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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.-M.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
D.R.B. :
:
: No. 535 MDA 2016
APPEAL OF: A.-M.W. :
Appeal from the Order Entered December 16, 2015
In the Court of Common Pleas of Union County
Civil Division at No(s): 15-0430
BEFORE: GANTMAN, P.J., DUBOW, JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 07, 2016
A.-M.W. (“Father”) appeals, pro se, from the order awarding D.R.B.
(“Mother”) sole legal custody and primary physical custody of the parties’
minor daughter, J.D. (“Child”) (born in November of 2008). In this order,
the trial court additionally granted Father supervised visitation of Child no
less than two times per year, one visit around the Christmas holiday and the
other visit around the Fourth of July holiday. The order further directed
Mother to take Child to the State Correctional Institution at Somerset (“SCI
Somerset”), located in Somerset, Pennsylvania for these visits; and Father
to pay not less than sixty dollars in advance to cover Mother’s costs of gas
for the trip. We affirm.
On May 19, 2009, Father was convicted of murder in the third degree.
Father received a ten to twenty year sentence for his conviction. Father is
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currently at SCI Somerset. On July 30, 2015, Father filed a custody
complaint seeking custody of Child. On December 14, 2015, a hearing was
held on the custody petition. Following the custody hearing, the trial court
granted Mother sole legal and primary physical custody of Child. Father filed
an application for reconsideration on January 13, 2015. On January 15,
2016, the trial court denied Father’s application for reconsideration.
On January 13, 2016, Father filed a 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 January 15, 2016, 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 February 1, 2016, Father filed a concise statement of errors
complained of on appeal.1
1
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 nineteen 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); J.M.R. v. J.M., 1 A.3d 902 (Pa.Super.2010) (stating
that failure to file a Rule 1925(b) statement of errors complained of on
appeal, when ordered by the Superior Court, will result in a waiver of all
issues on appeal).
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On appeal, Father presents the following issues for our review that we
have reordered for ease of disposition:
1. Whether the trial court was less than an impartial fact-
finder and abused his discretion as a result of
unreasonableness, partiality, prejudice, bias, and ill-will?
2. Whether the trial court erred by not allowing video-
conference?
3. Whether trial court erred by not recusing himself?
4. Whether trial court erred by denying relocation provisions?
5. Whether trial court erred with a final order not conforming
with Rule of Court and Pennsylvania Statutes?
6. Whether trial court erred denying reconsideration as a
result of unreasonableness, partiality, prejudice, bias, and
ill-will?
Father’s Brief at 7.2
In custody cases, our standard of review is 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-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,
2
Father’s fifth and sixth issues on appeal were not raised in his Rule 1925(b)
statement. Thus, he has waived these issues. See Krebs v. United
Refining Co., 893 A.2d 776, 797 (Pa.Super.2006) (stating that we will not
address an issue that is not included in the appellant’s Rule 1925(b)
statement).
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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 that
[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 custody case decided under the Child Custody Act, the
paramount concern is the best interests of the child. See 23 Pa.C.S. §§
5328, 5338. Section 5338 of the Act provides that, upon petition, a trial
court may modify a custody order if it serves the best interests of the child.
23 Pa.C.S. § 5338.
The factors listed in section 5328(a) are as follows:
(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.
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(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.
(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.
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(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. § 5328(a).
Here, in its “Findings and Conclusions,” the trial court considered the
testimony and evidence from the custody hearing held on December 15,
2015, in relation to all of the custody factors listed in section 5328(a), and
set forth its findings regarding each of the factors. See Trial Court Opinion,
3/30/16, at 5-7.
Initially, we address Father’s complaint that the trial court was less
than an impartial fact-finder and abused its discretion as a result of
unreasonableness, partiality, prejudice, bias, and ill-will. Father’s Brief at
14. In his brief, Father contends that the trial court diminished his
opportunity for a “substantial amount of visits (substantial, meaning--
Bimonthly).” Id. at 17.
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
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.
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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).
Child is seven years old and will be ten years old when Father is
eligible for parole. The trial court found:
Mother has limited resources and could not afford gas. [Father]
is not providing any type of support to cover any of the expenses
related to raising [C]hild and [the trial c]ourt was uncomfortable
placing an additional financial burden on [] Mother. For these
reasons, the [trial c]ourt limited the visits to twice a year,
however, required [Father] to contribute financially to the cost of
the trip.
Trial Court Opinion, 3/30/16, at 4. During the custody hearing, Father
agreed to pay the expenses of gas as decided by the court. N.T., 12/14/15,
at 8. Furthermore, the trial court found that Mother brought Child
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voluntarily for a visit to SCI Somerset and allows phone calls with Father and
Child. Trial Court Opinion, 3/30/16, at 5.
After a careful review of the record, we conclude that the trial court’s
findings are supported by competent evidence. The trial court reasonably
concluded that regular telephone communication between Father and Child,
and two visits per year, would allow Child to continue to know her father and
will best serve Child’s needs and welfare at this stage in Child’s life.
