In the Interest of: M.M., Appeal of: W.M. and D.M. ( 2017 )

J. A16029/17 & J. A16030/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: W.M., SR., AND D.M. :
: No. 124 WDA 2017
Appeal from the Order, December 15, 2016,
in the Court of Common Pleas of Westmoreland County
Civil Division at No. CP-65-DP-64-2014
W.M., SR., AND D.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
v. :
: No. 11 WDA 2017
WESTMORELAND COUNTY :
CHILDREN’S BUREAU :
Appeal from the Order Entered December 1, 2016,
in the Court of Common Pleas of Westmoreland County
Civil Division at No. 2245 of 2015-D
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 11, 2017
W.M., Sr., and D.M. appeal from the December 1, 2016 order entered
in the Court of Common Pleas of Westmoreland County at case number
2245 of 2015-D (“Custody Case”) that awarded sole legal and physical
custody of M.M., appellants’ paternal granddaughter, to the Westmoreland
* Retired Senior Judge assigned to the Superior Court.
J. A16029/17 & J. A16030/17
County Children’s Bureau (the “Agency”). Appellants also appeal from that
part of the December 15, 2016 order entered in the Court of Common Pleas
of Westmoreland County at case number CP-65-DP-64-2014 (“Dependency
Case”) that ordered the termination of appellants’ intervenor status in M.M.’s
Dependency Case and also terminated appellants’ monthly supervised
visitation with M.M. At the outset, we note that we have consolidated
appellants’ appeals because the underlying proceedings are inextricably
linked in that the Dependency Case and the Custody Case concern the best
interest of one child -- M.M. After careful review, we affirm both orders and
remand for entry of the termination of visitation order on the Custody Case
docket.
The trial court summarized the factual history of this case as follows:
This matter stems from [the] underlying
[Dependency Case]. The minor child, M.M., was
born on September [], 2013. The Appellants, W.M.,
Sr., and D.M. are the Paternal Grandparents of the
minor child. At the time of birth, M.M.’s biological
mother was incarcerated on drug related charges,
and the child was born addicted to methadone.
Throughout the child’s life prior to her adjudication,
the child lived in the household of Appellants with
one or both parents, depending on each parent’s
present incarceration and/or rehabilitation program
enrollment status. Five days after the child’s birth, a
referral to the [Agency] was made regarding the
biological father being intoxicated, and the father
was arrested on DUI and controlled substance
charges. During prolonged in-home intervention
with the Agency, both parents exhibited a continuous
pattern of IV drug use and lack of cooperation with
Agency services. With no improvement in any
aspect by either parent, M.M. was adjudicated
-2-
J. A16029/17 & J. A16030/17
dependent on May 23, 2014, and was taken [into]
the custody of the [Agency].
Dependency Case docket, trial court opinion, 2/27/17 at 2.
The record reflects that following M.M.’s dependency adjudication,
M.M. was placed in a pre-adoptive, non-kinship foster home where she
remains. The record further reflects that appellants, as paternal
grandparents of M.M., sought leave of court to file a custody action by filing
a petition to confirm standing and application for leave of court to file
custody action.1 (Custody Case docket #2, petition to confirm standing and
application for leave of court to file custody action, 12/21/15.2) The trial
court granted appellants’ petition. (Custody Case docket #5, order of court,
12/21/15.) Appellants then filed their complaint for custody of M.M. against
M.M.’s birth father and birth mother, as well as against the Agency.
(Custody Case docket #1, complaint for custody, 12/21/15.)
The record further reflects that on March 21, 2016, appellants filed a
motion to intervene in M.M.’s Dependency Case pursuant to Pa.R.J.C.P. 1133
and Pa.R.C.P. 2328, alleging that as M.M.’s paternal grandparents, they
“wish to become [M.M.’s] prospective adoptive parents” and requesting that
1
Appellants sought confirmation of standing under that provision of the
Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340, that confers standing to a
grandparent of a dependent child who is not in loco parentis to the child
and whose relationship with the child began with the consent of a parent of
the dependent child and who is willing to assume responsibility for the
dependent child. See 23 Pa.C.S.A. § 5324(3).
