McMillan, E. v. Children and Youth Servs. Del Co. ( 2022 )

J-S02003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERMA MCMILLAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CHILDREN AND YOUTH SERVICES :
DELAWARE COUNTY :
:
Appellee : No. 1791 EDA 2021
Appeal from the Order Entered August 13, 2021
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2019-002356
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED APRIL 27, 2022
Appellant, Erma McMillan (“Grandmother”), appeals pro se from the
order entered in the Delaware County Court of Common Pleas, granting full
legal and physical custody of minor children, Je.M. and Jo.M. (“Children”) to
Delaware County Children and Youth Services (“CYS”). We affirm.
The relevant facts and procedural history of this case are as follows.
Grandmother is the maternal grandparent of Children. After the death of
Children’s mother in 2014, Children were residing with Grandmother until
2018 when Children were adjudicated dependent and CYS was granted legal
and physical custody. On March 18, 2019, Grandmother filed the instant
complaint for custody against CYS requesting sole physical and legal custody
of Children. The trial court directed Grandmother to amend the pleading to
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add Je.M.’s father, Ramon Berry (“Father”),1 as a party and Grandmother
complied on March 2, 2020.
On March 1, 2021, the court conducted a pre-trial evidentiary hearing
specifically to address the circumstances surrounding the dependency
adjudication of Children in 2018. Deborah Plummer, a CYS intake supervisor,
testified as follows. Children were referred to CYS in 2014 and 2016 regarding
Children’s living conditions at Grandmother’s house. Specifically, concerns
were raised over the presence of black mold and feces in the home, lack of
electricity, and failure to enroll Je.M. in school. CYS filed petitions seeking to
adjudicate Children as dependent in 2014 and 2016 but ultimately withdrew
the petitions. In 2018, CYS received a third referral alleging that Je.M. had
been sexually abused by Dwayne Brown, Grandmother’s boyfriend who lived
in Grandmother’s residence. CYS attempted to do an assessment of the home
to ensure the safety of Children but Grandmother was uncooperative. Mr.
Brown was referred to Child Line Registry for sexual abuse of Je.M. and was
indicated as a perpetrator after investigation.
Lakisha Smith, a CYS caseworker supervisor, testified that after Children
were adjudicated dependent, they were placed in foster care. CYS has had
continuous legal and physical custody of Children since they were adjudicated
dependent. Children were initially placed in the same home but were
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1 Jo.M.’s father is unknown.
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separated when Je.M. was hospitalized in November 2018. Je.M. was
diagnosed with Post Traumatic Stress Disorder and Oppositional Defiance
Disorder and was placed in a therapeutic home where he attends therapy and
takes medication. Jo.M. was diagnosed with Post Traumatic Stress Disorder,
depression, and impulsivity. Jo.M. has been living in the same foster home
since June 2019 and is doing very well there. Children have virtual visits with
one another due to the distance between their homes.
Ms. Smith further testified that Grandmother was not initially considered
as an option for kinship placement because she was being investigated as a
perpetrator by omission due to concerns that she was aware of Mr. Brown’s
abuse of Je.M. However, in 2019, CYS learned that Grandmother was not
indicated for abuse or neglect and contacted Grandmother to inquire whether
she would participate in the process to determine whether she could be a
kinship resource for Children. Grandmother was uncooperative and refused
to participate in a home study. Children have had no contact with
Grandmother since they were adjudicated dependent. Ms. Smith reported
that Grandmother has only reached out to CYS twice since Children have been
in CYS custody.
On May 11, 2021, the court conducted a custody trial. The guardian ad
litem (“GAL”) testified that he met with Children on two occasions. According
to the GAL, Je.M. remembered Grandmother and expressed a desire to live
with Grandmother again. However, Je.M. was apprehensive of Mr. Brown and
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described instances of physical abuse by Mr. Brown. Je.M. further indicated
that he would not want to be present in the same house as Mr. Brown. The
GAL testified that Jo.M. did not express a desire to live with Grandmother.
