J-S07022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 M. & W.K. AND G.K.                       :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellants            :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 M.D.                                     :   No. 1803 MDA 2018

              Appeal from the Order Entered October 4, 2018
  In the Court of Common Pleas of Franklin County Civil Division at No(s):
                               2018-1667


BEFORE:    OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED APRIL 10, 2019

      M.K. (“Paternal Grandfather”), W.K. (“Paternal Grandmother”), and G.K.

(“Father”) appeal from the order granting the Petition for Special Relief filed

by M.D. (“Mother”) in the custody action over the four-year-old natural child

of Mother and Father (“Child”). Paternal Grandparents and Father challenge

the court’s awarding Mother attorneys’ fees for Paternal Grandparents and

Father repeatedly and knowingly engaging in discussions of false claims of

child abuse without reasonable cause or good faith, such that others made

unfounded reports of abuse. We affirm.

      Paternal Grandparents initiated this action by filing a complaint for

custody in April 2018. Father filed a cross-complaint for custody in June. The

court held a hearing and entered an order granting Mother primary physical




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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custody and granting Father, who resides with Paternal Grandparents, partial

physical custody on alternating weekends.1

       Approximately three months later, in September 2018, Mother filed a

Petition for Special Relief alleging that Father and/or Paternal Grandparents

had caused four reports to be made to Franklin County Children and Youth

Services (“CYS”) alleging child abuse. The Petition specified that when

Paternal Grandmother testified at the custody hearing, she admitted that she

twice told mandated reporters that Mother was neglecting Child, which

resulted in the mandated reporters referring the case to CYS. CYS found both

reports of abuse to be unfounded.2 The Petition further alleged that Father

and/or Paternal Grandparents made a third report shortly after the custody

hearing, claiming that the child’s babysitter had sexually assaulted the child.

The Petition alleged that the allegations were false and that CYS determined

the report to be unfounded. The Petition also alleged that a fourth report of

abuse falsely claimed that Mother had abused Child, and CYS had determined

the report was unfounded. The Petition argued that each of the four reports

made to CYS were due to the actions of Father and Paternal Grandparents in
____________________________________________


1 After being initially dismissed from the case for lack of standing,
Grandparents became co-plaintiffs to Father’s custody action in August 2018.

2 An “unfounded” report is one where there has been neither a judicial nor an
administrative finding of abuse. In contrast, a “founded” report is one for
which there has been a judicial determination that the child has been abused,
and an “indicated” report is where there has been an administrative
determination that there exists substantial evidence that the child was abused.
See R. v. Com., Dep't of Pub. Welfare, 636 A.2d 142, 144 n.1 (Pa. 1994)
(citing 23 Pa.C.S.A. § 6303).

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falsely alleging abuse, and that the repeated investigations into abuse were

not in Child’s best interest. Mother sought to have Father’s periods of physical

custody supervised, and sought the award of “reasonable costs and attorney

fees” in connection with the Petition, pursuant to 23 Pa.C.S.A. § 5339.

Petition, 9/14/18, at 3 (unpaginated).

       The court scheduled a hearing on the Petition for October 3, 2018. Prior

to the hearing, on September 17, 2018, the court ordered CYS to turn over

all records related to abuse against Child for an in camera review by the court.

       At the beginning of the hearing, the court confirmed that it had received

the CYS records.3 Counsel for Father and Paternal Grandparents requested

that the court disclose any information that would be “germane to the

hearing.” N.T., 10/3/2018, at 5. The court responded that the names of the

sources referring the reports of abuse were confidential and had been redacted

from the CYS records. The court also said that the fourth report contained

allegations of sexual abuse, and that CYS had determined those allegations

were unfounded. Counsel for Father and Paternal Grandparents responded,

“Right. So there’s – okay. Thank you.” Id. at 6.

       Mother testified that she believed Father and Paternal Grandparents had

been the source of the reports, and testified regarding the amount of

attorneys’ fees she had paid in relation to the Petition for Special Relief and
____________________________________________


3 The CYS reports were not admitted as evidence at the hearing, and
accordingly were not made part of the certified record or transmitted to this
Court.


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hearing. Paternal Grandparents and Father also testified and said that they

had caused the first three CYS investigations by reporting suspicions of abuse

to mandatory reporters, but that they had not made any false or malicious

allegations of abuse. They claimed, however, that they had nothing to do with

the origin of the fourth CYS report. Paternal Grandmother testified that she

told members of her church community to pray for Child, to ensure that Child

would not be abused “again,” but said she did not disclose any details about

the alleged abuse. Id. at 54-55, 58-59.