2
The dates set forth in the record citations reflect docketing dates.
-3-
J. A16029/17 & J. A16030/17
they “have access as a party to verify the veracity of whether the [A]gency
properly engaged in family finding and kinship investigations.” (Dependency
Case docket #41, motion to intervene, 3/31/16.) The trial court granted
appellants’ motion to intervene. (Dependency Case docket #41, order of
court, 3/21/16.)
The record further reflects that the Agency filed petitions to terminate
the parental rights of the birth parents. (Dependency Case docket ##38
& 39, notice of petition to terminate parental rights of W.M., father,
12/1/15; notice of petition to terminate parental rights of R.G., mother,
12/1/15.) On May 9, 2016, the trial court entered orders granting the birth
parents’ petitions to voluntarily relinquish their parental rights.
(Dependency Case docket ##45 & 46, notice of filing of order granting
termination of parental rights -- child available for adoption re: mother,
5/31/16, and notice of filing of order granting termination of parental rights
-- child available for adoption re: father, 5/31/16.) The record also
demonstrates that on May 19, 2016, the trial court entered an order in
M.M.’s custody case directing that appellants “shall be entitled to supervised
visitation with [M.M.] at the [Agency] one (1) time per month until further
order of court.” (Custody Case docket #22, order of court, 5/18/16.)
A custody hearing was held over the course of five nonconsecutive
days. Following that hearing, the trial court entered a custody order that
awarded sole physical and legal custody of M.M. to the Agency and filed a
-4-
J. A16029/17 & J. A16030/17
supporting opinion. Appellants filed a timely notice of appeal and concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
that raised 69 issues. In response, the trial court filed a statement in lieu of
opinion wherein it relied on the custody order and supporting opinion that it
filed on December 1, 2016.
With respect to the Dependency Case, the trial court entered an order
terminating appellants’ intervenor status and discontinuing appellants’
monthly visits with M.M. on December 15, 2016. Appellants filed a timely
notice of appeal and Rule 1925(b) statement that raised 5 issues. In
response, the trial court filed a Rule 1925(a) opinion.
With respect to the December 1, 2016 custody order, appellants raise
the following issues for our review:
1. In a custody case involving a dependent child
and having as parties the Agency[] and
[appellants, who are the dependent child’s
grandparents], is it proper for the court to
order, consider and give weight to a bonding
assessment comparing the bond between the
dependent child and a non-party foster parents
[sic] versus the dependent child and the party
[grandparents/appellants] and to give greater
importance to the non-party bond than to the
federal and state laws and regulations
regarding family (including but not limited to
Fostering Connections to Success and
Increasing Adoptions Act of 2008, Act 25 of
2003, Act 80 of 2012 and Act 55 of 2013, and
custody Act 112 of 2010 (23 Pa.C.S.A. Section
5324)) and to the dependent child’s rights to
visit and be placed with family (Act 119 of
2010)[], to the dependent child’s rights to visit
-5-
J. A16029/17 & J. A16030/17
and be placed with family, or to the 16 custody
factors as applied to the parties?
2. Did the Court properly examine and apply the
law and testimony to the sixteen (16) custody
factors as required by all applicable statutes?
Appellants’ brief at 4 (emphasis in original).
In their brief, appellants summarize the “main issue” in their appeal of
the custody order as “whether preference should be given to [appellants as]
[g]randparents because they are family or whether preference should be
given to nonrelative foster parents who have had [M.M.] in their care for a
significant period of time and a bond has formed.” (Appellants’ brief at 15.)
To the extent that appellants claim that because they are M.M.’s
grandparents, they should have been afforded the presumption of custody,
appellants are mistaken. The Child Custody Act, 23 Pa.C.S.A. §§ 5321-
5340, mandates that “[i]n any action regarding the custody of the child
between a nonparent and another nonparent, there shall be no presumption
that custody should be awarded to a particular party.” § 5327(c).