The GAL noted that although Je.M. experienced some teasing from the other
children at his foster home, both children were safe and secure in their current
placement. The GAL testified that he attempted to set up a meeting with
Grandmother but she did not respond to his inquiry. When asked by the GAL,
Grandmother initially denied knowing Mr. Brown but later admitted to knowing
him after evidence about their relationship was presented during a court
hearing. Based on the uncertainty of Grandmother’s current relationship with
Mr. Brown and the unknown condition of Grandmother’s house, the GAL
opined that Grandmother should not be awarded custody of Children.
Patrick Pearson, a long-time family friend of Grandmother, testified that
he has known Children since their birth. Mr. Pearson stated that Grandmother
would never harm Children or allow anyone to harm them. Grandmother was
previously in a relationship with Mr. Brown but they are no longer involved.
Further, Mr. Brown no longer resides with Grandmother but lives in New
Jersey. Upon cross examination, Mr. Pearson admitted that his belief about
Mr. Brown’s whereabouts was based on what he was told by Grandmother and
Grandmother’s son.
Father testified that while Children were staying with him for a visit in
2018, Jo.M. told Father’s girlfriend that Mr. Brown touched Je.M.
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inappropriately. Father informed Grandmother of his concerns but
Grandmother did not believe him. Because of this, Father temporarily refused
to return Children to Grandmother’s custody and informed the Chester Police
Department of his concerns. Father testified that he believes Mr. Brown
sexually abused Je.M. Father also reported instances of domestic abuse and
physical altercations between Grandmother and Mr. Brown which were
witnessed by Children. Father stated that he did not have objections to
Children being returned to Grandmother’s custody. He testified that
Grandmother did her best to care for Children but was unsure whether living
with Grandmother was in Children’s best interests.
Grandmother testified that Children resided with her and not with Father
prior to their adjudication of dependency. In 2018, Father asked to see
Children for a few days and refused to return them to Grandmother’s custody.
Grandmother stated that the only other individual currently living in her house
is her son. Grandmother requested full custody of Children and represented
that she is acting in the best interests of Children.
Je.M., who was eleven years old at the time of trial, testified that Mr.
Brown would hurt him when he lived at Grandmother’s house. Specifically,
Je.M. recounted instances where Mr. Brown pushed him down the stairs and
scratched his arm, leaving a scar. Further, Je.M. testified that Grandmother
and Mr. Brown would often get into physical altercations. Je.M. described
witnessing one altercation where Grandmother’s son got involved, which
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resulted in a violent fight between Grandmother’s son and Mr. Brown. Je.M.
stated that he has not spoken with Grandmother since he was adjudicated
dependent but he would like to return to living with Grandmother. When
asked about his current placement, Je.M. stated that he has had difficulties
with the other boys at the house, specifically stating that two of the other boys
showed him their private parts.
Jo.M., who was ten years old at the time of the trial, testified that he
gets along with everyone at his current foster home but would like to see his
brother more often. Jo.M. does not recall anything bad occurring when he
lived at Grandmother’s house.
After considering all the evidence, the court entered an order on August
13, 2021, which granted sole legal and physical custody of Children to CYS
and supervised in-person visitation to Grandmother. On September 3, 2021,
Grandmother timely filed a notice of appeal and contemporaneous concise
statement of matters complained of on appeal per Pa.R.A.P. 1925(a)(2)(i).
Grandmother raises the following issues for our review:
Whether the [trial court] ever possessed jurisdiction for
adjudication of [Je.M.] and [Jo.M.], and was
[Grandmother’s] right to a prompt disposition
compromised, where the custody action lingered for more
than three years while the children laid dormant in custody,
and whether [Grandmother] should have retained custody
in light of the lack of jurisdiction and continued and
unjustifiable delay?
