In the Int. of: G.E., a Minor

• Court: Superior Court of Pennsylvania
• Decided: August 25, 2022
• Docket: 357 MDA 2022
• Status: Unpublished

Opinion

J-S18020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INT. OF: G.E., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: S.P., MOTHER : : : : : : No. 357 MDA 2022

Appeal from the Dispositional Order Entered January 28, 2022 In the Court of Common Pleas of York County Juvenile Division at No(s): CP-67-DP-0000316-2021

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 25, 2022

In this dependency case, S.P. (“Mother”) appeals from the dispositional

order granting her partial legal and physical custody of her son, G.E. (“Child”).

Mother argues the court erred in awarding any legal or physical custody to the

kinship care resources with whom Child had been residing during the

dependency case. We affirm.

In July 2021, Child (born August 2007) was living with his father

(“Father”), Father’s paramour (“Paramour”), and Paramour’s minor child. The

police arrested Father and Paramour on allegations that they had drugged

Child and Paramour’s child and performed sex acts on them. See Order of

Adjudication and Disposition, 8/13/21, at 1. Father was subsequently charged

with dissemination of photo/film of child sex acts and child pornography. Id.

The court held a shelter care hearing, at which it found that Mother was

residing in a motel room with her two other children, who were one and six J-S18020-22

years old, and that Mother had not seen Child in at least several months. See

Recommendation for Shelter Care Order, 7/26/21, at 2. The court transferred

full legal and physical custody of Child to the York County Children and Youth

Services Agency (“the Agency”). The court placed Child in kinship care with

Paramour’s parents (“Kinship Parents”). Id.

Shortly thereafter, the court adjudicated Child dependent, finding Child

was “without proper care or control, subsistence, education as required by

law, or other care or control necessary for his physical, mental, or emotional

health, or morals.” See Order of Adjudication and Disposition at 2; see 42

Pa.C.S.A. § 6302. The court ordered Mother to “begin to have visitation as

soon as possible,” and ordered the placement goal to be “return to parent or

guardian” with a concurrent goal of “[p]lacement with a [l]egal [c]ustodian.”

Order of Adjudication and Disposition at 3.

The court held a status hearing in November 2021 and ordered that

Child’s placement be transitioned to Mother “once she has secured appropriate

housing.” Status Review Order, 11/3/21, at 2. It found Mother had not visited

Child in a month and ordered Mother “able to have unsupervised visitation

with [Child].” Id. at 1. The court further provided, “If [Child] wishes to visit

[M]other over the weekend or upcoming holiday, the Court is agreeable to any

visitation that can be scheduled between [Child] and [M]other.” Id. at 3.

Following a permanency review hearing in December 2021, the court

entered an order finding that Mother had obtained suitable housing, but that

Mother’s contact with Child had been inconsistent. Permanency Review Order,

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12/29/21, at 1, 4. The court ordered the placement goal for Child remain as

“to return to parent or guardian,” but changed the concurrent placement goal

to adoption. Id. at 2. The court ordered Child to spend at least three weekends

with Mother in the following month. Id. The court stated, “[W]e’re going to

see how [Child] adjusts to weekends with his mother. . . . [Child] wants to

stay where he is with [Kinship Parents], and I’m going to give this another

month.” N.T., 12/29/21, at 24.

The court held a dispositional hearing on January 28, 2022. The Agency

reaffirmed that its recommendation was for Child to be reunited with Mother.

N.T., 1/28/22, at 5. Mother, through counsel, argued that the finding of

dependency had been in relation to allegations against Father, and that the

court had already determined that Mother had achieved the goal of obtaining

suitable housing. Id. at 10. Mother therefore opposed “any custody being

invested in the [Kinship Parents].” Id.

However, Child advised the court through counsel that he “wants to stay

put where he is[.]” Id. at 8. Child’s counsel also argued that Child is “working

on his bond with his mother, and the least amount of disruption in his life is

what he wants.” Id. at 13. Child’s guardian ad litem similarly argued that

placing Child with Mother would require Child to change school districts, and

accordingly, change his school-based therapist, and that Child “is maintaining

stability with [Kinship Parents] who he’s comfortable with and clearly bonded

with. Additionally, in their home [are Paramour’s child and sibling], who

[Child] views as siblings of his own.” Id. at 14-15.

