K.R.W. v. J.R.R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.R.W., : IN THE SUPERIOR COURT OF
' PENNSYLVANIA
v.
J.R.R.,
Appellant : No. 1114 WDA 2016
Appeal from the Order June 23, 2016
in the Court of Common Pleas of Venango County
Civil Division at No(s): 810-2014
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 06, 2017
J.R.R. (Father) appeals from the June 23, 2016 order granting primary
physical and sole legal custody of the parties' minor children to K.R.W.
(Mother). We affirm.
Mother and Father are the biological parents of E.R.R., born in January
of 2011, and E.J.R., born in November of 2012 (collectively, the Children).
The parties never married and, for a substantial portion of their time
together before the birth of E.R.R., they resided in Allegheny County,
Pennsylvania. The parties' relationship has been tumultuous. Father has
repeatedly accused Mother of drug abuse, While Mother has alleged multiple
instances of physical and verbal abuse by Father. Both parties have sought
protection from abuse (PFA) orders against one another and Allegheny
County Children, Youth, and Family Services (CYF) was involved with the
*Retired Senior Judge assigned to the Superior Court.
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family while they resided in that county. In 2011, E.R.R. was placed
temporarily with maternal grandmother before being returned to the
parents' care later that year. By order dated January 19, 2012, the parties
agreed to share physical custody of E.R.R. in alternating seven day periods.
E.J.R. was born in November of 2012. In June of 2013, Mother left
Allegheny County to reside with her parents in Venango County,
Pennsylvania. Father continued living in Allegheny County until May of 2014
when he moved to Espyville, Crawford County, where he presently resides.
Despite living in different counties, the parties continued their romantic
relationship and would stay at each other's home during that parent's period
of custody. However, in May of 2014, the parties' romantic relationship
came to an end.
On July 17, 2014, Mother filed, in Venango County, a
complaint for custody, an emergency petition for special relief,
and a petition for approval of the transfer of the child custody
case from Allegheny County to Venango County. The trial court
held a hearing on the petitions on July 28, 2014. On August 1,
2014, the trial court entered an interim custody order assuming
jurisdiction (in Venango County) over the child custody case. In
addition, the trial court's order awarded the parties shared
physical custody, despite Father's concerns regarding Mother's
history of drug addiction, with the provision that the [C]hildren
would reside with their maternal grandmother while in Mother's
physical custody. The trial court also awarded Mother and Father
shared legal custody, and scheduled an evidentiary hearing for
September 12, 2014.
On December 23, 2014, following two days of hearings,
the trial court entered an adjudication and order awarding
Mother sole legal custody and primary physical custody of the
Children. The trial court further awarded Father partial physical
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custody, in accordance with a schedule. The trial court's
adjudication and order included the trial court's discussion of its
findings related to the sixteen factors (“custody/best interest
factors") set forth in [23 Pa.C.S. §] 5328(a) of the Child Custody
Act (“the Act").
Father timely filed a notice of appeal, along with a concise
statement of [errors] complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)[(i)] and (b), which was docketed at No.
395 WDA 2015. On February 2, 2015, the trial court filed an
Opinion pursuant to Pa.R.A.P. 1925(a). However, on March 26,
2015, Father filed a praecipe to withdraw his appeal. This court
marked the appeal as discontinued on March 27, 2015.
On March 25, 2015, Father filed in the trial court a petition
to modify custody and a petition for special relief. In the petition
to modify, Father asserted that Mother had been charged with
possession of marijuana and committing a theft with a small
child in her presence. Father asserted that he was having
difficulty in contacting Mother, that she apparently had moved,
and that the [C]hildren were often not with her. Father further
alleged that the [C]hildren were at risl<, in light of Mother's
history of illegal drug use. He requested that the trial court
modify the existing December 23, 2014 adjudication and order
as to Mother's sole legal and primary physical custody award. In
his petition for special relief, Father alleged the same
circumstances, and requested that he be awarded primary
custody[.] The trial court scheduled a hearing on Father's
petitions.