       Following the testimony, the judge stated on the record that he learned

from his review of the CYS records that the fourth report originated when “[a]

grandmother approached the refer[r]al source about concerns of suspected

child abuse of her granddaughter.” Id. at 82. The court noted that the

allegations closely tracked those of a previous report. The court concluded

that Father and Paternal Grandparents’ testimony that they had no knowledge

of or responsibility for the fourth report was not credible. The court denied

Mother’s request to modify custody, but ordered Father and Grandparents to

pay Mother’s attorneys’ fees in the amount of $1,354.4

       Father and Grandparents filed a motion for reconsideration, which the

court denied. In the order denying the motion, the court explained that it did

not sanction Father and Grandparents for reporting suspected abuse to CYS.

Rather, the court stated that it had done so for their “continuing to discuss
____________________________________________


4 The written order memorializing the court’s order was dated October 3,
2018, but stamped and docketed on October 4, 2018.

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such knowingly erroneous accusations in such graphic detail that strangers

are compelled to make such reports” and for “proceed[ing] to take the stand

in this Courtroom and provide this Court with false information by denying any

such conversation ever occurred.” Order, 10/19/18, at 1. The court explained

that while CYS had already declared the previous allegations to be unfounded,

the final report contained identical allegations to a previous report, and that

Father and Paternal Grandparents had acted without reasonable cause or good

faith by continuing to discuss the unfounded incidents, causing the new report

to be made. The court also stated that Father and Paternal Grandparents could

not shield themselves from responsibility for making false allegations by

having others report their suspicions of abuse to CYS in their stead. The court

found their “relentless and insistent focus on these false allegations to be

directly detrimental to the child.” Id. at 2.

      Father and Grandparents appealed, and raise the following:

      1. Whether the court’s undocketed order to Appellants to not
      make a report of child abuse, that is later determined to be
      “unfounded”, constitutes a valid order when the Child Protection
      Act does not prohibit the making of such reports?

      2. Whether the court violated Appellants’ due process rights when
      the court used confidential identifying data from a child abuse
      report, in violation of the Child Welfare Act, that also constituted
      hearsay evidence that was never subjected to cross[-




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      ]examination and was never admitted into evidence by the
      parties?

      3. Whether the court erroneously conflated “unfounded” with “bad
      faith,” to improperly deny Appellants the benefit of the immunity
      provided under the Child Welfare Act?

Father and Paternal Grandparents’ Br. at 9. As the first and third issues are

intertwined, we will address them together. However, we will begin with the

second issue.

            I. Court’s Consideration of Confidential Reports

      Father and Paternal Grandparents contend the court erred in considering

the contents of the CYS reports. They claim that the reports were confidential

and there was no exception for the release of the information under 23

Pa.C.S.A. §§ 6340 and 5329.1. Father and Paternal Grandparents also

complain that the reports were inadmissible as evidence at the hearing, as

they contain hearsay. At the same time, Father and Paternal Grandparents

claim that the court violated their due process rights in not admitting the

reports into evidence or allowing Father and Paternal Grandparents to cross-

examine the referral sources. Father and Paternal Grandparents’ Br. at 17-20.

      This issue is waived. Father and Paternal Grandparents did not object to

the trial court’s consideration of the records at the time of the hearing or when

the court ordered the records for its own review. They did not raise the issue

of the court’s review of the records until they included it in their motion for

reconsideration. Father and Paternal Grandparents also did not move for

discovery of the CYS records, or otherwise attempt to present to the trial court



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any reasons why confidentiality should be set aside in this case. They have

thus waived this issue for review. See Steiner v. Markel, 968 A.2d 1253,

1257 (Pa. 2009) (“Pennsylvania law is clear that claims and objections that

are not timely made are waived”); S.W. v. S.F., 196 A.3d 224, 233 (Pa.Super.

2018) (“It is axiomatic that in order to preserve a trial objection for review,

trial counsel is required to make a timely, specific objection during trial”).

      Were the claim not waived, we would conclude that no relief is due.

While the Child Protective Services Law (“CPSL”) provides that reports

concerning allegations of child abuse made pursuant the CPSL are confidential,

there are exceptions to that rule. See 23 Pa.C.S.A. §§ 6339, 6340.

Specifically, under Section 6340(a)(5.1), reports shall be made available to

“[a] court of common pleas in connection with any matter involving custody

of a child[.]” 23 Pa.C.S.A. § 6340(a)(5.1).

      Here, the parties were before the court on a custody matter. The

particular petition before the court, Mother’s Petition for Special Relief,

requested that the court modify the custody order to provide that Father’s

exercise of physical custody be supervised, to prevent Father from making

future allegations of abuse against Mother during his exercise of custody. The

court awarded attorneys’ fees under Section 5339 of the Domestic Relations

Code, which pertains to child custody matters. See 23 Pa.C.S.A. § 5339. As

the court was charged with deciding a custody issue, and awarded attorney’s

fees based on the parties actions during the custody case, the court had

authority to review the CYS reports. 23 Pa.C.S.A. § 6340(a)(5.1).

