HomeMy WebLinkAboutCP-21-JV-0288-2005
IN THE MATTER OF : IN THE COURT OF COMMON PLEAS
DESTINY SCOTT : CUMBERLAND COUNTY, PENNSYLVANIA
BORN 4/11/1996 :
A DEPENDENT JUVENILE : CP-21-JV-0288-2005
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, J., November 14, 2007 -
On August 27, 2007, this Court found by clear and convincing evidence that Destiny
Scott was no longer dependant and no longer required protective services. The Order further
awarded permanent lawful custody to the child’s maternal uncle and aunt for the 2007-2008
school year and scheduled various periods of visitation to her natural father. Ronald Scott, the
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child’s father, now appeals this Court’s decision on the following bases:
1. The Court erred as a matter of law in awarding permanent legal custody to the
Golads (hereinafter “Golads”) despite the fact that the Golads had no standing and
were not parties to the proceedings before the Court.
2. The Court erred as a matter of law in awarding permanent legal custody to the
Golads despite the fact that they had not acquired in loco parentis status with
regard to the child, Destiny Scott (hereinafter “Destiny”).
3. The Court erred as a matter of law in awarding permanent legal custody to the
Golads and the Court’s Order was not based on substantial evidence, since the
Golads were never evaluated by the custody evaluator, who had not visited the
Golads, conducted no psychological testing on the Golads, and had not observed
the Golads with Destiny.
4. The Court erred as a matter of law in awarding permanent legal custody to the
Golads and the Court’s Order was not based on substantial evidence, where the
custody evaluator concluded that both of Destiny’s natural parents were fit
parents and recommended that Ronald Scott have primary custody of Destiny.
5. The Court erred as a matter of law in awarding permanent legal custody to the
Golads and the Court’s Order was not based on substantial evidence, where the
Court awarded custody to the Golads despite the fact that Ronald Scott’s parental
rights had never been terminated and there was no basis for termination of his
parental rights.
1
See Statement of Matters Complained of on Appeal, filed Oct. 4, 2007.
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6. The Court erred as a matter of law in awarding permanent legal custody to the
Golads and the Court’s Order was not based on substantial evidence, where the
Golads never moved to intervene in the case and have never formally requested
custody of Destiny.
7. The Court erred as a matter of law in awarding permanent legal custody to the
Golads and the Court’s Order was not based on substantial evidence, where the
Court relied on hearsay evidence with respect to the Golads’ home environment.
8. The Court erred as a matter of law in awarding permanent legal custody to the
Golads and the Court’s Order was not based on substantial evidence, where
Ronald Scott is the natural father of the child and the only evidence of record
demonstrates that he is ready, willing and able to care for the child and that it is in
the best interest of the child for Ronald Scott to have primary custody as
recommended by the custody evaluator.
This opinion in support of the order compelling arbitration is written pursuant to Pa.
R.A.P. 1925(a).
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FACTUAL BACKGROUND
Ronald and Carol Scott met and began cohabitating in 1987, married in June 1989, and
separated upon the initiation of Carol Scott in July 1996, approximately three months after the
birth of the couple’s daughter, Destiny F. Scott. Mother filed for divorce in 1999 and a final
divorce decree was entered in March 2003.
Both parents have a very tumultuous history. Mother was diagnosed with AIDS in 1994,
suffers from bipolar disorder and agoraphobia, and has received treatment multiple times for
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substance abuse. Father has a criminal history that includes aggravated assault and armed
robbery. He served four and a half years for shooting an individual while intoxicated at a keg
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Pursuant to an Order of Court dated June 6, 2007, clinical evaluator Deborah Salem, CACD, LPC, completed a
custody evaluation, (hereinafter “Evaluation at __”), submitted Aug. 6, 2007. The majority of the factual
information for this opinion, all of which has been previously included in the record, shall be drawn directly from
her summary.
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Evaluation at 9.
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party, and spent an additional three years in prison for his offenses involving the armed robbery
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of an adult bookstore. Father has since remarried and currently maintains stable employment.
Destiny remained in the primary care of her mother following her parents’ separation in
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1999, but, on October 10, 2005, was placed in foster care on an emergency basis as a result of
her mother’s abuse of prescription medication. Following a hearing before the Juvenile Master
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on October 13, 2005, she was declared dependent and placed in foster care.
Prior to a December 8, 2005, hearing, father had requested a paternity test to determine
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whether he was in fact Destiny’s biological father. In January 2006, father requested that visits
and family therapy cease until the test results were received. The results obtained in March
confirmed his paternal status, yet he requested that visits and family therapy not resume until the
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summer of 2006. At that time he also expressed his willingness that the child be adopted by
Frank and Barbara Golad, (hereinafter “Golads”), Destiny’s uncle (mother’s brother) and aunt,
claiming he understood that it was Destiny’s mother’s “dying wish” that Destiny be raised by her
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maternal aunt and uncle. Father remained agreeable to the adoption goals until a dispute
erupted with the uncle, after which he changed his mind and demanded that the child be returned
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to him immediately.
