J.S. v. B.M.P. and M.J.P. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
B.M.P. AND M.J.P.
Appellee No. 1795 WDA 2015
Appeal from the Order Dated October 12, 2015
In the Court of Common Pleas of Cambria County
Civil Division at No(s): 2015-2190
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 2, 2016
Appellant, J.S. (Mother) appeals from the October 12, 2015 order
granting primary physical custody of K.P., born in October 2007, to M.J.P.
(Paternal Grandmother), partial physical custody to Mother and B.M.P.
(Father), and shared legal custody among all of the parties.1 After careful
review, we affirm.
The relevant factual and procedural history, as gleaned from the
certified record, is as follows. K.P. resided in the care and custody of Mother
and Father, who never married, from birth until early 2014. N.T., 8/14/15,
at 38-39. On January 16, 2014, Mother was incarcerated for a probation
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1
Father did not file a notice of appeal, and he is not a party to this appeal.
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violation.2 Id. at 39. K.P. remained in Father’s care until February 2014.
Trial Court Opinion, 12/18/15, at 3, ¶ 2. On March 10, 2014, the trial court
granted legal and physical custody of K.P. to Paternal Grandmother, at which
time Mother remained incarcerated, and Father was homeless. Id. at 3, ¶ 5.
From June 4, 2014, to July 14, 2014, Mother resided in a halfway
house. She was then placed on house arrest until February 28, 2015. Id. at
3, ¶ 7. On May 26, 2015, Mother, acting pro se, filed a complaint against
Father and Paternal Grandmother, wherein she sought primary physical
custody of K.P. On July 27, 2015, Mother, through counsel, filed a petition
for emergency interim relief, wherein she requested an interim order
granting her shared legal and physical custody pending a hearing.
A hearing was held on Mother’s custody action on August 14 and
October 12, 2015, at which time Mother resided in the Ferndale School
District, and Paternal Grandmother resided in the Windber School District.
The trial court received testimony from the following witnesses on the first
day of the hearing: Paternal Grandmother; Mark Malcotti, a probation
officer; Mother; and Amanda Wissinger, K.P.’s kindergarten teacher in the
Windber School District. On the second day of the hearing, the trial court
received testimony from Father; Tony Mognet, a probation officer; and
Mother and Paternal Grandmother, on rebuttal. In addition, the trial court
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2
Mother was on probation from 2009, for a crime involving conspiracy to
deliver 100 grams of heroin. Trial Court Opinion, 12/18/15, at 3, ¶ 5.
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interviewed K.P. in camera, who was then nearly eight years old and in
second grade in the Windber School District.
On October 13, 2015, the trial court granted Mother, Father, and
Paternal Grandmother shared legal custody; maintained primary physical
custody with Paternal Grandmother; and granted Mother and Father partial
physical custody “as mutually agreed or, if not agreed, as determined by
th[e trial c]ourt.” Trial Court Order, 10/13/15, at ¶ 2(c). Further, the order
directed that the parties “shall have 14 days to submit a Consent Order
regarding partial physical custody to be awarded to Mother and Father.”3
Id. at ¶ 2(d). On November 10, 2015, Mother timely filed a notice of appeal
and a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). The trial court filed
its Rule 1925(a) opinion on December 18, 2015.
On appeal, Mother presents the following two issues for our review.
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3
In its Rule 1925(a) opinion, the trial court stated that the custody order is
final and appealable because the court “completed its hearing and resolved
the ultimate issues of primary and partial physical custody, pending an
agreement to or implementation of a partial physical custody schedule.”
Trial Court Opinion, 12/18/15, 2, n.3. We agree. See G.B. v. M.M.B., 670
A.2d 714, 715 (Pa. Super. 1996) (en banc) (stating that, “a custody order
will be considered final and appealable only after the trial court has
completed its hearing on the merits and the resultant order resolved the
pending custody claims between the parties”); see also Cady v. Weber,
464 A.2d 423, 426 (Pa. Super. 1983) (holding that the order was final that
resolved the ultimate issue between the parties by transferring custody from
the grandparents to the mother, even though the details of implementation
remained to be worked out pending home studies).
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1. Did the trial court err and/or commit an abuse of
discretion by finding that the grandmother proved by
clear and convincing evidence that the child’s best
interests would best be served in the primary
physical custody of the grandmother?
2. Did the trial court err and/or commit an abuse of
discretion by basing the decision to award primary
physical custody to a third-party largely based on
mother’s prior bad conduct, without a proper
showing that any such prior conduct has had any
ongoing negative effect on the child, instead of
focusing on mother’s current situation[?]
