R.G. v. I.G. ( 2015 )

J-A22012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.G., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
I.G., W.G.M., AND YORK COUNTY
CHILDREN AND YOUTH SERVICES,
Appellee No. 2177 MDA 2014
Appeal from the Order Entered November 26, 2014
In the Court of Common Pleas of York County
Civil Division at No(s): 2012-FC-001208-03
BEFORE: BOWES, JENKINS, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 02, 2015
R.G. (“Grandmother”) appeals from the order awarding York County
Office of Children, Youth, and Families (“CYF”) sole legal custody and
primary physical custody of her granddaughter, Y.M.-V, in this custody
action. We affirm.1
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1
Excluding tables and appendices, Grandmother’s brief is sixty-two pages
long. Pursuant to Pa.R.A.P. 2135, a principal brief is limited to 14,000
words, and when the the brief exceeds thirty pages, the appellant must
certify with the appellate court that the brief complies with the word
limitation. Herein, Grandmother failed to file the certification or request
permission to exceed the word limit. However, since Grandmother’s
violation of Pa.R.A.P. 2135 was not so defective so as to preclude effective
appellate review, we decline to dismiss the brief or quash the appeal. See
In re Estate of Glover, 669 A.2d 1011, 1017 (n.1) (Pa.Super. 1996)
(Footnote Continued Next Page)
*
Retired Senior Judge assigned to the Superior Court.
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Y.M.-V. was born out of wedlock during September 2006. During the
spring of 2012, Y.M.-V. witnessed her birth father stab her pregnant mother
to death in a motel lobby.2 In a related dependency action, on May 31,
2012, the juvenile court adjudicated Y.M.-V. dependent and awarded legal
custody to CYF. CYF placed Y.M.-V. with her maternal aunt, I.G. (“Aunt”).
Although CYF had initially identified Grandmother as a potential kinship
resource for Y.M.-V., it ultimately elected to place the child with Aunt, a pre-
adoptive resource, where she remains. While Grandmother stipulated that
Y.M.-V. was a dependent child, she disagreed with the disposition order
placing Y.M.-V. with Aunt. She appealed the juvenile court’s adjudication
and disposition, and we affirmed. See In The Interest of Y.M.-V., 68 A.3d
371 (Pa.Super. 2013) (unpublished memorandum).
Meanwhile, on June 29, 2012, Grandmother filed this custody action
against Aunt, Father, and CYF seeking legal and sole physical custody of her
_______________________
(Footnote Continued)
(“While we agree that the brief, which contains 69 pages, does violate the
page limitation of Pa.R.A.P. 2135, . . . [s]ince the brief is not so defective as
to preclude effective appellate review, we will not quash the instant
appeal.”).
2
The trial court indicates that the murders occurred during May of 2012;
however, the relevant criminal docket identifies the date of the offenses as
March 29, 2012. As of the date of this memorandum, birth father is
awaiting trial on two counts of first-degree murder.
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granddaughter.3 Noting the ongoing dependency proceedings, the trial court
dismissed the custody petition as inappropriate and ostensibly premature
under its interpretation of the prevailing case law. This Court disagreed.
Reasoning that the then-newly enacted Child Custody Act, 23 Pa.C.S. §§
5321-5340, specifically conferred standing upon a grandparent to seek
custody of a child that had been adjudicated dependent, we reversed the
order dismissing Grandmother’s custody complaint and remanded the matter
for further custody proceedings. See R.G. v. I.G., 87 A.3d 376 (Pa.Super
2013) (unpublished memorandum at 6-7) (“The new Custody Act . . .
confers standing upon grandparents in cases where ‘the child has been
determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to
juvenile matters), where the precedent requirements of Section 5324(3)(i)
and (ii) are also met.”’). The Supreme Court denied allocatur on November
26, 2013. R.G. v. I.G., 81 A.3d 78 (Pa. 2013).
On remand, the trial court entered an interim custody order that, inter
alia, authorized pertinent evaluations, studies, and investigations.4
Consistent with this order, Grandmother requested that Aunt participate in a
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3
Birth father’s parental rights were terminated on September 18, 2014. He
is no longer a party to the custody proceedings.
4
Peter Vaughn, Esquire, is the guardian ad litem in the dependency
proceedings. On January 21, 2014, the trial court entered an order
extending that appointment to the custody case.
