R.A.G. v. A.L.R.

J-S37016-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 R.A.G. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. A.L.R. Appellant No. 328 MDA 2014 Appeal from the Order entered January 23, 2014 In the Court of Common Pleas of Cumberland County Civil Division at No: 2011-4372 BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED JULY 31, 2014 A.L.R entered in Court of Common Pleas of Cumberland County, modifying a March retion on the part of the trial court, we affirm. Mother and Father are the biological parents of Child, who was born out of wedlock on September 4, 2009. As the trial court explained: Father brought this action seeking primary custody in May 2011. After five (5) conciliations were fruitless, an initial custody trial was held in March 2012 with a parenting plan order issued on 13 March 2012. That plan gave the parties shared legal custody overnights with Father. Mother appealed that decision and the parenting plan was affirmed by the appellate court. Father has filed eight (8) petitions for contempt alleging that Mother is interfering with the time he was given in the parenting plan, five 1 J-S37016-14 prior to the affirmance and three subsequent to it. All were initially sent to conciliation in an attempt to allow the parents to actually make a joint parental decision. This attempt failed. Father has also requested a modification of the custodial parenting plan. Following an additional December 2013 custody trial, where the record was kept open until 8 January 2014 to allow counseling and to receive the co- report, the request for modification was granted. The 23 January 2014 Custody Modification Order gave Father primary physical custody and provided the specific start of the educational development plan. -2.1 Mother filed a timely appeal from the January 23, 2014 order and identified eight alleged errors in her statement of errors complained of on appeal filed pursuant to Pa.R.A.P. 1925(a)(2). She asks this Court to consider two of those alleged errors in this appeal: 1. Did the lower court abuse its discretion when it exercised manifestly unreasonable judgment in transferring primary physical custody of [Child] from [Mother] to [Father], 2. Did the lower court abuse its discretion when it rendered a decision resulting from partiality, prejudice, bias, or ill will 1 Grandmother exclusively cared for Child from the time Child was four months old until she was 17 months old while Mother was incarcerated and privileges are suspended and cannot be restored until 2018. Nonetheless, Grandmother is not a party to these proceedings. While her important role issue of custody was to be decided between Mother and Father. At the same time, the trial court welcomed G See T.C.O. at 9; Trial Court Opinion Pursuant to Pa.R.A.P. 2 J-S37016-14 This Court recently reiterated the applicable scope and standard of review as follows: 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- deductions or inferences from its factual findings. Ultimately, the test is whether t 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. V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted). In her first issue, Mother asserts that the trial court abused its discretion by transferring primary physical custody of Child from Mother to decided on a case-by-case basis, considers all factors that legitimately have Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). The factors to be 3 J-S37016-14 considered by the court when awarding custody are set forth in 23 Pa.C.S.A. § 5328(a).2 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 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 2 In her brief, Mother addresses the sixteen factors listed in § 5328(a) but she has rearranged and renumbered the factors. Father addresses the factors in the same order as Mother. In its January 23, 2014 opinion, the trial court addresses the § 5328(a) factors in the order presented in the statute but assigns letters to the enumerated factors. For the sake of clarity, we shall address the factors in the order presented in the statute court opinion where appropriate. 4 J-S37016-14 (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. (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with 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).3 In A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014), this Court held: 3 Effective January 1, 2014, the statute was amended 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). Because subsection, the subsection does not apply to the present case. See § 6 of 2013, Dec. 18, P.L. 1167, No. 107, effective 1/1/14. 5 J-S37016-14 All of the factors listed in section 5328(a) are required to be J.R.M. v. J.E.A., [] 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., [] 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, [] 70 A.3d 808 (2013). Section 5323(d) applies to cases involving custody and relocation. A.M.S. v. M.R.C., [] 70 A.3d 830, 835 (Pa. Super. 