The trial court conducted a hearing on April 28, 2015. On
May 4, 2015, the trial court entered its adjudication dismissing
Father's petitions. Further, the trial court adopted its December
23, 2014 adjudication and order as its final order in the custody
matter. The trial court's adjudication did not include a discussion
of the section 5328(a) custody/best interest factors.
K.R.W. V. ].R.R., 136 A.3d 1033 (Pa. Super. 2016) (unpublished
memorandum at 1-3; footnotes and unnecessary capitalization omitted).
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Father filed a timely notice of appeal1 and, on January 19, 2016, a
panel of this Court vacated the trial court's May 4, 2015 order and remanded
the matter for the court to conduct a new evidentiary hearing and address
each of the section 5323(a) custody factors. Id. On January 26, 2016,
Father filed an application for reargument, which was denied by order dated
March 3, 2016. Order Per Curiam, 883 WDA 2015, 3/3/2016.
The trial court conducted a custody trial on April 22, 2016 and May 26,
2016. The parties agreed that during this new trial, the court “would not
receive any additional testimony relating to the custody dispute at the
current hearing predating the December 2014 adjudication, but could refer
to and use the transcripts of the 2014 and 2015 hearings." Trial Court
Opinion, 6/24/2016, at 3.
On June 24, 2016, the trial court issued findings of fact and entered an
order awarding primary physical and sole legal custody of the Children to
Mother. The trial court awarded Father partial physical custody of the
1 In the interim, between the May 1, 2015 hearing and this Court's
consideration of Father's first appeal, Mother had a child with her boyfriend,
J.H. Tragically, that child died of sudden infant death syndrome on
December 13, 2015. As a result, Mother sustained what the trial court
characterized as “severe emotional trauma" and, ultimately, committed
herself to a mental health facility for a period of approximately 6 days in
February of 2016. Trial Court Opinion, 6/24/2016, at 3. Testimony
regarding Mother's mental health, including the discharge form completed by
her treating psychiatrist following her self-commitment, was admitted during
the 2016 trial in this matter.
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Children for three consecutive weekends out of every four, and three non-
consecutive one-week periods in the summer months.
Father timely filed the instant notice of appeal and concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i), and
the trial court filed an opinion.
On appeal, Father asks this Court to consider whether the trial court's
decision to award Mother primary custody was in the best interest of the
Children. Father's Brief at ix. Specifically, Father sets forth the following
issues for our review, which we have reorganized for ease of disposition.
1. Was the trial court's finding that Mother would be more
cooperative in allowing the Children to have a relationship with
[Father] than he would be allowing them to have a relationship
with her supported by substantial evidence?
2. Is the trial court's finding that Mother would better support
the Children's educational needs supported by substantial
evidence?
3. Is the trial court's finding that the parties are equally stable
supported by substantial evidence?
4. Is the trial court's finding that the parties have equal abilities
to parent with regard to their mental and physical health
conditions, as well as their history of drug and alcohol abuse
supported by substantial evidence?
5. Is the trial court's finding that Mother has not used illegal
drugs in several years supported by substantial evidence?
6. Did the trial court properly weigh the current behavior of the
parties since the litigation has begun?
Id. at ix-x (suggested answers and unnecessary capitalization omitted).
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We set forth our well-settled standard of review when considering a
child custody order.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court's deductions or
inferences from its factual findings. Ultimately, the test is
whether the trial court's conclusions are unreasonable as shown
by the evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
E.R. v. ].N.B., 129 A.3d 521, 527 (Pa. Super. 2015) (citations and
quotations omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount." Id. (citations and quotations omitted). The factors to
be considered by a court when awarding custody are set forth at 23 Pa.C.S.
§ 5328(a).
(a) Factors._In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party.
(2) The present and past abuse committed by a
party or member of the party's household, whether
there is a continued risk of harm to the child or an
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abused party and which party can better provide
adequate physical safeguards and supervision of the
child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child's
education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based
on the child's maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic
violence where reasonable safety measures are
necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate
with one another. A party's effort to protect a child
from abuse by another party is not evidence of
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unwillingness or inability to cooperate with that
party.
(14) The history of drug or alcohol abuse of a party
or member of a party's household.
