J-S78016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.N.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
M.O.W.,
Appellant No. 1444 MDA 2014
Appeal from the Order entered July 31, 2014,
in the Court of Common Pleas of Dauphin County,
Civil Division, at No(s): 2012 CV 03020 CU
BEFORE: GANTMAN, P.J., JENKINS, and MUSMANNO, JJ.
MEMORANDUM BY JENKINS, J.: FILED APRIL 28, 2015
M.O.W. (“Father”) appeals, pro se, from the order dated July 30, 2014,
and entered on July 31, 2014, in the Dauphin County Court of Common
Pleas, Civil Division, denying Father’s request for visitation with his minor
child, L.N.S. (“Child”), born in February of 2005.1 We affirm.
The relevant facts and procedural history of this case are as follows.
B.N.S. (“Mother”) and Father are the biological parents of Child, who was
born in February of 2005. Mother and Father were never married. Six
weeks after Child’s birth, in March 2005, Father was arrested and charged
with, inter alia, simple assault for his involvement in an altercation with
Mother. N.T., 7/21/14, pp. 8-11. Father was convicted of the simple assault
and related crimes and served seven months in prison before being released
1
The trial court’s order also amended its previous custody order of June 12,
2012 to permit Father telephone conversations with Child once every two
weeks for the duration of five to ten minutes.
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on parole in September 2005, at which time Child was approximately eight
months old. Id.
In February 2006, Father was arrested and charged with robbery,
person not to possess a firearm, aggravated assault, and other related
charges. N.T., 7/21/14, pp. 4-6. Subsequently, Father pled guilty to and
was convicted of the charges. Id. Father was sentenced to a term of
incarceration of eight to twenty-two years, which he began serving on
February 3, 2006. Id. He is currently incarcerated at the State Correctional
Institution at Mahanoy (“SCI Mahanoy”), located in Frackville, Pennsylvania.
Since birth, Child has resided with Mother, who has served as Child’s
primary caretaker. Mother’s Custody Complaint, 4/13/12, at 5-8. From
September 1, 2010 to the present, Child has resided with Mother, Mother’s
grandmother (“Maternal Great-Grandmother”), and Mother’s fiancé at a
residence in Harrisburg, Pennsylvania. Id. at 5-6.
The instant custody matter began on April 13, 2012 when Mother filed,
pro se, a complaint for custody, seeking sole legal and primary physical
custody of Child. On April 20, 2012, the trial court issued an order directing
Mother and Father to participate in a custody conference before a custody
conference officer, in an effort to resolve the issues in dispute. On June 8,
2012, Mother and Father, both without counsel, participated in the custody
conference and reached a custody agreement. On June 11, 2012, the trial
court issued a custody order ratifying the terms of the agreement as follows:
1. Sole legal and primary physical custody of [Child] shall be
with [] Mother.
2. No party shall relocate [Child] if such relocation will
significantly impair the ability of a non-relocating party to
exercise his or her custodial rights unless (a) every person
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who has custodial rights to [Child] consents to the proposed
relocation or (b) the [trial court] approves the proposed
relocation. . . .
3. Should there be a substantial change in circumstances,
either party may request an increase/decrease or change in
the current custodial status by filing a Petition for
Modification with the Dauphin County Prothonotary’s Office.
Custody Order, 6/12/12 (emphasis in original).
On March 28, 2014, Father filed, pro se, a petition for modification of
the custody order. According to Father’s petition, since his incarceration he
had maintained contact with Child via correspondence, telephone
conversations, and the occasional visit, all of which Mother terminated upon
receiving sole legal and primary physical custody of Child. Father’s Petition
for Modification, 3/28/14, at 6. In filing the petition, Father sought to have
the trial court grant him telephone communication and visitation with Child.
On July 21, 2014, the trial court conducted a custody hearing to address
Father’s petition.