2013). required is that the enumerated factors are considered and that M.J.M. v. M.L.G., [] 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [] 68 A.3d 909 (2013) for its decision, which adequately addresses the relevant factors, complies with Section 5323(d). Id. Id. at 822-823. Mother asserts that no basis for a change in custody exists based on h party is more likely to encourage and permit frequent and 54-56, addressing 23 Pa.C.S.A. § 5328(a)(1). Mother relies on her own testimony as evidence that she has encouraged continuing contact between Child and Father. However, based on all the testimony the trial court promoter of the continuing contact between [Child] and the other parent, 6 J-S37016-14 Mother has shown negatively that she will not cooperate with Father unless Our review of the record reveals competent evidence supporting the refusal to take Child to activities, failure to offer to pick up or drop Child off at functions or classes, and insistence that Mother not schedule appointments during his custodial time. M specifically that she made threats and argued about holiday and regularly scheduled visits, N.T., 8/8/13 at 7-8, failed to make or receive required phone calls so Father can speak with Child, id. at 12-14, and failed to abide by the default holiday schedule, id. at 15-21 and 24-26. Although Mother as evidenced by her testimony during cross- counsel: COUNSEL: [] Has he ever offered to pick [Child] up? Drop [Child] off? MOTHER: No, he has not. *** COUNSEL: This is an e-mail from [Father] to you on Saturday, January 19th; is that correct? 7 J-S37016-14 correct. COUNSEL: Can you read the highlighted portions? MOTHER: I will pick [Child] up after her class. COUNSEL: Okay. Is that an offer to pick [Child] up after gymnastics class? MOTHER: I guess it is. COUNSEL: Has he ever offered to attend school functions? MOTHER: No, he has not. Has he ever showed? No. *** COUNSEL: And this is an email from [Father] to you on Monday, April 15th; is that correct? MOTHER: That is correct. COUNSEL: Okay. Can you please read the e-mail? MOTHER: What kind of school thing? If you tell me where it is then I can bring her at 6. COUNSEL: Have you ever spoken negatively to [Father] to the MOTHER: No, I have not. *** COUNSEL: And this is an e-mail from you to [Father] on Monday, April 15th, is that correct? MOTHER: That is correct. 8 J-S37016-14 COUNSEL: Can you please read it? want anything to do with her school. *** COUNSEL: Has [Father] offered to accompany [Child] to any of her appointments? MOTHER: No, he has not. COUNSEL: Has he ever suggested to you the possibility of scheduling appointments during his periods of physical custody? MOTHER: He told me do not put them during his time of did not want any appointments during his time. He can lie all he wants in e- is going to do it. *** COUNSEL: Any this is an e-mail from [Father] to you on Friday, November 30th, is that correct? MOTHER: That is correct. COUNSEL: Can you please read the highlighted portion? nt on Monday or Friday at 4:00 p.m. or later or if you let me know it is 9 J-S37016-14 on Thursday, then I can decide on that times the doctor we can call and schedule an appointment. Id. at 83-86. When considering which parent is more likely to encourage and permit conclusion. Mother acknowledges that the trial court found no evidence of abuse by either party or a family member to warrant a custody determination s being self- - at 19. Clearly, the trial court was not concerned with any threat of abuse by either Mother or Father or members of their respective households and there is no competent evidence of record to suggest otherwise. Mother contends there has been no change in the parental duties § 5328(a)(3)). She acknowledges, and the trial court agrees, that both 10 J-S37016-14 parties rely on extended family to Id. The trial court did not cite the issue of performance of parental duties as a specific basis for its custody ruling but clearly did consider it, as required. ity 25-39 addressing 23 Pa.C.S.A. § 5238(a)(4). Mother offers reasons she believes a change in custody is unwarranted and contends the trial court failed to consider the effect that a change in physical custody would have on Child. The record does not support her assessment. The trial court consistently noted in its opinions the fact that Mother and Father are loving, caring and fit parents. However, the trial court also recognized that Child time the court awarded shared physical custody in March 2012 until the time of the August of 2013 hearing, Father filed eight contempt petitions alleging interference with the parenting plan. The trial court described that crafted to promote the long term developmental needs of the parties as bifurcated parents and the ongoing custod physically, intellectually, morally and spiritually requires that both parents step up now and take a greater Id. 11 J-S37016-14 letter, spirit and intent of this court order in denying Father this Id. The trial court explained further: The stated intention of the initial custody plan was not to dictate or micromanage the parents but rather to allow the parents to grow into their roles within a framework with both parents having significant time with [Child]. It was only after much consideration that this court found the custody