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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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




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                   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.)




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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 -
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          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)).


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                   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



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           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



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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.



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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




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