Mother’s Brief at 7.
We review Mother’s issues according to the following scope and
standard of review.
[T]he appellate court is not bound by the
deductions or inferences made by the trial
court from its findings of fact, nor must the
reviewing court accept a finding that has no
competent evidence to support it…. However,
this broad scope of review does not vest in the
reviewing court the duty or the privilege of
making its own independent determination….
Thus, an appellate court is empowered to
determine whether the trial court’s
incontrovertible factual findings support its
factual conclusions, but it may not interfere
with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 775 A.2d
835, 838 (Pa. Super. 2001)). Moreover,
[O]n issues of credibility and weight of the
evidence, we defer to the findings of the trial
[court] who has had the opportunity to
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observe the proceedings and demeanor of the
witnesses.
The parties cannot dictate the amount of
weight the trial court places on evidence.
Rather, the paramount concern of the trial
court is the best interest of the child.
Appellate interference is unwarranted if the
trial court’s consideration of the best interest
of the child was careful and thorough, and we
are unable to find any abuse of discretion.
R.M.G., Jr., supra at 1237 (internal citations
omitted). The test is whether the evidence of record
supports the trial court’s conclusions. Ketterer v.
Seifert, 2006 PA Super 144, 902 A.2d 533, 539 (Pa.
Super. 2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).
Child custody actions are governed by the Child Custody Act (Act), 23
Pa.C.S.A. §§ 5321-5340. With regard to the presumption in cases
concerning primary physical custody between a parent and a third party, the
Act provides, “there shall be a presumption that custody shall be awarded to
the parent. The presumption in favor of the parent may be rebutted by clear
and convincing evidence.” 23 Pa.C.S.A. § 5327(b). Accordingly, we
recognize that when a grandparent is involved in a custody dispute with a
parent, the grandparent is a third party and bears this heightened burden.
V.B. v. J.E.B., 55 A.3d 1193, 1198-1199 (Pa. Super. 2012) (citation
omitted), citing Charles v. Stehlik, 744 A.2d 1255, 1258 (Pa. 2000), cert.
denied, Stehlik v. Charles, 530 U.S. 1243 (2000).
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The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902
A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,
677 (Pa. Super. 2004).
Trial courts are required to consider “[a]ll of the factors listed in
section 5328(a) … when entering a custody order.” J.R.M. v. J.E.A., 33
A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). This statutory
section provides as follows.
§ 5328. Factors to consider when awarding
custody.
(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 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)(1) and (2) (relating to consideration
of child abuse and involvement with protective
services).
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(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 unwillingness or inability to
cooperate with that party.
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(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.A. § 5328(a).
We have further explained as follows.
Section 5323(d) provides that a trial court “shall
delineate the reasons for its decision on the record in
open court or in a written opinion or order.” 23
Pa.C.S.A. § 5323(d). Additionally, “section 5323(d)
requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must
file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
955 (Pa. Super. 2013), appeal denied, 70 A.3d 808(Pa. 2013)….
In expressing the reasons for its decision, “there is
no required amount of detail for the trial court’s
explanation; all that is required is that the
enumerated factors are considered and that the
custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.
2013), appeal denied, [620 Pa. 710], 68 A.3d 909(2013). A court’s explanation of reasons for its
decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.A.V., supra at 822-823.
Instantly, the trial court considered the Section 5328(a) custody
factors on the record in open court at the conclusion of the testimonial
evidence. See N.T., 10/12/15, at 71-83. The trial court found significant
the following factors, and weighed them in favor of Paternal Grandmother:
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Section 5328(a)(3), the parental duties performed by each party on behalf
of the child; Section 5328(a)(4), the need for stability and continuity in the
child’s education, family life and community life; Section 5328(a)(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; Section
5328(a)(10), which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the child; and
Section 5328(a)(14), the history of drug or alcohol abuse of a party or
member of a party’s household. See id. at 71-76, 78-79, 80-83.
Further, in its Rule 1925(a) opinion, the court explained its decision as
follows.
Considering [K.P.]’s stability and Mother’s short-term
unmonitored sobriety … as well as [K.P.]’s significant
educational needs, the trial court found by clear and
convincing evidence that the scales were tipped in
favor of Paternal Grandmother. Therefore, the trial
court appropriately considered Paternal
Grandmother’s burden of proof as a third-party
against a parent and properly maintained primary
physical custody of the child with Paternal
Grandmother.