Additionally, we note the record is devoid of evidence of trial court bias,
partiality, or ill-will.
Next, we address Father’s argument that the trial judge erred by not
recusing himself because the judge was the prosecutor for Father’s case that
resulted in his criminal conviction. Father’s Brief at 13. We disagree.
The standards for recusal are well established. It is the burden
of the party requesting recusal to produce evidence establishing
bias, prejudice or unfairness which raises a substantial doubt as
to the jurist’s ability to preside impartially. Regarding the
disposition of a motion for recusal, this Court has explained:
In considering a recusal request, the jurist must first
make a conscientious determination of his or her ability to
access the case in an impartial manner, free of personal
bias or interest in the outcome. The jurist must then
consider whether his or her continued involvement in the
case creates an appearance of impropriety and/or would
tend to undermine public confidence in the judiciary. This
is a personal and unreviewable decision that only the
jurist can make. Where a jurist rules that he or she can
hear and dispose of a case fairly and without prejudice,
that decision will not be overruled on appeal but for an
abuse of discretion. In reviewing a denial of a
disqualification motion, we recognize that our judges are
honorable, fair and competent.
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Arnold v. Arnold, 847 A.2d 674, 680-81 (Pa.Super.2004) (citations,
ellipses and quotation marks omitted).
Initially, Father did not raise this issue at the custody hearing. “It is
well settled that issues not raised at trial are waived and cannot be raised
for the first time on appeal.” In re Adoption of D.M.H., 682 A.2d 315, 322
(Pa.Super.1996) (citations omitted); see Pa.R.A.P. 302(a). Further,
although we recognize that Father is proceeding pro se, this does not
preclude us from a finding of waiver. It is well established that
[w]hile this [C]ourt is willing to liberally construe materials filed
by a pro se litigant, . . . [such litigant] is not entitled to any
particular advantage because he lacks legal training. Further,
any layperson choosing to represent himself in a legal
proceeding must, to some reasonable extent, assume the risk
that his lack of expertise and legal training will prove his
undoing.
Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa.Super.2003) (citations, quotation
marks and brackets omitted).
Moreover, even if Father had properly preserved this issue, it would
merit no relief. As the trial judge explained:
[the trial judge was] the District Attorney in Snyder County at
the time of [Father’s] offense. However, prior to [Father]’s
prosecution, the undersigned had been elected as Judge and
took no part in [Father]’s sentencing proceedings in [the trial
court]. The [trial c]ourt does not believe that a recusal is
necessary under the circumstances.
Trial Court Opinion, 3/30/16, at 3; see also Arnold, 847 A.2d at 681
(stating that “[a]dverse rulings alone do not establish the requisite bias
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warranting recusal, especially where the rulings are legally proper”). We
agree with the trial court’s determination regarding waiver and further that
recusal would not have been required in this matter, if requested.
Next, we address Father’s contention that the trial court erred by not
allowing a videoconference, and by only allowing Father to participate in the
hearing via teleconference. Initially, Father’s argument was not raised at
the custody hearing, and it is therefore waived. In re Adoption of D.M.H.,
682 A.2d at 322. However, had Father not waived his claim, we would find
it lacks merit. Father’s issue implicates his guarantee of due process of law
under the Fourteenth Amendment to the United States Constitution.
Specifically, Father argues “not allowing video-conference removed
[Father’s] ability to properly identify Judge [Sholley] as the former
prosecutor of [Father]’s criminal case.” Father’s brief at 13.
It is well settled that “[p]rocedural due process requires, at its core,
adequate notice, opportunity to be heard, and the chance to defend oneself
before a fair and impartial tribunal having jurisdiction over the case.” Garr
v. Peters, 773 A.2d 183, 191 (Pa.Super.2001) (internal quotation marks
and citations omitted). “Due process is flexible and calls for such procedural
protections as the situation demands.” In re Adoption of Dale A., II, 683
A.2d 297, 300 (Pa.Super.1996) (citing Mathews v. Eldridge, 424 U.S. 319,
334 (1976)).
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The trial court stated, “the Department of Corrections at Somerset
would not permit video participation in civil proceedings.” Trial Court
Opinion, 3/30/16, at 3. However, the trial court allowed Father to
participate in the custody hearing via telephone, present his own testimony,
and afforded him the opportunity to make additional inquiries of the trial
court. Thus, Father’s claim would fail even if it had been preserved.
Lastly, Father argues that the trial court erred by “denying relocation
provisions.” Father did not raise an objection to relocation at the hearing.
Thus, Father’s claim is waived. See In re Adoption of D.M.H., 682 A.2d at
322. Even if his claim had not been waived, Father’s claim is without merit.
The trial court found that Mother “relocated from New Columbia to Loganton
less than six (6) months prior to the hearing, however, there was no
indication how this in any way affects [Father’s] rights regarding custody.”
Consequently, Father’s claim is without merit.
Accordingly, finding no abuse of discretion, we affirm the trial court’s
custody order awarding sole legal and primary physical custody of Child to
Mother.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
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