(15) The mental and physical condition of a party or
member of a party's household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
Instantly, the learned trial court, Senior Judge H. William White, set
forth a thorough analysis of all of the section 5328 factors. See Trial Court
Opinion, 6/24/2016, at 16-32. It determined that ten factors (2, 4, 5, 8, 9,
11, 12, 14, 15, and 16) were neutral or applied equally to both parents;
three factors (2.1, 6, and 7) were not relevant or considered; four factors
(1, 3, 10, and 13) weighed exclusively in favor of Mother; and none weighed
exclusively in favor of Father.2 After careful consideration, the trial court
concluded that awarding primary physical custody to Father would not be in
Children's best interest. On appeal, Father takes issue with several of the
trial court's factual findings. According to Father, the trial court abused its
2 While the trial court determined that both parents satisfied the necessary
criteria with respect to factors 11 (proximity of the parties' residences) and
12 (ability to care for and make childcare arrangements for the Children),
the trial court clearly weighed these factors in favor of Mother. See Trial
Court Opinion, 6/24/2016, at 26-29. Nonetheless, we include factors 11 and
12 in the list of neutral factors and note that the court's analysis in this
regard is not at issue in this appeal.
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discretion with respect to subsections 5328(a)(1), (3), (4), (9), (10), (14),
and (15). We address these claims sequentially.
Subsection 5328(a)(1)
Father begins by arguing that the trial court's conclusion with respect
to subsection 5328(a)(1) (regarding which party is more likely to encourage
contact between the Children and the other parent) is in error. Father's Brief
at 29. The trial court held as follows with respect to this subsection.
On this factor we come down strongly on the side of
[Mother]. The proceedings in this court began with a petition for
emergency relief filed by [Mother] because [Father] was refusing
to allow [Mother] to take the younger child of the parties,
[E.J.R.], because he contended that she was not able to care for
the [C]hildren. His position all along has been that [Mother] is a
drug addict and is not safe with the [C]hildren. The court's
finding is that [Mother] has appropriately addressed her drug
issues and at the hearing in late 2014 we received testimony
from Dr. Kahler that we considered credible and controlling. We
do conclude [Mother] has not used illegal drugs since before she
admitted herself to drug rehab in 2013. Dr. Kahler confirms that
[Mother] has been screened clean during her frequent visits to
his office. [Mother] has demonstrated more respect for
[Father's] parenting skills than [Father] has demonstrated
towards [Mother]. [Mother] has offered frequently to expand
[Father's] time with the children. Significantly when [Mother]
was hospitalized, she suggested that [Father] should take the
[C]hildren and it took him two (2) days to pick up the [C]hildren.
Since the late 2014 hearing and adduced in the testimony in the
more recent hearings in 2016, [Father] seems more supportive
of [Mother's] efforts to parent and has stated that the two of
them[,] when they communicate between themselves[,]
communicate well. He said it is only when they get close to
litigation or close to court dates that she seems to become
unwilling to communicate. Hopefully, the conclusion of the
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proceedings will allow both parties to be more open with each
other.
Trial Court Opinion, 6/24/2016, at 17-18 (unnecessary capitalization
omitted). The court also noted that
[t]he [C]hildren are both always glad to see [Father] at the start
of his custody time. There was testimony the [Children] are not
always glad to see [Mother] at the start of her custody time. The
paternal grandmother, [D.R.], and [Father] testified that at
times [E.R.R.] does not want to go with [Mother]. So much so
that she has had to chase [E.R.R.] throughout the house as
[E.R.R.] hides. This testimony was contradicted by [Mother] and
we accept [Mother's] version as credible, that [D.R.] has been
seen by [Mother] hugging [E.R.R.] at the time of the exchange
and consoling her [by] saying words to the effect, “I don't want
you to go, but you have to go." We find that conduct is
debilitative of [E.R.R.'s] relationship with [Mother] and certainly
inflames the exchange. Both parents should be promoting the
bond with the other parent. In this case having the paternal
grandmother telling [E.R.R.] she would not have to leave but for
the court order or [Mother] is doing damage and is wrong. We
accept [Mother's] testimony on that point.