Moreover, to the extent that appellants claim that their status as M.M.’s
grandparents should have been the controlling consideration in determining
custody, appellants are equally mistaken. “When a trial court orders a form
of custody, the best interest of the child is paramount.” S.W.C. v. S.A.R.,
96 A.3d, 396, 400 (Pa.Super. 2014) (citation omitted). Indeed, in custody
disputes, trial courts are statutorily required to consider the 16 factors set
forth in the best-interest test when determining the child’s best interests.
-6-
J. A16029/17 & J. A16030/17
See 23 Pa.C.S.A. § 5328(a) (“[i]n ordering any form of custody, the court
shall determine the best interests of the child by considering all relevant
factors . . . .”); see also A.V. v. S.T., 87 A.3d 818, 821 (Pa.Super. 2014)
(reiterating that “[s]ection 5328 provides an enumerated list of sixteen
factors a trial court must consider in determining the best interests of the
child or children when awarding any form of custody.”). Therefore, to the
extent that appellants claim that their status as grandparents trumped the
best interests of M.M., that claim lacks merit.
In their brief, appellants contend that the trial court’s consideration of
the bond that formed between M.M. and her foster parents was
“not relevant” to the custody determination and that the remaining
15 factors of the best-interest test “should have been used as a guideline on
whether [appellants] are able to properly care for M.M.” (Appellants’ brief at
19.) Once again, appellants’ argument ignores M.M.’s best interest. And,
once again, we remind appellants that the polestar of all custody
determinations, including this one, is the child’s best interest, as opposed to
a party’s familial status and/or, as appellants now claim, a party’s ability to
care for the child.
Section 5328 of the Child Custody Act sets forth the 16-factor
best-interest test, as follows:
§ 5328. Factors to consider when awarding
custody
-7-
J. A16029/17 & J. A16030/17
(a) Factors.--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.
(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.
(7) The well-reasoned preference
of the child, based on the
child’s maturity and
judgment.
-8-
J. A16029/17 & J. A16030/17
(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.
-9-
J. A16029/17 & J. A16030/17
(15) The mental and physical
condition of a party or
member of a party’s
household.
(16) Any other relevant factor.
42 Pa.C.S.A. § 5328(a).
With respect to our standard of review, it is well settled that
[w]e 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 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.
C.A.J. v. D.S.M., 136 A.3d 504, 506 (Pa.Super. 2016) (citation omitted).
Here, after a 5-day custody hearing, the trial court carefully weighed
the 16 factors of the best-interest test. The trial court found that factors 1,
6, 7, 8, 11, and 15 were inapplicable and that factor 3 favored neither party.
The trial court further found that only factor 5 concerning the availability of
extended family weighed in favor of appellants because the evidence
supported the conclusion that appellants would make M.M. available to
extended family. (Custody Case trial court opinion, 12/1/16 at 5-6.) The
trial court, however, found that the remaining 8 factors favored the Agency.
- 10 -
J. A16029/17 & J. A16030/17
With respect to factor 2, the trial court found that appellants’ history of
enabling M.M.’s drug-addicted birth parents, as well as appellants’ history of
advising M.M.’s birth parents against cooperating with the Agency, gave rise
to a “significant doubt” regarding appellants’ willingness to keep the birth
parents out of M.M.’s life, which was not in M.M.’s best interest. (Id. at 3.)
With respect to factor 2.1, the trial court found that appellant D.M.,
M.M.’s paternal grandmother, had been involved with child protective
services in Allegheny County in the past as a result of D.M.’s abuse of her
biological daughter. Therefore, that factor weighed in the Agency’s favor.
(Id. at 4.)
Regarding factor 4, the trial court found that because M.M. has been in
the Agency’s custody since May 23, 2014, it would be in M.M.’s best interest,
for stability and continuity purposes, to remain there. (Id. at 5.)