At the hearing, the trial court heard testimony from Mother and
Father, who appeared via video conference. In his testimony, Father
detailed his extensive criminal history and acknowledged how his repeated
and lengthy periods of incarceration had precluded him from fulfilling his role
as Child’s parent. N.T., 7/21/14, at 8-9, 36. However, Father also testified
to his efforts aimed at maintaining a relationship with Child in spite of his
incarcerations through correspondence and telephone conversations. Id. at
15-17. Father stated that, from 2007 to 2012, “I talked to [Child] at least
one time a week, sometimes two.” Id. at 17. Father also claimed that
Mother brought Child to visit him in prison “numerous times” throughout
2006, once in July 2007, and once more in 2010. Id. at 13-15. However,
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Father also testified that he had not spoken to Child since May 2012 on
account of Mother’s request by fax, dated June 20, 2012, that he not call or
write to Child anymore. Id. at 16-17, 45. Further, Father noted that he was
eligible for parole and was awaiting his next parole hearing scheduled to
occur “in 60 days or more.” Id. at 4-5.
Mother also testified at the hearing. Mother explained that any
correspondence or telephone communication between Father and Child was
orchestrated by Maternal Great-Grandmother without Mother’s knowledge:
And so [Father’s] in jail. There’s no contact with me. Now
[Maternal Great-Grandmother], she feels that because he is the
father, he will always love [Child] and he’s still [Child’s] father
no matter what. So she was the one that would be sending him
pictures. And they would send letters back and forth with each
other. I was not included in those letters.
She would take those letters from him and send them to
[Child] and send him cards and have [Child], like, draw on paper
to send to him. I didn’t send him anything.
So the contact or the phone calls was not through me. It
was through [Maternal Great-Grandmother] with me not even
knowing. . . .
N.T., 7/21/14, pp. 28-29. Mother also disputed Father’s testimony
concerning the frequency of and circumstances surrounding Child’s visits
with Father in prison, indicating that she took Child to see Father only once
and that Maternal Great-Grandmother coordinated another visit in 2008
without Mother’s knowledge. Id. at 31. Further, Mother testified to her
emphatic opposition to the prospect of visitation with Father during the
remainder of his incarceration and stated that she did not want him to call or
write to Child anymore. Id. at 35-43. Finally, Mother noted that she was
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open to the possibility of supervised visitation in the future in the event of
Father’s release on parole. Id. at 43.
On July 30, 2014, the trial court issued the underlying order,
amending its previous custody order of June 11, 2012 to permit Father
telephone conversations with Child once every two weeks for a duration of
five to ten minutes. The trial court denied Father’s request for visitation
with Child. On August 27, 2014, Father filed a timely notice of appeal but
failed to simultaneously file a concise statement of errors complained of on
appeal, in contravention of Pa.R.A.P. 1925(a)(2)(i) and (b). On September
4, 2014, the trial court issued an order directing Father to file a concise
statement of errors complained of on appeal within twenty-one days of the
order. Thereafter, on September 10, 2014, Father filed a concise statement
of errors complained of on appeal.2
On appeal, Father raises a single question for our review:
Did the trial court abuse [its] discretion. . . by denying [Father’s]
request for visitation with [Child] [due] to [Father’s] current
incarceration[?]
Father’s Brief at 4.
In custody cases, our scope and standard of review is as follows:
2
Although Father failed to comply with Pa.R.A.P. 1925(a)(2)(i) and (b),
relating to children’s fast track appeals, we decline to dismiss or quash his
appeal. See In re K.T.E.L, 983 A.2d 745, 747 (Pa.Super. 2009) (holding
that the failure to file a concise statement of errors complained of on appeal
with the notice of appeal will result in a defective notice of appeal, to be
disposed of on a case-by-case basis). Here, Father filed the Rule 1925(b)
statement fourteen days after filing the notice of appeal. However, since the
misstep was not prejudicial to any of the parties and did not impede the trial
court’s ability to issue a thorough opinion, the procedural error was
harmless. Cf. J.P. v. S.P., 991 A.2d 904 (Pa.Super. 2010) (appellant
waived all issues by failing to timely comply with the trial court’s direct order
to file a concise statement).
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In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
Additionally, this Court has stated:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation
omitted).
“With any child custody case, the paramount concern is the best
interests of the child. This standard requires a case-by-case assessment of
all the factors that may legitimately affect the physical, intellectual, moral
and spiritual well-being of the child.” M.J.M. v. M.L.G., 63 A.3d 331, 334
(Pa. Super. 2013) (citation omitted). Further, the party seeking modification
of custody arrangements has the burden of showing that modification is in
the child’s best interest. Ketterer, 902 A.2d at 539 (citation omitted).
Consistent with the prevailing goal of custody proceedings, the trial court
was obligated to consider all factors relevant to the child’s well-being in
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evaluating Father’s contentions. J.M.R. v. J.M., 1 A.3d 902, 911 (Pa.