Id. at 5-6.
Finally, the court found significant the fact that Father had turned
down repeated offers by Mother of increased periods of custody, stating that
“this shows [Mother] is willing to keep [Father] fully engaged and is liberal in
terms of allowing him extra time with the [C]hildren," while Father “is, for
whatever reason, unwilling to take advantage of any time he could possibly
have with the [C]hildren." Id. at 10.
After carefully examining the record in this matter, we conclude that
the trial court did not abuse its discretion with respect to subsection
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5328(a)(1). At the most recent custody trial, Father testified that he and
Mother “always" get along; however, he did not believe Mother to be
forthcoming about issues concerning the Children. N.T., 4/22/2016, at 59.
He indicated that Mother will “hold back” information about the Children
“when there's court." Id. at 60. Father indicated that he calls the Children
every night during Mother's period of custody, and will send Mother text
messages, although it is sometimes difficult to reach Mother. Id. at 87-90.
Mother testified that she wants the Children to have a good
relationship with Father, encourages them to talk with Father on the
telephone during her periods of custody, and actively attempts to make
custody transitions cooperative for the sake of the Children. N.T.,
5/26/2016, at 72-73. Mother indicated that, although Father has expressed
interest in attending various events for the Children, including parent-
teacher conferences, he will not appear at those events, despite having
ample notice of the date, time, and location. Id. at 55, 61-62, 72. She
indicated that she initiates contact with Father regarding the Children,
usually via text message, and that their level of communication had
improved between the April 22, 2016 and May 26, 2016 custody hearings.
Id. at 55.
It is clear the trial court found credible Mother's attempts to ensure
that the Children have a positive relationship with Father. In his own
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testimony, Father never stated a similar intent. Rather, as is evident by
Father's argument as to this subsection, which cites to Mother's drug use in
2011 while the parties were residing in Allegheny County, her 2014 arrest
for shoplifting, and her allegedly “abusive relationship" with Mother's
boyfriend, J.H., Father's Brief at 29, Father focuses on Mother's alleged
unfitness as a parent and fails to address his efforts to encourage and permit
contact between Mother and the Children. As discussed further, infra, the
trial court determined that Mother's mental health, relationship, and
addiction issues are under control; thus, it was within the court's discretion
to reject Father's argument and find the first factor favored Mother.
Subsections 5328(a)(3) and (a)(lO)
Father next argues that the trial court erred with respect to
subsections (a)(3) and (a)(10) in determining that Mother was more likely to
support the Children's educational needs. Father's Brief at 30. Father's
argument on this point assails Mother's lack of a college degree, lack of
employment, and her parenting in general, alleging that “Mother was late
getting the Children to school 11 times in one month." Id. Father argues
that he is more likely to support the Children's educational needs because he
holds a welding certificate, is gainfully employed, was the first to enroll the
Children in school when the parties were together in 2014, and successfully
“transported the [C]hildren to school each day [during that time] with the
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help of his mother." Id. The trial court addressed the relevant factors as
follows.
3. The parental duties performed by each party on behalf
of the [C]hi|dren:
Both parents in this case are competent to provide for the needs
of the [C]hi|dren. [Mother], when the parties were together, was
more of a parent than [Father]; however, [Father], since the
separation of the parties, has been very much involved with the
[C]hi|dren. The credible testimony from [paternal grandmother]
is that when he is home and the [C]hi|dren are in his household
that he is the parent and assumes all parental responsibilities. As
we noted in December 2014 and we reiterate in this opinion, as
to the education needs of the [C]hi|dren, [Mother] is by far the
better parent. As we noted, [Father] had educational issues and
dropped out of school in the 7th Grade at age 19.[3] [Father] has
since completed his GED with [Mother's] help, but he did testify
that when he was testing for the technical welding school that he
completed, that it was concluded he had an equivalent 11th
[g]rade education. [Father] has in the interim completed a
welding school and has also obtained responsible employment
using his welding training. However, [Mother] has enrolled the
[C]hi|dren in pre-school and Head Start and has actively
participated in both programs, volunteers for those programs
and because of her education level, which at this point is some
credits short of a bachelor's degree, will be better able to see to
the educational needs of the [C]hi|dren and especially to
advocate for their educational needs as parents sometimes are
required to do. There was also credible testimony from [Mother]
that [Father] has not been addressing adequately the lazy eye
issues as they relate to [E.R.R.] or the speech issues as they
relate to [E.J.R.].