Whether the trial court committed reversible error where
the court failed to grant [Grandmother’s] application for
termination of parental rights of the father of [Je.M.],
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wherein, [Father] was deemed by the dependency court to
be unfit, convicted of indecent assault and various other
felonious crimes, drug dealer, drug addict, homeless,
mentally unstable and failed to exercise any parental care
towards his child since the time of the child’s birth?
Whether the trial court committed reversible error where
the court refused to allow [Grandmother] to present
mitigating and exculpatory evidence that neither she, nor
her former paramour abused [Je.M.], and upon the court
learning that [Grandmother] did not abuse the children,
should she have been granted custody?
Whether the trial court committed reversible error, and was
it prejudicial to [Grandmother], where the court refused to
allow [Grandmother] to object, contest or rebut issues
within the scope of testimony and arguments offered up by
[CYS] as follows: (1) whether [Grandmother] had the right
to object to or rebut: testimony and evidence offered up by
[Grandmother] of historical encounters and allegations in
which CYS formerly had with [Grandmother], which were
deemed unfounded; (2) whether [Grandmother] had the
right to object and offer mitigating evidence to the contrary?
Whether the trial court committed reversible error, and was
it prejudicial to [Grandmother], where the court refused to
allow [Grandmother] to present evidence that the CYS Case
Worker (supervisor) who initially handled the dependency
action, which is interchangeably related to the within action,
that this person who was responsible for investigation of
abuse of the children and who placed the children into
custody was arrested two or more times for being under the
influence of crack cocaine and alcohol, and was
subsequently convicted of the same, and terminated.
Whether the trial court committed reversible error where
the court failed to consider evidence that [Je.M.] was being
physically and sexually abused while under the custody and
control of [CYS], and both, the court and [CYS], who are
deemed mandatory reporters, failed to intervene or deter
further harm from befalling the child, which would have
resulted in a different verdict?
Whether the trial court committed reversible error where
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the court persistently denied [Grandmother’s] written
requests and oral motions for visitation and communication
of her two grandchildren who were adjudicated dependent,
based upon the father’s unfitness and, where the children
have been in custody for three years without visitation from
[Grandmother] and where [CYS] persistently refused to
communicate with [Grandmother] altogether.
Whether the court committed reversible error where the
court sequestered [Grandmother] into the Judge’s
chambers to accompany all other parties in order to
interview and question [Je.M], and [Jo.M.] and failed to
permit [Grandmother] to question the children, wherein,
[Grandmother] acted in the capacity of an attorney of record
and (pro se litigant). In addition, was it error where the
court failed to appoint an attorney to represent the legal
issues of the children, and was it erroneous not to furnish
[Grandmother] with … information elicited from the
children’s testimony and interview?
Whether [Grandmother] was deprived of procedural due
process and was entitled to proper notice and service of the
guardian ad litem report, and ample opportunity to
respond[?] In addition, was it prejudicial to [Grandmother]
where the court persuaded the guardian ad litem to take on
dual roles permitting the guardian ad litem to represent
[CYS], by allowing the guardian ad litem to argue and supply
opinions as to whether [CYS] should be withdrawn from the
custody action, moreover, was it prejudicial to
[Grandmother], where the court permitted the guardian ad
litem to examine and cross examine [Grandmother’s]
witness contrary to the rules of the court?
Whether [Grandmother] had the right to be heard and
contest to her application for objections to the guardian ad
litem’s report, and whether she had the right to address,
confront and or otherwise object to any portions of the said
report in general.
Whether the guardian ad litem exercised due diligence and
all reasonable efforts to visit and communicate with the two
children to determine their interest and the best interest of
the children, wherein, the guardian ad litem visited and met
the children on (only) two occasions, and whether two visits
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is ample and adequate time to determine the children’s best
interests.
Whether the Court committed reversible error where the
court failed to adequately address the mandatory “Sixteen
Child Custody Factors” in determining an award of custody
to [Grandmother] as delineated under law….
(Grandmother’s Brief at 2-11) (re-ordered for purposes of disposition).
