J-S22029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.M.J., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
N.L.J.,
Appellant No. 1742 WDA 2014
Appeal from the Order entered September 24, 2014,
in the Court of Common Pleas of Venango County,
Civil Division, at No(s): 17-2014
BEFORE: PANELLA, LAZARUS, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 03, 2015
N.L.J. (Mother) appeals from the order entered September 24, 2014,
in the Court of Common Pleas of Venango County, which awarded primary
physical custody and shared legal custody of the parties’ minor son, K.M.J.
(Child), to C.M.J. (Father). We affirm.
Some background about the parties to the instant appeal is necessary.
The certified record reveals the following facts. Mother is originally from New
Jersey and moved to Western Pennsylvania to attend college. Mother and
Father met and began dating while Mother attended Clarion University. They
never married, although they did cohabitate. Child was born in February of
2013.
* Retired Senior Judge specially assigned to the Superior Court.
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Prior to and after Child’s birth, the relationship of the parties was
tumultuous and, occasionally, violent. The couple’s issues primarily focused
on finances. Although Mother informed her extended family (residing in New
Jersey) that she was frequently abused by Father, no police record of those
assaults exists.
Both parties have sporadic work histories; Mother’s due to her college
schedule and criminal convictions and Father’s due, in part, to his mild
seizure disorder, a consequence of which is his self-imposed abstention from
driving a vehicle.1
In November of 2013, Mother was incarcerated as part of a sentence
imposed following a 2011 conviction for driving under the influence of
alcohol (DUI). During her 45-day period of incarceration, Father exercised
sole custody of Child. Mother was released on or about December 30, 2013,
and returned to the parties’ home. A few days later, in January of 2014,
Mother reported Father to Venango County Children and Youth Services
(CYS), alleging that Father had abused and neglected Child while Mother was
incarcerated. These allegations stemmed from information provided to
Mother by Maternal Grandmother, who had communicated with Father
1
At the time of the custody hearing, Mother was on parole and participating
in a work ready program with the Venango County Assistance Office and
Father was working at a Kwik-fill station near his parents’ home.
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electronically via Skype2 during Mother’s incarceration and suspected Father
had neglected Child.3 Although the allegations of abuse were ultimately
unfounded, Mother’s report to CYS prompted Father to leave the couple’s
home and move in with his parents in Mercer County, 45 minutes away.
On January 8, 2014, Father filed a complaint for custody, in which he
requested primary physical and legal custody of Child. A custody trial was
held on July 7, 2014, and July 9, 2014. On September 24, 2014, the trial
court entered its order awarding Father primary physical custody, awarding
Mother partial physical custody every other weekend from 7:00 p.m. on
Friday until 7:00 p.m. on Sunday, and awarding both parents shared legal
custody.4 Mother timely filed a notice of appeal. However, Mother failed to
file concomitantly a concise statement of errors complained of on appeal
2
Skype is a free internet-based program that allows individuals to video
conference from a home computer.
3
Specifically, Maternal Grandmother contended that Father had confined
Child alone for long periods of time in a cold, empty room using baby gates
and a comforter to block doorways. N.T., 7/7/2014, at 54, 57-58.
Additionally, Maternal Grandmother claimed that Child was violent and
animalistic while Mother was away. Id. at 53-57.
4
On October 1, 2014, Mother filed a motion to vacate opinion and order, in
which she indicated that the subject order would need to be distributed to
third parties, and that the opinion portion of the order will “unnecessarily
demean [Mother]’s character.” Motion to Vacate Opinion and Order,
10/1/2014, at 1 (unnumbered pages). As a result, the trial court issued a
truncated version of its order on October 16, 2014, which did not include the
opinion portion.
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pursuant to Pa.R.A.P. 1925(a)(2)(i). On October 22, 2014, the trial court
ordered Mother to file a concise statement, and Mother timely complied.5
Mother now raises the following issues for our review.
1. Did the [trial c]ourt err in that the record will not support the
court’s conclusions in the sixteen (16) factors as required by 23
Pa. C.S.[] §[]5328?
2. Did the [trial c]ourt err in balancing the sixteen (16) factors in
determining the best interest of the child that [Father] have
primary custody of the child?
Mother’s Brief at 14.6
We address Mother’s claims mindful of our well-settled standard of
review.