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The court stated it would issue a custody order giving partial custody to

Kinship parents and partial custody to Mother in the form of three to four

weekends a month. Id. at 12. The court explained, “[I]f Mother wants more

time later . . . anybody can just bring a petition to modify into custody court,

and we’ll handle it in custody court. That way the Agency is not spending their

valuable resources on this case anymore[.]” Id. Mother objected that “kinship

status through dependency court does not confer standing for custody,” to

which the court responded that “standing for custody would be that [Child]

has lived [with Kinship Parents] for more than six months and all of those

sort[s] of things.” Id. at 16-17. Mother also argued, “I’m not sure that we had

reunification with Mother.” Id. at 17.

Following the hearing, the court entered two orders. The first order was

a dispositional order. It stated that “Legal Custody of the Child shall remain

with the Mother, [Kinship Parents]. Physical Custody of the Child shall return

to the Mother, [Kinship Parents].” Dispositional Order, 1/28/22, at 1. It stated

Mother had obtained sufficient housing and had been having consistent

visitation with Child on the weekends. Id. at 2. However, the order stated the

court found it was “in the best interest of the child to remain in the primary

physical custody of [Kinship Parents]” and provided, “Mother shall have rights

of custody 3 weekends per month.” Id. It provided that Father have

supervised contact with Child in a therapeutic setting, and that Child have

supervised contact with Paramour. It further stated, “The adjudication of

dependency and juvenile court jurisdiction are hereby terminated.” Id.

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The second order also stated, “The adjudication of Dependency and

Juvenile Court Supervision . . . is hereby terminated.” Order for Termination

of Court Supervision, 1/28/22, at 1. The order further stated the Agency’s

legal and physical custody of Child shall be discharged. Id. It stated Child had

“been reunified with the Guardian and Mother, and the circumstances which

necessitated the dependency adjudication and placement have been alleviated

as to Mother.” Id.

In its Rule 1925(a) opinion, the court explained that it had given shared

legal custody and primary physical custody of Child to Kinship Parents because

that was in Child’s best interest and was “best suited to [Child’s] safety[ ]and

his well-being.” Trial Court Opinion, 3/22/22, at 6, 10. The court observed

that Mother did not exercise her right to visitation often or regularly, and

therefore Child “barely knows Mother and . . . does not have a strong bond

with Mother at this time.” Id. at 9. Conversely, the court found Child “has

stability, enjoys being placed with the minor child he has lived with for the

past two years, and is bonded to [Kinship Parents].” Id. at 4. The court

recounted that Child, who was 14 years old, continually requested to remain

with Kinship Parents. The court concluded, “In consideration of [Child’s] strong

bond with [Kinship Parents], his desire to remain with the children that he

views as his siblings, the fact that he is doing well physically and mentally,

and his own request to preserve the stability he has found with [Kinship

Parents], the Court ordered that [Child] would be unified with guardian and

with Mother.” Id. at 4-5; see also id. at 10 (the court stating it “has chosen

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to unify [Child] with his current Guardian and with Mother”). The court cited

42 Pa.C.S.A §§ 6351(a), (e)(1), and (f.1)(1), as bases for its authority to

place Child in accordance with his desires and his best interest.

Regarding the amount of custody awarded to Mother, the court took

judicial notice of an interim custody order entered in 2007, reflecting a

stipulation between Mother and Father giving Mother and Father shared legal

custody of Child and Mother partial physical custody to be exercised three

weekends per month. Id. at 2. The court therefore concluded that in ordering

Mother to have custody on three weekends per month, “Mother is restored to

the exact same custodial rights that she had prior to [Child]’s adjudication of

dependency[.]” Id. at 10. The court explained that either party could pursue

a change in custody via the filing of a petition, and further custody decisions

could be made through custody proceedings.

Mother timely appealed and raises the following issue:

Whether the trial court abused its discretion and/or erred as [a] matter of law when [in] its dispositional order and subsequent order for termination of court supervision it granted shared legal custody to Mother and kinship resource and primary physical custody to kinship resource and partial rights of physical custody to Mother. In so doing, did the trial court err and/or abuse its discretion by bestowing custody rights to the kinship resource, parties that would not have had standing to assert custody rights in a private custody matter?

Mother’s Br. at 6.