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custody evaluation conducted by Kasey Shienvold, Ph.D.5 Between January
and April 2014, Aunt completed two interviews with Dr. Shienvold, and
completed a Minnesota Multiphasic Personality Inventory (“MMPI”);6
however, she rebuffed subsequent requests to participate in additional hour-
long interviews and an interactional evaluation with Y.M.-V. Dr. Shienvold
also wanted to interview Aunt’s husband and to have the husband complete
an MMPI, but the husband refused.
On July 11, 2014, Grandmother filed a petition for contempt and
special relief seeking, in pertinent part, Aunt’s participation in the custody
evaluation. The trial court did not immediately address the petition.
Instead, it considered the petition within the context of the two-day custody
trial, which commenced on November 20, 2014. Grandmother testified on
her own behalf and presented evidence from her son, N.G, his former
paramour, J.L., who translated Grandmother’s early communications with
CYF, and Dr. Shienvold, who testified as a fact witness regarding the petition
for contempt. CYF presented testimony from Y.M.-V.’s outpatient therapist,
the caseworker who supervises Grandmother’s visitation, Aunt, and a
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5
Although the trial court order entered on March 20, 2014, misidentified the
custody evaluator as Arnold Shienvold, the certified record confirms that
Grandmother retained Dr. Kasey Shienvold to perform the custody
evaluation.
6
The MMPI is a psychological assessment that custody evaluators commonly
employ as one component of a custody evaluation.
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different maternal aunt who helps provide child care for Y.M.-V.
Additionally, the trial court interviewed Y.M.-V. in camera. After the close of
testimony, the guardian ad litem recommended that the trial court grant
Grandmother one six-hour period of unsupervised physical custody per
month.
On November 26, 2015, the trial court issued an opinion and order
that addressed each of the enumerated best-interest custody factors in 23
Pa.C.S. § 5328(a), which we reproduce infra, and awarded CYF legal and
primary physical custody. Despite the guardian ad litem’s recommendation
to increase the extent of grandmother’s unsupervised contact with Y.M.-V.,
the trial court granted Grandmother one hour of supervised custody per
month. This timely appeal followed.
Grandmother complied with Pa.R.A.P. 1925(a)(2)(i) and (b) by filing a
concise statement of errors complained of on appeal contemporaneous with
her notice of appeal. Thereafter, the trial court issued a Rule 1925(a)
opinion that addressed Grandmother’s additional allegations of error that it
had not confronted in the opinion and order entered on November 26, 2015.
The matter is ready for our review.
Grandmother raises the following five issues:
A. Whether the custody court committed prejudicial errors
and/or abused its discretion by failing to address at all the
contempt issues related to Aunt’s failure to participate in the
custody evaluation, including but not limited to an award of fees,
costs and expenses under 23 Pa.C.S. §5339, and by failing to
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enforce Aunt’s participation in a custody evaluation as the court
has an obligation to develop independently a complete record in
a custody case.
B. Whether the custody court committed prejudicial errors
and/or abused its discretion by failing to order any kind of family
counseling as permitted under 23 Pa.C.S. § 5333 in order to
support the best interest of [Y.M.-V.] in creating a situation
where she could have contact with all extended family in a less
conflicting setting?
C. Whether the custody court committed prejudicial error and/or
abused its discretion by limiting the maternal grandmother’s
contact with [Y.M.-V.] to only one supervised visit per month
without a reasonable basis in that such limited contact does not
permit the development of a bond or permit contact with other
extended family during the visit?
D. Whether the custody court committed prejudicial error and/or
abused its discretion by failing to award primary physical custody
to maternal grandmother, who was the only person who had
standing to maintain a custody action under the Custody Act?
E. Whether the custody court violated Appellant’s rights under
the Custody Act and committed prejudicial error and/or abuse[d]
[its] discretion in its disparate treatment of exhibits, witnesses
and appointment of counsel between Aunt and maternal
grandmother?
Appellant’s brief at 5-6.7
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7
We are dismayed that neither CYF, the party that actually possess legal
and physical custody of Y.M.-V., nor Attorney Vaughn, whose appointment
requires him to represent the child’s interests throughout the custody
proceedings, filed briefs in this matter. We are particularly troubled by
Attorney Vaughn’s apathy in light of the fact that the trial court declined his
express recommendation that Grandmother receive a six-hour block of
unsupervised physical custody. N.T., 11/20-21/14, at 251-252. Although
the guardian ad litem’s recommendation is advisory, this Court doubtlessly
would have benefited from a brief outlining his perspective. C.W. v. K.A.W.,
(Footnote Continued Next Page)
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Our standard of review in custody matters is as follows:
We review a trial court's determination in a custody case for an
abuse of discretion, and our scope of review is broad. M.P. v.