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
5
Father has not objected or claimed any prejudice as a result of Mother’s
failure to file a concise statement until ordered to do so by the trial court.
Thus, we have accepted Mother’s statement in reliance on our decision in In
re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that a mother’s
failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver
of her claims, as there was no prejudice to any party). Cf. J.P. v. S.P., 991
A.2d 904, 908 (Pa. Super. 2010) (stating that an appellant waived her
issues on appeal when she failed to file a concise statement with her notice
of appeal, and then also failed to comply with the trial court’s order to file
concise statement within 21 days).
6
We note that Mother has not divided her argument into as many parts as
there are questions to be argued, in violation of Pa.R.A.P. 2119(a).
However, we decline to quash as this error does not prevent us from
reviewing her claims.
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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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014)
(citation omitted). The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S.A. § 5328(a).
(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 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) (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.
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(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.
(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.A. § 5328(a).
Instantly, in its September 24, 2014 Findings and Order, the trial court
analyzed each of the factors listed supra, and concluded that all of the
relevant factors weighed in favor of Father, while none of the factors
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weighed in the favor of Mother.7 We address each of Mother’s arguments
with respect to the trial court’s conclusions in turn.
With respect to Sections 5328(a)(1), (8), and (13), Mother contends
that the trial court erred by finding that Father is more likely than Mother to
encourage and permit frequent and continuing contact between the child and
the other parent, that the trial court erred by concluding that Mother “would
attempt to turn the child against [Father] if she had any significant periods
of custody,” and that the trial court erred by concluding that “‘[Father] has
made attempts to cooperate and work with [Mother] despite the level of
conflict that exists.’” Mother’s Brief at 18-19, 22-23, 26-27. Mother asserts
that the court’s findings are not supported by the evidence. Id. at 19, 22-
23. Mother contends that Father is uncooperative and refuses to
communicate with her, and that Father’s mother (Paternal Grandmother) is
hostile toward her and has threatened to kill her. Id. at 19, 23, 26. Mother
cites as proof of Father’s unwillingness to cooperate in co-parenting Child (1)
the emergency petition for special relief she filed on May 14, 2014 after
Father refused her permission to take Child to New Jersey over a weekend in
June to attend a family wedding because the proposed visit fell during a
7
Effective January 1, 2014, the Child Custody Act was amended to include
Section 5328(a)(2.1) (providing for consideration of child abuse and
involvement with child protective services). The trial court did not
specifically consider Section 5328(a)(2.1) in its Findings and Order.
However, the court considered the involvement of child protective services in
this matter while addressing Section 5328(a)(15). Findings and Order,
9/24/2014, at 8.
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period of his designated custodial time, and (2) the petition for contempt
filed against Father in December of 2014, months after the custody trial took
place, in which she alleged Father denied her telephone access to Child on
six separate occasions. Id. at 18, 26-27.8
After reviewing the record in this matter, we conclude that the trial
court’s findings are supported by the evidence. During the custody trial,
Father testified that Mother has threatened to move back to her home state
of New Jersey and take Child with her. N.T., 7/7/2014, at 102. Father
further testified that this was why he opposed Mother’s taking Child to New
Jersey to attend the wedding. Id. at 155. Paternal Grandmother
corroborated Father’s testimony that Mother has threatened to not let Father
see Child anymore. Id. at 28 (“[Father] was told she hoped he enjoyed
seeing [Child] because it was going to be the last time ….”). Paternal
Grandmother testified that Mother does not make these threats during every
weekly custody exchange, “but it has been getting worse.” Id. Father and
his mother noted that Mother is sometimes hostile toward Father during
custody exchanges. Id. at 28-29, 102.
Notably, the trial court also heard testimony that Mother does not
allow Father to have access to Child while Child is at daycare , nor did she
list Father as an emergency contact at the daycare. N.T., 7/9/2014, at 61-
62. Instead, she listed Maternal Grandmother, who resides in New Jersey.
8
Although he was ordered to communicate with Mother daily, Father was
not held in contempt of the existing custody order. Trial Court Order,
2/5/2014.
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N.T., 7/9/2014, at 61-63. Moreover, as discussed in greater detail infra, the
court found that Mother has made false claims of abuse against her by
Father. Based on the foregoing, it was reasonable for the court to conclude
that Mother is unlikely to foster a relationship between Father and Child, and
that Mother will try to alienate Child from Father if given the opportunity.
