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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
L.B., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
: No. 1495 MDA 2017
J.W. :
Appeal from the Order Entered September 1, 2017,
in the Court of Common Pleas of Union County
Civil Division at No. CV-17-0268
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 20, 2018
L.B. (“Father”) appeals pro se from the September 1, 2017 order
entered in the Court of Common Pleas of Union County that awarded sole
legal and physical custody of T.A.B. (“Child”) to J.W. (“Mother”). After
careful review, we affirm.
The trial court summarized the factual history of this case, which it
gleaned from the custody hearing, as follows:
The parties met online while Father[1]was living in
Florida and Mother was living in Middleburg,
Pennsylvania. Father moved from Florida to
Middleburg, Pennsylvania and began residing with
Mother. Mother became pregnant shortly after
Father moved to Pennsylvania and [Child] was born
January [] 2012. The parties continued to reside
1The trial court referred to the parties as “the Father” and “the Mother.” We
have omitted the article preceding these party designations. We have also
omitted the article where the trial court referred to Child as “the Child.”
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together until May of 2015. From here the record is
confusing as to exactly what the circumstances were
regarding their separation. However, it would
appear to the Court that the parties separated in
May of 2015. Until June of 2015 [F]ather had
supervised visits with [C]hild. [C]hild never spent an
overnight with Father. In June of 2015 Mother
moved to West Virginia and Father had no contact
with [C]hild until September 8, 2015. On
September 8, 2015, Father located Mother, her now
husband and [C]hild at a convenience store in
Middleburg. Father was extremely intoxicated,
approached Mother and assaulted her. Apparently
Father attempted to take [C]hild in an intoxicated
state. Father was driving an automobile and was
subsequently arrested for this incident. Father was
then incarcerated and remained incarcerated for a
period of time. He was then admitted to the
17th Judicial District DUI Treatment Court.
In addition, a Protection from Abuse Order was
entered following the September 8, 2015 incident.
The Protection from Abuse Order granted Mother
custody of [Child].
Prior to the party’s separation in May of 2015,
Snyder County Children and Youth Services had been
involved with the family. In part, it was due to
sexual acting out of one of Mother’s children that
were not fathered by Father of [Child] but resided
with the parties. The other reason was due to
Father’s inappropriate discipline of the one child. In
addition, Mother testified that Father’s drinking,
discipline and anger were problems while they
resided together.
It is significant to note that Father failed to disclose
his involvement with Snyder County Children and
Youth Services on his Criminal Record/Abuse History
Verification.
In addition, it became evident that Father was
involved with the Florida equivalent of Children and
Youth Services and had three (3) children removed
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from his custody while he was in Florida and his
parental rights were involuntarily terminated to
those three children. Again, Father failed to disclose
this contact with Children Services on his Criminal
Record/Abuse History Verification.
Father has had absolutely no contact with [C]hild
since the September 8, 2015 incident. In addition,
he has not provided any child support, he has not
provided [C]hild with any gifts, cards or anything to
acknowledge his paternity or interest in [C]hild until
he filed for custody on May 2, 2017. Father testified
that he did not want to become involved in his
[C]hild’s life until he had his own issues addressed.
Father testified that he had been in the 17th Judicial
District DUI Treatment Court Program and graduated
on May 31, 2017. An issue was raised as to whether
Father filed for custody after he learned that a
Petition to terminate his parental rights was being
filed by Mother (Union County Docket No. OC-17-
8033). Father testified that that was not his
motivation for filing for custody, however the
Guardian ad Litem questioned his reasoning given
that he had not completed his Treatment Court
Program and therefore his statement that he was
waiting until he had completed all of his issues until
filing for custody was subject to question. Father
attempted to explain that he wanted to wait until he
was sober, however, the Guardian ad Litem observed
that he had been sober since September of 2015 and
still had not filed. Father was extremely evasive of
the Guardian ad Litem’s questions and his actual
motivation for filing for custody when he did is a
question that is unresolved. In his current situation
Father testified that he has been living with his
current fiancé, [E.E.] since 2015. It is interesting
that [E.E.] has three (3) sons, one (1) is
incarcerated in a State Correctional Facility and has
been for the last three (3) years and she visits him
one (1) time a year. In addition, her other two (2)
sons have no contact with her at their request and
have not done so since they were in their late teens.
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It is also interesting to note that in spite of Father’s
drug and alcohol issues, [E.E.], his fiancé, has
posted alcohol related pictures on Facebook. The
Court questions the judgment of [E.E.] given her
fiancé’s involvement with the Criminal Justice
System related to drugs and alcohol.
Father also has four (4) other children. The one at
issue in this case, the three (3) referenced earlier
where his parental rights were terminated in Florida
and one (1) other child that lives in Middleburg,
five (5) miles from Father’s residence and the child
resides with the paternal grandmother. Father has
had no contact with this child for twenty-one (21)
years. He attempted to reach out to his [m]other
apparently, but she has refused to return the
contacts. Father did not present any evidence to
show that he has done anything in an attempt to
support this child or to establish a parental
relationship.
In fact, none of Father’s family has been involved
with [Child]. To the contrary, Mother has developed
an extensive support system with her current
husband, her mother, pastor and friends. She
maintains full time employment and a home that has
a stable family situation. It is also significant that
Father acknowledged having outstanding arrest
warrants from the State of Florida for probation
violations in that state. Father has failed to exercise
the responsibility in addressing these outstanding
warrants and is subject to arrest at any time based
on Florida’s decisions.
