in finding there was sufficient
evidence presented at [the] hearing to establish that
visitation with Paternal Grandparents outside of Act 101
mediation would not best serve the needs and welfare of
the child.
Grandparent’s Br. at Table of Contents.4
____________________________________________
2
Father appealed from the July 11, 2016 permanency review order
raising the same issues Grandparents raise herein. That appeal is docketed
at 1201 WDA 2016.
3
The trial court also notes that the July 11, 2016 permanency review
order at docket CP-02-DP-0001429-2014 also denied Grandparents’
requested relief. However, an order denying the custody complaint was not
entered on the docket in the family court division until August 2, 2016.
4
Grandparent’s brief does not include a statement of questions
involved as required by Pennsylvania Rule of Appellate Procedure 2116.
However, because the table of contents and headings within the argument
section delineate the issues, we decline to find waiver on that basis.
-3-
J-A05035-17
Grandparents5 first contend the trial court abused its discretion by
failing to apply the custody factors.6
____________________________________________
5
The trial court states that Grandparents lack standing to seek
custody. The parties, however, did not challenge Grandparents’ standing
below nor have they done so on appeal. A court may not raise the issue of
standing sua sponte. M.G. v. L.D., --- A.3d ----, 2017 Pa.Super. 29, at *2
n.5 (filed Feb. 8, 2017) (court cannot address standing sua sponte); In re
Adoption of Z.S.H.G., 34 A.3d 1283, 1289 (Pa. Super. 2011) (same).
Although Child’s guardian ad litem filed a brief in a companion appeal
brought by Father, in which it argued that Father and Grandparents lacked
standing, it did not file a brief in this appeal. Rather, the guardian ad litem
filed a letter in which he stated that the Rule 1925(a) opinion “analyzes the
issues and illustrates that the Trial Court did not abuse its discretion or err
as a matter of law.” Guardian’s Letter to Super. Ct. dated Nov. 15, 2016.
6
Section 5328 of the Child Custody Act 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.
(Footnote Continued Next Page)
-4-
J-A05035-17
“Our concern in any custody . . . matter is the best interest of the
child, which considers all factors, on a case-by-case basis, that legitimately
affect a child’s physical, intellectual, moral, and spiritual well-being.” S.J.S.
v. M.J.S., 76 A.3d 541, 554 (Pa.Super. 2013). In custody cases, our
standard of review is as follows:
We review a trial court’s determination in a custody
case for an abuse of discretion, and our scope of review is
broad. Because we cannot make independent factual
_______________________
(Footnote Continued)
(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. § 5328(a).
-5-
J-A05035-17
determinations, we must accept the findings of the trial
court that are supported by the evidence. We defer to the
trial judge regarding credibility and the weight of the
evidence. The trial judge’s deductions or inferences from
its factual findings, however, do not bind this Court. We
may reject the trial court’s conclusions only if they involve
an error of law or are unreasonable in light of its factual
findings.
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014) (internal citations
omitted). This Court has also stated that “the 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.” Ketterer v. Seifert, 902 A.2d
533, 540 (Pa.Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254
(Pa.Super. 2004)). “[T]he 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.” Id. (quoting Jackson, 858 A.2d at
1254).
At the conclusion of the hearing, the trial court found the following:
With respect to the custody matter, it[’]s obviously
complicated by the issue of the fact that [Child] is a
dependent child and has been a dependent child for two
years, in the care of CYF through foster care. And
therefore, the factors are complicated from the Court’s
perspective in a custody matter to apply, because of the
nature of the circumstances; and it also assumes a certain
level of parody [sic] in terms of responsibility and access,
most of which when looking at the paternal grandparents’
ability to be involved with this child have been limited by
the father’s actions.
And as a result of the father’s actions the . . . paternal
grandparents have had no involvement at all with this
-6-
J-A05035-17
child; and as a result, it is a very difficult situation that the
Court is faced with, in the sense that applying the factors
tends to assume that both parties have an equal
opportunity to have been involved with the child and do
some of the things that would allow the Court to find them
to be people for whom the child should have an ongoing
relationship.