M.P., 54 A.3d 950, 953 (Pa.Super. 2012). Because we cannot
make independent factual determinations, we must accept the
findings of the trial court that are supported by the evidence. Id.
We defer to the trial judge regarding credibility and the weight of
the evidence. Id. The trial judge's deductions or inferences from
its factual findings, however, do not bind this Court. Id. We may
reject the trial court's conclusions only if they involve an error of
law or are unreasonable in light of its factual findings. Id.
S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014). Additionally, mindful that
the polestar of any custody determination is the best interest of the child,
we will not disturb a custody order so long as it is free from error and the
certified record reveals that the trial court’s consideration of the child’s best
interest standard was “careful and thorough.” A.V. v. S.T., 87 A.3d 818,
820 (Pa.Super. 2014) (citations omitted). Ultimately, “[t]he test is whether
the evidence of record supports the trial court’s conclusions.” Id. (citations
omitted).
The contentions that Grandmother levels in issues A, B, and E all
concern matters that implicate the trial court’s review of the § 5328(a) best-
interest factors tangentially. First, Grandmother complains that the trial
_______________________
(Footnote Continued)
774 A.2d 745 (Pa.Super. 2001) (guardian’s custody recommendations are
advisory). Indeed, even if the guardian ad litem was unable to fashion a
legal argument in support of his recommendation, it would have benefited
our review if he had filed something with this Court to explain his reasons for
proposing the extended period of unsupervised custody.
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court erred in failing to find Aunt in contempt for neglecting to cooperate
with Dr. Shienvold’s custody evaluation. Second, Grandmother assails the
trial court’s decision to forego family counseling between Grandmother and
Aunt. Finally, she complains of the trial court’s disparate treatment of her
generally. We address these issues at the outset.
As it relates to the contempt petition, Grandmother asserts that Aunt’s
failure to participate fully in the custody evaluation essentially derailed Dr.
Shienvold’s efforts insofar as he concluded that he could not prepare a
complete evaluation prior to the then-scheduled hearing date without Aunt’s
further cooperation. In rejecting Grandmother’s assertion and request for
$1,300 in costs and fees, the trial court observed, inter alia, that even
though Aunt’s noncompliance contributed to Dr. Shienvold’s delay, once the
court postponed the custody trial from late-August to mid-November, Dr.
Shienvold had sufficient time to perform the required interviews and to
prepare a custody evaluation report. However, since Grandmother failed to
inform Dr. Shienvold of the continuance, he abandoned his efforts, and
formally terminated his service as the custody evaluator on July 8, 2014.
The certified record supports the trial court’s finding.
In response to Aunt’s cross-examination as to why he did not follow up
on her request to provide alternative dates to complete the evaluation
interviews after July 2014, Dr. Shienvold testified, “I was unaware that the
deadline for the report had been extended. So I was under the impression
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that—that I wasn’t able to meet the deadlines of the court still. I did not
know [the case] was pushed back until the end of November.” N.T., 11/20-
21/14, at 178. Thereafter, responding to the trial court’s inquiry, Dr.
Shienvold continued, “That would have given me another two months. . . .
[T]hat would have been certainly enough time—another two months before
the report was due[,] would have been enough time to complete the
evaluation.” Id. at 179. In light of the foregoing, we do not disturb the trial
determination that the sanctions Grandmother requested were not
warranted.
To the extent that Grandmother contends that the factual record was
insufficient due to the lack of a custody evaluation, we also reject this
assertion. Neither the Child Custody Act nor our case law requires a trial
court to order a custody evaluation. Like parental assessments and co-
parenting counseling, a custody evaluation is but one instrument at the trial
court’s disposal to help determine a child’s best interest. While the trial
court initially believed that the custody evaluation was warranted in this
case, after hearing the various fact witnesses testify at the custody trial, it
was able to weigh the statutory best interest factors without the assistance
of a custody evaluation. It is clear that Grandmother is dissatisfied with the
trial court’s custody decision; however, she failed to identify any specific
benefit that would inure to her from a custody evaluation. She merely raises
the generalized complaint, “An evaluation would have undoubtedly avoided
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the many mistakes made by the Court as evidenced in the record and as
argued on appeal.” Appellant’s brief at 35. Unfortunately for Grandmother,
since she does not actually identify any reversible errors or acts that are
tantamount to an abuse of discretion, her generalized complaint is
unpersuasive. Stated simply, while a custody evaluation undoubtedly would
have provided additional insight on the child’s psychological and
developmental needs, the trial court’s consideration of the statutory best-
interest factors in light of the evidence presented at trial was sufficient in
this case. No relief is due.