of [Child] needed changed; it was clear that her future and welfare was clearly actions. Id. at 4. Father and his wife testified that they have a loving and stable home and that Child loves being there. N.T., 8/8/13 at 33 and 122. Their work be available to Child at all times. Id. at 40. Mother works full-time and relies on Grandmother to care for and transport Child. Id. at 47 and 132- Id. at 78. custody to Father. The cour greater shared custody and involvement by both parents is a reflection of 12 J-S37016-14 The trial court next weighed the availability of extended family and Id. at 5-6. We find competent evidence to support that conclusion. The next enumerated factor to be considered when awarding custody - hearing, which commence few months later. The trial court determined Child was not capable of making a choice but noted that, if asked, she would want to be with Grandmother. T.C.O. at 6. As explained in n.1, supra, Grandmother is not a and reinforced in the new parenting plan. 1925(a) Opinion at 6. A trial court must also consider whether either parent attempts to turn a child away from the other parent. 23 Pa.C.S.A. § 5328(a)(8). Mother attempts to turn Child away from Father. 13 J-S37016-14 [M some concerns about the transition times and the anxiety that [Child] was 4 the therapist understood the commencement of visitation with Father was done very abruptly and believed the transition was hard on Child. Id. at 9- 10 and 15. Yet, the therapist was unaware that there had been four months of visits with Father pursuant to a temporary custody schedule prior to initiating any overnight visits. Id. at 16. She was also unaware that the initial visit with Child in January 2012 occurred 11 days after the issuance of the order scheduling the initial custody hearing for February 29, 2012. Id. at 17. She was not certain whether she knew that, concurrent with the third and fourth visits with Child, Father had filed two contempt petitions due to Id. at 18. After seeing child on March 26, 2012, the therapist saw Child once in April, twice in May and then not again until September, three weeks prior to a scheduled October 4 contempt hearing, although she did not know any reason for the gap in sessions. Id. at 19. She next saw Child on October 8 but not again until January 14, 2013. Id. When asked if she was suspicious not [her] part of 4 Father did not believe that Child needed therapy but gave his consent and signed the necessary forms. N.T., 11/21/13 at 12. 14 J-S37016-14 Id. at 20. She did acknowledge that Mother and Grandmother were the sources of information concerning difficulties Child reportedly had with Father. Id. at 21. The trial court ated above in resulted in Father filing eight contempt petitions, and as shown in the y is more likely to maintain a loving, stable, consistent and nurturing relationship with §5328(a)(9). Mother and Grandmother testified that Child was cared for ome, see, e.g., N.T., 8/8/13 at 49-51; 61-62; 132-33; and 144, just as Father and his wife claimed Child was cared for and happy in their home. Id. at 33; 110-14; and 122. There is competent are not an issue as both homes, with the assistance and support of family, are nurturing in their own ways. It is the way Mother tries to dictate what T.C.O. at 6. 15 J-S37016-14 Co daily physical, emotional, developmental, educational and special needs of . Again, Mother, Grandmother, See, e.g., N.T., 8/8/13 at 49-51; 61-62; 132-33; 144; 33; 110- s, believed would be served by enrolling Child in his school district at a location Id. at 52-23; 87-89; and 27-29. The trial court specifically addressed the educational needs of Child and ordered that an educational plan be developed without commenting on the other needs outlined in §5328(10). T.C.O. at 6. Mother suggests that the trial court erred in focusing only on the educational needs while ignoring the other needs mentioned in the subsection. Although we recognize that the trial court did not specifically discuss the other needs, it did address them by implication throughout its opinion and in its Rule 1925(a) opini needs. T.C.O. at 3; 5-6; 9. required by 23 Pa.C.S.A. § 5328(a)(11) by simply noting the distance is 18 16 J-S37016-14 miles. T.C.O. at 6. Neither party discusses this factor other than to note the distance is 18 miles, as the trial court indicated. There is competent with respect to this factor. or make appropriate child-care arrangements, 23 Pa.C.S.A. § 5328(a)(12), others when making arrangements, whereas Father has independent Mother argues the trial court abused its discretion in this regard because Mother also lacked a license at the time of the 2012 order granting Mother court abused its discretion by simply making a factually accurate statement. absence, N.T., 8/8/13 at 114, whereas either Father and/or his wife are home at all times. Id. at 121. The trial court recognized that both parties lack of a license was a determining factor in its decision. Because we find en the parties and the willingness and ability of the parties to cooperate with one 17 J-S37016-14 parties obviously cannot fully cooperate to promote the best interest