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                    II. Court’s Award of Counsel Fees

      Father and Paternal Grandparents claim the court erred in sanctioning

them for making allegations of abuse that resulted in unfounded reports

because the CPSL prohibits penalties for making, or causing to be made, good-

faith reports of child abuse. Father and Paternal Grandparents’ Br. at 15-16

(citing 23 Pa.C.S.A. §§ 6312, 6318), 22. Father and Paternal Grandparents

argue that allegations that result in unfounded reports are not necessarily

false or made in bad faith, and that the court erred in concluding that any of

the instant reports had been made in bad faith, as none of the allegations

were determined to be false. Id. at 16 (citing 23 Pa.C.S.A. § 6336(a)(17)),

21-22. Father and Paternal Grandparents also argue that they did not directly

report any abuse to CYS, there was no evidence that any third parties who

reported abuse did so in bad faith, and reports by mandatory reporters carry

a presumption of good faith. Id. at 22 (citing 23 Pa.C.S.A. § 6318(c)).

      “Our standard of review of an award of counsel fees is well settled: we

will not disturb a trial court's determination absent an abuse of discretion.”

Dong Yuan Chen v. Saidi, 100 A.3d 587, 591 (Pa.Super. 2014) (quoting

Verholek v. Verholek, 741 A.2d 792, 795 (Pa.Super. 1999)). “A decision

may be reversed for an abuse of discretion only upon demonstration of

manifest unreasonableness, partiality, prejudice, bias, or ill-will.” In re K.R.,

200 A.3d 969, 978 (Pa.Super. 2018) (quoting In re T.S.M., 71 A.3d 251, 267

(Pa. 2013)).




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      Under 23 Pa.C.S.A. § 5339, “a court may award reasonable interim or

final counsel fees, costs and expenses to a party if the court finds that the

conduct of another party was obdurate, vexatious, repetitive or in bad faith.”

Because Section 5339 is nearly identical to Section 2503 of the Judicial Code,

we have previously looked to case law interpreting Section 2503 for guidance

in applying Section 5339. See Dong Yuan Chen, 100 A.3d at 591-92; A.L.-

S. v. B.S., 117 A.3d 352, 361 (Pa.Super. 2015). Under Section 2503, “bad

faith” encompasses “fraud, dishonesty, or corruption.” Hart v. Arnold, 884

A.2d 316, 342 (Pa.Super. 2005) (quoting Thunberg v. Strause, 682 A.2d

295, 299 (Pa. 1996)).

      The CPSL provides that a person “acting in good faith” in making a report

of suspected child abuse “shall have immunity from civil and criminal liability

that might otherwise result from” making such a report. 23 Pa.C.S.A. §

6318(a)(1). In addition, the CPSL invites any person to report suspected child

abuse, “or cause a report of suspected child abuse to be made” to CYS, “if

that person has reasonable cause to suspect that a child is a victim of child

abuse.” 23 Pa.C.S.A. § 6312.

      Here, the court explained that it did not award Mother attorneys’ fees

because Father and Paternal Grandparents reported suspected abuse to CYS.

Indeed, the court could not have sanctioned Father and Paternal Grandparents

on this basis, because Father and Paternal Grandparents never directly

reported abuse to CYS. Even assuming Father and Paternal Grandparents were

acting in good faith by repeating the allegations to third parties, the immunity

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of 23 Pa.C.S.A. § 6318(a)(1) does not extend to the actions of those who do

not directly report abuse, such as Father and Paternal Grandparents.

      Furthermore, the court granted Mother attorneys’ fees because it found

that Father and Paternal Grandparents had continued to publicly discuss

previous allegations of abuse which had already been declared unfounded to

such an extent that others reported the allegations, and, moreover, that

Father and Paternal Grandparents had testified falsely. See Trial Court

Opinion, filed November 21, 2018, at 6. The court recognized that

“unfounded” reports are not necessarily false. Id. at 3. However, the court

found that in the case at hand, Father and Paternal Grandparents “continue[d]

to repeat identical allegations with members of the community” knowing the

allegations are false, and, “at the very least,” discussed the allegations

“without good faith or a reasonable belief” that they were true. Id. at 3-4, 6.

The court also found the actions of Father and Paternal Grandparents, in

causing repeated investigations, “have a direct harmful effect on the subject

child.” Id. at 5. We discern no abuse of discretion in awarding Mother

attorneys’ fees in the amount of $1,354 on the trial court’s stated bases.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/10/2019


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