Next, Grandmother objects to the trial court’s decision to forego family
counseling. Pursuant to 23 Pa.C.S. § 5333, “The court may, as part of a
custody order, require the parties to attend counseling sessions.” Instantly,
the trial court ordered individual counseling for Y.M.-V. but declined to
impose family counseling for Grandmother, Aunt, and the extended family.
In its Rule 1925(a) opinion, the trial court explained that it did not believe
that family counseling was necessary to Y.M.-V.’s best interest in light of the
individualized counseling that she received.
Grandmother argues that the trial court’s invocation of Y.M.-V.’s
individual counseling misses the mark. She contends that, unlike the child’s
counseling, family counseling would have helped the remaining family
members quell the animosity between the respective factions that support
Grandmother and Aunt. She asserts that the trial court’s decision to forego
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family counseling was tantamount to an abuse of discretion because it would
have reduced the level of conflict among the family members, allowed
Grandmother and Aunt to reconcile their differences, and permitted the
family as a whole to pursue Y.M.-V.’s best interest.
We agree with Grandmother in the broad sense that family counseling
is designed to confront different issues than the individualized counseling
Y.M.-V. currently receives. We also recognize that, if effective, family
counseling undoubtedly would inure to the child’s best interest.
Nevertheless, we disagree with Grandmother’s ultimate contention that the
trial court abused its discretion in failing to exercise its statutory authority to
order family counseling under § 5333(a). Stated plainly, Grandmother’s
allegations of error presupposes that she, Aunt, and the remaining family
members would benefit from counseling. However, the certified record
belies this conclusion. To the contrary, the record evinces a toxic
relationship between Grandmother and Aunt and a family dynamic that is
tragically resistant to counseling.
Indeed, during the custody trial, it was revealed that Grandmother and
Aunt previously engaged in family counseling and that those efforts were
futile. Grandmother testified that, following the birth mother’s death, she
and Aunt initiated counseling in order to improve their relationship. N.T.,
11/20-21/14, at 24. However, counseling failed. Grandmother, explained,
“everything stood the same.” Id. In addition to that unsuccessful attempt,
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Grandmother and Aunt participated in at least one other meeting that was
designed to improve their communication with each other. Id. It also failed
to close the familial rift. Id. at 24-15.
J.L., Grandmother’s translator, participated in that meeting and
provided the custody court with the following description.
There was a family meeting to try and bring everybody together
for the sake of [Y.M.-V.] for visitation, custody to bring the
family together. So it was a family gathering that was initiated.
Children and Youth were there. Peter Vaughn was there. All of
the parties were there.
It seemed to be going well. There [were] hugs between
[Grandmother] and [Aunt], myself and [Aunt], [Mother’s son
N.G.] and [Aunt]. And then when the parties such as the
attorneys and Child and Youth left the room for us to discuss
things, the parties went their separate ways. They had a plan of
action. And we were left to present some type of plan of action.
The parties did not come together for a plan of action for
[Y.M.-V] [and] the family to be together. And that's what the
family meeting was [intended to accomplish].
Id. at 137-38. Thus, the prior attempts to engage in counseling for Y.M.-V’s
benefit have been fruitless.
Additionally, Y.M.-V.’s counselor, Christina Schadewald, testified that
Aunt and Grandmother engaged in family counseling in Lancaster,
Pennsylvania with Mario Dinenna, a Spanish-speaking counselor who was
formally in Ms. Schadewald’s office at the Community Services Group. Id.
at 88-89. Although Ms. Schadewald did not participate in the family
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counseling session, Grandmother’s son, N.G., testified that the session
quickly devolved into a shouting match. He depicted the episode as follows:
So [Grandmother] went ahead. She went in. And the doctor
asked me if I could leave. So I said, yes. And once I left when
[Aunt] was there, [Aunt] started screaming and yelling, going
crazy, and everyone could hear her.
And the report that they made said that [Grandmother] was the
one yelling. [Grandmother] is not like that.
Id at 124-25. J.L., described the incident in greater detail:
[Grandmother and Aunt] entered into the room with the
counselor. I believe his name was Mario. I believe Tina
Schadewald's office is the same location. [Aunt] did not want me
present in the room. Myself and [N.G.] were requested to leave
per Mario because [Aunt] did not want us there. She wanted the
meeting.