of [Child], even with th to the playground bully who takes the ball and will not let others play unless they play by her rules. Father has become like a dog that has been abusively disciplined too much and is in constant protection mode from Id. There is competent evidence throughout the testimony presented at the August 8, 2013 hearing, a taste of which is provided in our evaluation of the level of conflict and the ability of the parties to cooperate. have been previously noted and are well chronicled in her criminal history of repeated arrests and multiple ittle weight when making a custody determination unless that conduct has an protestation, we find there is competent evidence in the record to support ch is merely a factual statement. Further, the enumerated offense under Chapter 38 or Title 75 of the Pennsylvania Code 18 J-S37016-14 and [crimen] falsi convictions. Father has not alleged, nor has the court 23 Pa.C.S.A. § 5238(a)(15 prescribed pain medication for pain management, which has not impacted ement there is competent evide testified that a report was made to Children and Youth that Father and his wife were drug addicts and neglectful to their children. Following interviews and urine testing, the investigation was closed. N.T., 8/8/13 at 8-10. There Id. at 77. In addition to the fifteen enumerated factors, the trial court is to § 5328(a)(16). The trial court explained: It was directed that [Child] should spend as much time with both Mother and Father as possible while she can before being limited 19 J-S37016-14 by school and other outside activities. Inexplicably, Mother violated the spirit and intent of this directive each and every time she denied court-ordered custody to Father and more so when denying a reasonable request for additional time by Father. T.C.O. at 8. There is competent evidence in the record to support the trial Having reviewed the evidence of record, we conclude that there is § 5328(a conclusions are based on its assessment of the credibility of the parties. findings of the trial [court] who has had the opportunity to observe the A.V., 87 A.3d at 820 (quoting R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)). Further: 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 of the child was careful and thorough, and we are unable to find any abuse of discretion. Id. As stated previously, the test this Court must employ is whether the record. V.B., 55 A.3d at 1197. We may reject those conclusions only if they involve an error of law or are unreasonable in light of the sustainable findings of the trial court. Id. We conclude that the trial court's consideration of the best interest of the child was careful and thorough. 20 J-S37016-14 Because the trial court did not commit error of law and because the trial the part of the trial court for modifying the prior custody order to give father In her second issue, primary custody to Father constitutes an abuse of discretion because the at 13. Again, of paramount importance is the best interest of the child. Saintz. Mother contends that the language used by the trial court when referring to Mother and her conduct establishes that the trial court was partial and prejudiced against her, We cannot agree. The trial court clearly based its decision on evidence of record and dependent on Grandmother and her continued involvement in not to dictate or micromanage the parents but rather to allow the parents to grow into their roles within a framework with both parents having significant time with [Child]. It was only after much consideration that the court found the custody of the child needed changed; it was clear that her future and welfare was myopic actions. 1925(a) Opinion at 4. 21 J-S37016-14 underlying bases for its conclusions appear in the record. The trial court commented: The fact that Mother lacks credibility with this court is of her own making and not the result of any bias or prejudice. The lack of honesty is most recently seen in what she did and did not make known to the play therapist, together with the not unexpected evaluation of the counselor. Id. at 4-5. The trial court concluded: Grandmother still stands out as the family member who best promotes the parent- new parenting plan. It is expected that Grandmother, and by extension Mother, is liberally permitted to spend additional quality time with [Child]. The best interests of [Child] are also served by promoting unfiltered development of her family life with Father, while maintaining her relationship with Mother. The unproductive actions of Mother are removed by taking away her ability to continuously thwart the plan. While a shared physical custody plan, with each parent having significant custodial periods, is still the ultimate goal, the lack of co-parenting progress and dearth of an educational plan, which is a tactic of Mother, needs remedial action now and a decision had to be made to protect [Child] and promote her future. Id. 6-7. We conclude that prejudice, bias or ill will but rather on the testimony and evidence presented. Order affirmed. 22 J-S37016-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/31/2014 23