No relief is due.
With respect to Section 5328(a)(2), Mother argues that the trial court
erred by finding that Father had not physically abused her. Mother’s Brief at
19-21. Mother emphasizes the testimony of her mother and brother, as well
as her own testimony, that abuse had occurred. Id. at 20, 28-29.9
Again, our review of the record reveals that Mother is not entitled to
relief. Father repeatedly denied that he had abused Mother, and instead
testified that Mother would become physically aggressive toward him, and
that he called the police approximately nine times due to Mother’s physical
aggression. N.T., 7/7/2014, at 112-13, 129. Father’s claims were
corroborated by the former neighbor of Father and Mother, R.W., who
testified that she observed Mother throw part of “one of those little grills” at
Father, but that she never observed Father attack Mother. Id. at 78. While
9
Maternal Grandmother and Mother’s Brother did not witness the abuse first
hand, but testified that Mother told them Father had caused her bruising and
injuries. N.T., 7/7/2014, at 62-68, 75. According to Maternal Grandmother,
she confronted Father about the abuse over Skype while Mother was
incarcerated, at which time Father admitted to “going too far” and
apologized. Id. at 71. Father denied this conversation occurred. Id,. at 112-
113.
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Mother and her family members claimed that Father committed acts of
abuse against Mother, the trial court was free to reject this testimony as
incredible, and we discern no abuse of discretion.10
With respect to Sections 5328(4), (9), and (12), Mother contends that
the trial court erred by finding that Father “would be best suited for
stability,” and that Father is more likely to maintain a maintain a loving,
stable, consistent and nurturing relationship with the child adequate for the
child’s emotional needs. Mother’s Brief at 21-23. Mother contends that the
court erred by concluding that Mother had left Child in the care of possibly
dangerous individuals, when in fact it was Father who had done so. Id. at
21, 25-26. Mother also insists that she is a loving and attentive parent, and
that Father is financially irresponsible. Id. at 21-23.
We conclude that there was ample testimony presented during the
hearing to support the trial court’s conclusion that Father is more stable than
Mother. Father testified that he requested primary custody of Child because
10
In its Findings and Order, the trial court explained that some of Mother’s
abuse accusations “seemed extremely farfetched to the significant injuries
she claimed to have suffered without medical treatment.” Findings and
Order, 9/24/2014, at 4. It appears that the court was referring to the
testimony of Mother’s mother, who stated that Father took Mother’s hand
“and bent back until all the bones snapped and her hand was broken.” N.T.,
7/7/2014, at 64. According to mother’s Mother, the police “saw it broken
and swollen and everything,” but did nothing to assist Mother because “Oil
City police did not like getting involved in domestic abuse.” Id. at 65.
Reportedly, Mother did not seek medical treatment for this injury, because
she was afraid of Father. Id. at 66. In Mother’s account of this incident,
she stated that Father “[s]queezed my hand and just rolled it and my one
pinky bone snapped out ….” N.T., 7/9/2014, at 26.
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“I can give him more stability.” N.T., 7/7/2014, at 94. He explained that
Mother engages in aggressive behaviors, such as “yelling, screaming, [and]
hitting,” and that “I just don’t want my kid around that.” Id. While he
admits that he and Mother were evicted from their first apartment for failure
to pay rent, Father testified that he now works regular hours and lives with
his parents, who assist him by caring for Child while he is at work. Id. at
24, 89.
By contrast, Mother has an erratic employment history. She testified
that she recently lost her job, and that she has signed up to do “community
service … for cash assistance” through the “[w]ork ready program with the
county assistance office.” Id. at 5, 16; N.T., 7/9/2014, at 7. As discussed
above, Mother’s criminal history plays a role in her inability to hold certain
jobs. N.T., 7/7/2014, at 13. However, the work ready program does provide
Mother with discounted daycare for Child. Nonetheless, we discern no error
in the trial court’s assessment that this factor weighs in favor of Father.