3 The trial court's recitation of the facts in this regard is somewhat
inaccurate. During the 2014 custody trial in this matter, Father testified that
he dropped out of school at age 17. N.T., 12/18/2014, at 159-160. Father
explained that he completed eighth grade after “a couple [of] years" and
was in ninth grade for two years before leaving school. Id. He did not
successfully complete ninth grade. Id. at 160.
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10. Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the [Chi|dren]:
We have already noted the significant differential in skills of the
parents in helping the [C]hi|dren develop educationally. At the
prior hearing in late 2014, [Father] did not even know the names
of the [C]hi|dren's doctor. At the hearing in the Spring of 2015,
[Father] did not know the name of [E.R.R.'s] pre-school teacher
of two (2) years and did not even know the name of the pre-
school. His involvement with the pre-school had been at best,
minimal. [Mother,] on the other hand[,] volunteers for the pre-
school and the Head Start [programs]. [Mother] testified that
her family is active in a church. The court received no evidence
of any spiritual involvement of [Father's] family. [Mother] is
specifically addressing and talked in her testimony substantially
about the special needs of each of the [C]hi|dren. [E.R.R.] has a
lazy eye, which requires certain exercises, which she contended
[Father] was not carrying out when [E.R.R.] was with him. We
did not hear that testimony rebutted. [Mother] also testified
about the speech needs of [E.J.R.] and what she has done with
the providers to assure that [E.J.R.'s] speech issues are being
addressed. In making this finding we do not want to denigrate
[Father], because [Father] at this time is working fulltime at a
new job and clearly has a strong interest in seeing to the needs
of the [C]hi|dren and we would want to maximize his time with
the [C]hi|dren, but we are convinced that [Mother] provides a
more nurturing, stable environment and is especially stronger in
the educational needs of the [C]hi|dren.
Trial Court Opinion, 6/24/2016, at 20-22, 25-26.
The court also addressed Father's contention that, because Mother was
late getting E.R.R. to preschool 11 times in April of 2016, the evidence
suggested she did not prioritize the Children's education.
[Mother], in her testimony, explained that she was
perhaps sometimes five minutes late and that the school had not
stressed that [E.R.R.] be there on time. We do not put much
weight on the fact that [Mother] was late for preschool. [Mother]
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told us that [E.R.R.] is a slow eater and she was unaware of any
pressure for [E.R.R.] to be on time. [Mother] suggested, at
most, she was five minutes late. The point is [E.R.R.] was there
every day and has benefitted from her preschool experience.
Id. at 12.
Thus, in spite of Father's argument to the contrary, the trial court
reiterated its prior finding that “[Mother], of the two parents is much more
aggressive in involving herself in the educational needs of the children." Id.
at 7.
The trial court's conclusions with respect to subsections 5328(a)(3)
and (a)(10) are supported by the record. Mother testified at length
regarding the Children's education. N.T., 5/26/2016, at 58-66. She
explained that, at the time of the 2016 custody trial, E.R.R. was attending
pre-school five days a week, was registered for kindergarten, and was
enrolled in a summer program designed to allow her to become acclimated
to her classroom before kindergarten begins. Id. at 58-59. E.J.R. was
enrolled in a Head Start program five days a week and was receiving speech
therapy. Id. at 64-65. In the fall of 2016, E.J.R. was scheduled to transfer
to the same program as his sister. Id. at 66. Mother testified that she has a
driver's license and a vehicle and would be providing transportation for the
Children. Id. at 59-60. Mother indicated that she shares all of the Children's
school information with Father, and invited Father to E.R.R.'s parent-teacher
conference, although he did not attend. Id. at 61. Further, Mother stated
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that both children have done well in school, although their attendance
suffered while they were in Father's care during the time Mother was
hospitalized. Id. at 61, 65.
