K.S. v. C.B.

J-S33031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

C.B.,

Appellant No. 103 EDA 2014

Appeal from the Decree entered December 13, 2013,
in the Court of Common Pleas of Delaware County,
Civil Division, at No: 11-08305

BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 31, 2014

pro se from the custody order in the Court of

Common Pleas of De

The trial court set forth the following facts and procedural history in its

opinion pursuant to Pa.R.A.P. 1925(a):

The parties are the natural parents of one (1) minor child, born
on September 27, 2005. Mother filed a Complaint for Full
Custody on October 26, 2011[,] alleging that Father has a
history of physical violence and verbal abuse, including against
Mother, and has failed

place of incarceration, SCI Smithfield, on January 18, 2012[,]
with the Complaint and notice that a custody conference was
scheduled for January 23, 2012. On January 23, 2012, a
Custody Master entered a Temporary Custody Order granting
Mother sole legal and physical custody of the child and noted
that Father had the right to file for modification of the Order
upon his release from incarceration.
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Father filed Objections on February 14, 2012[,] requesting a de
novo hearing and the opportunity to be physically present at
such hearing. Mother filed a Motion to Quash Appeal on
December 12, 2012[,] arguing, inter alia
the Temporary Custody Order was not properly served upon

second aggravated assault with a weapon conviction three and a

Trial Court held a pretrial conference on December 14, 2012.
Father . . . confirmed his identity and presence by video from
SCI Smithfield. At the conference, the Trial Court ordered Father

proposed plan for exercising

from the date of the conference.

The below-signed trial judge, having not received the requested
Response from Father and being unaware that the Response
from Father, which Father purportedly mailed on January 13,
2013, was filed past the deadline on January 23, 2013, entered
de
novo custody hearing. Father appealed that Order[,] and the
Trial Court requeste

incarceration.

Trial Court Opinion, 2/11/14, at 1-3 (citation omitted).

On appeal, this Court concluded that Father timely mailed his response

Prisoner Mailbox Rule. See Thomas v. Elash, 781 A.2d 170, 175 (Pa.

Super. 2001) (extending the prisoner mailbox rule to service in civil

proceedings).

request for a de novo hearing. See K.S. v. C.B., 87 A.3d 390 (Pa. Super.

2013) (unpublished memorandum).

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Upon remand, the trial court described the subsequent events as

follows:

[T]he Trial Court considered de novo

proposed plan for exercising legal custody during [his]
incarceration, and entered the Final Custody Order dated
December 12, 2013[, and entered on December 13, 2013,]
granting Mother sole legal and physical custody of the minor
child.

Trial Court Opinion, 2/11/14, at 3.

On January 6, 2014, Father filed pro se a notice of appeal. Father did

not concurrently file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). By order dated January 12,

2014, the trial court directed Father to file a concise statement within

twenty-one days. On January 24, 2014, Father filed pro se a concise

statement. Because no party claims prejudice as a result

to concurrently file a concise statement, and Father timely complied with the

court order to file it, we will not quash or dismiss his appeal. See In re:

K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)

failure to strictly comply with Pa.R.A.P. 1925(a)(2)(i) did not warrant an

application of the waiver rule, as no court order had been violated, and there

was no prejudice to any party). Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa.

Super. 2010) (stating the appellant waived her issues on appeal when she

failed to concurrently file a concise statement of errors complained of on

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appeal with her notice of appeal and subsequently failed to timely comply

On appeal, Father presents the following issues which we discern from

his 1925(b) statement and as explained in his brief:

1. Was Father denied due process by failure of the custody
master to provide him the required time in which to defend
y complaint in violation of Pa. R.C.P.
1018.1 ?

parental rights1 by its failure to address all the custody factors
under 23 Pa. C.S.A. § 5328?

3. Was Father denied due process by the trial

assertions that Father should be denied legal custody?

The scope and standard of review in custody matters is well-

established:

[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

incontrovertible factual findings support its factual
conclusions, but it may not interfere with those
conclusions unless they are unreasonable in view of the

abuse of discretion.

1
To the extent Father argues the order involuntarily terminated his parental
rights, Father is mistaken. The order relates to custody, not to the

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R.M.G., Jr. v. F.M.G., 2009 PA Super 244, 986 A.2d 1234, 1237
(Pa. Super. 2009) (quoting Bovard v. Baker, 2001 PA Super
126, 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 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.

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

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).

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,

physical, intellectual, moral, and spiritual well[-]being. Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d

674, 677 (Pa. Super. 2004)).

In his first issue, Father, in sum, asserts he was not given adequate

notice of the custody conference with the custody master, in contravention

of Pa.R.C.P. 1018.1 (Notice to Defend), due to being served with the

complaint and notice five days before the custody conference was held.

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de novo

notice of the custody conference is not relevant to this appeal, and we will

not review it.2

In his second issue, Father argues the trial court erred by failing to

specifically address the factors set forth in 23 Pa.C.S.A. § 5328(a).3

Further, Father argues the court did not provide a meaningful opportunity

for him to present evidence in the custody matter, and the order is not

supported by sufficient evidence.

The 3 Pa.C.S.A. §§ 5321-5340, became

effective on January 24, 2011. Because Mother initiated the underlying

action after the effective date of the Act, the Act is applicable. See C.R.F. v.

S.E.F., 45 A.3d 441 (Pa. Super. 2012). Section 5328(a) provides:

§ 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

2
Upon review of the certified record before this Court, it appears that the
custody conference was a non-record proceeding pursuant to Pa.R.C.P.
1915.4-3 (Non-Record Proceedings. Trial).