Admittedly, Mother is correct that there was little, if any, evidence
presented during the custody trial that she has left Child in the care of
potentially dangerous individuals.11 Moreover, Mother expressed concern
during the trial that Father left Child in the care of a coworker whose last
name he did not know, and that Father had left Child in the care of a man
11
There was testimony that Mother sometimes left Child in the care of a
man named D.S., also known as “Bear.” N.T., 7/7/2014, at 16, 84-85; N.T.,
7/9/2014, at 43. No explanation was given as to why this man was an
inappropriate influence on Child.
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with a dog which, according to Mother, previously had attacked a child.
N.T., 7/9/2014, at 34. However, it does not appear that the court’s concern
with Mother’s childcare choices played a critical role in its decision, and we
discern no basis upon which to reverse the court’s order.
With respect to Section 5328(a)(5), the record reveals that father’s
extended family is local to the Mercer/Venango County area, while Mother’s
family continue to reside in New Jersey or Eastern Pennsylvania. With
respect to her extended family, Mother testified that once a year would be
“sufficient” for Child to visit New Jersey. However, Mother also testified that
her family had limited contact with Child, due to limtiations “set by [Father]
and the [Paternal Grandmother].” Mother’s Brief at 22. On this point,
Mother emphasizes the testimony of Maternal Grandmother, who stated that
Father at one point allowed communication between Child and Maternal
Grandmother via Skype, but that after “only a couple of times … [Father] no
longer agreed to this form of communication ….” Id. This account is
disputed by Father who testified that he accommodated Maternal
Grandmother’s requests to Skype with Child “[m]aybe half dozen, dozen
times” during Mother’s incarceration, and that he never refused to Skype
with Maternal Grandmother when asked to do so. N.T., 7/7/2014, at 109-
11, 130-31. Again, the trial court was free to credit this testimony. No
relief is due.
With respect to Sections 5328(a)(14), Mother argues that the trial
court erred by finding that she is in denial of her substance abuse issues.
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Mother’s Brief at 27. Mother notes that she “offered into evidence … the
Venango County Substance Abuse Program, Substance Abuse Treatment
Recommendation,” which “declares no treatment indicated for [Mother] ….”
Id.
Contrary to the claim in Mother’s Brief, it does not appear that a
“Substance Abuse Treatment Recommendation” ever was offered as an
exhibit or entered into evidence at the custody trial.12 The trial court cannot
be faulted for failing to credit a piece of evidence that was not before it.
Moreover, even if this recommendation had been presented to the court, it
was not unreasonable for the court to conclude that Mother was being less
than forthright about her issues with substance abuse, as Mother’s
testimony with regard to her prior DUI charge in New York was both evasive
and confusing.13 For example, Mother initially testified that her only criminal
conviction was for a 2010 DUI in Pennsylvania. N.T., 7/7/2014, at 11. Then
she testified that she was convicted of disorderly conduct in New York in
2003. Id. Then Mother admitted that her 2010 DUI “was a second offense
DUI.” Id. However, she denied that she was convicted of her first DUI
charges in New York, and stated that the charges appeared “[o]n my driving
12
Mother did testify that she underwent a substance abuse assessment in
2010, and that no treatment was recommended, but no exhibit was offered
to corroborate this testimony. N.T., 7/9/2014, at 28.
13
As the trial court pointed out in its 1925(a) opinion, it was “very familiar”
with Mother’s criminal history, having handled her guilty plea and
subsequent appeal. Trial Court Opinion, 11/20/2014, at 2.
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record but not my criminal record.” Id. Mother then stated that “[t]here’s
nothing on a criminal record in New York that has my name on it,” right
before she again indicated that she had been convicted of disorderly conduct
in New York. Id. at 12. We see no reason to reverse the trial court’s order.
With respect to Sections 5328(a)(10), (15), and (16), Mother contends
that “absolutely no testimony or evidence exists to support the court’s claim
that [Mother] suffers from ‘some type of mental illness.’” Mother’s Brief at
23, 29-30. Mother also insists that the court acted unreasonably by
expressing concern with regard to some of her parenting decisions. Id. at
23-25, 28. Further, Mother asserts that she is “far more educated” than
Father, that Father has failed to take an active role in Child’s education, and
that Father has a history of leaving Child “segregated and trapped within a
playpen in a room that was very cold.” Id. at 24-25, 30. She argues that
the court acted unreasonably by not addressing Father’s epilepsy. Id. at 28.