This Court finds that the current caregivers for [Child]
are performing parental duties and have provided stability
and continuity in her family life and her community life;
that the child is too young to express a preference; that
the child’s parents have not been involved with her life for
the last two years; that they have maintained a loving,
stable and consistent relationship with this child; that her
emotional needs have been met; that any developmental
needs have been met; that they have made any necessary
child care arrangements; that there is no reported history
of drug or alcohol abuse of the caregivers, and there is a
mental health history reported as to Father, but there is no
history reported as to paternal grandparents; that the
child’s psychological, emotional and developmental health
may be compromised by trying to move her in any way to
a different home, as that she is currently emotionally
secure, progressing well in her development, and Dr.
Rosenblum’s evaluation is very clear that she is in a warm,
nurturing, engaging home.
Therefore, this Court finds that any custody claim on
the part of the paternal grandparents is, in fact, dismissed
at this time; that the case should proceed on the
dependency side, and as previously described all parties
should be offered Act 101[7] mediation to determine
____________________________________________
7
Act No. 2010-101 amended the Adoption Act, by, among other
things, providing for continuing contact with birth relatives. 2010 Pa. Legis.
Serv. Act 2010-101 (S.B. 1360). The statute provides:
The purpose of this subchapter is to provide an option for
adoptive parents and birth relatives to enter into a
voluntary agreement for ongoing communication or
contact that:
(Footnote Continued Next Page)
-7-
J-A05035-17
whether that would be [a]n appropriate level of contact to
have between current caregivers in the event that
termination is granted, as well as with her biological
family.
N.T., 7/11/16, 81-84.
In its Rule 1925(a) opinion, the trial court concluded:
The Court conducted a custody analysis, despite very
little testimony and evidence on behalf of the petitioner.
The concise statement does not offer any other guidance
as to what aspects of its analysis were faulty, only that this
Court “failed to apply” the factors. This Court did not so
fail. Rather, the Court noted the difficulty in addressing
the custody factors in a situation where one party has
never had any relationship with the child. The Court
believed Paternal Grandmother when she testified that
Father only recently told her about [Child]’s existence.
The Court is not ignorant of the what-ifs looming in the
background of this case, but they do not change the facts
as they stand. This child has only known two caregivers in
her life, the foster parents. The Court cannot find any
possible reason why custody time with the Paternal
Grandparents would be in the child’s best interests other
than the notion that children belong with “blood relatives.”
But this would be an erroneous basis to change the
custody arrangement for a child of this age, this late in the
dependency ease. See CYF Exhibit I, at 3.
_______________________
(Footnote Continued)
(1) is in the best interest of the child;
(2) recognizes the parties’ interests and desires for
ongoing communication or contact;
(3) is appropriate given the role of the parties in the child’s
life; and
(4) is subject to approval by the courts.
23 Pa.C.S. § 2731.
-8-
J-A05035-17
1925(a) Op. at 9-10.
The trial court considered the custody factors, and its findings are
supported by the record. Further, the trial court did not abuse its discretion
in finding that it was in Child’s best interest to remain with her foster family.
See In re C.J.R., 782 A.2d 568, 574 (Pa.Super. 2001) (trial court did not
abuse its discretion in finding custody should not be transferred from foster
parents to grandparents where evidence established, among other things,
that child will face adjustment difficulties, child had experienced difficulties in
her short life, and child now enjoyed loving, stable environment); cf. In re
Adoption of G.R.L., 26 A.3d 1124, 1127 (Pa.Super. 2011) (addressing
appeal of termination of parental rights wherein parents argued OCY failed
to meet requirement of kindship care program and stating that “[t]he goal of
preserving the family unit cannot be elevated above all other factors when
considering the best interests of children, but must be weighed in
conjunction with other factors”).8
____________________________________________
8
Grandparents’ reliance on In the Int. of James John M., 482 A.2d
637 (Pa.Super. 1984), is misplaced. In that case, the grandmother claimed
the court erred in awarding custody of the child to the child’s father. Id. at
638. Accordingly, the custody dispute was between a parent and a third
party. Id. This Court affirmed the trial court, finding that the grandmother
failed to satisfy “her admittedly heavy burden of advancing convincing
reasons why James’ best interests require that he remain in her custody,”
id. at 642, and noting that “where circumstances do not clearly indicate the
appropriateness of awarding custody to a non-parent, we believe the less
intrusive and hence the proper course is to award custody to the parent or
parents,” id. at 642-43 (quoting in part Ellerbe v. Hooks, 416 A.2d 512
(Pa. 1980)). Here, neither of Child’s parents is seeking custody.
