Articles

PBA Family Law Section-Winter Meeting 2008 Custody Case Law Updates

Prepared by Melissa M. Boyd, Esquire and Stephanie E. Murphy, Esquire
High, Swartz, Roberts, & Seidel, LLP, Norristown, Pennsylvania
www.highswartz.com

Custody

Yates v. Yates, ---A.2d--- 2007 Pa. Super 331 (Pa. Super 2007) (filed November 20, 2007)

A. Issue:

Did Father agree to share legal custody of the minor child before the trial court? Did Father agree that a parent coordinator be appointed and agree to attend co-parenting counseling? Did Father agree that the lower court's orders were not subject to review?

B. Facts/Procedural History

This custody dispute began in 2002. This case has a very sordid, litigious history with many hearings and settlement conferences. In late 2006, the basic terms of physical custody had been agreed upon (with Father having primary custody) and the parties agreed that a detailed custody order was necessary. On February 2, 2007, the parties appeared before the trial court to present their respective settlement proposals. Father argued that shared legal custody was not a possibility because there was no level of cooperation between the parents. Father preferred the trial court appoint a parent coordinator. Mother's presentation was similar also thought a parent coordinator was necessary. Other issues with respect to the custody order were left in the hands of the trial court. The trial court extracted an agreement from the parties that the parties would be bound by whatever decision the trial court made with respect to the other contested custody points.

C. Holding

The Superior Court remanded this case to the trial court for further consideration. While custody agreements between parties which are incorporated into a court order are binding, the Superior Court found that there was not a complete agreement reached before the trial court. The parties only agreed to the basic terms of physical custody and the prohibition of corporal punishment. The parties' proposals contained major areas of disagreement. Just because the trial court placed the parties under oath and confirmed that the parties would be bound by whatever the terms the court eventually ordered does mean the parties forego their right to the appeal process. Since the trial court did not file an opinion setting forth its findings and reasons for its decision, the case was remanded. The Superior Court noted that they were not opining whether or not the trial court's factual conclusions were unreasonable or that the trial court abused its discretion. The Superior Court simply wanted the trial court to substantiate its order with more specific factual findings.

Klos v. Klos, --- A.2d ----, 2007 WL 2938608 (Pa. Super. 2007) (filed October 10, 2007, Allegheny County)

A. Issue:

Several issues were presented by the parties in this matter; however, the true issue was whether the trial court abused its discretion in granting Father primary custody of minor children, permitting Father to relocate the children to another state, granting mother shared legal custody, and establishing a comprehensive visitation schedule.

B. Facts/Procedural History:

Mother and Father were married in 1983. Eight children were born of the marriage, five of whom were minors at the time of the custody trial. The family was planning to move to Florida. Instead, the parties separated in July 2005. Father moved to Florida and filed for divorce in Pinellas County, Florida. Mother filed a custody complaint in August 2005. A guardian ad litem was appointed for the five minor children. A psychologist conducted a custody-related psychological evaluation. Prior to the custody trial, the trial court issued a temporary custody order that permitted Nicholas, the oldest minor child, to relocate to Florida with his Father. Said order prevented Father from taking the other minor children to Florida. Subsequently, Mother permitted Mariesha and Alexandra, two of the other minor children, to relocate to Florida with Father.

At the time of the custody trial, Father was living in Florida with three of the five minor children. The sole issue presented to the trial court was the custody and relocation of Zachary and Kathleen, the two minor children who were living with Mother. After the trial, the trial court issued an order granting Father primary custody of Zachary and Kathleen and permitted him to relocate them to Florida. A comprehensive custody and visitation schedule was also established. Both Mother and Father appealed the trial court's order.

C. Holding:

As in any child custody case, the paramount concern of the court in this case is the best interests of the child. This 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. Generally, when a custody case includes a request to relocate with the child, the best interest analysis must incorporate the three factors summarized in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). However, in the present case, Father moved to Florida prior to Mother's initiation of custody proceedings in Pennsylvania; therefore, Father is seeking to relocate the children, not himself, to Florida. Therefore, the trial court was left to determine whether living situation at Mother's home or the living situation at Father's home serves the best interests of the child. The trial court concluded that Mother was a negative force in the children's lives. The facts presented by the children, the guardian ad litem and the psychologist indicated that Mother was mentally and physically abusive to the children and consistently disparaged Father. The trial court considered the children's ages, maturity and their strongly-stated preference for living with Father and with their siblings who were already living with Father. The trial court further considered Father's motives for moving the children to Florida and found that said move was not the basis of a momentary whim but, instead, was the product of genuine concern for the well-being of the children. Further, the trial court's order contained a detailed visitation order, which allowed for a continued relationship with Mother. The Superior Court upheld the trial court's order.