With respect to factor 9, which contemplates the child’s emotional
needs with respect to maintenance of a loving, stable, consistent, and
nurturing relationship with the child, the trial court found that this factor
weighed in favor of the Agency. We note that appellants presently complain
that the trial court improperly weighed the bond between M.M. and her
foster parents because, according to appellants, that bond is irrelevant.
Although appellants’ brief regarding this contention suggests that the trial
court considered M.M.’s bond with her foster parents under factor 16 of the
best-interest test, which permits the trial court to consider “[a]ny other
- 11 -
J. A16029/17 & J. A16030/17
relevant factor” not enumerated in factors 1 through 15, a reading of the
trial court’s opinion reveals that the trial court considered, among other
things, that bond within the scope of factor 9, as follows:
The Court can not [sic] apply a standard as
amorphous as love to the [Agency]. However, we
cannot ignore the likely outcome of this case, were
the Court to find that the [Agency] was entitled to
custody, which is that the minor child would maintain
her existing parent-child relationship with her current
foster parents, and thus we must analyze this factor
in relation to [appellants as M.M.’s grandparents]
and the child’s foster parents. The Court heard
testimony relating to this factor from [appellants]
and from the minor child’s foster parents, as well as
from service providers involved in this case.
Therapist Carol Patterson performed a bonding
assessment with regard to the minor child’s bond
with both [appellants] and the foster parents,
consisting of a two hour assessment involving
observation of the minor child’s interactions with
both couples. Results of the assessment indicated a
low level of bond and no attachment from the minor
child as to [appellants], with the minor child
presenting some avoidance behaviors towards
[appellants]. Alexis Jacomen, supervisor of the visits
between the child and [appellants], testified that the
minor child is comfortable around and interacting
with [appellants], however no special bond can be
detected above that of a healthy child interacting
with adults. Thus, there is currently no healthy
relationship to maintain between [appellants] and
the minor child. Although [appellants] testified
credibly that a bond was established between
[appellants] and the child over the first 8 months of
her life when she was in [appellants’] care and
during the child’s sporadic visitation with her
biological parents, it is not apparent that this bond
has been maintained.
- 12 -
J. A16029/17 & J. A16030/17
In contrast, the minor child presented high
levels of attachment and bond towards her current
foster parents in their bonding assessment with
therapist Carol Patterson. Additionally, testimony
from the Court Appointed Special Advocate,
Jeanne Cerce, indicates that the child has a loving
relationship with the foster parents, referring to
them as her mother and father, and interacting with
them in a manner typical of a child to a parent.
From this and other testimony, it appears that the
minor child has a strong parental bond with her
foster parents that has been facilitated by the child’s
placement with the same by the [Agency]. This
factor thus favors the [Agency].
Id. at 7-8. Regardless of the factor under which the trial court considered
the bond that M.M. has with her foster parents, appellants’ argument that
consideration of that bond was irrelevant entirely lacks merit because
consideration of M.M.’s emotional bond with her caretakers, as well as her
lack of such a bond with appellants, goes to the heart of the best interest of
this child and is, therefore, relevant.
Regarding factor 10, the trial court found that the Agency’s services
and the resources available to the Agency, insofar as attending to M.M.’s
daily needs was concerned, outweighed the “personal advantages” that
appellants had available. (Id. at 8.)
With respect to factor 12, the trial court found that the resources
available to care for or to make appropriate child-care arrangements for
M.M. slightly favored the Agency. (Id. at 9.)
- 13 -
J. A16029/17 & J. A16030/17
Regarding factor 13, the trial court found that because appellant D.M.,
M.M.’s paternal grandmother, was hostile and unwilling to cooperate with
the Agency, factor 13 weighed in favor of the Agency. (Id. at 9-10.)
With respect to factor 14, the trial court found that appellants’
enabling behaviors with respect to the drug use of one or both birth parents,
as well as their enabling behaviors with respect to their other children,
weighted this factor in favor of the Agency. (Id. at 10-11.)
