In the Interest of: G.K., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29020-17
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
____________________________________________
1 Mother’s husband is not Child’s father.
-2-
J-A29020-17
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
-3-
J-A29020-17
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.
-4-
J-A29020-17
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
-5-
J-A29020-17
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).
-6-
J-A29020-17
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,
-7-
J-A29020-17
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
-8-
J-A29020-17
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).
-9-
J-A29020-17
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
- 10 -
J-A29020-17
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
- 11 -
J-A29020-17
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:
- 12 -
J-A29020-17
[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,
- 13 -
J-A29020-17
[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).
- 14 -
J-A29020-17
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.
- 15 -
J-A29020-17
(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)
- 16 -
J-A29020-17
(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
- 17 -