At a permanency hearing in May 2006, Judge Guido ordered that the Golads have
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temporary custody of Destiny at their home in New Jersey. While living with the Golads,
Destiny has thrived. She maintains an excellent academic record, participates in cheerleading
4
Evaluation at 14. Father claims that he chose to rob the adult bookstore because no women and children would be
present.
5
Id. at 13.
6
Evaluation at 1.
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Master’s Report and Recommendations, ratified by Order dated Oct. 21, 2005.
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Notes of Testimony, hearing May 31, 2006, at 7.
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Id. at 7.
10
Id. at 7 & 27.
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Id. at 25-29.
12
Id. at 57.
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and softball, and has established a strong bond with the Golads, their three children, and her local
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friends.
Destiny remained at the Golad home throughout the 2006-2007 school year. Pursuant to
an Order of Court, she was discharged from the care and custody of the Golads and placed in a
state of temporary shared custody of her parents as of July 8, 2007. The alternating periods of
temporary custody continued through August 8, 2007, after which time another hearing was held
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in order to determine the custody of the child for the 2007-2008 school year.
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During the period of temporary custody and pursuant to an Order of Court, a custody
evaluation was ordered. In accordance with her report, Deborah Salem, the Court-appointed
evaluator, stated in testimony that it would be in the best interest of the child to stay in New
Jersey and continue to work on her relationship with her father throughout the 2007-2008 school
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year. Overall, the evaluation concluded that each parent loves Destiny and has a positive
relationship with her.
Clearly, as they have spent significant time together, Destiny and her mother are quite
comfortable around each other. However, Destiny tends to take a “parental” role with her
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mother and often acts as her mother’s caretaker. Mother does not possess a driver’s license and
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often suffers migraine headaches, arthritic pain, or is otherwise ill due to her medication.
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Multiple evaluators have expressed clear concern that mother’s mental and physical health
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Evaluation at 18.
14
See Order of Court dated June 6, 2007.
15
Id.
16
Id. at 26.
17
Evaluation at 12.
18
Evaluation at 9.
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Mother was evaluated both by Deborah Salem and Lee Marriot; Mr. Marriot worked with Mother in the TIPS
program.
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weigh strongly on Destiny. Mother is in favor of her daughter returning to New Jersey but is
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adamant that the father not receive primary custody.
While father has not spent as much time with Destiny, the Court-appointed evaluator
thought that the progress made in the relationship over the short time together was significant.
Father has a stable income, transportation, and relationship and has made strides to make his
daughter comfortable. Several examples of these efforts include allowing her to choose her
room décor at his home, purchasing animals for her, and engaging in activities with her such as
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going to the movies and out to restaurants. Destiny acts more like a child around her father; as
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opposed to a caretaker or director, as she does with her mother.
Destiny, who is 11-years-old, has made it clear that she would prefer to live in New
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Jersey during the school year and share time between her parents in the summers. She enjoys
her familial and social network in New Jersey and does not wish to change schools again. She
clearly loves her mother, but has expressed that her mother’s health continues to decline and she
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does not like to see her mother sick. She enjoys visiting with her father, but has stated that she
is not yet fully comfortable with him and would rather live with her mother if she cannot stay in
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New Jersey.
On August 8, 2007, this Court ordered that it is in the best interest of the child that
permanent legal custody be transferred to the Golads for the duration of the 2007-2008 school
year to allow the child time to further develop her relationship with her father. Father was
20
Notes of Testimony, hearing Aug. 8, 2007, at 8 & 32.
21
Id. at 41-43.
22
Id. at 45-46.
23
Id. at 14.
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Id. at 71.
25
Id. at 73.
26
Id. at 75-76.
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granted various periods of visitation and a schedule was produced by which each parent would
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be able to spend certain holidays and vacation periods with the child. Father now appeals.
DISCUSSION
Father has not disputed this Court’s ruling that the child is no longer dependant.
Accordingly, we are left with a basic custody dispute – basic does not however imply simple.
Pennsylvania law is clear that, in awarding custody, the primary concern of the Court must be the
best interest of the child. Having considered the testimony, evidence, and arguments of both
parties, this Court finds by clear and convincing evidence that it is in the best interest of
Destiny Scott that her primary custody for the 2007-2008 school year be awarded to the Golads.
Standing
Petitioner Ronald Scott has made much of the lack of standing of the Golads. We
disagree to this line of argument. While there has been no petition for custody, the Golads
clearly stand in loco parentis.
