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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




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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




____________________________________________


       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.




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       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)


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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
____________________________________________


       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)


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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.




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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
____________________________________________


       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)


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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)


      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)


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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).




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            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.



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         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

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        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




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