In reviewing a child custody order:
[O]ur scope is of the broadest type and our standard is
abuse of discretion. This Court must accept findings of the
trial court that are supported by competent evidence of
record, as our role does not include making independent
factual determinations. In addition, with regard to issues of
credibility and weight of the evidence, this Court must defer
to the trial judge who presided over the proceedings and
thus viewed the witnesses first hand. However, we are not
bound by the trial court’s deductions or inferences from its
factual findings. Ultimately, the test is whether the trial
court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation
omitted).
In her first issue on appeal, Grandmother argues that the trial court
“lacked jurisdiction” over this matter because the court failed to promptly
schedule a trial as required by Pa.R.C.P. 1915.4.2
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2 Pa.R.C.P. 1915.4 provides in relevant part:
(Footnote Continued Next Page)
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Preliminarily, Grandmother fails to cite to any authority for her bald
assertion that the failure to promptly schedule a custody trial deprives the
court of subject matter jurisdiction. Likewise, our review of the record reveals
that Grandmother failed to raise this issue before the trial court. Indeed, this
Court has recently held that the failure to object to the timing and/or
scheduling of a custody trial under Rule 1915.4 constitutes waiver on appeal,
which belies Grandmother’s jurisdictional argument. See Nelson v. Kresge,
No. 1417 EDA 2021 (Pa.Super. Feb. 23, 2022) (unpublished memorandum).
See also Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of
this Court filed after May 1, 2019 for persuasive value). Thus, Grandmother’s
failure to preserve her claim before the trial court and on appeal constitutes
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Depending upon the procedure in the judicial district, within
180 days of the filing of the complaint either the court shall
automatically enter an order scheduling a trial before a
judge or a party shall file a praecipe, motion or request for
trial, except as otherwise provided in this subdivision. If it
is not the practice of the court to automatically schedule
trials and neither party files a praecipe, motion or request
for trial within 180 days of filing of the pleading, the court
shall, sua sponte or on motion of a party, dismiss the matter
unless a party has been granted an extension for good cause
shown, or the court finds that dismissal is not in the best
interests of the child. The extension shall not exceed 60
days beyond the 180 day limit. A further reasonable
extension may be granted by the court upon agreement of
the parties or when the court finds, on the record,
compelling circumstances for a further reasonable
extension….
Pa.R.C.P. 1915.4(b).
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waiver. See Nelson, supra. See also Coulter v. Ramsden, 94 A.3d 1080,
1089 (Pa.Super. 2014), appeal denied, 631 Pa. 719, 110 A.3d 998 (2014)
(stating: “[O]nly claims properly presented in the [trial] court are preserved
for appeal”); In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012),
appeal denied, 620 Pa. 724, 69 A.3d 603 (2013) (reiterating: “This Court will
not consider the merits of an argument which fails to cite relevant case or
statutory authority”); Pa.R.A.P. 302(a) (stating: “Issues not raised in the
[trial] court are waived and cannot be raised for the first time on appeal”).
In her second issue on appeal, Grandmother contends that the court
erred by failing to terminate Father’s parental rights over Je.M. As the trial
court noted, “[a]ny request by [Grandmother] made during the pendency of
the custody matter concerning termination of parental rights would have been
correctly dismissed as not appropriately pled as termination is not properly
addressed in custody matters.” (Trial Court Opinion, filed August 13, 2021,
at 8). We agree with the trial court that any termination of parental rights
proceeding that might concern Father would be outside the scope of the
custody matter before the trial court in this case. As such, Grandmother’s
second issue on appeal is without merit.
In Grandmother’s third, fourth, and fifth issues combined, Grandmother
alleges that the court erred by failing to allow Grandmother to: 1) present
“mitigating and exculpatory evidence” that neither Grandmother nor Mr.
Brown abused Children; 2) object, contest or present evidence to contradict
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CYS’s account of Grandmother’s past encounters with CYS; and 3) present
evidence of the criminal history of an employee of CYS who handled Children’s
dependency matter.