Mother argues the court erred in granting legal custody and physical

custody to Kinship Parents, because kinship status during dependency

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proceedings does not confer custody standing. Mother’s Br. at 18. She argues

that in In Int. of C.G., 735 A.2d 1226 (Pa.1999), the Supreme Court held

that “foster parents do not have standing to seek or contest awards of custody

concerning their foster children.” Id. She argues the Court noted that the

relationship between the child and his foster parents “is by its nature

subordinate to both the relationship between the agency and the child and . .

. between the child and the child’s parents.” Id. at 18-19 (quoting C.G., 735

A.2d at 1228). Mother further asserts that in K.R.R. v. M.M.R., No. 135 WDA

2021, 2021 WL 2935859 (Pa.Super. 2021) (unpublished memorandum), this

Court further held that kinship parents have no greater rights than foster

parents, and do not have standing to seek custody based on in loco parentis.

Mother argues that although the dependency statute instructs the court to

make decisions in a child’s best interest, “the leeway granted to the [trial

court] does not include the right to create rights for parties that would

otherwise not have them[.]” Mother’s Br. at 22.

Mother further contends the court’s finding that Child had been

“reunified with the Guardian and the Mother” was inaccurate because

“[r]eunification can only occur with a guardian if a guardianship existed prior

to the adjudication.” Id. at 15. Mother contends Kinship Parents had never

been Child’s legal guardians and “had no custody rights prior to [Child’s]

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adjudication.” Id. at 16. Mother claims had the court changed the goal from

reunification, she would have objected. 1

We review orders in dependency cases for an abuse of discretion. In re

R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We will accept the trial court’s findings

of fact and credibility determinations so long as they have support in the

record. Id. We employ a de novo standard of review over questions of law.

In re Adoption of S.E.G., 901 A.2d 1017, 1018 n.1 (Pa. 2006).

Section 6351 of the Juvenile Act governs the actions a court may take

in the disposition of a dependent child. The court may allow the child to live

at home, may grant temporary custody to a qualified individual or agency, or

may name an individual as a permanent legal custodian. 42 Pa.C.S.A. §

6351(a). As the dependency case proceeds, the court must conduct regular

permanency hearings at which it considers certain factors and consults with

the child to determine the permanency plan/goal for the child. Id. at §§

6351(e)(1), (f). The child’s permanency goal and ultimate disposition is to be

determined according to the best interest of the child. Id. at §§ 6351(e)(1),

(g).2 ____________________________________________

1 The guardian ad litem for Child submitted a brief in support of the trial court’s order, arguing that transferring custody to Kinship Parents was in Child’s best interest. Father submitted a letter stating he would not be filing a brief, and the Agency submitted a letter stating it is not taking a position in the appeal.

2Although a court may not adjudicate a child dependent when a non-custodial parent is ready, willing, and able to provide adequate care for the child, the court is obligated to decide the disposition of a dependent child solely (Footnote Continued Next Page)

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For a child younger than 16, the court has four options for a permanency

goal. First, it may elect to have the child “returned to the child’s parent,

guardian, or custodian.” Id. at § 6351(f.1)(1). Second, it may place the child

for adoption, where return to an existing parent, guardian or custodian is not

in the child’s best interest. Id. at § 6351(f.1)(2). Third, it may place the child

with a legal custodian, where the previous two options are not in the child’s

best interest. Id. at § 6351(f.1)(3). Finally, if none of the foregoing options

are in the child’s best interest, it may place the child with a fit and willing

relative. Id. at § 6351(f.1)(4). A court may simultaneously plan for two

conflicting permanency goals. In re R.J.T., 9 A.3d at 1186.

The third permanency option—placement with a legal custodian

(“PLC”)—is “an arrangement whereby a juvenile court discontinues court

intervention as well as supervision by a county agency, and awards custody

of a dependent child, on a permanent basis, to a custodian. Parental rights

are not terminated.” In re S.H., 71 A.3d 973, 977 (Pa.Super. 2013).3 When

it places the Child with a PLC, the court may grant the child’s parents visitation

rights and refer issues of support and continuing parental visitation to the

applicable division of the court. 42 Pa.C.S.A. at § 6351(a)(2.1). The use of the

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according to the child’s best interest. In re H.V., 37 A.3d 588, 593 (Pa.Super. 2012) (“in a change of goal proceeding, the trial court must focus on the child and determine the goal in accordance with the child’s best interest and not those of his or her parents”).

3 “The custodian is typically provided a financial subsidy for the child by the local county children and youth agency.” In re S.H., 71 A.3d at 977.