Holler v. Smith, 928 A.2d 330, 2007 Pa. Super 195 (Pa. Super. 2007) (filed July 2, 2007, Bedford County)

A. Issues:

Did the trial court lack authority to award counsel fees when the petition for same was filed more than thirty days after the entry of a custody order? Did the trial court abuse its discretion in finding that Appellant's conduct was vexatious?

B. Facts/Procedural History:

This case is an appeal from an order entered by the Court of Common Pleas of Bedford County awarding the Appellee counsel fees. The underlying action involves a custody case brought in 1988 regarding the minor child of Appellant and Appellee. During the custody battle, Appellant complained that Appellee sexually abused the child. That allegation was ultimately determined to be unsubstantiated. The maternal grandparents intervened in the action and filed for custody. On January 14, 2005, the trial court entered an order awarding legal custody to Bedford County Children and Youth Services, primary physical custody to the maternal grandparents, partial custody to both parents and ordered Appellant to pay $500 for contempt of a prior court order regarding custody. The trial court's order further dismissed Appellant's 2001 petition in which she alleged the unsubstantiated child abuse.

On December 14, 2005, Appellee filed a petition seeking counsel fees with regard to the abuse allegations. The trial court awarded $5,000 in counsel fees. An appeal was filed with the Superior Court regarding this award of counsel fees.

C. Holding:

The Superior Court held that the award of counsel fees was proper. Appellant argued that an order cannot be modified more than thirty days after its entry. Due to the unique nature of custody orders, the same rules do not apply as would apply with regard to other civil orders. Custody orders are temporary in nature and are always subject to change. Further, the statute allowing the award of counsel fees as a "sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter" specifically contains no time limit for the application for such fees. Therefore, the trial court did not abuse its discretion with regard to the timing of the award.

The Superior Court further held that the trial court had great latitude and discretion with respect to the award of counsel fees and did not abuse its discretion in this matter. Although no specific findings of vexatious conduct had been made following the hearings in this matter, the hearing transcripts are replete with references to the conduct in question. Therefore, the Superior Court found no reason to disturb the trial court's determination.

Paternity

R.W.E. v. A.B.K., 2007 PA Super 288 (Pa. Super 2007) (filed September 20, 2007-Philadelphia County)

A. Issues:

Did the trial court err in failing to confirm paternity and by rescinding the acknowledgment of paternity based on fraud? Did the trial court err in failing to confirm paternity based on constructive paternity by statute and where rescission if precluded by statute? Did the trial court err in failing to confirm paternity by estoppel?

B. Facts/Procedural History:

The child in this case is J.R.K. (DOB 11/12/04). The mother is the Appellee A.B.K. At the hospital, within days of the child's birth, Appellant executed an Acknowledgement of Paternity form pursuant to 23 Pa.C.S.A. §5103(a). At no time were the mother and the Appellant married. However, from approximately February 2001 or 2002 through February 2005, the mother and the Appellant had a sexual relationship and, at times, resided together. During the period of conception, the mother and the Appellant had separated, and the mother had a sexual relationship with another man. The mother and the Appellant knew that the Appellant was not the biological father of the child. The mother did not inform the biological father, Appellee M.K., that he may be the child's biological father until November 2006.

After the mother and the Appellant separated, the Appellant filed a petition for custody, and Appellant was granted partial custody. Numerous other motions and countermotions followed, including motions by Appellee M.K. requesting that Appellant's custodial rights be vacated and that the Acknowledgement of Paternity be rescinded. The trial court ordered that the Acknowledgement of Paternity be rescinded due to fraud and adjudicated that Appellee M.K. as the biological father of the child. Appellant filed a timely appeal.

C. Holding:

The Superior Court reversed the trial court's order, stating that there was no evidence of fraud on the record. Mother's failure to inform Appellee M.K. of the child's birth did not constitute fraud. The signing of the Acknowledgement of Paternity by the mother and Appellant, despite their knowledge that Appellant was not the child's father, did not constitute fraud.

The Superior Court stated that the trial court's decision was contrary to public policy. Children should be secure in knowing who their parents are, and, if a person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not, in fact his father.

Adoption Dependency/Termination of Parental Rights

In re: Adoption of: K.J., ---A.2d----, 2007 Pa. Super 337 (Pa. Super. 2007) (filed November 16, 2007, Cumberland County)

A. Issues:

Did the trial court err in terminating Mother's parental rights of her three minor children? Should the trial court have deferred its decision to terminate Mother's parental rights until after Mother's appeal of her murder conviction was decided?

