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HomeMy WebLinkAbout2007-6292 Civil DORIS MAE HOLT-KENNEDY : IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : SARAH E. FLYNN TRIPP AND : JAMES WALSH, : DEFENDANTS : 07-6292 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., March 20, 2008:-- On October 27, 2007, Doris Mae Holt-Kennedy, age 60, and her husband Lee E. Kennedy, age 55, filed a complaint in custody against her daughter Sarah E. Flynn Tripp, age 42, and James Walsh, age 56. Tripp and Walsh are the parents of Luke James Flynn, age 6, born October 28, 2001. A hearing was conducted on February 28, 2008. Luke was born in Scranton, Pennsylvania. His parents, who never married, lived 1 together after his birth. They separated in August, 2003, when the mother took Luke 2 to live in the home of her maternal grandmother, Doris Fries, in Victorville, California. The father never saw Luke again until the hearing on this case on February 28, 2008. Nor has he provided any support for him, or contacted him in any way. __________ 1 The mother was married to Patrick Flynn before she lived with James Walsh. Luke is her only child. 2 Doris Kennedy was present when Luke was born. When the mother, Luke and the 07-6292 CIVIL TERM The mother and Luke lived in her grandmother’s home in Victorville until January, 2004, when they moved into an apartment in the area. The mother was involved with Daniel Tripp and he often stayed in her home. In June of 2005, the mother was having significant financial difficulties and about to be evicted from a home she and Luke had moved into after living in the apartment. She called her mother who lives in Newville, Cumberland County. She told her that Luke was aggressive and that she could not handle him. She asked her to come to California and take Luke to Pennsylvania. Luke’s grandmother went to California and took the following custody agreement which the mother signed on June 19, 2005. KNOW ALL MEN BY THESE PRESENTS, SARAH E. that I, FLYNN TRIPP, of 22839 Lone Eagle Road, Apple Valley, California, the LUKE JAMES FLYNN, natural parent of the minor child, born October 28, LUKE JAMES 2001, hereby grant, give and set over custody of said FLYNN,DORIS MAE HOLT-KENNEDY, to of 430 Shippensburg Road, Newville, Pennsylvania, to exercise such custody while said child is in her care and control to the same extent and with the same rights, privileges, duties and responsibilities as would otherwise be vested in the above- SARAH E. FLYNN TRIPP, LUKE named natural parent, of the said JAMES FLYNN. Said duties and responsibilities to include but not be limited to provision of proper health and medical care, authorization of medical care including consent and authorization for all necessary, ordinary and extraordinary medical care provided by a physician, hospital, clinic, or other properly trained medical personnel. DORIS MAE HOLT-KENNEDY And further imposing upon all of the responsibilities of proper supervision and care to secure the best interests and welfare of said minor child. The mother testified that it was her intent to have her mother care for Luke until she was able to adequately care for him, which she felt would be by the end of the father lived in Scranton she would see Luke about once a month. -2- 07-6292 CIVIL TERM summer of 2005. The grandmother testified that it was her intent to give Luke back to his mother when she got her life together. On June 22, 2005, the grandmother brought 3 Luke into her three bedroom home with her husband Lee Kennedy. Luke was very aggressive; he would hit his grandmother; he was afraid; and he often cried. He was not potty trained. He was thin but physically well. The grandmother had Luke evaluated at the Capital Area Intermediate Unit. They accepted him for enrollment for speech and behavioral therapy which began in August, 2005. Luke’s aggressiveness quickly dissipated. When he started at the Capital Area Intermediate Unit, he had very limited vocabulary and speech. Luke made good progress there, and he started kindergarten in August, 2007. He is doing alright although it takes him more time to comprehend things. He works hard but has trouble remembering. He has two special speech sessions in kindergarten each week. His kindergarten teacher testified that he was not yet close to not needing additional instruction. The school has an action plan to improve his writing and vocabulary. While it is too early to tell, it may be appropriate 4 for Luke to repeat kindergarten next year. The grandmother testified that for the first year Luke was with her the mother would call from California approximately once a month. She would ask if Luke was __________ 3 She married Kennedy in 1985. He works for Lucent Technology. The grandmother’s first husband, who died, adopted Sarah. The grandmother works by providing care each day for two hours in the home of an elderly woman. 