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term “permanent” means that the PLC will retain custody of the child after the

close of the dependency case. It does not mean that a parent or other party

with standing cannot petition the court for full legal and physical custody of

the child. See In re S.H., 71 A.3d at 979 (“This language does not confer or

divest parents of any substantive rights but rather addresses the proper venue

for visitation and support matters following the grant of a permanent legal

custody arrangement”). The court may only grant an individual PLC status

after determining “that neither reunification nor adoption is best suited to the

child’s safety, protection and physical, mental and moral welfare.” Id. at 973;

18 Pa.C.S.A. § 6351(f.1)(2).

When Child was adjudicated dependent, the court removed him from his

Father’s home—Child was not living with Mother and had not seen Mother in

at least several months. Prior to the onset of the dependency case, Kinship

Parents did not have, and had never had, custody of Child. During the

dependency case, the Agency had both legal and physical custody of Child.

See, e.g., Order of Adjudication and Disposition, 8/13/21, at 2. Therefore,

where the dispositional order under review states that legal custody “shall

remain” with Mother and Kinship Parents and physical custody “shall return”

to Mother and Kinship Parents, it is inaccurate.

Furthermore, in granting shared physical and legal custody to Mother

and Kinship Parents, the court did not “reunify” Child “with the Guardian and

Mother,” as it stated in the order terminating court supervision. The Rules of

Juvenile Court Procedure define “guardian” as “any parent, custodian, or other

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person who has legal custody of a child, or person designated by the court to

be a temporary guardian for purposes of a proceeding.” Pa.R.J.C.P 1120. Prior

to the dispositional order granting them shared custody of Child, Kinship

Parents did not meet the definition of “guardian,” and therefore Child could

not be reunified with them as such.

However, the court’s intent, as explained in its Rule 1925(a) opinion,

was to “unify” Child with Kinship Parents and create a guardianship role for

them, as it found this to be in Child’s best interest. See Trial Court Opinion,

3/22/22, at 4-5, 10. It awarded custody to Kinship Parents, who had not

previously had custody, granted Mother partial custody, terminated the

dependency case, and referred the matter to the division of the court which

handles custody matters. In doing so, the court, in essence, named Kinship

Parents as Child’s permanent legal custodians. The court was authorized to

transfer custody of Child to a permanent legal custodian, and to terminate

dependency proceedings on this basis, after it found this to be in Child’s best

interest. In re S.H., 71 A.3d at 973; 42 Pa.C.S.A. §§ 6351(a)(2.1), (f.1)(2).

Mother argues that the court erred in giving custody, and, accordingly,

standing to litigate custody, to Kinship Parents, because they previously had

none. However, while foster parents and kinship resources do not have

automatic standing in a dependency case, a dependency court has the power

to award custody to a fit individual or agency on either a temporary or a

permanent basis. 42 Pa.C.S.A. §§ 6351(a)(2)(i), (a)(2.1). The legislature has

thereby imbued the court with the power to “create rights for parties that

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would otherwise not have them,” insofar as granting PLC status confers

standing to litigate custody, when doing so would be in the best interest of

the child. Notably, Mother does not argue that giving custody to Kinship

Parents was not in Child’s best interest.

We recognize that the court did not use the term “permanent legal

custodian” in its order or opinion. Instead, as described above, the court

incorrectly stated it “reunified” Child with “the Guardian and Mother.”

However, the court’s intent was clear, and its disposition of Child was

authorized under the statute. To disturb the court’s order in this instance

would unnecessarily elevate form over function.

Mother also argues that the court never changed the permanency goal

from reunification. However, she advances no authority mandating that a

court may only enter a disposition matching the most recent permanency goal.

We observe that, to the contrary, the Supreme Court has held that the court

may go so far as to terminate parental rights, even where the permanency

goal remains reunification. See In re Adoption of S.E.G., 901 A.2d at 1026,

1029; see also In re R.J.T., 9 A.3d at 1183 n.6 (concluding that “an order

to continue, modify, or terminate the current placement, as required by the

statute, is synonymous with a decision to continue or change the permanency

plan goal”). Mother does not contend that she lacked notice of this possible

outcome such that her due process rights were violated, and we note that

while the primary permanency goal had been listed in previous orders as

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reunification with Mother, placement with a legal custodian and adoption had

also been listed as concurrent permanency goals.

Ultimately, Mother has not raised an issue requiring reversal. We

therefore affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/25/2022

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