On cross-examination, Mother acknowledged that E.J.R. had missed
school in the spring of 2016 due to illness, and that illness, coupled with
unforeseen delays such as accidentally leaving her vehicle's lights on,
resulted in E.R.R. being late to pre-school 11 times in April of 2016. Id. at
108. Mother explained that, while school begins at 9:00, there is no rule that
the children be there by that time. Id. at 118. A report from E.R.R.'s school
indicated that often E.R.R. was approximately five minutes late for school
which made her miss the school-provided breakfast, although Mother
testified that E.R.R. eats her breakfast at home. Id. at 108, 118-119.
Father testified that if the court awarded him custody, he expected
that the [C]hi|dren would attend the local elementary school and Head Start
program; however, on cross-examination, Father admitted that he had taken
no steps to register the [C]hi|dren in either school. N.T., 4/22/2016, at 47-
50. Father indicated that he believed E.J.R. was “on a waitlist from last
year" but was unsure whether there were openings available for the 2016-
2017 school year, was uncertain as to which program he was on a waitlist,
and did not know which days or times E.J.R. would attend school, if
registered. Id. at 48-49.
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With respect to the Children's current education, Father testified that
Mother does not inform him of the Children's school activities or medical
appointments, but admitted that he does not seek that information out or
contact the schools on his own. Id. at 51. Father testified that he does not
know the name of E.R.R.'s teacher, has not contacted her school with any
academic concerns, nor does he volunteer at the school. Id. at 54, 63.
Further, while Father acknowledged that E.J.R.'s speech was improving with
therapy, he testified that he believed the [C]hi|dren were performing better
academically while in his care. Id. at 55, 62-63.
We recognize that, going into the 2016 custody trial, Father's periods
of custody occurred over weekends. Further, we acknowledge that Father
lives in Crawford County, works full time, has a suspended driver's license,4
and the [C]hi|dren go to school in Venango County. We also take note of the
eleven mornings Mother was late getting E.R.R. to preschool in April of
2016. However, for all of Father's initial efforts with respect to the
Children's education, we find no fault with the trial court's determination that
Mother is presently in a better position to support their educational needs.
Subsections 5328(a)(4) and (a)(9)
4 Father's driver's license has been suspended until 2018 as a result of a
driving under the influence (DUI) conviction. Trial Court Opinion,
6/24/2016, at 10.
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The trial court determined that, with respect to subsections 5328(a)(4)
and (a)(9), the parties were equally capable of providing stability,
consistency, and nurturing to the Children's lives. Father challenges this
determination, arguing that he is the more stable parent. Specifically, he
alleges that, since custody proceedings began in 2014, “Mother has moved
twice, been arrested twice and [pled] guilty to retail theft and has begun and
ended a relationship and restarted a relationship and become pregnant with
that man's baby, which baby sadly died." Father's Brief at 28. Further,
Father takes issue with the trial court's characterization of Mother's family as
supportive and the court's alleged dismissal of paternal grandmother's
availability and willingness to assist Father in his parental duties. Id.
Finally, Father reiterates his contention that Mother is a drug addict who
“used drugs and alcohol with her father" before the Children were born. Id.
The trial court addressed the factors outlined in subsections (a)(4) and
(a)(9) as follows.
4. The need for stability and continuity in the [Chi|dren’s]
education, family life and community life:
Both [C]hi|dren at this time are enrolled in Head Start and pre-
school in Oil City by [Mother]. [Father] has been living for a
substantial period of time with his parents; it is likely that at
such time as he becomes more stable he will seek independent
living arrangements. [Mother] has been living with her parents
principally since she and [Father] separated; however, on two
separate occasions she has moved out and stayed with her
significant other [J.H.]. [Mother] has testified that she did not
stay with [J.H.] and is not moving in with [J.H.] because their
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relationship, while it is that of a boyfriend/girlfriend, is not
conducive to living together.
9. Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the [Chi|dren]
adequate for the [Chi|dren’s] emotional needs:
We conclude we have two competent parents in this case.
