J.K. v. N.P.S., Appeal of: J.S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.K., IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
N.P.S. AND J.S.
APPEAL OF: J.S.
No. 818 WDA 2014
Appeal from the Order March 31, 2014
in the Court of Common Pleas of Erie County
Civil Division at No.: 13273-2008
BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 31, 2014
J.S. (Paternal Grandmother) appeals from the trial court’s order
awarding sole legal and physical custody of her grandson, N.P.S., Jr. (Child),
to his mother, J.K. (Mother). We affirm.
Child was born in July 2006. He lived with Mother until August 2007
when Mother left him in the care of N.P.S., Sr. (Father) because she was
incarcerated for a probation violation. (See N.T. Custody Trial, 3/24/14, at
100-01). Child was subsequently placed in the care of Paternal
Grandmother when Father suffered a seizure brought on by drug and alcohol
abuse. (See id. at 101). Father has not been a part of Child’s life since that
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*
Retired Senior Judge assigned to the Superior Court.
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time. (See id. at 4). Paternal Grandmother, who lived in Florida at the
time, was appointed Child’s guardian while Mother was still incarcerated.
(See id. at 101).
Mother filed a complaint for primary physical custody of Child on July
9, 2008. Paternal Grandmother did not file an answer. On September 10,
2008, the parties agreed to an order of custody by which they shared legal
custody and which provided that Child would reside with Paternal
Grandmother while Mother would have visitation and partial custody.
Mother filed a motion for contempt on July 6, 2010, in which she alleged that
Paternal Grandmother was not complying with the custody order of
September 10, 2008. The court denied the motion on August 24, 2010.
Mother filed a petition for relocation on September 23, 2013.
The trial court held a custody trial on March 24, 2014, and it issued
the order awarding Mother sole legal and physical custody on March 31,
2014. Paternal Grandmother filed a motion for reconsideration on April 3,
2014. Mother filed an answer to Paternal Grandmother’s motion on April 17,
2014. On April 30, 2014, the trial court entered a supplemental
memorandum opinion and order affirming its March 31, 2014 order and
granting Mother’s request for relocation. On that same date, Paternal
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Grandmother filed a timely notice of appeal from the court’s March 31, 2014
order.1
Paternal Grandmother presents the following questions for our review:
I. [Whether] [t]he trial court committed an error of law and/or
abused its discretion in failing to award [Paternal] Grandmother
shared physical and legal custody and/or partial physical custody
of [Child] pursuant to the factors in section 5328 of the
Pennsylvania Child Custody Act[?]
II. [Whether] [t]he trial court committed an error of law and/or
abused its discretion when it failed to give proper weight to the
expert testimony of [C]hild’s counselor when granting sole legal
and physical custody to [M]other[?]
III. [Whether] [t]he trial court committed an error of law and/or
abused its discretion in failing to give proper weight [to]
[P]aternal [G]randmother’s role as primary caretaker [of Child]
for the past six years when it gave sole legal and physical
custody to [M]other without any transition period with gradual
extended visits with [M]other[?]
IV. [Whether] [t]he trial court committed an error of law and/or
abused its discretion in failing to provide a regularly scheduled
visitation schedule for [P]aternal [G]randmother[?]
V. [Whether] [t]he trial court committed an error of law and/or
abused its discretion in failing [to] consider the factors in section
5337 of the Pennsylvania Child Custody Act as Mother filed a
Petition for Relocation which was properly before the [c]ourt[?]
(Paternal Grandmother’s Brief, at 3).
Our scope and standard of review is as follows:
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1
Paternal Grandmother simultaneously filed her statement of errors
complained of on appeal with her notice of appeal. See Pa.R.A.P.
1925(a)(2)(i). The trial court entered a Rule 1925(a) opinion on May 28,
2014, it which it referred this Court to its previously entered opinions for
explanation of its rationale for its decision. See Pa.R.A.P. 1925(a)(2)(ii).
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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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
We have stated,
. . . [T]he discretion that a trial court employs in custody
matters should be accorded the utmost respect, given the
special nature of the proceeding and the lasting impact the
result will have on the lives of the parties concerned.
Indeed, the knowledge gained by a trial court in observing
witnesses in a custody proceeding cannot adequately be
imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation
omitted).
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 well-being.” Saintz v. Rinker,
902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
We must accept the trial court’s findings that are supported by
competent evidence of record, and we defer to the trial court on issues of
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credibility and weight of the evidence. See C.R.F., supra at 443. “[I]f
competent evidence supports the [trial] court’s findings, we will affirm even
if the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 398 (Pa. Super. 2003) (citation omitted).