(Footnote Continued Next Page)
-9-
J-A05035-17
We will address Grandparents’ next two issues together.
Grandparents maintain that the trial court abused its discretion in finding
that it would be traumatic to Child to be reunited with or introduced to
people she does not know. Grandparents further argue that the trial court
erred in finding there was sufficient evidence presented at the hearing to
establish that visitation with Paternal Grandparents outside of Act 101
mediation would not best serve the needs and welfare of the child. They
contend that CYF failed to conduct a proper kinship care search9 and,
_______________________
(Footnote Continued)
9
The Kinship Care Program section of the Family Finding and Kinship
Care Act provides:
(a.1) Relative notification.--Except in situations of
family or domestic violence, the county agency shall
exercise due diligence to identify and notify all
grandparents and other adult relatives to the fifth degree
of consanguinity or affinity to the parent or stepparent of a
dependent child and each parent who has legal custody of
a sibling of a dependent child within 30 days of the child's
removal from the child's home when temporary legal and
physical custody has been transferred to the county
agency.
...
(b) Placement of children.--If a child has been removed
from the child's home under a voluntary placement
agreement or is in the legal custody of the county agency,
the county agency shall give first consideration to
placement with relatives or kin. The county agency shall
document that an attempt was made to place the child
with a relative or kin. If the child is not placed with a
relative or kin, the agency shall document the reason why
such placement was not possible.
(Footnote Continued Next Page)
- 10 -
J-A05035-17
therefore, Grandparents were not provided an opportunity to serve as a
kinship placement.
The trial court found:
[T]he Court ordered CYF to offer Family Team
Conferencing and Act 101 Mediation to the foster parents
to first see whether an agreement can be reached
regarding potential contact between the child and Paternal
_______________________
(Footnote Continued)
62 P.S. § 1303(a.1), (b). This Court has explained that:
“[K]inship care is a subset of foster care where the care
provider already has a close relationship to the child. In
kinship care (as with foster care generally), legal custody
of the child is vested in [OCY]. [OCY] then places the child
with the care provider.” In re J.P., 998 A.2d 984, 987 n.
3 (Pa.Super. 2010). The court may place children with a
foster family, although there might be willing relatives,
where foster care is in the best interests of the children or
aggravated circumstances exist. In re R.P., 957 A.2d
1205 (Pa.Super. 2008) (holding court properly declined
proposed kinship care arrangement due to aggravated
circumstances, where mother knew father was abusing
child but failed to protect child from further abuse;
children's grandfather was widower with pacemaker who
lived close to father, and children’s uncle had no
experience in raising children; placement of children with
relatives would put children at further risk of abuse); In re
C.J.R., 782 A.2d 568 (Pa.Super. 2001) (holding court
properly declined to remove children from foster home and
place them with biological grandparents, where removal
from foster home could stunt positive gains in belated
development due to “failure to thrive” diagnosis, and
grandparents came from dysfunctional family
environments).
In re Adoption of G.R.L., 26 A.3d 1124, 1127 (Pa.Super. 2011)
(alterations in original).
- 11 -
J-A05035-17
Grandparents. See Permanency Review Qrder, dated July
11, 2016, at 4. The Court further ordered that there be no
visitation scheduled without approaching the court. Id.
The child has resided with her foster parents during her
entire life, save the first thirteen days of her life, which she
spent in the hospital detoxing from the Subutrex her
mother abused during the pregnancy. Along with her
foster sister, they are all that she knows. At the
permanency review hearing, the Court accepted without
objection the psychological evaluation conducted by Dr.