Continuously, the court emphasized that, “throughout the custody
trial, [Mother] exhibited clear signs of some type of mental disturbance,
significant enough that it caused great concern to this court in [Mother]
exercising any type of significant custodial time with the minor child.”
Findings and Order, 9/24/2014, at 5, 8, 11; see also Trial Court Opinion,
11/20/2014, at 2-3 (“Above all other factors to consider on this custody
[case], this [c]ourt specifically believes [Mother] has a very significant
mental health issue which would affect her ability to competently parent this
child.”). In its findings and order, as well as its 1925(a) opinion, the court
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explained its conclusion concerning Mother’s mental health by emphasizing,
inter alia, that Mother’s testimony was rambling and confused, and that
Mother at one point forgot what question she was answering.14 Findings and
Order, 9/24/2014, at 7; Trial Court Opinion, 11/20/2014, at 2-3. The record
amply supports the trial court’s findings. For example, during Mother’s
testimony, she was asked about her trip to New Jersey with Child,
mentioned supra. Mother answered these questions as follows.
Q. When you wanted to go to this event, what was the
significance of it in your mind?
A. I wouldn’t take [Child] down to New Jersey because his skull
doesn’t fuse together until after one year so I waited until after--
--
[Father’s counsel]: Wait a minute, I didn’t hear that
answer.
A. His skull doesn’t fuse together until after one year.
[Mother’s counsel]: Skull.
[Father’s counsel]: Skull, thank you.
Q. From a family perspective, was there some significance?
A. (No response.)
14
The trial court also expressed concern relative to Mother’s false claims of
abuse by Father, and Mother’s belief that children should not ride in cars
until they are a year old because their skulls have not fully been formed.
Findings and Order, 9/24/2014, at 7-8. The court further noted that Mother
refused to admit that she had a prior DUI conviction in New York, “contrary
to what this [c]ourt is familiar with” from sentencing Mother for her more
recent DUI, and that Mother “was so emphatic over this that this [c]ourt
determined that it was a fixed false belief, which by definition is a delusion.”
Trial Court Opinion, 11/20/2014, at 2.
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Q. Was this occasion the first occasion, only occasion, to be able
to meet some of these relatives, his extended family, that’s my
question?
A. This was the only occasion I was willing--- this wasn’t the first
occasion that [Child] had met his relatives, the majority of us
live on the East side of the United States. Some of them had
come to visit me on the Western side of Pennsylvania, but I
don’t like having [Child] in the car. I was in a bad accident and
it makes me nervous and like I said his skull needed to be fused
together, so I wouldn’t---I don’t like having [Child] in the car.
N.T., 7/9/2014, at 13-14.
Shortly after this exchange, Mother provided a similarly disconnected
series of responses with regard to her level of cooperation with Father, and
with regard to Child’s daycare.
Q. If [Father] would call you and say, hey our family’s doing this
or doing that, we need a little extra time, would you be willing to
give him extra time for those kinds of family things?
A. I would love---I come from a family where I knew my great
grandmother, so I know that family is very important and I
actually chose the name, the middle name for [Child] myself to
be [M.], because um, [Father] doesn’t know his father, he’s only
met him one other time, his real dad, an[d] [Father] was raised
with his grandparents. The grandfather’s name is [M.] and I
thought that that was an incredible deed that he did to help his
daughter raise her first child out of wedlock. To honor that, I
had named [Child], [K.M.] and then [J.], after his adopted
father.
Q. Alright. The um---we talked just briefly before about your
routine and whatnot. [Child’s] at [Child Development Center],
which one?
A. Oil City.
Q. Okay, and um, do you have interaction with the staff there;
do you talk to the staff?
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A. Yes.
Q. How often and what’s your take on how he’s doing and how
they’re doing I suppose?
A. Every time I drop [Child] off, I sit there for approximately
fifteen minutes and some of the kids call me mom and um, I
volunteer to help out there if they need some help.
Id. at 15-16.
Most notably, Mother was asked about Father’s participation in caring
for Child during the time they were living together. This resulted in the
following exchange.
Q. … There was somewhat of an upsetting incident with regard
to whenever you gave birth to [Child] at the hospital, was
[Father] there?
A. [Father] was there actually. We were getting into arguments
over the money and I kept telling him, um, me and [Father] got
into a fight and I went home with bruises on me while I was
pregnant and I kept thinking about how I wanted my son to
know who his dad was. So I went home---
Q. Whenever you say “home” where do you mean?
A. Back to my apartment in Oil City where I left [Father]. And
um----I forgot what we were talking about.