B. Facts/Procedural History

K.J. and J.J. were removed from Mother's custody in October 2003 due to the suspicious death of their three-year old brother. The children had previously resided with their maternal grandmother. The living conditions were horrendous; the children's immunizations were not up to date. K.J.'s front teeth were rotted and broken. Father apparently lived next door to the children. Mother last saw the children in September 2004. She was incarcerated in October 2004 on charges of first and third degree murder. Mother gave birth to another child, B.J. in April 2005 while incarcerated. On June 27, 2006, Mother was convicted of third degree murder, aggravated assault and endangering the welfare of a child. Mother was sentenced to 18 to 40 years in prison in September 2006. Children and Youth Services petitioned to terminate Mother's parental rights. Father's rights were terminated in January 2007, and Mother's parental rights were ultimately terminated on March 6, 2007. Mother filed a timely appeal.

C. Holding

The Superior Court held that the trial court's decision to terminate Mother's parental rights was supported by competent evidence and there was no abuse of discretion. Given the deplorable conditions in which the children lived, the suspicious death of the children's brother under Mother's case and the fact that Mother can not remedy the conditions that caused her incapacity to parent the children, the record supported the termination of Mother's parental rights.

In the Matter of A.K. and L.K., --- A.2d ----, 2007 WL 3133672 (Pa. Super. 2007) (filed October 29, 2007, Cumberland County)

A. Issues:

Did the trial court abuse its discretion and err as a matter of law in (1) changing the goals of the children from reunification with Father to adoption after the Superior Court reversed the prior goal change to adoption under the facts of the case reported in In the Matter of A.K. and L.K., 906 A.2d 596 (Pa. Super. 2006); (2) finding that Father is not "in compliance with his permanency plan" in its January 9, 2007 order contrary to the finding of fact made by it previously on November 30, 2005 in In the Matter of A.K. and L.K., 906 A.2d 596 (Pa. Super. 2006); (3) stating in its January 9, 2007 order that Father is not "making progress in alleviating the circumstances which necessitated the placement" when the Superior Court previously reversed the trial court on this same point in In the Matter of A.K. and L.K., 906 A.2d 596 (Pa. Super. 2006) on August 17, 2006; (4) changing the children's goals from reunification without considering the existing bonds between Father and the children prior to changing the goals; and/or (5) not moving forward to place the children with Paternal Grandparents when following the decision in In the Matter of A.K. and L.K., 906 A.2d 596 (Pa. Super. 2006), the trial court's July 25, 2006 order recognized the Paternal Grandparents to be a resource for placement of the children?

B. Facts/Procedural History:

On June 4, 2004, A.K. and L.K., who were then four months of age, were placed on an emergency basis with the Cumberland County Children and Youth Services because of suspected physical abuse. Following several hearings, the trial court approved the dependency master's report and adopted his recommendations that: (1) the children were abused; (2) they were dependent; (3) Father perpetrated the abuse; (4) Mother was responsible for the abuse by omissions; and (5) aggravated circumstances existed as to both parents. Both parents appealed the trial court's dependency adjudication, and the adjudication was upheld in an unpublished memorandum. Both parents were eventually convicted of child endangerment charges in connection with the children's injuries, with Mother to be incarcerated for four to twelve months and Father to be incarcerated for three to ten years.

On November 30, 2005, a permanency hearing was held, and the goal for both children was changed from reunification to adoption. Both Mother and Father appealed this determination, and the Superior Court reversed the trial court's determination concluding, inter alia, that review of the record did not support the trial court's conclusion that progress toward alleviating the circumstances which necessitated the placement had not been made."

On November 29, 2006, the next permanency hearing was held. Prior to this hearing, Mother made clear that she had decided to relinquish her paternal rights to her daughters and to allow them to be adopted because she was unable to give the children what they needed. The trial court changed the children's placement goal to adoption, citing Mother's desire to have the children adopted by the foster parents with who they had lived for the vast majority of their lives. Father appealed this determination.

C. Holding:

The Superior Court upheld the trial court's determination. In response to the issues raised by Father, the Superior Court stated the following:

(1) The trial court was not bound by the Superior Court's prior adjudication, as the trial court is required to reassess the permanency plan for and placement of each dependent child and to consider all relevant statutory factors at each permanency hearing. There had been a development following the prior determination. Specifically, Mother realized that she could not provide for her daughter's needs and supported their adoption.
(2) Father failed to realize that the focus of all dependency proceedings is on the safety, permanency and well-being of the children. The best interests of the child take precedence over all other considerations, including the conduct of and the rights of the parent. Therefore, Father's progress, while an important factor, was not determinative. Further, Father ignored the fact that he was incarcerated at the time of this appeal and would remain incarcerated until at least November 2008.
(3) Father failed to grasp the meaning of the Superior Court's prior ruling. The Superior Court had previously ruled based upon the Mother's progress and desire to be reunited with her children. Because of Mother's desire to allow the children to be adopted by their foster parents, the placement goal of allowing the children to return home was no longer feasible because Father faces at least two more years in prison.
(4) The trial court considered the bonds between the children and both the biological parents and the foster parents. Father had limited contact with the children since their placement and no contact with the children for the year preceding this appeal. The children had a strong attachment to their foster parents, with whom they had lived for the 30 months preceding this appeal. The trial court considered all evidence relating to the respective bonds and determined that the children's bond to their foster parents was of greater importance than any bond that they may have with Father.
(5) Placement with the Paternal Grandparents had been considered; however, due to safety issues, the trail court declined to place the children with the grandparents. The grandparents' were unable or unwilling to acknowledge that Father was capable of intentionally injuring the children. At the time, Father was not yet in prison, so the trial court was no confident that the children would be safe in the grandparents' care. When the trial court later reconsidered the issue of placement with the grandparents, the children had been living with the same foster family for approximately 30 months. Therefore, the trial court determined that it was in the children's best interests to remain with the foster family. The trial court considered all evidence presented and, therefore, did not abuse its discretion.

In the Matter of K.C.F., L.T.F., and T.C.A., 928 A.2d 1046, 2007 Pa. Super. 178 (2007) (filed June 12, 2007)

A. Issues:

Did the trial court err in finding the clinical psychologist to be an expert when he had never previously testified in a termination matter? Did the trial court err in finding that CYA presented clear and convincing evidence to demonstrate that termination would not have a detrimental impact on the children? Did the trial court err in basing its decision to terminate Mother's parental rights on evidence related to her parenting skills and the children's behavioral problems? And, did the trial court err in failing to consider that the children are not in a pre-adoptive home and that their ages make it less likely that they will be adopted?

B. Facts/Procedural History:

In July 2003, Mother voluntarily placed the children in the custody of Dauphin County Children and Youth Agency ("CYA"), explaining that she felt overwhelmed and frustrated and that she was abusing drugs. Mother was convicted of endangering the welfare of children and sent to prison. The children were adjudicated dependent in August 2003 and remained in foster care from that time forward. The family service plan required mother to attend drug and alcohol counseling and parenting classes, obtain mental health treatment, obtain stable housing and employment, and visit with the children. However, in March 2004, Mother was incarcerated for drug use.

In February 2005, CYA filed a petition for involuntary termination of Mother's parental rights to the children. After a hearing, CYA's petition was granted. The Superior Court subsequently confirmed that CYA had proved the statutory grounds for termination; however, testimony had not been presented regarding the effect that the termination would have on the children. Therefore, the matter was remanded to allow both sides to present evidence regarding this issue.

At the following hearing on April 10, 2006, CYA presented one witness, Dr. Kasey Shienvold. Mother objected to this witness, but the trial court ruled in favor of CYA. Dr. Kasey had never before testified regarding a termination; his prior experience was related primarily to custody disputes and counseling "high conflict families." On October 4, 2006, an order was entered terminating Mother's parental rights. Mother appealed.

C. Holding:

The Superior Court upheld the trial court's order and held that Dr. Shienvold was sufficiently qualified as an expert in the specialized knowledge required for evaluations and that the evidence presented was sufficient to establish that termination of Mother's parental rights were in the best interests of the children. The Superior Court stated that an expert witness must only "possess more expertise than is within the ordinary range of training, intelligence or experience." They reviewed Dr. Shienvold's qualifications and determined that he qualifies as an expert. The Superior Court reviewed the evidence presented by Dr. Shienvold regarding the attachment of the children to their Mother and determined that said evidence demonstrated that termination would serve the children's developmental, physical, and emotional needs. Further, the Superior Court considered the ages of the children (11, 9, and 8) and determined that their ages would not reduce their chances of adoption, as was the case in In re E.M., 908 A.2d 297 (Pa. Super. 2006).

In re S.D.T., --- A.2d ----, 2007 WL 2505579, 2007 Pa. Super 277 (Pa. Super 2007) (filed September 6, 2007, Dauphin County)

A. Issues:

Did the court below err in terminating parental rights?

B. Facts/Procedural History:

The child was brought into the custody of Dauphin County Social Services for Children and Youth following an allegation that his younger brother was abused by their Mother. From the time of placement through the time of the hearing, Father was either incarcerated, in a halfway house or in an inpatient drug rehabilitation facility, with only very brief exceptions. While in the custody of Children and Youth, and after receiving a letter from his father, the child attempted suicide. The trial court accepted the case worker's analysis that the suicide attempt was the result of the child's emotional reaction to Father's letter and consistent disappointment with Father's broken promises to reunify. The trial court terminated Father's parental rights. Father appealed.