With respect to factor 16, which permits the trial court to consider
“[a]ny other relevant factor,” the trial court found that:
[t]he Court cannot ignore the basis for [appellants’]
standing to seek custody in this case; namely, a
dependency case. The Court has indicated that the
underlying dependency action resulted in the
termination of the parental rights of the minor child’s
natural Mother and Father. In that posture, this
Court is aware of two salient facts. First, kinship is
the [Agency’s] first option and mandate in every
case. Second, where kinship is avoided it is typically
for a good reason, and the Court does not apply that
fact generally, but specifically based on the facts
presented here.
In this case, [M.M.] has been in the custody of
the [Agency] for approximately thirty (30) months.
In all that time, [appellants] were unable to gain
kinship. This appears to have been exacerbated by
[appellants’] lack of attempts to fully avail
themselves of their rights as [g]randparents in a
timely manner, coupled with their lack of cooperation
with the [Agency]. Naturally, [appellants] disagree
with the [Agency’s] assessment, and the Court
recognizes that we are referencing as a consideration
the conclusions of an adverse party. However, in
applying kinship procedures and regulations
applicable to every dependency case, the [Agency’s]
- 14 -
J. A16029/17 & J. A16030/17
position takes on a far more objective, and highly
probative, posture.
In a similar vein, the Court notes [appellants’]
desire to inquire into the [Agency’s] family finding
efforts in general. That is, [appellants] would ask
of the [Agency] what full scope of efforts at family
finding the [Agency] undertook both in this case and
in each of the broad spectrum of open cases it
manages. The Court did allow for information
related to family finding in this specific case for
impeachment of the [Agency’s] witnesses and
challenges to its exhibits, however the Court denied
a general, broad inquiry, to which [appellants]
objected.
The broad spectrum objection is not well
taken. First, family finding is an ongoing
consideration in the underlying dependency case,
making such matters res judicata at this juncture.
In other words, it could have been and should have
been addressed previously. Were res judicata
inapplicable, consideration of family finding efforts in
general is nevertheless irrelevant, as the custody
factors overwhelmingly address conduct of the
parties, as well as between the parties. To the
extent a factor requires consideration of persons
other than the parties, the Court has given due
consideration, without superfluous reference to the
[Agency’s] general family finding efforts for family
other than [appellants]. To put it another way,
perhaps counsel for [appellants] should have
undertaken representation of Mother or Father, or
both, in the underlying dependency action, or
worked in conjunction with their attorneys in the
underlying dependency action to make objection to
any concern with the [Agency’s] broader family
finding efforts.
[Appellants] presented evidence that they have
severed ties with natural parents. Unfortunately,
any such severance, assuming it has occurred,
appears too little, too late in this case. As the Court
notes above, commendable conduct in this case
- 15 -
J. A16029/17 & J. A16030/17
would have been for [appellants] to have done what
they needed to do to gain kinship, rather than taking
the side of natural parents so deficient that their
rights were terminated after extended attempts at
reunification. Instead, the evidence shows that
[appellants] remained, at the very least, in close
contact with one or both of [the] natural parents as
long as possible, even up to the time that
termination of parental rights was likely to occur.
If [appellants’] chief concern was [M.M.], they
should have removed natural parents from the home
early in the underlying dependency case and advised
them to follow the services provided by the
[Agency]. Instead, [appellants] chose sides, and
chose very poorly. To the extent [appellants]
offered to remove natural parents from the home
previously, but failed to follow through, the Court
does not intend to hold such fact against the
[Agency]. The [Agency] provided testimony
numerous times that there can be no kinship
placement in a home where the natural parents
reside, who caused the dependency to come about.
From the above, it follows that little or no
consideration of [appellants] as a kinship placement
would have been warranted, when the natural
parents resided with [appellants] and [appellants]
continued to enable their conduct. [Appellants’]
course of conduct and consistent failure to follow
through on efforts truly supportive of kinship is
contrary to their stated desires. Additionally, it is
apparent that the desires of [appellants] cannot at
this late hour be satisfied without sacrificing [M.M.’s]
progression, as she is growing and thriving in the
foster parents’ nurturing, familial environment.