Q. Well really, my question was going to be focused on when you
gave birth---
A. OH!!! OH!!
Q. ---was [F]ather at the hospital?
A. So that night [Father], he just wasn’t paying the rent and I
said to him [Father]---and he was coming home late, drunk, four
o’clock in the morning. He said he worked at McDonald’s, I said
they close at twelve. He said he was there and they made him
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scrub the oil off the floor, but then the one time he came home
with this 18 year old kid drunk and I kicked the kid out of the
house and I said I’m not putting up with this. One time I---
[Father’s counsel]: Can we have a timeframe please?
A. I’m not done, I’m talking about my---
[Father’s counsel]: Yeah, I hear ya, but I’m asking
your attorney for a timeframe.
Q. [Mother], that’s a fair question on his part because you didn’t
exactly answer my question, “b”, you didn’t put this in
perspective of when was this, was this after---
A. Oh, so me and [Father] were in a fight---
Q. No, no, was this after [Child] was born?
A. [Father] left the hospital room the night [Child] was born with
his parents. He didn’t come home till the next day or come back
down to the hospital until the next day, the next night.
Id. at 24-25.
Finally, when discussing an incident in which Mother reported Father to
CYS after Child had fallen down a stairs and injured himself while in Father’s
care, Mother argued with Father’s counsel that the definition of “blunt head
injury” was “somebody struck [Child] on the head with a blunt object.” Id.
at 48-51. Mother claimed repeatedly that this definition of Child’s injury was
contained in the doctor’s report. Id. at 48-49. (“That’s what the doctor said,
that’s not what I said, I have a medical report that says that.”). When
asked to identify the relevant portion of the report, Mother was unable to do
so. Id. at 50. Mother then adamantly denied saying that the doctor had
written “the definition of a blunt head injury” in the report. Id.
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Given this testimony, it was reasonable for the trial court to be
concerned with Mother’s mental health. Additionally, we emphasize that this
Court must show great deference to the factual findings and credibility
determinations of the trial court, which had the benefit of viewing Mother’s
testimony firsthand. See Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.
Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254
(Pa. Super. 2004)) (“[T]he discretion that a trial court employs in custody
matters should be accorded the utmost respect …. 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.”).
Further, with regard to Mother’s allegation that Father left Child
isolated in a cold room, Father testified that he created a “playroom” for
Child during the time Mother was incarcerated. N.T., 7/7/2014, at 103-05.
Father explained that he closed off the room using baby gates and a
playpen, and placed safety plugs in the outlets, so that Child “can run
around there and there’s nothing he can knock over, nothing he can fall.
There’s only a table there with his toys … so I could run around [and] cook
dinner, straighten up another room, do whatever.” Id. at 104-05. Father
denied that he left Child alone for long periods of time, and stated that “[if]
he’s entertained and playing then he’d play, if he started fussing then I’d
come see him. If I was doing something that’s why I made the playroom so
I could watch him, because all the rooms are connected.” Id. at 105. As
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before, the trial court was free to accept Father’s testimony, and we discern
no abuse of discretion.
Finally, we note that Father’s medical condition also does not warrant
reversing the trial court’s order and granting primary physical to Mother.
Father testified that he suffered a serious head injury when he was “about
16 or so,” and that he now experiences “seizure events” when exposed to
pulsing lights. Id. at 114-16, 134. Father explained that, as a result, he
does not drive a car and instead rides his bicycle to work each day. Id. at
117. Father admitted that he last saw a doctor about his condition “[f]ive or
six maybe” years ago, that he does not take medication for it, and that he
has no safety plan in place in the event he were to experience a seizure
while Child is in his care. Id. at 116, 134-35. However, Father was clear
that his condition is brought on only by pulsing light, and that “I just don’t
go near strobe lights, that’s the solution.” Id. at 135. It was reasonable for
the court to conclude that Father’s condition does not pose a serious safety
risk to Child.
For all of the foregoing reasons, we discern no error in the trial court’s
determination that the relevant custody factors weighed predominantly in
favor of Father. Accordingly, because we conclude that none of Mother’s
claims entitles her to relief, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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