Nevertheless, Grandmother’s brief fails to have any meaningful
discussion of the nature and type of evidence she attempted to introduce,
when she attempted to introduce such evidence and why such evidence was
admissible under the Pennsylvania Rules of Evidence. Because Grandmother’s
brief is deficient such that we cannot properly assess the merits of her claim,
Grandmother has waived her third, fourth and fifth issues on appeal. See In
re R.D., 44 A.3d 657 (Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d
398 (2012) (holding appellant waived issue, where argument portion of
appellant’s brief lacked meaningful discussion of, or citation to, record and/or
relevant legal authority regarding issue generally or specifically; appellant’s
lack of analysis precluded meaningful appellate review).
In her sixth issue on appeal, Grandmother argues that the court erred
by failing to consider evidence that Je.M. was being physically and sexually
abused while under the custody and control of CYS. Grandmother asserts that
“[h]aving been made aware of such disturbing information … both the court
and CYS failed to take precautionary measures to modify the custody aspects
of the child’s placement or simply award temporary custody to [Grandmother]
until the time of trial.” (Grandmother’s Brief at 46).
Again, Grandmother’s brief fails to cite to the record to indicate when
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she introduced any evidence prior to trial that Je.M. was being physically and
sexually abused in his CYS placement. See In re R.D., supra. Further, our
review of the record shows that the only evidence before the court of any
mistreatment of Je.M. at his current placement was Je.M.’s testimony at trial.
Contrary to Grandmother’s assertion, the court did not disregard this evidence
but credited it in its findings of fact and conclusions of law and ordered that
Je.M. be immediately removed from his current placement. (See Findings of
Fact and Conclusions of Law, filed August 13, 2021, at 29; Final Custody
Order, filed August 13, 2021, at 2). Accordingly, Grandmother’s sixth issue
on appeal merits no relief.
In her seventh issue on appeal, Grandmother argues that the court
erred by failing to grant Grandmother’s written and oral requests for visitation
with Children during the pendency of this custody case. Once again, we note
that Grandmother’s brief fails to cite to the record to demonstrate when she
made any such written or oral requests. See In re R.D., supra. Our review
of the record shows that Grandmother did not file any motions or petitions
requesting interim custody of Children pending trial. Further, Grandmother
failed to cite to any relevant authority to demonstrate why the failure to grant
any such requests for visitation would constitute an abuse of discretion. See
id. See also Whitley, supra. As such, Grandmother has waived her seventh
issue on appeal.
In her eighth issue on appeal, Grandmother argues that the court erred
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by failing to allow Grandmother, who was a pro se litigant, to be present in
the room when the court questioned Children.
Prior to questioning Children, the court clearly explained on the record
the procedure it intended to follow. (See N.T. Trial, 5/11/21, at 128-133).
The court stated that it would allow each party to submit questions they
wished to ask Children but would not allow them to ask questions themselves.
All parties and counsel were instructed to wait in an adjoining room from which
they could hear Children’s testimony. Grandmother indicated that she wanted
to ask questions to Children but did not object to the court’s proposed
procedure. As such, Grandmother has not preserved this issue for our review.
See Coulter, supra; Pa.R.A.P. 302(a).
In her ninth, tenth and eleventh issues combined, Grandmother argues
that the court impermissibly allowed the GAL to argue, supply opinions, and
cross-examine Grandmother’s witnesses at trial. In addition, Grandmother
asserts that she was deprived of procedural due process because she only
received the GAL’s report on the morning of trial even though she was entitled
to be served with the GAL’s report no later than 20 days prior to trial under
231 Pa. Code § 1915.11-2.3 Grandmother contends that the court erred by
refusing to hear argument on her objections to the GAL’s report and admitting
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3“The guardian ad litem shall file of record and provide copies of any reports
prepared by the guardian ad litem to each party and the court not later than
20 days prior to trial.” 231 Pa. Code § 1915.11-2(c).