"In loco parentis" refers to a person who puts himself/herself in the situation of a lawful
parent by assuming the obligations incident to the parental relationship without going through
the formality of a legal adoption. To stand in loco parentis suggests two ideas: (1) the
assumption of a parental status, and (2) the discharge of parental duties. The rights and
liabilities arising out of the status of in loco parentis are the same as between parent and child.
L.S.K. v. H.A.N., 813 A.2d 872 (Pa. Super. 2002). Every custody situation is unique; therefore,
the showing necessary to establish in loco parentis status must be flexible and dependent upon
the particular facts of each case. Certain factors previously found to be significant to the
determination of in loco parentis standing are co-residency, duration of relationship, and whether
the biological parent agrees that the third party should play a parenting role. J.A.L. v. E.P.P., 682
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See Order of Court, filed Aug. 27, 2007.
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A.2d 1314 (Pa. Super. 1996).
There can be no doubt that the Golads have held themselves out as a primary caregiver
for the child and assumed the obligations of a parental relationship. For the past year the Golads
have cared for Destiny as a daughter and have accepted her into their home as one of their own.
Since this 11-year-old girl was living in their home, they have been discharging parental duties
such as administering discipline and providing clothing, food, transportation, and any other
needs their own children require of them. They are also fully aware that Destiny’s mother
desires her daughter to stay with them in the event that she would be unable to care for Destiny -
and they have shown themselves agreeable to this decision; as such, they held themselves out as
willing “parental figures.”
We are quite aware that a third party may not intervene and assume in loco parentis
status with respect to a child where the natural parent opposes such intervention, J.F. v. D.B.,
897 A.2d 1261 (Pa. Super. 2006), and that Petitioner is currently opposed to the Golads
obtaining custody of his daughter. This opposition however, is a relatively new development.
Until recently, Petitioner had no qualms about Destiny staying with her aunt and uncle and was
at one point willing to permit the full adoption of his daughter into the Golad family. We
accordingly reject any argument that Petitioner has been opposed to the Golads’ assumption of in
loco parentis.
Petitioner additionally argues that there is a lack of substantial evidence as to the quality
of the Golads’ care and their ability to care for the child’s well-being. We are of the opinion that
caring for the child for a year in which she has flourished immensely speaks volumes. Given
the travails of the young girl’s life, caused by her natural parents’ indiscretions and unlawful
behavior, such evidence is immensely weighty and stands strong without the necessity of
professional evaluation.
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Finally, we are aware that the Golads have not themselves petitioned for custody, yet we
do not consider this a hindrance to our decision to award them full custody of the child for the
2007-2008 school year. Because the most recent hearing was held in August, just before the
commencement of the school year, a rapid decision was necessary. In light of the evidence
before us, we decided that an immediate change of residence and school was not in the best
interest of the child. Additionally, considering Pennsylvania’s narrowly-focused standard, we
were confident that the impact of procedural formalities was lessened in favor of ruling in the
child’s best interest. The current Order is in place for the 2007-2008 school year during which
father was granted the lion’s share of school holiday time in order for the child to gradually
develop a trusting relationship with her father. After the school year the child will return to the
father’s home for the entire summer except for seven days. Since Destiny is no longer
dependent, the matter may then proceed as a private custody issue.
Best Interest of the Child
It is true that Pennsylvania law prefers to award custody to a child’s natural parents. J.F.
v. D.B., 897 A.2d 1261,1273 (Pa. Super. 2006)(“Even when standing to seek custody is
conferred upon a third party, the natural parent has a prima facie right to custody, which will be
forfeited only if clear and convincing reasons appear that the child's best interest will be served
by an award to the third party; thus, even before the proceedings start, the evidentiary scale is
tipped, and tipped hard, to the biological parents' side”)(citation omitted). However,
Pennsylvania law is not opposed to awarding primary custody to a third party rather than the
biological parent if it is in the best interest of the child. See Com. ex rel. Husack v. Husack, 417
A.2d 233 (Pa. Super. 1979); See also Albright v. Com ex. rel. Fetters, 421 A.2d 157 (Pa. 1980).
While a person seeking custody does not need to establish that the biological parent is unfit in
order to gain primary child custody, he or she must establish by clear and convincing evidence
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that it is in the best interest of the children to maintain that relationship or be with that person.
Jones v. Jones, 884 A.2d 915 (Pa. Super. 2005).
As has already been stated, the primary consideration in any child custody proceeding is
to determine the best interests of the children. Such a determination not only includes an
investigation into the child’s physical well-being, but also her intellectual, spiritual, and moral
well-being. Masser v. Miller, 913 A.2d 912, 918 (Pa. Super. 2006); Swope v. Swope, 689 A.2d
264, 265 (Pa. Super. 1997). In determining the best interest of a child, her preference, while not
controlling, is a factor to be considered as long as it is based on good reasons. A court must
consider a child’s maturity and intelligence when assessing the weight to be accorded the child's
preference, Masser, 913 A.2d at 919-20, with increased weight being accorded the preference as
the child grows older. Tomlinson v. Tomlinson, 374 A.2d 1386, 1389 (Pa. Super. 1977).