It was just going to be her and [Grandmother]. So . . .
[N.G.], and myself were put out. We were in a room very close.
We could overhear everything that was going on. They were in
there for about an hour. The counselor was interrupting many a
time.
I heard [Aunt’s] voice very loud attacking [Grandmother].
The conversation did not go very well. At points I was ready to
go in there and pull [Grandmother] out of the meeting because it
wasn’t going well at all.
....
[Aunt] was angry with [Grandmother] because . . .
remarks were made. I know that is something that was said,
saying that she is not her mother, she is not her daughter; that
the counselor wanted [Grandmother] to apologize for certain
things that were said. [Grandmother] said that she would
apologize. [Aunt] stated she wasn't going to take any apologies.
It was just -- there was no conversation really regarding
[Y.M.-V.]. It was a conversation of [Aunt] just verbally
attacking [Grandmother].
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Id. at 136-37 (emphasis added). Regardless of which party was at fault for
derailing the attempted counseling sessions or who instigated the resulting
arguments, the record demonstrates that Aunt and Grandmother, in fact,
attempted a second time to initiate family counseling for Y.M.-V’s benefit
and their enmity consumed those discussions. Contrary to Grandmother’s
contentions on appeal, the foregoing testimony does not establish that the
trial court abused its discretion in declining to resubmit Aunt and
Grandmother to family counseling under the facts and circumstances of this
case.
The third issue that we address concerns the trial court’s alleged bias
in favor of Aunt. Grandmother asserts that “the custody court violated her
rights under the Custody Act in several ways, essentially demonstrating bias
against her as well as some animus, not only at trial, but in the preceding
proceedings [during] the past [three] years.” Appellant’s brief at 57. This
claim has three components: (1) the trial court permitted CYF to incorporate
the dependency record over her objection; (2) the trial court treated the
parties’ respective witnesses’ opinion testimony differently; and (3) the trial
court appointed counsel to represent Aunt throughout the dependency and
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custody proceedings but neglected to appoint counsel for Grandmother.
These arguments are meritless.8
In addressing these complaints the trial court observed that, while it
took judicial notice of the entries on the juvenile docket, it did not take
judicial notice of any facts in the dependency proceedings. It also stressed
that it permitted Grandmother to review the list of docket entries and record
of the juvenile court proceedings. As it relates to the remaining claims, the
court highlighted that both Ms. Schadewald and Dr. Shienvold were
presented as fact witnesses and neither witness was permitted to proffer an
expert opinion. Finally, the trial court pointed out that Grandmother
retained private counsel prior to initiating the custody litigation, maintained
legal representation, and never requested court-appointed counsel.
The certified record supports the trial court’s findings on all three
counts. First, as it relates to the incorporation of the dependency record,
the certified record demonstrates that while CYF initially requested to
incorporate the dependency proceedings in its entirety, it revised that
request and limited it to “pleadings filed of record” in the dependency court.
N.T., 11/20-21/14, at 11. The trial court interpreted that entreaty as a
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8
We note that Grandmother does not assert that the alleged errors
constitute reversible error in themselves; rather, she argues that the
purported missteps evidence the court’s partiality. Accordingly, our review
focuses primarily upon Grandmother’s claims of alleged bias.
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request “to incorporate the docket,” and concluded, “I’m going to
incorporate the actions and proceedings in the docket in the dependency
matter in this matter.” Id. at 12, 13. The trial court granted Grandmother’s
request to examine that record, and entered an order to facilitate her review
of the sealed juvenile court record. Id. at 162-163.
As noted, supra, the trial court stated that it took judicial notice of the
docket entries but did not consider any facts in the juvenile court record.
Rule 1925(a) Opinion at ¶ 5. Our review of the trial court’s best-interest
analysis confirms that the trial court did not rely upon any testimony that
was not adduced during the two-day custody proceeding, and Grandmother’s
protestations do not allege any specific instances that would refute the trial
court’s assertion that it did not consider any extra-judicial facts. Thus, this
aspect of her bias claim is unpersuasive.9
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9
As the trial court did not rely upon any facts gleaned from the juvenile
court record, we find no basis for relief. However, this disposition should not
be interpreted as an imprimatur on the practice of incorporating by reference
the entirety of a juvenile court record into a custody case. Indeed, that
action is particularly problematic where, as here, one of the custody litigants
was not a party to the dependency proceedings and had limited legal rights,
if any, before the juvenile court. Absent a stipulation, the preferred practice
would be for the petitioning party to present the relevant portions of the
dependency record, redacted, if necessary, to the trial court as an exhibit for
admission into evidence. This practice would alleviate the precise issue that
confronted Grandmother in the case at bar, i.e., her inability to confirm the
contents of a sealed record that she had no legal authority to access.