Here, the trial court examined fifteen of the sixteen statutory custody
award factors enumerated in 23 Pa.C.S.A. § 5328(a) in its memorandum
entered March 31, 2014. (See Trial Court Opinion, 3/31/14, at 5-10). The
trial court addressed the remaining custody award factor, the statutory
relocation factors enumerated in 23 Pa.C.S.A. § 5337, and the other issues
Paternal Grandmother raised in her motion for reconsideration in its
supplemental memorandum entered April 30, 2014. (See Trial Court
Opinion, 4/30/14, at 1-5).
In her first issue, Paternal Grandmother questions whether the trial
court properly evaluated the statutory custody factors. (See Paternal
Grandmother’s Brief, at 18-28). She addresses those factors by
reexamining the evidence presented to the trial court and asking us to reach
a different conclusion. (See id.). This we may not do. We must accept the
trial court’s findings that are supported by competent evidence of record,
and we defer to the trial court on issues of credibility and weight of the
evidence. See C.R.F., supra at 443.
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
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and thorough, and we are unable to find any abuse of
discretion.
S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citation omitted).
In the instant case, we have carefully examined the trial court’s
analysis of the statutory custody factors in light of the record. We are
satisfied that the trial court’s determination to grant Mother sole physical
and legal custody of Child as in Child’s best interest is reasonable as shown
by the evidence of record. The court noted that Mother has demonstrated a
love of Child and has shown improvement in her lifestyle and parenting
ability. We defer to the trial court in its weighing of the evidence. We
discern no error of law or abuse of discretion. Paternal Grandmother’s first
issue does not merit relief.
In her second issue, Paternal Grandmother complains that the trial
court failed to give proper weight to the testimony of Child’s counselor,
Pamela Presler. (See Paternal Grandmother’s Brief, at 27-29). We disagree
and quote the trial court’s analysis of Ms. Presler’s testimony, with approval:
No great weight is given to [Ms. Presler’s testimony]. She told
the court the majority of her initial sessions were spent with
[Paternal Grandmother], obtaining information, and hearing her
concerns. She saw [Child] five times individually in 2013. She
met with [Mother] once. The majority of the information she
used in making her recommendations came from Paternal
Grandmother. Much of that information was either incomplete or
slanted in her favor. [Ms. Presler] never saw . . . Child interact
with . . . Mother. Presler noted in her report it is not her “role to
make custody recommendations.” She followed that statement
with suggestions the evidence at trial shows Mother complied
with.
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Because of a lack of input from Mother, and the
incompleteness of the information Presler was given by Paternal
Grandmother, Presler’s testimony was of little assistance to the
[trial court] in determining what would be in the best interests of
. . . Child.
(Trial Court Opinion, 4/30/14, at 1-2) (record citations omitted). The record
supports the trial court’s analysis. Paternal Grandmother’s second issue
does not merit relief.
Paternal Grandmother supports her third issue, her claim that the trial
court failed to give proper weight to her role as primary caretaker, with a
single sentence referring this Court to the first issue in her brief stating,
“This issue is addressed in factors (3), (4), (9) and (10).” (Paternal
Grandmother’s Brief, at 29). As stated above, we are satisfied that the trial
court did not abuse its discretion on the first issue. Paternal Grandmother’s
third issue is without merit.
In her fourth issue, Paternal Grandmother claims that the trial court
erred in failing to provide a schedule of visitation for her with Child. (See
id.). According to Paternal Grandmother, “The trial court’s abrupt change in
custody without providing scheduled visitation with [Paternal Grandmother]
is unreasonable given the undisputed testimony at trial that [Paternal
Grandmother] should remain in . . . Child’s life on a regular and consistent
basis.” (Id.). We again quote the trial court, with approval:
Contrary to Paternal Grandmother’s assertions, there is no
evidence the change [in custody] will be so abrupt or sudden it
will traumatize . . . Child given his young age, and his
relationship with . . . Mother. Mother has addressed the
problems of concern to Presler in her report. There was nothing
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offered at trial to indicate the problems still exist or that Mother
is incapable of properly parenting [Child].
(Trial Court Opinion, 4/30/14, at 2). The record supports the trial court’s
determination that a change in custody from Paternal Grandmother to
Mother without any transitional visitation will not have any detrimental effect
on Child.
In her fifth issue, Paternal Grandmother claims that the trial court
erred in failing to consider the factors relating to relocation, 23 Pa.C.S.A. §
5337. (See Paternal Grandmother’s Brief, at 29). Paternal Grandmother
supports her argument by, once again, reexamining the evidence and asking
us to reach a different conclusion, which we will not do. We have, however,
reviewed the trial court’s analysis of the relocation factors in its
supplemental memorandum in light of the record and are satisfied that the
trial court’s determination that relocation is in Child’s best interest is
supported by the record. (See Trial Court Opinion, 4/30/14, at 2-5). The
trial court found that relocation will enhance the general quality of life for
Child both financially and emotionally, with no impact on his education.
Paternal Grandmother’s fifth issue does not merit relief.
Accordingly, for the reasons stated, we affirm the order of the trial
court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2014
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