A.F. v. A.S., Appeal of: D.M & P.M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.S. AND D. AND P.M. :
:
: No. 30 WDA 2020
APPEAL OF: D. AND P.M. :
Appeal from the Order Entered September 19, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD09-000772-017
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 16, 2020
Appellants, D. and P.M. (collectively, “Paternal Grandparents”), appeal
from the September 19, 2019 Order1 that, inter alia, granted sole legal and
physical custody of A.F. (“Child”) to Child’s mother, A.F. (“Mother”), and
awarded Paternal Grandparents supervised phone contact with Child. Paternal
Grandparents challenge the trial court’s continuing and exclusive jurisdiction
to make a custody determination under Section 5422 of the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. § 5401-
5482, as well as the trial court’s custody award. Upon careful review, we
affirm.
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1 The Order is dated September 16, 2019, but was not docketed until
September 19, 2019.
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PROCEDURAL AND FACTUAL HISTORY
In its September 19, 2019 Opinion, the trial court set forth a detailed
procedural and factual history, which we adopt for purposes of this appeal. 2
See Memorandum and Order, 9/19/19, at 2-5. Mother and A.S. (“Father”)
are parents to Child, who was born in February 2012. In sum, Mother and
Father were never married, have always had a contentious relationship, and
both have a history of substance abuse. Father also has a criminal history.
On September 5, 2013, Father filed a Complaint for Confirmation of
Custody alleging that Mother was homeless and struggling with substance
abuse, and that he had been Child’s primary caretaker since June 2013. On
the same day, the trial court issued an Order granting Father primary physical
custody of Child and directing any party or parent seeking relocation to file a
petition for relocation as required by Section 5337 of the Custody Act.3 Shortly
after the trial court awarded Father custody of Child, Paternal Grandparents
took Child to live with them in Arizona, at Father’s request.4 Neither Father
nor Paternal Grandparents notified Mother of Child’s relocation. Father did not
file a petition for relocation with the court.
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2 We note that this is a highly litigious custody dispute where parties have
filed numerous Petitions for Special Relief and Contempt, and the trial court
has issued numerous interim Orders. We highlight the procedural and factual
history most relevant to this appeal.
3 23 Pa.C.S. § 5337.
4Despite Father’s averments to the trial court, he was unable to care for Child
due to his recent release from prison and unsuitable housing.
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On December 21, 2015, Mother filed a Petition to Modify Custody and
an Emergency Petition for Special Relief, alleging that Child was living in
Arizona with Paternal Grandmother, without Mother’s consent and in violation
of the September 5, 2013 Custody Order. On December 22, 2015, the trial
court granted the Emergency Petition, ordered Child to be returned to
Pennsylvania, and ordered the parties to follow the existing custody Order
pending further order of the court.
On July 5, 2016, after Father failed to appear for several scheduled
conciliation conferences, the trial court issued an Order awarding Mother daily
phone calls and alternating weekend visitation with Child pending trial.
On September 26, 2016, after conciliation, the trial court issued an
interim Order awarding Father sole legal custody, and both parties shared
physical custody, with Mother exercising custody of Child every other weekend
and Wednesday evenings. The Order further stated that Child shall not leave
the Commonwealth of Pennsylvania.
On October 13, 2016, Mother filed a Petition for Contempt alleging Child
had remained in Arizona and Father was not complying with the September
26, 2016 Custody Order. On November 17, 2016, after a hearing, the trial
court found Father in contempt of several prior custody orders. The court
ordered Father incarcerated for 30 days, or until he was able to pay fines. The
court further ordered Father to arrange the return of Child to Pennsylvania
immediately.
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On February 27, 2017, in response to Paternal Grandparent’s filing a
Petition to Involuntarily Terminate Mother’s Rights in Arizona, the trial court
issued an Order stating that Pennsylvania has exclusive and continuing
jurisdiction over the custody matter. The court, once again, ordered Child to
be returned to Pennsylvania.
On March 7, 2017, the trial court issued an Order stating that Child shall
be returned to Pennsylvania within 10 days.5 In response, on March 20, 2017,
Paternal Grandparents filed a Complaint in Custody in Pennsylvania seeking
primary physical custody of Child.
On November 20, 2017, the trial court scheduled a custody hearing to
take place in January 2018, ordered Paternal Grandparents and Child to
appear at the hearing, and ordered Mother to have daily electronic contact
with Child, who remained in Arizona.
On January 10, 2018, after Paternal Grandparents failed to appear at
the scheduled hearing with Child, the trial court issued an interim Order which
awarded Mother sole legal and physical custody of Child, effective
immediately, and directed local law enforcement in Arizona to ensure that
Paternal Grandparents turned over custody of Child to Mother.