[Mother] because of her education and experience in more
directly dealing with the [C]hi|dren's needs up to now is the
more steady, consistent and nurturing of the two parents. In the
absence of [Mother, Father] is a competent parent and certainly
exercises diligence in parenting the [C]hi|dren.
Trial Court Opinion, 6/24/2016, at 22, 25.
Additionally, the court addressed Father's contention that Mother's
change in address was demonstrative of her instability.
Mother did move in with [J.H.] for two weeks in 2015, and
then [Mother] returned to live with her parents. [Mother] lived
with [J.H.] one other time prior to the 2014 hearings, and [after]
that instance also returned to her parents' home. This issue
could be a factor two different ways. It arguably would show
instability. What it demonstrates, we contend, is [Mother] is
being extremely cautious in entering a permanent relationship
with anyone, and that, perhaps, is the responsible thing since
she is responsible for two children. However, [Mother] says that
she and [J.H.] have a good boyfriend/girlfriend relationship and
that the relationship is progressing. We do not view the fact that
she lived for two weeks with [J.H.] in 2015 as demonstrating
lack of consistency with living arrangements.
Id. at 11-14.
Finally, with respect to subsections (a)(4) and (a)(9), the trial court
explained its concern about Father's DUI-suspended driver's license. The
court noted that although Father testified that he “[n]ever drives when the
[C]hi|dren are in the car," the clear inference drawn from that testimony is
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that Father is operating a vehicle illegally which “puts him on the wrong side
of the law.” Id. at 10. The court indicted that it respected “[Father's] desire
to work and provide sustenance for his family. On the other hand, he still is
making a conscious decision to drive illegally without a license, DUI related."
Id. at 11. The court noted that Mother had a valid driver's license and
access to a vehicle.
Once more, the trial court's findings are supported by the record and
we discern no abuse of discretion in the trial court's conclusions with respect
to the parents' relative stability. Despite Father's protestations to the
contrary, the home life of Mother has remained unchanged since 2015. She
has been a staunch supporter of the Children's education, plans to seek the
degree and employment Father suggests is essential to her stability, and has
addressed the mental health issues underlying the loss of her child with J.H.
Critically, there was no evidence presented during the custody proceedings
which would suggest that Mother's relationship with J.H. is likely to end, or is
in some way detrimental to the Children. To the contrary, the trial court
found that J.H. is “a positive influence” for the Children and Mother. Id. at 5.
Moreover, of the two parents, Mother has the more reliable access to
transportation for the Children. Father's suggestion that Mother's home life
is unstable is mere speculation, and does not warrant reversal of the subject
custody order.
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Subsections 5328(a)(14) and (a)(15)
Father next contends that the trial court erred in determining that the
parties have equal abilities to parent in light of their respective mental and
physical health and drug- and alcohol-related issues. Father's Brief at 27.
Focusing on testimony from the December 2014 hearings, Father contends
that Mother is a drug and alcohol addict, prone to relapse, and implies that
J.H. is not living with her due to her continued drug use. Id. at 24-25.
Father alleges that Mother's testimony regarding her sobriety and mental
health is not credible. Id.
The trial court found as follows.
14. The history of drug or alcohol abuse of a party or
member of a party's househo|d:
We have already discussed that at some length; both parents
have drug and alcohol issues, [and] both parents at this time are
addressing those issues to the satisfaction of the court and
certainly as well as could be handled.
15. The mental and physical condition of a party or
member of a party's househo|d:
[Mother] went through an incredibly straining period in late
2015; she had given birth to a child and lost the child after about
a month to sudden infant death syndrome. [Mother] we conclude
handled this about as well as a parent could be expected to
handle such a painful, traumatic event. At some point in
February 2016, [Mother] did commit herself to a mental health
facility to receive more structured and aggressive treatment to
deal with her depression. [Mother] testified credibly that she has
not used Suboxone[S], even though legally prescribed, since the
5 Suboxone is a prescription medication that is used to treat persons
addicted to opioids, both prescription and illegal.