3
Notably, Father challenges the order insofar as it granted Mother sole legal
custody. Father does not raise any issue with respect to the order granting

to make major decisions on behalf of the child, including, but not limited to,
t

Id. hared legal
he right of more than one individual to legal custody of the
Id.

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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

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.

(3) The parental duties performed by each party on
behalf of the child.

education, family life and community life.

(5) The availability of extended family.

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.

ability to make appropriate child-care arrangements.

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J-S33031-14

(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another.
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

(15) The mental and physical condition of a party or

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).4

In A.V., supra, we reiterated as follows:

All of the factors listed in section 5328(a) are required to be
considered by the tri
J.R.M. v. J.E.A., 2011 PA Super 263, 33 A.3d 647, 652 (Pa.
Super. 2011) (emphasis in original). . . .

Section 5323(d)
reasons for its decision on the record in open court or in a
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
C.B. v. J.B., 2013 PA Super 92, 65 A.3d 946, 955
(Pa. Super. 2013), appeal denied, ___ Pa. ___, 70 A.3d 808
(2013). Section 5323(d) applies to cases involving custody and
relocation. A.M.S. v. M.R.C., 2013 PA Super 156, 70 A.3d 830,
835 (Pa. Super. 2013).

required is that the enumerated factors are considered and that
M.J.M.

4
The Act was amended, effective January 1, 2014, to include an additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child
abuse and involvement with child protective services).

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v. M.L.G., 2013 PA Super 40, 63 A.3d 331, 336 (Pa. Super.
2013), appeal denied, ___ Pa. ___, 68 A.3d 909 (2013). A
nation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
Id.

A.V., 87 A.3d at 822-823.

Instantly, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial court

n of all the applicable factors enumerated in

23 Pa.C.S.A. § 5328(a), the trial court found that granting Father shared

interest and would pose a risk to the best interests of t

Opinion, 2/11/14, at 8. However, the court did not specifically address any

of the section 5328(a) factors in its Rule 1925(a) opinion. Moreover, the

[Section

5328 custody] factors prior to the deadline by which [Father had to] file a

C.B., supra. We conclude that

factors without providing any analysis of those factors is contrary to above-

cited case law and is insufficient for our appellate review.

Father finally argues that the court did not provide a meaningful

opportunity for him to present evidence with respect to exercising shared

legal custody of his minor child. Specifically, Father contends that he was

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that he has had limited contact with her and the child, which the court

adopted as a finding, as follows:

Father has had limited, if any, contact with the child and Mother,
both in the past and in the present, giving Father a serious lack

emotional and educational needs. The Trial Court seriously
qu
of the child given this lack of knowledge and limited ability to
obtain the information required to satisfy his parental duties and
ional
and educational needs. Granting Father legal custody at this
time, under the current circumstances, would not be in the best

welfare. . . .

Trial Court Opinion, 2/11/14, at 8-9 (emphasis in original). Father states in

the pre-trial conference of December 14, 2012. Nowhere in the motion to

quash is this claim raised[;] therefore, Father never addressed it.

brief at 8 (footnote omitted). We agree that Father was not afforded the

opportunity to be heard in a meaningful manner with respect to exercising

shared legal custody.

It is well-
communication and visitation with his child is a liberty interest
protected by the United States Constitution. Santosky v.
Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
Our appellate courts have stated quite clearly that

[i]t has long been against our public policy to limit or
destroy the relationship between parent and child. . .
. Every parent has the right to develop a good
relationship with the child, and every child has the
right to develop a good relationship with both
parents.

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In re Constance W., 351 Pa. Super. 393, 398, 506 A.2d 405,
408 (1986) (quoting Fatemi v. Fatemi, 339 Pa. Super. 590,

and physical custody is awarded to one parent, Pennsylvania
courts scrupulously protect the non-
maintain a meaningful parental relationship with his or her
Zummo v. Zummo, 394 Pa. Super. 30, 45, 574 A.2d
1130, 1138 (1990).

Sullivan v. Shaw, 650 A.2d 882, 884 (Pa. Super. 1994).

opportunity to be heard, and the chance to defend oneself before a fair and

S. Med. Supply Co. v.

Myers, 804 A.2d 1252, 1259 (Pa. Super. 2002) (citing Krupinski v.

Vocational Technical Sch., 674 A.2d 683, 685 (Pa. 1996)). The right to

Mathews v. Eldridge, 424

U.S. 319, 333 (1976) (internal quotation marks and citation omitted).

Id. at 334 (citation omitted). The

government may tailor the amount of procedural protection to a situation by

balancing the marginal value of additional protections against the marginal

costs such additional protections would impose on the government. Id. at

335.

hearing with respect to his request for shared legal custody. By not

affording Father a meaningful opportunity to be heard on this issue, the trial

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court denied Father due process. The trial court must afford Father a

ims can be

heard without their being removed from prison and physically brought to

Sullivan, 650 A.2d at 884-85. This opportunity may be conducted

by video from SCI Smithfield, the same as the court conducted the pre-trial

conference. Alternatively, Father may again be provided an opportunity to

file an informal brief where he can set forth his position in response to

Id.

the opportunity to tell the court how they would marshall their resources to

written submission may best conserve the Commonwealth's resources

without increasing the risk of erroneous deprivation. Id. Should it appear

that Father is entitled to additional protection after review of his writing, to

ensure a meaningful opportunity to be heard, the trial court may fashion an

additional and appropriate remedy at that time.

Because the trial court failed to make the required application of

section 5328(a) and failed to provide Father with a meaningful opportunity

to present evidence, we are constrained to vacate the order and remand for

further proceedings consistent with this Memorandum.

Order vacated; case remanded for further proceedings. Jurisdiction is

relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2014

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