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5 The Order also stated that if Paternal Grandmother failed to file a custody
action within 10 days, Child shall be returned directly to Mother’s custody.
However, if Paternal Grandmother did file a custody action, then Paternal
Grandmother “shall make Child available for reunification with Mother in
[Pennsylvania] every third weekend beginning [March 30, 2017.]” Order,
3/7/17.
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Paternal Grandparents and Father filed multiple Emergency Petitions for
Special Relief, which the trial court denied. Mother traveled to Arizona and
took Child into her custody on January 10, 2018. Since that date, Child has
remained in Mother’s custody.
In March 2018, following judicial conciliation, the trial court ordered all
parties to submit to psychological evaluations, awarded Paternal Grandparents
phone contact with Child, and awarded Father supervised visits and phone
contact with Child.
On August 15 and 16, 2019, the trial court held a custody hearing. The
court heard testimony from Barbara Grimm, staff member at Light of Life
treatment facility, Mother; R.M., Sr., Mother’s uncle (“Maternal Uncle”); C.M.,
Mother’s aunt (“Maternal Aunt”); D.F., Mother’s stepmother (“Stepmother”);
Dr. Beth Bliss, an expert in psychology; Paternal Grandmother; Paternal Step-
Grandfather; Father; and Child.
Ms. Grimm testified that Mother successfully completed and was fully
compliant with the Family Assistance Program at Light of Life, an intense
homeless and addiction treatment facility that addresses addiction, parenting,
and needs of children. N.T. Hearing, 8/15/19, at 7-9.
Mother testified that she has been sober since August 26, 2014, is
employed at a restaurant and is starting school to become a nurse, has family
support, and lives with and cares for her three daughters, including Child and
Child’s 12-year-old and 2-year-old half-sisters. Id. at 15-35. Mother
admitted to her mistakes in the past, including substance abuse and leaving
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Child in the care of others while she attempted to get treatment. Id. at 36-
45, 57-58. Mother stated that Father did not inform her or obtain her consent
when he sent Child to Arizona. Id. at 21.
Mother testified that she facilitates phone conversations between Child
and Paternal Grandparents, but they make Child anxious because the Paternal
Grandparents make disparaging comments about Mother. Id. at 28-30.
Mother explained that Child’s anxiety has manifested physical symptoms, and
that Child began “picking” her face, wetting herself, and having problems with
digestion; Mother sought medical treatment and counseling. Id. at 28-30.
Mother testified that her relationship with Paternal Grandparents is
“[t]errible.” Id. at 27. Mother explained that Paternal Grandparents scream
at her, call her names, call the police to check on Child, tell Child that Mother
abandoned her and that they are her parents. Id. at 27-35. Mother further
testified that she is open to Paternal Grandparents being involved in Child’s
life if they change their behavior and act appropriately with “love and
affection.” Id. at 58.
Maternal Uncle, Maternal Aunt, and Stepmother all testified that they
observed Mother when she was actively abusing drugs, that she has made an
incredible turnaround during her sobriety, that Mother is a great parent to her
daughters, that Mother loves Child, and that Child is happy. Id. at 67-111.
All three witnesses also testified that they have observed Child experiencing
anxiety during phone conversations with Paternal Grandparents while in their
care. Id.
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Paternal Grandmother testified that she started caring for Child at
Father’s request in September 2013, when Child was 18 months old, after she
learned that Mother had left Child “with a stranger at an AA meeting” and
Father was living in a “three-quarters house” after being released from prison.
Id. at 116-119. Paternal Grandmother bought clothing, supplies, and
furniture, and moved into a new apartment with a bedroom for Child. Id.
120-23
Paternal Grandmother testified that she brought Child back to Pittsburgh
in December 2015 for a few months to stay with Father and Child had some
court-ordered supervised visits with Mother. Id. at 122-25. A few months
later, Father asked Paternal Grandmother to take Child back to Arizona, where
Child remained until 2018. Id. at 126. Paternal Grandmother admitted to
knowing that there was a visitation order in place when she took Child back
to Arizona. Id. at 179. Paternal Grandmother denied knowing that the trial
court issued numerous orders compelling Child to return to Pennsylvania. Id.
at 126-128.
Paternal Grandmother testified that Mother does not allow regular phone
contact with Child, always monitors the phone calls on speaker, controls when
the phone calls occur, blocked Paternal Grandmother’s phone number from
incoming calls, and often hangs up in the middle of Paternal Grandmother and
Child’s conversation. Id. at 132-33. Paternal Grandmother denied saying
anything about Mother in front of Child, but admitted to getting loud during
confrontations with Mother, texting her “things[,]” and having animosity
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towards Mother “for how I’m treated. She acts like we’re the bad guys.” Id.
at 138, 168-69.