Super. 2010).
The right to visitation, although constrained by a natural parent’s
incarceration, is not extinguished by the sole fact of incarceration. Etter v.
Rose, 684 A.2d 1092, 1093 (Pa. Super. 1996). Rather, where one parent is
incarcerated the presumption is that visitation at the prison is not in the
child’s best interest. Id. The incarcerated parent, however, has the right to
have a hearing, at which time he is given the opportunity to present
evidence to rebut that presumption and show that the visitation would be
beneficial and in the child’s best interest. Id.
Further, we have delineated the factors to be considered by the trial
court in evaluating the best interests of a child when deciding an
incarcerated parent’s request for visitation: (1) age of the child; (2) distance
and hardship to the child in traveling to the visitation site; (3) the type of
supervision at the visit; (4) identification of the person(s) transporting the
child and by what means; (5) the effect on the child both physically and
emotionally; (6) whether the parent has and does exhibit a genuine interest
in the child; and (7) whether reasonable contacts were maintained in the
past. Etter, 684 A.2d at 1093. Additionally, we regard the nature of the
criminal conduct that culminated in the parent’s incarceration as another
relevant consideration. D.R.C. v. J.A.Z., 612 Pa. 519, 536, 31 A.3d 677,
687 (2011).
On appeal, Father contends that the trial court erred in its application
of the Etter factors to the facts of this case, and, thereby, committed an
abuse of discretion in denying his request for visitation with Child.
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Specifically, Father argues that the trial court, in making its findings,
accorded improper weight and credibility to Mother’s testimony vis-à-vis his
own testimony and, as a result, came to a decision not conducive to the best
interest of Child. We disagree.
In its Rule 1925(a) opinion, the trial court explained the reasoning
underlying its decision as follows:
The [trial court] does not believe it is in the best interest of
[Child] to have physical visits at a state correctional institution
considering the lack of contact [] Father has had with [Child]
since [Child’s birth], and the potentially traumatizing nature of
visiting a state correctional institut[ion]. The [trial court] is also
mindful that Father has an extensive and violent criminal history
including domestic violence against Mother and indecent assault
against Mother’s younger sister. The distance to SCI Mahanoy in
Frackville, Pennsylvania is significant and may be traumatizing to
a child of this age[3]. Mother is not at all convinced that Father
has a genuine interest in [Child], and [the trial court] is not fully
convinced either. The [trial court] does believe that at some
point there may be some type of reunification, and believes that
regular telephone calls are an appropriate and an initial step
toward that reunification.
Trial Ct. Op., 9/18/14, at 3-4.
After a careful review of the record, we conclude that the trial court’s
findings are supported by competent evidence, and that it reasonably
concluded that regular telephone communication between Father and Child,
not visits to the prison, will best serve Child’s needs and welfare at this
stage in Child’s life. In applying the Etter factors, the trial court reasonably
concluded that Father failed to provide sufficient evidence to warrant
visitation at the prison. Indeed, Father presented no evidence to rebut the
presumption that visitation at the prison would not be in Child’s best
3
Child is 10 years old.
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interest. Although Father testified to his love and affection for Child and has
expressed a willingness to fulfill his parental responsibilities, his failure to
put himself in a position to develop a parental relationship with Child as well
as his complete absence throughout the majority of Child’s life due to his
repeated incarceration belie such sentiments. Moreover, to the extent that
Father asks this Court to revisit the trial court’s determinations regarding
both his and Mother’s credibility as testifying witnesses, we must defer to
the trial court “who viewed and assessed the witnesses first hand.” J.M.R.
v. J.M., 1 A.3d at 911; see also In re Adoption of R.J.S., 901 A.2d 502,
506 (Pa. Super. 2006) (stating that “[t]he trial court, not the appellate
court, is charged with the responsibilities of evaluating credibility of the
witnesses and resolving any conflicts in the testimony. In carrying out these
responsibilities, the trial court is free to believe all, part, or none of the
evidence.”). After careful consideration, we decline to disturb the trial
court’s credibility determinations.
In consideration of these circumstances and our careful review of the
record, we conclude that the trial court did not abuse its discretion or
commit an error of law in denying Father’s request for visitation with Child.
Accordingly, for the reasons stated above, we affirm the trial court’s
order denying Father’s request for visitation with Child.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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