Trial Court Opinion, 12/18/15, at 11.
Turning to Mother’s first issue on appeal, she argues the record
evidence does not support granting Paternal Grandmother primary physical
custody. Specifically, Mother argues the record does not demonstrate that
(1) she caused “any educational deficit in [K.P.;]” and (2) “ongoing
educational concerns” remained with K.P. Mother’s Brief at 14-15. In
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support of her argument Mother argues “[t]hat statement by the trial court
fails to take into consideration the fact that [M]other was in rehab in
November of 2013 and jail for a week and a half and that she was in jail
beginning in January of 2014 and thus the vast majority of time [K.P.] was
in [F]ather’s care.” Id. at 16.
In concluding Section 5328(a)(14) weighed in favor of Paternal
Grandmother, the trial court reiterated its findings in its Rule 1925(a)
opinion as follows.
[Since March 10, 2014,] Paternal Grandmother
performed “the lion’s share of the parenting duties”
for [K.P.], including going “above and beyond to
make sure that [K.P.]’s deficiencies were
appropriately addressed and that [K.P.] would not
start out in the educational system at a loss or
behind her peers.” See N.T., [10/12/15], [at] 71-
74[; s]ee also N.T., [8/14/15], [at] 61 (the child’s
kindergarten teacher explaining that the child
completed workbooks with Paternal Grandmother,
made big improvements, “came a long way,” and
made huge gains in knowledge while in Paternal
Grandmother’s care); N.T.[, 10/12/15], [at] 32
(Father commenting on Paternal Grandmother’s
parenting). Specifically, Paternal Grandmother
arranged for tutoring, counseling, and swimming
lessons for the child, as well as completing
workbooks with the child. N.T.[, 8/14/15], [at] 8-9,
18, 25-27, 61. Additionally, the trial court found
that Paternal Grandmother took initiative in caring
for the child’s overall physical, emotional,
developmental, educational, and medical needs.
See e.g. N.T.[, 10/12/15], [at] 78-79[; s]ee also
N.T.[, 8/14/15], [at] 27-30, 34 (Paternal
Grandmother outlining the schedule she followed
with the child, including reviewing schoolwork;
completing homework; brushing teeth; bathing; and
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attending Bible Study, swimming, ballet, and ice
skating).
Conversely, Mother presented no evidence of her
efforts to address the child’s needs. Rather, Mother
claimed she was “never informed of” the child’s
parent-teacher conferences, “not given any other
information regarding her schooling[,]” “was not
made aware of” the child’s routine medical visits,
and “was never given” access to the school’s
website. N.T.[, 8/14/15], [at] 44-45, 54-55. Based
on the foregoing evidence, the trial court found that
“Mother has not taken the additional steps to pay
careful attention to the child’s education [nor is she]
as driven as [Paternal Grandmother] is when it
comes to making sure that [K.P.] overcomes any
remaining educational deficiencies that she has.”
N.T.[, 10/12/15], at 72-73. These facts weighed
heavily against Mother and in favor of Paternal
Grandmother, especially in light of credible
testimony from the child’s teacher and evidence of
the child’s academic performance and attendance
while in Paternal Grandmother’s care. N.T.[,
8/14/15], [at] 57-64.
Trial Court Opinion, 12/18/15, at 9-10. Upon review, we conclude the
testimony of Mother, Paternal Grandmother, and Amanda Wissinger, K.P.’s
kindergarten teacher in the Windber School District, support the trial court’s
findings.
Specifically, Ms. Wissinger testified that, at the beginning of K.P.’s
kindergarten year in 2013, when she was in the care of Mother and Father,
she “was very behind socially and emotionally as well as academically in all
academic areas.” N.T., 8/14/15, at 58. Ms. Wissinger testified that K.P.’s
assessment for the first semester indicated, “there were huge gaps in her
abilities across the board, in math as well as language arts…. I clearly
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state[d K.P.] is struggling in all academic areas….” Id. at 59. In addition,
Ms. Wissinger testified she revealed on the assessment that K.P. “is not
ready to move on to first grade and we would have to schedule a meeting
and discuss retaining her in kindergarten to build her needed skills.” Id. at
60. Further, Ms. Wissinger testified on direct examination to the following.
Q. [H]ow much contact or cooperation did you have
from [K.P.]’s parents in assisting her development?