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it into evidence. Further, Grandmother argues that the GAL only met with
Children two times and thus “it was an abuse of discretion for the trial court
to adopt the GAL’s report for the purpose of rendering it’s final judgment.”
(Grandmother’s Brief at 93).
Nevertheless, Grandmother failed to object at trial when the court
allowed the GAL to cross examine her witnesses. As such, Grandmother has
not preserved this issue for appellate review. See Coulter, supra.Regarding Grandmother’s assertion that the court did not allow her to
object to the admissibility of the GAL’s report, the court explained:
The trial court allowed [Grandmother] to make objections to
the admissibility of the [GAL] report at trial. Although most
of the “objections” were fact based and argumentative,
[Grandmother] did state that she did not have the
opportunity to read the report at which time the trial court
allowed [Grandmother] additional time to read the report.
The trial court then overruled her objection and admitted
the report. However, upon the filing of [Grandmother]’s
objection to the admission of the [GAL] report the court
reopened the record to determine whether the report should
be admitted into evidence.
At the hearing on the objection, the trial court determined
that there was no denial of due process or prejudice to
[Grandmother] in allowing the introduction of the [GAL]’s
report at trial. The [GAL] provided the report to
[Grandmother] as well as to counsel for CYS on the morning
of the trial because as he explained on the record, he had
been unable to finish his report within twenty days of the
trial due to [Grandmother’s failure] to cooperate with an
interview and home study. The trial court determined that
it was purely due to [Grandmother]’s stalling and refusal to
cooperate with the [GAL] that prevented him from
submitting his report twenty days prior to the trial and that
such refusal hampered the ability of the [GAL] to timely
provide his report. [Grandmother] should not now have the
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benefit of objecting to the introduction of the report when
she was the sole reason as to why it was not completed
more than twenty days prior to trial.
Additionally, the trial court noted that [Grandmother]
referenced the [GAL’s] report in her direct examination of
the [GAL] and asked a question of the [GAL] while quoting
the report. Therefore, the trial court concluded that
[Grandmother] not only had the opportunity to read it prior
to trial but also to comprehend it well enough to use it as
part of her trial strategy. Therefore, there was no error to
allow the introduction of the [GAL’s] report.
Finally, the [GAL] testified consistently with his report and
the conclusions in his report were repeated in his direct and
cross examination testimony. Therefore, there was no
prejudice to [Grandmother] for the trial court to read the
report which reiterated the [GAL]’s testimony.
(Trial Court Opinion at 10-11). The record supports the court’s analysis.
Consequently, we cannot say the court abused its discretion in overruling
Grandmother’s objection to the GAL’s report. See S.J.S., supra. Further,
Grandmother’s complaint that the GAL only interviewed Children on two
occasions implicates the credibility of the GAL’s findings. Determining
credibility of evidence is strictly within the purview of the trial court and as
such, we find no error in the court’s reliance on the GAL’s report in its
determination. Id. Therefore, Grandmother is not entitled to relief on her
ninth, tenth or eleventh issues on appeal.
In her final issue on appeal, Grandmother argues that the court erred
by failing to adequately address the custody factors. Specifically,
Grandmother notes that the trial court failed to address factors 10 and 12 in
its findings of fact and conclusions of law. Further, Grandmother alleges the
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following errors in the court’s weighing of the remaining custody factors: 1)
finding that factors 1 and 8 weighed in favor of CYS when Grandmother
testified that she has not been able to see Children since they were
adjudicated dependent because CYS refused to communicate with her; 2)
finding that factor 2 weighed in favor of CYS when all past allegations that
Grandmother was abusive were deemed unfounded; 3) finding that factors 3,
4 and 9 weighed in favor of CYS when Je.M. has been assaulted and sexually
abused while under CYS custody; 4) finding that factor 6 weighed in favor of
neither party when Children have been separated for almost four years while
in CYS custody; and 5) finding that factor 7 favored both parties when both
children testified that they would prefer to live with Grandmother.