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Next, we address the trial court’s alleged disparate treatment of the
parties’ respective fact witnesses. The crux of this contention is that, while
the trial court permitted a CYF fact witness to proffer her lay opinion of Y.M.-
V.’s progress in therapy and the child’s preparation for adoption, it precluded
Grandmother from adducing Dr. Shienvold’s lay opinion about Y.M.-V’s
relationship with Grandmother. We find that the certified record belies
Grandmother’s assertion of partiality.
Pa.R.E. 701, regarding opinion testimony by lay witnesses, provides:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701.
The following facts are relevant. On the second day of testimony,
Grandmother proffered Dr. Shienvold to testify in relation to the pending
contempt petition against Aunt. That is, Dr. Shienvold was presented to
explain how Aunt’s lack of cooperation impeded his ability to complete the
custody evaluation or produce an expert report. Id. at 176. During the
ensuing direct examination, Dr. Shienvold testified about Aunt’s level of
cooperation. However, the trial court sustained CYF’s objections to
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Grandmother’s attempts to inquire about the substance of Dr. Shienvold’s
incomplete evaluation or his opinion regarding the bond that he observed
between Y.M.-V. and Grandmother. Id. at 166-167. The court permitted
Dr. Shienvold to relay the facts of his discussion with Aunt regarding the
level of conflict in the family, generally. Likewise, Dr. Shienvold outlined
Grandmother’s perspective of the family dynamic and summarized his
interview with Y.M.-V.
In contrast to the limited purpose of Dr. Shienvold’s lay testimony,
CYF presented Y.M.-V.’s therapist, Christina Schadewald, to discuss the
child’s treatment for post-traumatic stress disorder and to describe the
therapist’s interactions with Y.M.-V. as the agency’s focus turned toward
Aunt’s potential adoption. During direct examination, Ms. Schadewald
explained that the focus of therapy veered away from dealing with the grief
associated with tragedy and toward the possibility of her adoption. The
therapist discussed the meaning of adoption with Y.M.-V. and how it would
apply to her. Ms. Schadewald further elucidated, “[Y.M.-V.] ha[d] some
misperceptions about what [adoption] meant. So I was working with her to
have a better understanding of what [it] [entailed]. Id. at 73. In discussing
this dynamic and how the child would be affected by the potential adoption,
CYF inquired if Y.M.-V. appeared to have bonded with Aunt and her
household. The trial court overruled Grandmother’s objection to the
question as calling for opinion testimony. Later, after Ms. Schadewald
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explained how Y.M.-V. omitted Grandmother from a hand-drawn depiction of
her “family,” CYF inquired whether Y.M.-V. understood that any potential
adoption would necessarily involve Aunt, and asked whether the child felt
“secure and safe with that concept?” Grandmother objected to the question
as calling for an opinion, and, again, the trial court overruled the objection.
The difference between the trial court’s treatment of the two
witnesses’ lay opinion testimony was based on the fact that the witnesses
were presented for different purposes. Neither Dr. Shienvold nor Ms.
Schadewald was qualified by the trial court as experts to testify in the form
of opinion. Accordingly, neither witness submitted an expert report or
purported to testify as an expert in the custody case. Those are the only
similarities between the two witnesses’ roles in this matter. Dr. Shienvold
had no contact with the family outside of his role as Grandmother’s hand-
picked custody evaluator. The evaluation was never completed, however,
and the purpose of his testimony was limited to Aunt’s lack of full
cooperation with the custody evaluation process and his interactions with
Y.M.-V. during the partial evaluation.
In contrast, Ms. Schadewald was presented to discuss Y.M.-V’s
therapy, which, at that juncture, included preparing for a potential adoption.
Thus, while Grandmother sought to adduce Dr. Shienvold’s lay opinion
regarding the substance of the incomplete custody evaluation as an end-run
around the requirements of a qualified expert, the context of Ms.
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Schadewald’s opinion testimony aligned squarely with Rule 701. Stated
plainly, that testimony was based on Ms. Schadewald’s perception of her
therapeutic interactions with Y.M.-V., it was helpful to discern Y.M.-V.’s
understanding of, and readiness for, the anticipated adoption, and it was not
based on scientific, technical, or other specialized knowledge beyond the fact
that Y.M.-V. omitted Grandmother from a drawing depicting her “family.”