4 The grandmother attends Luke’s kindergarten class twice a week. She takes him to church each week where he interacts well with children in his Sunday school class. -3- 07-6292 CIVIL TERM happy but never made inquiry into the details of his life. After the first year the mother called more often. The mother never sent any cards or gifts until the second year. She never mentioned regaining custody until just before Luke started kindergarten in the fall of 2007. When the grandmother told the mother that Luke was still having issues, the mother said that she would still like to have Luke, but no date was set. On October 9, 2007, the mother, who had not seen him since July 19, 2005, came to the grandmother’s home unannounced and demanded to immediately take Luke to California. The mother had taken a bus from California to Harrisburg, and a taxi to the grandmother’s home. The taxi driver was waiting. Luke was scared and crying. The grandmother would not let the mother take him. The police were called. Things finally calmed down when the mother agreed to leave without Luke. The grandmother then allowed her to come into her home where the mother spent some time with Luke. After 5 the mother left, she called her husband, Daniel Tripp, who was in California. He called the grandmother, was very hostile, and made threats against her. The mother returned to California. She next called Luke on October 27, 2007, which was the day before his sixth birthday. The mother testified that she has always called Luke regularly. She testified that she only signed the custody agreement because the grandmother had to have legal __________ 5 She married Tripp on April 28, 2006. -4- 07-6292 CIVIL TERM authority to obtain medical services for him. She testified that at the end of the summer of 2005, the grandmother asked to extend her time with Luke until January, 2006, and she agreed. She testified that what triggered her coming to Pennsylvania on October 9, 2007, was that two days earlier she received paperwork from the grandmother seeking her consent to an adoption. The mother came to Pennsylvania again in December, 2007. On December 7, the grandmother allowed her to spend time in her home with Luke between 4:00 p.m. and 9:00 p.m., during which they had dinner. The mother spent time with Luke at the grandmother’s home the next day between 9:00 a.m. and 2:00 p m. The mother was with Luke again when this hearing was conducted at the end of February, 2008. The mother has been calling Luke each Sunday evening. The grandmother testified that Luke knows his mother and loves her. She testified that Luke is now a happy little boy but he still has issues. She feels that he needs more help to get him to appropriate age level. Daniel Tripp, age 48, has a 2003 conviction for assault with a deadly weapon (a vehicle) for which he went to prison. He was paroled in July, 2004, but he went back to prison for six months on a parole violation between October, 2005 and March, 2006. His current parole will end in April, 2008. He has three children, none of whom he sees. The mother testified that Luke got along with him during the period she was seeing him before Luke came to Pennsylvania. The testimony of Daniel Tripp was -5- 07-6292 CIVIL TERM 6 taken by phone. His rambling discourses were to a great extent unintelligible. Doris Fries, age 78, Luke’s feisty great-grandmother, testified that she raised the mother from ages thirteen to twenty-one. The mother contacted her in the summer of 2003 and asked if she and Luke could live with her and start a new life. Fries agreed. After the mother moved out of the Fries’ home to an apartment in January, 2004, she struggled. Fries testified that the mother could not handle Luke and ultimately decided to let him live with the grandmother in Pennsylvania so that she could get along with her life. It was Fries impression that, at that time, the mother was more interested in Daniel Tripp then she was in Luke. Fries testified that the mother now comes to her 7 home at least once a week. She often asks to borrow money and asks for food. The mother is a manager/sales associate for a newspaper where she has worked for the last five years. Tripp works in a warehouse, and has a paper route, for the same paper. She earns approximately $3,800 a month and he earns approximately $1,500 a month. They live in a leased three bedroom home in Apple Valley which is about seven miles from the great-grandmother’s home in Victorville. Apple Valley is in __________ 6 Luke’s father, James Walsh, testified after he heard the testimony of the mother and grandmother. He made the unbelievable statement that if Luke could not live with his mother, he would prefer that he be in foster care rather than with his grandmother. This from a man who has not seen his son for over five years, not contacted him in any way, and not provided any support to the mother or the grandmother for his care. 7 In rebuttal, the mother testified that she once asked Fries for $20. She testified that Fries goes to Food Pantries so she has extra food. The mother knows a lot of young girls where she works so when Fries offered, she would take the food, but it was not for her. She testified “I just didn’t want to make her feel bad about that, but it was not for -6- 07-6292 CIVIL TERM the high desert in southern California. The mother wants to enroll Luke in a private Christian (Baptist) school in Apple Valley that has all grades through 12. The paramount concern in a child custody case is the best interest of the child based on a consideration of all factors that legitimately affect the child’s physical, Swope v. Swope, intellectual, moral and spiritual well-being. 