It is this Court’s experience that the [Agency]
does not take custody of children on a whim; the
goal is for children to remain with parents, followed
immediately by a change to reunification with
parents, should dependency occur. The [Agency]
likewise only seeks to terminate parental rights after
extensive and unsuccessful efforts at reunification.
- 16 -
J. A16029/17 & J. A16030/17
In any dependency proceeding, they are mandated
to maintain and foster the minor child’s health and
well-being. Finally, they do not place children in
foster or kinship homes that exhibit inappropriate
caregivers. The Court notes such general practices
insofar as the [Agency] appears not to have deviated
from such mandates in this case.
The Court emphasizes that, unlike standard
custody determinations, this case must end one way
or another, with a grant of sole physical and legal
custody to one party. Any other result would create,
in essence, an indefinite dependency case with
ongoing liabilities and pecuniary responsibilities for
the [Agency]. The Legislature of this Commonwealth
decided long ago that endless exposure to the
dependency system by minor children is contrary to
their best interest. There is no greater boon to the
minor child’s best interests than permanency.
The Court believes that the above additional
considerations substantially favor an award of
custody to the Agency.
Id. at 11-14 (emphasis in original; footnote omitted).
Our review of the extensive record in this case demonstrates that the
evidence supports the factual findings made by the trial court when it
applied the 16-factor best-interest test to award custody of M.M. to the
Agency because that award was, and is, in M.M.’s best interest. Accordingly,
we discern no abuse of discretion and affirm the order entered in the
- 17 -
J. A16029/17 & J. A16030/17
Custody Case on December 1, 2016 that awarded sole legal and physical
custody of M.M. to the Agency.3
With respect to the Dependency Case, appellants raise the following
issues for our review:
1. Is it proper for the Court in a dependency
matter to enter an Order (apparently either
sua sponte or based upon ex parte
communication) without a Motion being
presented, notice being given, a hearing being
schedule[d] or argument being heard?
2. Is it proper for the Court to make a decision
(apparently either sua sponte or based upon
ex parte communication) regarding whether
[appellants] should be allowed to continue as
intervene[o]rs in the dependency matter,
despite continuing grounds for intervening,
without a Motion being presented, notice being
given, a hearing being schedule[d] or
argument being heard?
[3.] Is it proper for the Court in a dependency
matter to enter an Order regarding custody
matters?
[4.] Is it proper for the Court in a dependency
matter to enter an Order (apparently either
3
In the argument section of their brief, appellants claim that the trial court
“abused its discretion and/or committed an error of law when it failed to
follow the [r]ules at Pa.R.A.P. 1915.4(c) regarding the time frame to
commence and complete a custody trial.” (Appellants’ brief at 29.) Because
appellants failed to include this issue in their statement of questions involved
and the issues raised in that statement do not fairly suggest this issue,
appellants waive the claim on appeal. See Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the questions involved or is fairly
suggested thereby.); see also HSBC Bank, NA v. Donaghy, 101 A.3d 129,
137 n.7 (Pa.Super. 2014) (reiterating that an “issue not explicitly raised in
appellants’ statement of the questions involved is waived.” (citations
omitted)).
- 18 -
J. A16029/17 & J. A16030/17
sua sponte or based upon ex parte
communication) regarding the custody matter,
which is not before the Court, and without any
motion being presented, notice being given,
hearing being scheduled or argument being
heard?
[5.] Is it proper for the Court in a dependency
matter to make a custody decision (apparently
either sua sponte or based upon ex parte
communication), on whether the status quo of
[appellants] visiting once a month should be
ended, without any motion being presented,
notice being given, hearing being scheduled or
argument being heard?
[6.] Is it proper for the Court in a dependency
matter to enter an Order (apparently either
sua sponte or based upon ex parte
communication) regarding the custody matter,
without any motion being presented, notice
being given, hearing being scheduled or
argument being heard?
Appellants’ Dependency Case brief at 5.
