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Cramer v. Zgela

April 1, 2009

DERRICK R. CRAMER, SR., APPELLANT
v.
JERI ANN ZGELA, APPELLEE



Appeal from the Order Entered June 26, 2008 In the Court of Common Pleas of York County Civil Division at No. 2004-FC-00354-Y03.

The opinion of the court was delivered by: Bender, J.

BEFORE: MUSMANNO, BENDER and CLELAND, JJ.

OPINION

¶ 1 Derrick R. Cramer, Sr. (Appellant) appeals pro se from the order dated June 26, 2008, that denied his request for visitation with his minor son (D.O.B. 3/30/01) at SCI--Huntingdon, where Appellant is serving a life sentence for first degree murder. We vacate and remand.

¶ 2 In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court set forth the following factual and procedural background of this case:

Father . filed a complaint for partial physical custody and visitation on February 19th, 2004. The complaint requested that Father have visitation with his minor son at the State Correctional Institution at Huntingdon where he is currently incarcerated, having been convicted of first degree murder and sentenced to life in prison on May 13, 2003. Father's PCRA petition was recently denied by the Superior Court by order entered June 20, 2008. (1769 MDA 2007) Mother [Jeri Ann Zgela], by her Memorandum for Custody Pre-Trial Conference, has indicated that she opposes taking the minor child to a correctional facility for visits; that Child was only 10 months old when Father was incarcerated; and requests that the minor child be permitted to make an informed decision about visits providing minor child is mature enough.

The matter was transferred to Perry County after the court learned that . Mother, resided in that county. The court in Perry County, by order of July 6th, 2005, denied Father's request for partial physical custody. Father then appealed that decision to the Superior Court to have the order vacated and remanded, which was granted on April 25th, 2006 by way of a nonprecedential decision. (See Cramer v. Zgela, 1762 MDA 2005).[*fn1 ] After learning that Mother was again residing in York County, Perry County transferred the case to York County by Order dated December 14, 2006.

Following a pre-trial conference held on April 16, 2007, in which Father participated via telephone, this court issued an Order directing that Father present evidence, pursuant to 23 Pa.C.S. §5303(b) and (c) indicating that Father no longer posed a grave threat of harm to the child. The Order also awarded sole legal and physical custody of the child to the Mother and stayed further proceedings until further order. On May 17, 2007, Father submitted some evidence to the court in the form of a Motion of Prima Facie Showing that Plaintiff Does Not Pose a Grave Threat of Harm to His Child.

Meanwhile, Father filed a mandamus action in the Pennsylvania Supreme Court, (126 MM 2007) which was dismissed by order entered October 26, 2007.

After several telephone communications by this Court to SCI Huntingdon to determine the appropriate personnel who may have information on the issue, we scheduled a hearing for June 26, 2008 to determine what counseling, if any, Father had received which may meet the requirements of 23 Pa.C.S. §5303(c). Both Mother and Father attended the hearing via speaker telephone, at which two individuals from SCI Huntingdon testified. Following the hearing, this court issued an Order dismissing Father's Petition for Custody, which is the subject of this appeal.

Notice of Appeal of the June 26, 2008 Order was received by this court on July 16, 2008. On July 16, 2008 Father was directed to file a statement of the matters complained of on appeal. Father filed his Statement on July 29, 2008 and filed an Amended Statement on July 30, 2008.

Trial Court Opinion (T.C.O.), 8/27/08, at 1-3.

¶ 3 In its opinion, the trial court noted that in addition to the requirement that it must consider the best interests of the child, citing Swope v. Swope, 689 A.2d 264 (Pa. Super. 1997), it was also guided by the mandate of 23 Pa.C.S. § 5303(b), which provides that "[i]f a parent has been convicted of or has pleaded guilty or no contest to an offense as set forth below, the court shall consider such criminal conduct and shall determine that the parent does not pose a threat of harm to the child before making an order of custody, partial custody or visitation to that parent.." Since Appellant's conviction for first degree murder is one of the enumerated offenses, the trial court recognized that section 5303(c) also applies. That section provides:

(c) Counseling.-In making a determination to award custody, partial custody or visitation pursuant to subsection (b), the court shall appoint a qualified professional to provide counseling to an offending parent described in subsection (b) and shall take testimony from that professional regarding the provision of such counseling prior to issuing any order of custody, partial custody or visitation. Counseling, required in accordance with this subsection, shall include a program of treatment or individual therapy designed to rehabilitate a parent which addresses, but is not limited to, issues regarding physical and sexual abuse, domestic violence, the psychology of the offender and the effects of abuse on the victim. If the court awards custody, partial custody or visitation to an offending parent described in subsection (b), the court may require subsequent periodic counseling and reports on the rehabilitation of the offending parent and the well-being of the child following an order relating to custody, partial custody or ...


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