No relief is due.
The final allegation of bias stems from the fact that the trial court
appointed counsel to represent Aunt in her capacity as “Maternal
Aunt/Kinship Parent.” Trial Count Order, 5/9/14, at 1. Preliminarily, we
highlight that there is no right to counsel in child custody litigation. Karch
v. Karch, 879 A.2d 1272, 1274 (Pa.Super. 2005) (“There is no right to
counsel in divorce, custody, or support proceedings.”). Thus, the
appointment of counsel in this case was an exercise of the trial court’s
discretion.
While it is not clear from the record, the trial court apparently
appointed counsel for Aunt in the custody case because, as a pre-adoptive
resource, Aunt had been granted representation in the underlying
dependency proceedings that this custody action sought to collaterally
challenge. As a named respondent to Grandmother’s custody complaint,
Aunt is a peripheral participant in the custody litigation with no legally
cognizable right to custody beyond the custodial interest that she derives
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from CYF. However, as Y.M.-V.’s pre-adoptive parent, Aunt’s full
participation in the custody litigation is undoubtedly essential to the trial
court’s determination of the child’s best interest. This reality is highlighted
by the fact that the trial court’s consideration of the best interest factors
focused primarily upon Y.M.-V’s relationship with Aunt. Consequently, the
trial court’s decision to appoint counsel on Aunt’s behalf as “Kinship Parent”
was an exercise of discretion rather than an example of partiality.
Furthermore, the certified record confirms that Grandmother has
maintained legal representation since she initiated the custody action, and
she never requested that the trial court appoint counsel to represent her in
this lawsuit. We reject as unfounded Grandmother’s flippant supposition
that the trial court would have denied her request for counsel had she
asked. Grandmother’s assertions of bias and partiality are baseless.
Having disposed of Grandmother’s ancillary complaints regarding
Aunt’s contempt, the trial court’s judicial notice of the juvenile court docket,
and her allegedly disparate treatment, we next address the merits of the
trial court’s custody determination. When awarding any form of custody, the
Child Custody Law provides an enumerated list of factors a trial court must
consider in determining the best interests of a child:
§ 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
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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).
(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.
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(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.
(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).
In addition, in cases involving the award of partial physical custody to
grandparents and great-grandparents, § 5328(c) states:
(1) In ordering partial physical custody or supervised physical
custody to a party who has standing under section 5325(1) or
(2)(relating to standing for partial physical custody and
supervised physical custody), the court shall consider the
following:
(i) the amount of personal contact between the child and
the party prior to the filing of the action;
(ii) whether the award interferes with any parent-child
relationship; and
(iii) whether the award is in the best interest of the child.
(2) In ordering partial physical custody or supervised physical
custody to a parent's parent or grandparent who has standing
under section 5325(3), the court shall consider whether the
award:
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(i) interferes with any parent-child relationship; and
(ii) is in the best interest of the child.
23 Pa.C.S. § 5328(c).
Herein, Grandmother had standing to seek partial physical custody
under § 5325(1) due to the fact that birth mother was deceased. However,
the trial court did not specifically delineate the applicable factors in §
5328(c) (i) and (iii), i.e., the level of contact between Y.M.-V. and
Grandmother prior to the custody litigation and whether the award of one
hour supervised physical custody was in the child’s best interest. Consistent
with the custody statute, however, the trial court’s opinion and order did, in
fact, address the substance of the pertinent considerations in fashioning the
custody arrangement. As Grandmother does not challenge the trial court’s
failure to address separately subsection (c) and because the certified record
supports the trial court’s best-interest determination under § 5328(a), we
overlook the procedural misstep as harmless error.
Next, we turn to the merits of Grandmother’s substantive argument,
which she asserted in paragraphs “C” and “D” of her statement of questions
presented. This Court has stated that, “[a]ll of the factors listed in section
5328(a) are required to be considered by the trial court when entering a
custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011)
(emphasis in original). Instantly, the trial court determined that factors
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seven, eleven, twelve, fourteen, and fifteen were either neutral or
inapplicable to the facts of this case. All of the remaining factors militated in
favor of CYF, based either on the benefit of Aunt’s interactions and
relationship with Y.M.-V., the agency’s involvement, or maintaining the
status quo.