C. Holding:

The Superior Court vacated the trial court's order and remanded the matter for an evidentiary hearing. The Superior Court found that the evidence supported the trial court's determination with regard to the first prong of termination analysis, which involves whether the parent's conduct satisfies at least one of the nine statutory grounds for termination as set forth in 23 Pa. C.S.A. §2511(a). However, upon review of the trial court's record the Superior Court concluded that no evidence was presented to link the child's suicide attempt to the Father's broken promises of reunification. The Superior Court speculated that the suicide attempt could have been the result of the child's extended separation from Father. Therefore, because absolutely no evidence was presented regarding the reason for the child's attempted suicide, the Superior Court vacated the trial court's order and remanded the matter so that evidence could be presented regarding the cause of the child's emotional distress, including medical records and testimony.

In the Interest of M.S.K., --- A.2d ----, 2007 WL 3151762, 2007 Pa. Super. 323 (Pa. Super. 2007)

A. Issue:

Is Father entitled to nunc pro tunc relief when his court-appointed attorney failed to timely file his appeal, when said attorney was subsequently removed and when the trial court found said attorney's actions to be negligent?

B. Facts/Procedural History:

On August 21, 2006, following a two-day hearing, the trial court entered an order terminating the parental rights of Father to his minor child. Father was represented by court-appointed counsel at the hearing. Father's counsel filed for post-trial relief but did not timely appeal the August 21, 2006 order. The trial court rescinded the appointment of Father's counsel and appointed new counsel for Father for the purpose of requesting appellate review of the order terminating Father's parental rights. Father's new counsel filed a petition for leave to appeal the order terminating Father's parental rights nunc pro tunc. Said petition was denied by the trial Court. Father appealed.

C. Holding:

The Superior Court affirmed the trial court's order denying Father's requested nunc pro tunc relief. In doing so, the Superior Court upheld the precedent, specifically as established in In re Adoption of W.R., 823 A.2d 1013 (Pa. Super. 2003). In In re Adoption of W.R., the Superior Court upheld an order denying nunc pro tunc relief when the mother claimed that her counsel had not received a copy of the relevant order. The Supreme Court, in Criss v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001), made it clear that the circumstances occasioning the failure to file an appeal must not stem from counsel's negligence or from a failure to anticipate foreseeable circumstances.

In the Interest of S.G. and V.G., 922 A.2d 943, 2007 Pa. Super 103 (Pa. Super. 2007)

A. Issue:

Did the trial court err in changing the placement goal to adoption despite Mother's progress in addressing her mental health issues?

B. Facts/Procedural History:

In April 2004, S.G. and V.G. were declared dependent after their Mother and her boyfriend made clear their intention to move to Virginia with the boyfriend's brother, who was known to CYS as a perpetrator of sexual abuse. The children, although declared dependent, continued to live with their mother. Numerous services were provided to the family, and in September 2004, the children's dependent status was lifted.

In July 2005, CYS received a referral that S.G. had facial bruises, which resulted from his Mother's having hit him. Mother acknowledged hitting S.G. and consented to emergency voluntary placement for S.G. In August 2005, S.G. was again declared dependent, with a placement goal of returning home to Mother, with whom he had an emotional bond.

S.G. and Mother continued to receive services. In December 2005, despite the on-going, intensive and varied services, the situation deteriorated. Mother failed to attend her mental health appointments. During a supervised visit with S.G., Mother reacted inappropriately and physically to S.G.'s misbehavior and became verbally abusive toward the educator who was monitoring the visit. Thereafter, an emergency placement of Mother's other children was made.

At a hearing on January 5, 2006, the trial court declared that V.G. was a dependent child and that S.G. continued to be a dependent child. And, on May 18, 2006, CYS filed a petition to change the placement goal for S.G. and V.G. to adoption. A two-day hearing was held, during which several witnesses were heard. Based on the testimony that the children have continued to improve while in foster care, the children's need for stability and permanency in order to continue their progress, and Mother's inability to achieve the goals necessary for return of her children, the trial court granted the goal change to adoption. Mother filed a motion for reconsideration, which the trial court denied after entertaining oral argument. Mother then filed an appeal to the Superior Court.

C. Holding:

The Superior Court held that the evidence considered by the trial court was sufficient to support the change of the placement goal for the children to adoption. The focus of the courts determination is on the best interests of the children and not on Mother's progress.