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death of her infant. [Mother] had been in a Suboxone program
for her drug addiction. [Mother] is not, we find, using illegal
drugs; however, [Mother] is receiving substantial psychotropic
[medications] that were prescribed during and then immediately
after[] her stay in the hospital. We respect the fact [Mother]
took it upon herself to admit herself and received concentrated
care and comprehensive diagnosis and treatment. [Mother] has
followed through; she was required to see a psychiatrist in
Meadville, which she did. The psychiatrist did prescribe her
ongoing medications, which are being monitored by her treating
primary care physician, Dr. Kahler. [Mother] told us that for her
to be on Suboxone or other drugs of that type would be
detrimental to the drugs that were prescribed by the
psychiatrist. We find [Mother] handled the death of her child as
responsively [(sic)] as one could expect. The tragedy had no
ostensible impact on [the Children], in fact, [Mother], went
ahead with the birthday party for [E.R.R.] shortly after the death
of her child[.]
Trial Court Opinion, 6/24/2016, at 30-32.
The court elaborated further,
[Mother] at this time is on [a program of Accelerated
Rehabilitative Disposition (ARD)], pursuant to Criminal Procedure
Rule No. 310. The [c]ourt notes that ARD is not an admission of
misconduct. Mother is paying court costs and is continuing her
substance abuse programming consistent with what she has
been doing all along. The ARD was for the marijuana possession
and the retail theft, which were the subject of the April 2015
modification hearing.
Id. at 15.
Father's allegation that Mother has failed to address entirely her
addiction and mental health issues is speculative at best. It is clear from the
testimony presented here that both parties have struggled with drug and
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alcohol use.6 However, the trial court found credible Mother's testimony that
she is abstaining from illegal drugs and Suboxone, seeking treatment for her
mental health issues, and has completed her court-ordered ARD
requirements. N.T., 5/26/2016, at 48-51, 75-79. Further, the court
considered and accepted the testimony of Mother's grief and loss counselor,
Janet Schwabenbauer, that Mother appears to be “committed to getting
though" her loss and is “fully engaged” with her mental health treatment, id.
at 6-9, as well as the testimony of the Children's maternal grandmother that
she does not believe Mother to be under the influence of illegal drugs,
although she has observed Mother “have a drink from time to time.” Id. at
20.
While we have reservations with regard to the trial court's evaluation
of subsections 5328(a)(14) and (a)(15), particularly considering Mother's
history of drug and alcohol abuse and Father's continual violation of his DUI-
related license suspension, we agree with the court's conclusion that this
factor does not weigh in favor of either parent. Accordingly, we see no
reason to disturb the trial court's determinations as to subsections
5328(a)(14) and (a)(15). R.M. v. ].S., 20 A.3d 496, 506 n. 8 (Pa. Super.
2011) (citation omitted) (holding that, “[i]f we determine that the trial court
ruling is correct, we can affirm on any basis supported by the record.").
6 Additionally, for all of Father's emphasis on Mother's prior acts, he makes
no argument to refute the trial court's concerns regarding his decision to
flout the law by driving on a DUI-related suspended license.
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Weight of the Custody Factors
In his final issue, Father argues that the trial court erred in how it
weighed the parties' behavior since the litigation began in 2014. Father's
Brief at 31. Father reiterates his earlier claims that Mother has unresolved
addiction, mental health, and legal issues, contends that her living situation
is unstable and argues that Mother has not demonstrated a proven ability to
“get things done with and for" the Children. Id. By contrast, Father argues,
he has a proven record of stability and dedication to the Children; thus, the
court erred in failing to grant him full custody. Id. at 32. Our standard of
review makes clear that “with regard to issues of credibility and weight of
the evidence, we must defer to the presiding trial judge who viewed and
assessed the witnesses first-hand.” D.K. v. S.P.K., 102 A.3d 467, 479 (Pa.
Super. 2014) (quotation and citation omitted). Thus, we will not disturb the
court's well-reasoned findings, nor will we reweigh the evidence in Father's
favor. Accordingly, we hold that Father is not entitled to relief on this issue.
In sum, we conclude that there is substantial evidence supporting the
findings that the trial court reached on each factor of section 5328(a) that
Father challenges. As a result, we affirm the trial court's order.
Order affirmed.
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Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 4[6[2017
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