Grandmother does not challenge the court’s considerations of any
specific factors.10 Instead, she invokes her “favored position” as a
grandparent and argues that the trial court erred in failing to relax her
burden of proof and weigh its considerations of the best-interest factors
thorough the prism of her elevated claim to physical and legal custody of her
grandchild. She entreats that we reverse the trial court and remand with
instructions to either increase her one-hour period of partial physical custody
to a six-hour-block of unsupervised physical custody consistent with the
guardian ad litem’s recommendation or hold a new trial for a “fresh look”
____________________________________________
10
An aspect of Grandmother’s argument assails the trial court’s decision to
discount then-eight-year-old Y.M.-V.’s stated desire to visit Grandmother
more often. Based upon the child’s interactions with the trial court during
the in camera interview, the trial court did not give the child’s preference
any weight. Our review of the certified record supports the trial court’s
decision. See N.T., 11/20-21/14, at 231-248; Johns v. Cioci, 865 A.2d
931, 943 (Pa.Super. 2004) (“We are mindful that the child's preference is
not controlling and that the trial judge is in the best position to determine
the weight to be given to the child's preference [based upon maturity,
intelligence and ability to form well-reasoned opinion]”).
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before a different trial court. Grandmother’s brief at 57. For the following
reasons, we decline Grandmother’s requests.
As noted, Grandmother’s argument is predicated upon the assertion
that, as a grandparent, she is entitled to a favored position over other third-
party custody litigants. In support of this position, Grandmother relies upon
(1) provisions in the current Child Custody Law that extend standing to
grandparents under §§ 5324(3) and 5325; (2) repealed sections involving
standing in the former custody law; and (3) case law addressing
grandparent standing vis-à-vis other third parties under the repealed law.
Tellingly, Grandmother fails to cite to a single case in support of her legal
proposition that flows from the current Child Custody Law that became
effective on January 24, 2011.
Grandmother’s argument overstates the significance of her status as a
grandparent. The preferential positon that Grandmother attempts to invoke
relates to standing rather than a substantive lean that affects the trial
court’s custody termination. The relevant precept arises from Martinez v.
Baxter, 725 A.2d 775, 779 (Pa.Super. 1999), aff’d sub nom. R.M. v.
Baxter ex rel. T.M., 777 A.2d 446 (Pa. 2001), wherein we quoted a
passage from Pennsylvania Family Law Practice and Procedure (4th ed.)
regarding the unique position of grandparents in custody cases in relation to
to other third-parties who lacked standing to petition for custody unless they
stood in loco parentis. However, it is obvious from both the context of our
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discussion in that case and the authority that the esteemed treatise cited in
support of the proposition stated therein, that the preference relates only to
standing to initiate custody litigation.
Martinez involved our review of a trial court order sustaining
preliminary objections to a grandmother’s custody complaint. In vacating
the trial court order, we reiterated, “Grandparents occupy a favored position
among other third parties in custody disputes, and have standing to petition
for physical and legal custody from a natural parent, provided that [they
satisfy the remaining statutory requirements].” Id. at 778 (quoting Wilder,
Pa. Family Law Prac. and Proc. (4 th ed.), § 28–4 at 340.). Examination of
the treatise from which the Court borrowed the quote reveals that the
principle is tied to the former custody law’s grant of standing to
grandparents in custody actions in certain situations. Specifically, the
accompanying footnote reveals, “The statute was amended in 1996 to afford
standing to grandparents, thereby legislatively overruling those cases
holding that grandparents were to be treated as any other third parties in
custody legislation.” Wilder, Pa. Family Law Prac. and Proc. (4 th ed.), § 28–
4, n.10 at 343. Nothing in Martinez, or the treatise that we relied upon
therein, supports Grandmother’s instant claim that the “favored position”
that she enjoys equates to a substantive preference or a relaxed burden of
proof. Indeed, in vacating the trial court’s order in Martinez, we not only
excluded any reference to practical favoritism, but we also reiterated that
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the polestar of all custody determinations is the best interests of the child.
We stated, “Grandmother did not have the opportunity to be heard on her
petition and did not have an evidentiary determination as to whether it was
in the best interests of [the child] to be placed in her custody.” Id. at
778-779 (emphasis added). Our Supreme Court confirmed this positon on
appeal. See R.M. supra, at 451 n.4. (“It must be recognized, however,
that the legislature’s conferral of automatic standing to seek the physical
and legal custody of a grandchild does not affect a grandparent's evidentiary
burden to prove his/her custody claim on the merits.”). Thus, we find
unpersuasive Grandmother’s instant claim that the trial court erred in
overlooking the alleged preference in the case at bar.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2015
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