v.
S.K. and R.L.
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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
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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] ____________________________________________
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Grandparents5 first contend the trial court abused its discretion by failing to apply the custody factors.[6] ____________________________________________
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“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).
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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
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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 ____________________________________________
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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.
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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 ____________________________________________
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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)