689 A.2d 264 (Pa. K.B. II v. C.B.F., Super. 1997). In 833 A.2d 767 (Pa. Super. 2003), the Superior Court of Pennsylvania stated: With regard to a custody challenge by a third party, our Pennsylvania courts have expressed a strong preference for the rights of biological parents. In Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000), our Supreme Court articulated this view, stating: It is axiomatic that in custody disputes, “the fundamental issue is the best interest of the child.” In a custody contest between two biological parents, “the burden of proof is shared equally by the contestants….” Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly the parents have a ‘prima facie balanced. In such instances, “ right to custody,’ which will be forfeited only if ‘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.” Id. at 339, 744 A.2d at 1258 (2000) (citations and quotations omitted); see also T.B. v. L.R.M., 753 A.2d 873 (Pa.Super.2000) (holding that biological parents have a prima facie right to custody over third persons) aff’d, 567 Pa. 222, 786 A.2d 913 (2001). (Emphasis added.) The mother maintains that her life has stabilized and that she now has an appropriate home with the financial means to care for Luke. The grandmother me.” -7- 07-6292 CIVIL TERM maintains that the mother has not made sufficient progress to adequately care for Luke. There is no doubt that the mother was not able to provide adequate care for Luke leading up to the transfer to his grandmother in June, 2005. The grandmother created a stable and organized structure for Luke which quickly resulted in the cessation of his behavioral problems. She immediately obtained the services that were necessary to help him, and he is still in need of special services. Luke was just short of three years eight months old when the mother turned him over to the grandmother. On October 9, 2007, when the mother showed up unannounced at the grandmother’s home and demanded to take Luke to California, he was almost six years old and she had not seen him for a little over two years and three months. No matter how frustrated the mother may have been upon learning that the grandmother wanted to keep Luke permanently, which was a change from her position at the time she took Luke, this precipitous action was not well thought out. Likewise, the grandmother should have discussed with the mother her desire to adopt Luke rather than taking the precipitous action of sending her a form to consent. What has changed since Luke came to Pennsylvania on June 22, 2005, is that the mother has married Daniel Tripp and together they now have stabilized their lives with sufficient earnings to maintain an adequate leased home in Apple Valley. The instability that led the mother to ask the grandmother to take Luke for what both considered a temporary period has ended. The issue; therefore, is not whether the grandmother would make a better parent than the mother. Rather, it is whether the -8- 07-6292 CIVIL TERM mother now has the ability to adequately care for Luke. We believe she can and that she can address his special needs. The mother has not forfeited her prima facie right to custody of Luke. There are no convincing reasons that Luke’s best interest will be served by awarding custody to the grandmother. Given the circumstances, however, we will not order a transfer to the mother until Luke completes this kindergarten year. 8 For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of March, 2008, the complaint of Doris Mae Holt- Kennedy and Lee E. Kennedy for primary physical custody of Luke James Flynn, born IS DENIED. October 28, 2001, Unless the mother and the grandmother agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Doris Mae Holt-Kennedy, the mother may pick up Luke in Newville and take him to her home in Victorville, California, where she shall have custody. By the Court, Edgar B. Bayley, J. __________ 8 The grandmother did not seek partial physical custody in case Luke was returned to the custody of his mother. She had standing to seek partial physical custody. 23 Pa.C.S. § 5313(a). The mother testified that she would agree to the grandmother having some partial physical custody of Luke. That is certainly in Luke’s best interest. -9- 07-6292 CIVIL TERM Richard L. Webber, Jr., Esquire For Plaintiffs Marcus A. McKnight, III, Esquire For Sarah E. Flynn Tripp :sal -10- DORIS MAE HOLT-KENNEDY : IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : SARAH E. FLYNN TRIPP AND : JAMES WALSH, : DEFENDANTS : 07-6292 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this day of March, 2008, the complaint of Doris Mae Holt- Kennedy and Lee E. Kennedy for primary physical custody of Luke James Flynn, born IS DENIED. October 28, 2001, Unless the mother and the grandmother agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Doris Mae Holt-Kennedy, the mother may pick up Luke in Newville and take him to her home in Victorville, California, where she shall have custody. By the Court, Edgar B. Bayley, J. Richard L. Webber, Jr., Esquire For Plaintiffs Marcus A. McKnight, III, Esquire For Sarah E. Flynn Tripp :sal 07-6292 CIVIL TERM -2-