Paternal Grandmother testified that, in her care, Child was happy,
enjoyed school, made many friends, and had stability, family and love. Id.
146-150, 156. She explained that Child required therapy because Child was
scared and starting wetting herself after police showed up at Paternal
Grandparent’s house in response to Mother’s claim that Child was kidnapped.
Id. at 143-144.
Paternal Step-Grandfather testified that he loved having Child in his
home and he misses and loves Child. Id. at 206, 208, 211. He described
that he would take Child to the park, cuddle with her, and play counting games
with her. Id. at 206-07. Paternal Grandfather explained that the phone calls
with Child are limited, supervised, and sometimes cut short. Id. at 208-09.
Paternal Grandfather testified that he does not have conflict with Mother. Id.
at 212.
Dr. Bliss testified that she interviewed all the parties and conducted
observations in Mother and Father’s home. N.T. Trial 8/16/19, at 4-5. Dr.
Bliss testified that in her opinion, to a reasonable degree of scientific certainty,
Child should remain in Mother’s physical custody and have continued contact
with Father and Paternal Grandparents. Id. at 22. Dr. Bliss stressed the
importance of all parties not talking negatively about each other in front of
Child. Id.
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Relevant to this appeal, Father testified that when Child was
approximately 18 months old and abandoned by Mother, he was not in a
position to care for Child and asked Paternal Grandparents to take Child to
Arizona to care for Child. Id. at 53. Father explained that he maintained a
bond with Child, initially engaged in “daily” telephone contact with Child, spent
considerable amounts of time with Child when Paternal Grandmother
“intermittently” brought Child back to Pittsburgh, and “at one point he
exercised custody for approximately three months by himself without
[Paternal Grandparents] present . . . and participated in all of the primary
caregiving activities.” Id. at 54-55, 66. Father also testified that his
preference was for Paternal Grandparents to care for Child. Id. at 56-57.
Child testified in camera. Child testified that it is “really fun” living with
Mother and her sisters, that she feels the most comfortable there, and she
wants to stay there. Id. at 79. Child testified that she talks to Paternal
Grandparents on the phone, but sometimes it makes her uncomfortable
because they say “all types of mean stuff” about Mother and her sisters. Id.
at 85-86. Child testified that, if she wanted to, Mother would let her talk on
the phone with Paternal Grandparents every day. Id. at 86-87. Child testified
that she would like to visit Paternal Grandparents “[o]nly for a day” in
Pennsylvania instead of Arizona so they could not keep her in Arizona. Id. at
87-88. Child stated that she wants to live at Mother’s house and see Father,
and that she did not want to talk to Paternal Grandparents more often on the
phone. Id. at 89-90.
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On September 19, 2019, the trial court issued a Memorandum and
Order, which awarded Mother sole legal and physical custody of Child,
awarded Paternal Grandparents supervised phone contact whenever Child
initiates and during Father’s visits with Child, and awarded Father supervised
visitation upon completion of recommended drug and alcohol treatment and
parenting classes. Memorandum and Order, 9/19/19, at 13-16.
Paternal Grandparents filed a timely appeal. On December 19, 2019,
Paternal Grandparents filed a Concise Statement of Errors.6 The trial court
filed a responsive Opinion.
ISSUES RAISED ON APPEAL
Paternal Grandparents raise the following issues for our review:
A. Did the lower court possess exclusive, continuing jurisdiction
under the UCCJEA, when the subject child had been residing in
another state for a period of over two years with [Paternal
Grandparents], rather than with the biological parents who
were the parties to the initial court order?
B. Alternatively, did the lower court err by entering a custody
order that effectively eliminated all contact with the subject
child and the paternal grandparents who had raised her for the
majority of her life?
Appellants’ Brief at 2.