In the current case, we are sufficiently convinced that it is in the best interest of the child
to award permanent legal custody to Frank and Barbara Golad for the 2007-2008 school year.
Destiny is flourishing in her current home. She is excelling academically, physically, socially,
and mentally. She has expressed a strong desire to stay with the Golads – even over her mother
whom she clearly loves very much. She has said that she wishes to stay in New Jersey because
she is doing well and feels accepted by the family and those around her. She considers her
cousins as her brothers and sisters. When presented with the question of where she would prefer
to live, she made no qualms about her choice of remaining with the Golads. Her mother is not
opposed to this choice and has expressed her clear wishes that the Golads care for her daughter
in the event of her inability to do so. Destiny is mature for her age, as is to be expected
considering the difficult circumstances she has already endured in her young life. Accordingly,
we give significant weight to her preferences.
Beyond Destiny’s personal choice, we are not convinced that staying with either of her
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biological parents is in her current best interest. To force a young girl with significant potential
to watch her mother suffer debilitating illness is a decision which we are not willing to make. It
is quite clear from the facts that Destiny is burdened by the care for her mother and the hardship
of living with someone who is constantly in pain. And, while we are aware that her father has
made significant strides to establish a relationship with his daughter, father has had a very
minimal amount of time with Destiny up until this point. We are unwilling to uproot a child who
is doing well in her environment simply because the father has decided he would finally like to
have a relationship with his daughter – though previously this idea did not strike him as
appealing. He will be able to continue bonding with her during the coming summer, after which
time, should he still want to pursue custody, he can do so.
There is no question that the father, as a result of his new marriage, has made significant
strides in altering his life style and establishing a stable home. But these positive actions have
come at the end of a period of over 9 years when the Father had very little contact with the child.
This Court sat 3 feet from this very beautiful, intelligent, 11-year-old girl who presented a letter
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to the Court; and who in response to the question: “tell me about your relationship with your
dad?”, stated: “I saw him like once in the past couple of years and then when I was like, I think 4
or 5, I didn’t see him for a long period of time. And I just didn’t have any contact with him. I
remember I think he was in jail and was writing me letters. Then, all of a sudden, they just
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stopped. So I really didn’t know what happened to him.” In her letter she plainly writes: “It is
not that I don’t like my dad it is just he wasn’t there all my life now he appears. I DON’T
WANT TO LIVE WITH MY DAD!”
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Guardian ad Litem Exhibit #1.
29
Notes of Testimony hearing August 8, 2007, at 74.
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It is often said that proceedings such as this are to determine what is in the best interest of
the child and not what is in the best interest of the parent. This case is very analogous to the case
of In re KC, 903 A.2d 12 (Pa. Super. 2006). In In re KC, the Court chose not to impose a forced
relationship on a child when the father had apparently failed to establish a loving bond with the
child prior to her placement. This is what has happened in this case. Undoubtedly, father would
now like this Court to overlook his past indifference to this child and assuage his guilt by saying
he is now a deserving parent. Such a decision would make the father feel good. In short, it
would be in his best interest. Unfortunately for him, father should realize that after being out of
a child’s life for over 9 years, that it may take a significant period of time to establish a loving
bond with his child.
It should be clearly noted that we are not denying all contact between the two. On the
contrary, we encourage both to continue on in developing their relationship as father and
daughter. We are simply holding that it is not in the child’s best interest that father be awarded
primary custody at this time. We agree with Ms. Salem that it is in the best interest of the child
to stay in New Jersey and continue to work on her relationship with her father throughout the
school year and next summer. He will still be able to foster a relationship with his daughter and
perhaps in the future awarding him primary physical custody will be appropriate. Today, it is
not. Accordingly, we hold that primary custody over Destiny Scott be awarded to the Golads
and that she remain in New Jersey for the 2007-2008 school year.
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CONCLUSION
After careful examination of the record presented in this case, this Court finds that Frank
and Barbara Golad possess in loco parentis standing. We further find by clear and convincing
evidence that it is in the best interest of the child to remain in the permanent custody of the
Golads for the duration of the 2007-2008 school year, after which time she shall return to her
father’s home for the 2008 summer. As neither party disputes that Destiny is no longer a
dependent, any further custody matters can be dealt with in a private custody proceeding.
BY THE COURT,
__________________________
M.L. Ebert, Jr., J.
Lindsay D. Baird, Esquire, CCC&YS
Jacqueline M. Verney, Esquire, GAL
Kate Cramer Lawrence, Esquire, and
Susan C. Plano, Certified Legal Intern, for Mother
Elizabeth Goldstein, Esquire, for Father
CCC&YS
CASA
J. Probation
Court Administrator
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