Although appellants set forth 6 issues in their statement of questions
involved, they, in fact, only raise 2 claims. In their first claim, appellants
contend that the trial court erred in terminating their status as intervenors
without the presentation of a motion, without notice, without the scheduling
of a hearing, and without a hearing and argument. We agree with the trial
court’s disposition of this claim, as articulated as follows:
The Appellants were provided with a five (5) day
custody trial in which they were able to present any
and all evidence available to them which would lead
this Court to believe that they should have custody
of or contact with the minor child, M.M. The result of
- 19 -
J. A16029/17 & J. A16030/17
the trial was an award of sole legal and sole physical
custody to the Agency.
The Superior Court tells us that “safety,
permanency, and well-being of the child must take
precedence over all other considerations, including
the rights of the parents.” In re N.C., 909 A.2d
818, 823 [(Pa.Super. 2006) (citation omitted)
(emphasis in original)]. Biological grandparents,
unlike biological parents, do not have any
fundamental rights that are protected through the
procedures of the Juvenile Act. Appellants cannot be
afforded further process when that process comes at
the cost of the child’s permanency and well-being.
Although no hearing or argument was held in the
matter of removal of [a]ppellants’ Intervenor status,
M.M. had been in Agency custody for thirty one (31)
months at the time of the at-issue dependency
order. The rights of her biological parents had been
terminated for over six (6) months. The record of
[appellants’] involvement with M.M. had been well
established in the related custody trial. Any further
proceeding in this matter would have proved
redundant and duplicative of the matters discussed
thoroughly in the custody case, thereby delaying
M.M.’s permanency further. Although [a]ppellants
have made complaints regarding the Agency and
their methods throughout both cases, that is no
reason to deny M.M. a permanent, safe, and loving
home outside of Agency custody at this stage in the
proceeding.
Dependency Case trial court opinion, 2/27/17 at 3-4 (emphasis in original).
Finally, appellants complain that the trial court erred when it
terminated their court-ordered visitation in the Custody Case by entering the
order in the Dependency Case docket.
The record reflects that when appellants filed their motion to intervene
in the Dependency Case, they did not request visitation as part of their
- 20 -
J. A16029/17 & J. A16030/17
requested relief. The record further reflects that the trial court entered an
order in the Custody Case that entitled appellants to supervised monthly
visits with M.M. until further action of the trial court. (Custody Case,
docket #22, order of court, 5/18/16.) Following the hearing in the Custody
Case and the entry of the order awarding custody of M.M. to the Agency, the
trial court entered an order in the Dependency Case that terminated
appellants’ intervenor status and also terminated appellants’ monthly visits
with M.M. The gravamen of appellants’ complaint, therefore, is that because
the order entitling them to monthly visitation with M.M. was entered in the
Dependency Case, it was error for the trial court to terminate their visitation
by entering the termination order in the Custody Case. In other words,
appellants complain that the trial court entered the order terminating their
visitation in the incorrect docket. The trial court reasoned that “[v]isitation
with [a]ppellants has always proceeded through the Agency in the context of
the [D]ependency [C]ase, and thus the [D]ependency [C]ase was the proper
venue for making any such changes.” (Dependency Case trial court opinion,
2/27/17 at 5.) The trial court continued and opined that “[e]ntering the
cessation of visits in the [C]ustody [C]ase, or alternatively in both cases,
would have provided exactly the same outcome.” (Id.) To be sure,
although we affirm the Dependency Case order, we remand and direct the
trial court to enter an order in the Custody Case docket that terminates
appellants’ monthly visits with M.M.
- 21 -
J. A16029/17 & J. A16030/17
Custody Case order affirmed. Dependency Case ordered affirmed.
Remanded to the trial court with instructions to enter an order on the
Custody Case docket that terminates appellants’ monthly visitation with
M.M. Jurisdiction relinquished.
Stabile, J. joins this Memorandum.
Strassburger, J. files a Concurring Memorandum which is joined by
Stabile, J.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
- 22 -