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6 Paternal Grandparents failed to comply with Pa.R.A.P 1925(a)(2)(i) and file
the Concise Statement of Errors contemporaneously with the Notice of Appeal,
resulting in a defective Notice of Appeal. See In re K.T.E.L., 983 A.2d 745,
747 (Pa. Super. 2009) (holding that noncompliance with Pa.R.P. 1925(a)(2)(i)
results in a defective notice of appeal and the disposition of the defective
notice of appeal will be decided on a case by case basis). Because the late
filing of the Concise Statement of Errors did not result in prejudice to other
parties, we decline to quash or dismiss this appeal. See id.- 10 -
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LEGAL ANALYSIS
The Trial Court Had Continuing and Exclusive Jurisdiction Pursuant to
Section 5422 of the UCCJEA
In their first issue, Paternal Grandparents aver that the trial court did
not have continuing and exclusive jurisdiction over the custody matter
pursuant to Section 5422 of the UCCJEA. Appellants’ Brief at 5 (citing 23
Pa.C.S. § 5422). Paternal Grandparents concede that the trial court had
jurisdiction to enter the initial custody Order, but argue that when Mother filed
the Petition to Modify Custody, Child did not have significant connections to
Pennsylvania because she was living in Arizona and her parents were not
“exercising any parenting time within Pennsylvania.” Therefore, Paternal
Grandparents argue, the trial court lacked jurisdiction to decide the custody
matter. Id. We disagree.
A trial court's decision that it retains exclusive, continuing jurisdiction
over a custody determination pursuant to Section 5422 implicates the court’s
subject matter jurisdiction and is purely a question of law. S.K.C. v. J.L.C.,
94 A.3d 402, 408 (Pa. Super. 2014). Accordingly, this Court’s standard of
review is de novo and our scope of review is plenary. Id.This Court has explained, “[t]he purpose of the UCCJEA is to avoid
jurisdictional competition, promote cooperation between courts, deter the
abduction of children, avoid relitigating custody decisions of other states, and
facilitate the enforcement of custody orders of other states.” A.L.-S. v. B.S.,
117 A.3d 352, 356 (Pa. Super. 2015). Section 5422 provides, in relevant
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part, that a court that has made a initial child custody determination has
exclusive, continuing jurisdiction over the determination until “a court of this
Commonwealth determines that neither the child, nor the child and one
parent, nor the child and a person acting as a parent have a significant
connection with this Commonwealth and that substantial evidence is no longer
available in this Commonwealth concerning the child's care, protection,
training and personal relationships.” 23 Pa.C.S. § 5422(a)(1).
The Section 5422 comments explain, “even if the child has acquired a
new home state, the original decree state retains exclusive, continuing
jurisdiction, so long as the general requisites of the “substantial connection”
jurisdiction provisions of [Section 5421] are met. 23 Pa.C.S. § 5422 cmt.
Moreover, “[i]f the relationship between the child and the person remaining in
the state with exclusive, continuing jurisdiction becomes so attenuated that
the court could no longer find significant connections and substantial evidence,
jurisdiction would no longer exist.” Id.
“[A] significant connection exists where one parent resides and
exercises parenting time in the state and maintains a meaningful relationship
with the child.” S.K.C., 94 A.3d at 412 (citation omitted). Nevertheless, in a
situation where a parent fails to exercise parenting time with a child in
Pennsylvania due to the other parent’s contemptuous behavior, this Court has
declined to find a lack of significant connection and, consequently, “reward”
that contempt. Id. at 412–13. In this situation, the Court has unequivocally
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stated, “we refuse to incentivize contemptuous behavior on the part of a
litigant. Contemptuous behavior should be punished, not rewarded. To reward
contempt would undermine the very nature of the judicial process.” Id.Finally, “when making a determination under [S]ection 5422, the trial court
must rely upon the factual circumstances as they existed when the
modification petition was filed.” T.D. v. M.H., 219 A.3d 1190, 1197 (Pa.
Super. 2019) (citation omitted).
It is undisputed that the trial court had jurisdiction to make the initial
custody determination in this case on September 3, 2013. On December 21,
2015, Mother filed a Petition to Modify Custody, which resulted in the
September 19, 2019 final custody Order that is the subject of this appeal. In
the Petition, Mother averred that Child was living in Arizona without Mother’s
consent and in violation of the existing custody Order. At trial, Father and
Paternal Grandmother’s testimony confirmed this allegation. However, Father
also testified that he participated in daily phone conversations with Child,
spent considerable amounts of time with Child on her trips back to
Pennsylvania, and cared for Child for several months in Pennsylvania.
Accordingly, because Father resided in Pennsylvania, maintained a meaningful
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relationship with Child, and exercised parenting time, a “significant
connection” to Pennsylvania existed at the time that Mother filed her Petition.7
Accordingly, because Child had a “significant connection” to
Pennsylvania, the trial court had continuing and exclusive jurisdiction over this
custody matter despite Child residing in Arizona in violation of court Orders.