Neil Rosenblum, marked as CYF’s Exhibit 1. Predictably,
the child has developed a bond with the foster parents.
And because the child has formed a “very strong, primary
and exclusive attachment” to her foster parents, Dr.
Rosenblum cautioned, and this Court agreed, that removal
from the foster parents could “potentially expose [Child] to
traumatic emotional experiences, pronounced adjustment
difficulties and the possibility of an eventual attachment
disorder.” See Exhibit 1, at 3. Dr. Rosenblum
recommended that the Court “proceed in a cautious and
informed manner before making decisions about future
visitation and permanency planning for [Child] at this
time.” Id., at 3-4. Father[10] takes issue with the Court’s
findings, but those findings were based on an expert report
introduced without objection or argument.
Paternal Grandparents made it clear that they intended
to be the primary custodians of [Child], at least until
Father’s release from prison, which is supposedly going to
happen in March 2017. The Court does not agree with
Paternal Grandmother’s assessment that, with time,
[Child] would “adjust” and develop “the same attachment”
with her biological family. See Transcript of Testimony,
dated July 11, 2016, at 50-53. In fact, expert evidence
indicated the opposite. In her[] current home, [Child] is
“clearly thriving” in her environment. Id., at 3. Her foster
parents “do an excellent job of promoting her learning and
____________________________________________
10
Father also claimed the trial court committed error by finding it
would be traumatic to Child to be reunited or introduced to paternal
grandparents and that it erred in not allowing visitation outside the scope of
Act 101 mediation.
- 12 -
J-A05035-17
developmental progress.” Id. Perhaps there will be
contact between the child and Paternal Grandparents, but
the Court was prepared to heed Dr. Rosenblum’s
recommendation that this Court proceed with visitation in
a “cautious and informed manner.” [That] means waiting
to see if the parties engaged in Act 101 Mediation and
Family Team Conferencing, followed by another request of
the Court. Reliance on this expert opinion was not an
abuse of the Court’s discretion.
1925(a) Op. at 6-7. We agree. The trial court did not abuse its discretion in
relying on the expert report to determine what would be in Child’s best
interest and did not abuse its discretion in proceeding in a cautious manner.
Further, to the extent Grandparents claim the trial court erred because
it should have awarded visitation because CYF failed to conduct a kinship
placement search, we find the issue lacks merit.
The trial court found:
Father admitted that he did not tell Paternal
Grandparents the existence of the two-year-old until
December 2015-January 2016. He stated that he did not
want to put undue stress on his mother on account of her
health and that he did not want people to be disappointed
in him. Id., at 25-26.
The CYF supervisor testified that Family Finding on the
maternal side was conducted after the child’s birth, but
that paternal Family Finding had to wait until after Father
completed genetic testing in November 2014. By then,
however, it was apparent that Father did not want to
respond to CYF. Consequently, and per the testimony of
the CYF supervisor, the agency was not aware of the
Paternal Grandparents until Paternal Grandparents
contacted CYF in April 2016. See Id., at 64. This timeline
is substantially similar to the timeline offered by Paternal
Grandmother, who testified credibly that her Husband told
her about [Child] only as recently as January 2016. Id., at
45. She testified that she called CYF “immediately” but
does not remember who she spoke to until she recalled
- 13 -
J-A05035-17
speaking with the caseworker in April 2016. While
navigating dependency court with CYF, Paternal
Grandparents also filed in the adult section of Family Court
seeking custody and visitation. They filed their complaint
in custody in April 2016.
...
Father was incarcerated throughout the life of the child,
and thus the life of the case. He received notice after
notice, and order after order, regarding the placement of
his child. The Court does not believe his testimony for one
moment that he thought the child was with Mother the
entire time, nor that he bounced around in the prison so
much that he only received documentation once the
[petition to terminate parental rights] was filed. See T.T.,
at 14-26. While the Court notes that CYF’s Family Finding
recordkeeping has been spotty, per the testimony of the
CYF supervisor, it is unreasonable to blame CYF for
Father's decision to keep his Parents in the dark. See Id.,
at 40.
1925(a) Op. at 7-8. This was not an abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
- 14 -