A. There were [sic] none. We have regular parent
conferences every November… Our school district
has a texting communication with parents as well as
an e-mail so all you have to do is sign up for it and
you get notifications there. We send home notes
and paperwork. It is on my calendar. It is on the
school calendar and I never had a conference with
them…. They would’ve received some type of other
reports between that time stating that she is behind
and activities sent home. I do something, it is called
a book bag activity where it is simply a Ziploc bag
where I put reading materials in just for the kids to
be doing at home to kind of bridge the gap. None of
the materials were ever utilized.
Id. In addition, Ms. Wissinger acknowledged that, from the fall of 2013,
until March of 2014, K.P. had an excessive number of absences in
kindergarten. Id. at 62.
Importantly, Ms. Wissinger testified that she performed another
assessment of K.P. at the end of March or the beginning of April 2014, at
which time she contacted Paternal Grandmother and “asked her to come in
to have a meeting with us.” Id. at 61. She testified that Paternal
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Grandmother did attend a meeting at the school, after which Ms. Wissinger
observed as follows:
[K.P.] made big improvements. [Paternal
Grandmother] asked what she specifically could be
doing at home. Anytime I would send things home,
[K.P.] would complete them and send them back.
They were also doing activities that [Paternal
Grandmother] sought out on her own, work books I
believe that [K.P.] used to talk about, doing some
things with [Paternal Grandmother]. And you can
see on the assessment between the first semester
and the second semester huge gains were made.
We have … a Diagnostic Reading Assessment and our
kindergarten kids, our goal for them is to get to a
level 3… It is a state goal, so [K.P.] whenever
[Paternal Grandmother] came in to talk to me in
March or April was at a level A. That’s the lowest
level kids can be at…. She went from a level A to
the level 3, the goal that was set for her.
Id. at 61.
Further, Ms. Wissinger was not K.P.’s first grade teacher, but she
reviewed K.P.’s first grade assessment. She testified that the assessment
revealed K.P. “started off really good but then she didn’t make any gains….
Now compared to kindergarten, she has made a great deal of progress[,] but
she still is not where our school would like her to be. She is still struggling
but not as much as she was.” Id. at 63.
Based on the foregoing testimonial evidence, as well as our review of
the testimony of Mother and Paternal Grandmother, we discern no abuse of
discretion by the trial court in granting Paternal Grandmother primary
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physical custody due, in large part, to the educational needs of K.P.
Therefore, Mother’s first issue on appeal fails.
In her second issue, Mother argues the trial court abused its discretion
in basing its custody decision on her drug relapse “from October – November
2013 with no evidence of further drug abuse issues in [the] 23 months by
the time of the October 2015 hearing….” Mother’s Brief at 21. Mother relies
on this Court’s decision in Wheeler v. Mazur, 793 A.2d 929 (Pa. Super.
2002), wherein we stated that custody could not, “reasonably be granted on
the basis of the parent’s ‘unsettled past’ unless ‘the past behavior has an
ongoing negative affect on the child’s welfare.’” Id. at 936 (citation
omitted).
In its Rule 1925(a) opinion, the trial court properly distinguished
Wheeler by noting that the Section 5328(a) custody factors were not in
effect at the time of that decision. Trial Court Opinion, 12/18/15, at 11.
Instantly, as the trial court noted, “[u]nder the Child Custody Act, the trial
court must consider a parent’s past conduct, specifically the history of drug
or alcohol abuse of a party. 23 Pa.C.S.A. § 5328(a)(14).” Trial Court
Opinion, 12/18/15, at 11 (emphasis in original). The trial court explained
that it found Mother had eight months of sobriety when not being monitored
by her probation officer. See Trial Court Opinion, 12/18/15, at 12.
However, the trial court stated, “Mother’s past conduct had a harmful effect
on [K.P.], specifically, how the child’s educational needs suffered as a result
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of Mother’s addiction, incarceration, instability, and a lack of attention.
Therefore, the trial court appropriately considered Mother’s past conduct in
conjunction with all of the custody factors and properly awarded [primary
physical] custody to [Paternal Grandmother].” Trial Court Opinion,
12/18/15, at 12-13 (citation omitted). Upon review of the totality of the
record evidence and the relevant law, we agree with the trial court and
discern no abuse of discretion with respect to the weight it placed on Section
5328(a)(14) in fashioning the custody order.
Based on the foregoing, we conclude the trial court did not abuse its
discretion in finding it was in K.P.’s best interests for Paternal Grandmother
to have primary physical custody and Mother and Father to have partial
physical custody, with all three sharing legal custody. A.V., supra.
Therefore, we affirm the trial court’s October 12, 2015 custody order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2016
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