The Trial Court Did Not Abuse its Discretion When it Awarded Paternal
Grandparents Supervised Phone Contact with Child
Paternal Grandparents next aver that the trial court erred when it
awarded them phone contact with Child during Father’s supervised visitation
or at Child’s discretion. Appellants’ Brief at 12. Paternal Grandparents argue
that by “making their visitation subsidiary to that of the Father, the Father’s
failure to adhere to the requirements of the order will effectively terminate”
their relationship with Child. Id. Paternal Grandparents argue that the trial
court failed to give sufficient weight to their years of raising Child, Mother’s
abandonment of Child, Mother’s efforts to preclude Child from contacting
them, and Mother’s failure to allow Child to participate in court-ordered
visitation with them during the pending litigation. Id. at 13. In turn, Paternal
Grandparents assert that the trial court gave too much weight to Child’s
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7Moreover, we decline to find that Mother failed to exercise parenting time in
Pennsylvania and, in doing so, reward Father’s contemptuous and egregious
behavior of removing child from Pennsylvania in violation of the existing
custody Order.
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preferences, the contents of their phone conversations with Child, the
negative things they said, and alleged efforts to keep Child away from Mother.
Id. Paternal Grandparents are not entitled to relief.8
This Court reviews a custody determination for an abuse of discretion.
In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse
of discretion “merely because a reviewing court would have reached a different
conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial
court abuses its discretion if, in reaching a conclusion, it overrides or
misapplies the law, or the record shows that the trial court’s judgment was
either manifestly unreasonable or the product of partiality, prejudice, bias or
ill will.” Id.Further, our scope of review is broad, but we are “bound by findings
supported in the record, and may reject conclusions drawn by the trial court
only if they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509, 512
(Pa. Super. 2006) (citation omitted). Importantly, “[o]n issues of credibility
and weight of the evidence, we defer to the findings of the trial judge who has
had the opportunity to observe the proceedings and demeanor of the
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8 Paternal Grandparents also make the argument, for the first time on appeal,
that the trial court “misapplied the evidentiary burden” when awarding
Paternal Grandparents supervised visitation. Appellants’ Brief at 12. This
argument is waived. See Pa.R.A.P 302 (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).
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witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation
omitted). We can interfere in the trial court’s weight determinations only
where the “custody order is manifestly unreasonable as shown by the evidence
of record.” Saintz, 902 A.2d at 512 (citation omitted).
The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court
to consider all of the Section 5328(a) best interests factors when “ordering
any form of custody.” 23 Pa.C.S. § 5328(a). It is well-settled that “[t]he
paramount concern in child custody cases is the best interests of the child.”
C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018). “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.”
M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super. 2017).
Our review of the record reveals that the trial court engaged in an
analysis of each of the Section 5328 custody factors and made specific findings
regarding each factor, which the record supports. See Memorandum and
Order, 9/19/19, at 2-12. The trial court determined, based on its
consideration of those custody factors, that it was in Child’s best interest to
award sole legal and physical custody to Mother, conditional visitation to
Father, and supervised phone contact to Paternal Grandparents. Here, the
Paternal Grandparents do not challenge the court’s application of the custody
factors; rather, they challenge the weight the court gave to the evidence.
Regarding Paternal Grandparents, the trial court opined:
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[T]he evidence presented at trial on behalf of the [Paternal
Grandparents] fell far short of clear and convincing such that this
Court’s decision to award Mother with sole legal and physical
custody would qualify as error. The record was replete with
evidence to support this [c]ourt’s determination that it would not
be in [Child]’s best interest to have awarded PGP’s with any
physical parenting time, the least of which included Paternal
Grandmother’s absurd and upsetting phone calls to [Child] in
which she would tell [Child] that she, not Mother, was her mother
and the Mother had abandoned her, something this [c]ourt
determined had no legitimate purpose and borderlined as
emotionally abusive, as well as [Child]’s fear that if she visited
Arizona that [Paternal Grandparents] would not allow her to return
to Pennsylvania.
Essentially, the [Paternal] Grandparents argue that they should
get credit for raising [Child] for several years and that this credit
should outweigh their admitted bad behaviors; that this [c]ourt
should have given more weight to Mother’s bad behaviors and
past substance abuse history. This argument is flawed, as it would
inherently relieve them of the aforementioned heavy burden set
forth in § 5327(b) and, instead, place that burden upon Mother.
Trial Ct. Op., filed 1/31/20, at 17-18.
The record supports the trial court’s findings. We decline to usurp the
credibility determinations of the trial court or reweigh the evidence.
Accordingly, we find no abuse of discretion.
CONCLUSION
In sum, the trial court had continuing and exclusive jurisdiction over this
custody dispute, and did not abuse its discretion when it awarded Mother sole
legal and physical custody, Father conditional partial custody, and Paternal
Grandparents supervised phone contact with Child.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2020
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