Grandmother concludes that the court abused its discretion in awarding CYS
sole physical and legal custody of Children. We disagree.
The Child Custody Act provides:
§ 5328. Factors to consider when awarding custody
(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
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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.
(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
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parties and the willingness and ability of the parties
to cooperate with one another. A party’s effort to
protect a child from abuse by another party is not
evidence of unwillingness or inability to cooperate
with that party.
(14) The history of drug or alcohol abuse of
a party or member of a party’s household.
(15) The mental and physical condition of a
party or member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
“With any child custody case, the paramount concern is the best
interests of the child. This standard requires a case-by-case assessment of
all the factors that may legitimately affect the physical, intellectual, moral and
spiritual well-being of the child.” M.J.M. v. M.L.G., 63 A.3d 331, 334
(Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013) (quoting
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)). In expressing the
reasons for its decision, “there is no required amount of detail for the trial
court’s explanation; all that is required is that the enumerated factors are
considered and that the custody decision is based on those considerations.”
M.J.M., supra at 336. A court’s explanation of reasons for its decision, which
adequately addresses the relevant custody factors, complies with [the
statute]. Id.Instantly, the court explained in its opinion that its failure to specifically
address factors 10 and 12 in its findings of fact and conclusions of law was an
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inadvertent oversight. The court intended to list these factors with its analysis
of factor 9 but unintentionally omitted it. We note that the court issued an
extensive 36-page opinion of its findings of fact and conclusions of law,
covering all the evidence presented at trial and providing a detailed analysis
of all the other custody factors. Notwithstanding its omission of expressly
addressing factors 10 and 12, the court adequately covered the substance of
those factors in its analysis of factors 3, 4 and 9 by discussing Children’s
current needs and the abilities of the parties to meet those needs. (See
Findings of Fact and Conclusions of Law at 25-36). Our review of the court’s
findings and fact and conclusions of law in toto makes clear the court
adequately analyzed and considered all custody factors delineated in Section
5328(a). See M.J.M., supra.Specifically, the court found: 1) factors 1, 8, and 13 weighed in favor of
CYS because CYS has been willing to permit contact between Grandmother
and Children but Grandmother has been uncooperative; 2) factor 2 weighed
in favor of CYS because Je.M. was physically and sexually abused by a member
of Grandmother’s household and it is unclear whether Grandmother is still in
contact with him; 3) factors 3, 4, and 9 weighed in favor of CYS because
Children’s needs are being met by CYS and Grandmother has failed to
establish that she can provide safe living conditions for Children; 4) factor 7
favored both parties because Je.M. stated that he would prefer to live with
Grandmother but does not want to have contact with Mr. Brown and Jo.M. did
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not express a clear preference between Grandmother and his current
placement; and 5) the remaining factors favored neither party.
On appeal, Grandmother essentially asks this Court to reweigh the
Section 5328(a) factors in her favor. We have carefully reviewed the record
in this case and determined that the record supports the trial court’s
reasonable findings, and those findings were not the result of an error of law.
See S.J.S., supra. Therefore, we accept the trial court’s findings and decline
to reweigh the evidence. Accordingly, Grandmother is not entitled to relief on
any of her issues on appeal and we affirm the trial court’s order.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2022
____________________________________________
4 On April 13, 2022, Grandmother filed three (3) applications for relief in this
Court seeking to (1) complete the certified record with additional notes of
testimony; (2) compel the GAL to file a brief; and (3) requesting oral
argument. Nevertheless, the record contains all relevant transcripts
necessary for our disposition of the appeal. Additionally, Grandmother cites
no legal authority to support her claim that the GAL was required to file an
appellate brief. Further, Grandmother was denied oral argument in this case
based on the late filing of her appellate brief. For these reasons, we deny
Grandmother’s applications for relief.
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