The facts presented to the Court indicate Father has
significant drug and alcohol issues, domestic violence
issues, violence that may involve [C]hild through
discipline at home or assaults in the presence of
[C]hild, Father’s deceit in failing to disclose his
substantial involvement with Children and Youth
Services in two (2) states, mental health issues and
the fact that he never pursued custody nor
shown [sic] any interest in being a father from
September 8, 2015 until the filing of this action on
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May 4, 2017. In fact, Father had one (1) contact
with [C]hild between June of 2015 and the present
and that was at a time he was intoxicated and
subsequently arrested and incarcerated. Father’s
testimony was that he doesn’t even remember most
of that incident.
When queried about why he wants custody he
initially stated he “has been a good father[.”] When
the Court expressed shock at this statement, Father
recanted and admitted he has not been a good
father to any of his children. The Court would refer
the Pennsylvania Superior Court to the transcript of
the custody hearing of September 1, 2017, Pages
97-104 for the Court’s analysis of the custody factors
set forth in 23 Pa.C.S.A. § 5328.
Trial court opinion, 10/25/17 at 3-7 (citations to notes of testimony
omitted).
The trial court set forth the following procedural history:
On May 2, 2017, [Father] filed a Complaint for
Custody against [Mother] seeking custody of [Child].
Father filed his Criminal Record/Abuse History
Verifications for himself and his fiancé with whom he
resides contemporaneously with the filing of the
Complaint. The Court initially referred the matter to
mediation consistent with local rules however the
Court was informed that there was in existence a
Protection from Abuse Order entered against Father
naming Mother as a protected party and that the
matter was not appropriate for mediation. On
May 8, 2017, the Court scheduled the matter for a
custody conference on June 9, 2017. Mother
requested a continuance and the matter was
continued until July 7, 2017 for a hearing before the
Custody Hearing Officer.
On July 7, 2017, the Court was available and the
matter was heard before the undersigned. Based on
a review of Father’s Criminal Record/Abuse History
Verification, it appeared that Father had been
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convicted of multiple enumerated offenses under
23 Pa.C.S.A. § [53]29, specifically aggravated
assault, terroristic threats, driving under the
influence of drugs or alcohol and manufacture, sale,
delivery, holding, offering for sale or possession of
any controlled substance or other drug or device.
The Court conducted the initial evaluation as
required pursuant to 23 Pa.C.S.A. § 5329(c) and
determined that Father did pose a threat to [C]hild.
At the July 7, 2017 proceeding, the Court received
additional information indicating domestic violence
and a protection from abuse order were issues in this
matter although not disclosed by Father.
The Court ordered Father to have an assessment
completed in writing and submitted to counsel for
Mother and the Guardian ad Litem prior to the
hearing. The Court further directed Father that
“unless the parties stipulate to the admission of the
assessment, the individual conducting the
assessment shall be present to testify. Without the
assessment the Court shall not award any type of
custody to [Father] based on the Court’s concerns
regarding the safety of [C]hild.”
At the July 7, 2017 proceeding the Court appointed a
Guardian ad Litem for [C]hild.
On July 26, 2017, the Court ordered a full day
custody trial for September 1, 2017. The parties
filed the necessary pretrial statements and the
Guardian ad Litem filed her Report of the Guardian
ad Litem on August 25, 2017. Recommendation 4 of
the Guardian ad Litem’s Report, stated “Father, prior
to any contact with [C]hild, submit an Anger
Management Certification as the Guardian ad Litem
has some concerns about his ability to control
himself, specifically his anger[.”]
A hearing was held on September 1, 2017 after
which the Court awarded sole legal and physical
custody of the minor [C]hild to Mother.
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On September 29, 2017, Father filed his Notice of
Appeal and on October 16, 2017 Father filed his
Concise Statement of Errors complained of.
Id. at 1-3.
The record reflects that the trial court filed its Rule 1925(a) opinion on
October 25, 2017. The record further reflects that on November 1, 2017,
this court entered an order setting forth the briefing schedule in this case.
(Order of court, 11/1/17.) In that order, we directed that Father file his
brief on or before December 1, 2017. Father failed to comply. (Id. at 1.)
As a result of Father’s failure to file a timely brief as ordered by this court,
this court entered an order on December 28, 2017, directing Father to file a
brief no later than 14 days from the date of the order and informing Father
that his failure to do so would result in dismissal of his appeal. (Order of
court, 12/28/17.) The record reflects that Father filed his brief on
January 11, 2017.
Father raises the following issues for our review:
1. Did error occur when the Court did not
properly consider the impact of the [protection
from abuse order (“PFA”)] on Father’s contact
with the [C]hild?
2. Did error occur when the Court rejected an
evaluation by a qualified therapist?
3. Did error occur when the Court ignored a
request for a bonding evaluation?
Father’s brief at 4.
With respect to our standard of review, it is well settled that:
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[t]he appellate court’s scope of review in custody
cases is of the broadest type. This broad power is
limited to the extent that an appellate court may not
nullify the fact finding function of the hearing judge.
We are empowered to form our own independent
deductions and inferences from the facts found by
the hearing judge, but may only interfere with the
decisions of the hearing court where there has been
a gross abuse of discretion. We must determine
whether the trial court’s factual findings support the
trial court’s factual conclusions, but we may not
disturb these conclusions unless they are
unreasonable in light of the court’s factual findings.
Our appellate function is to make an independent
judgment, based on the testimony and evidence
before us, that is in the best interest of the child.
We must make an independent examination of the
record and make an order on the merits of the case
which is right, just and will serve the best interest of
the child. After we take full account of the hearing
judge’s reasoning, still, we must be easy in our own
conscience that the judge’s award will serve the best
interest of the child, or children, in question.
Although we are given a broad power of review, we
are constrained by an abuse of discretion standard
when evaluating the court’s order. An abuse of
discretion is not merely an error of judgment, but if
the court’s judgment is manifestly unreasonable as
shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out
where it appears from a review of the record that
there is no evidence to support the court’s findings
or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 19-20 (Pa.Super. 2010) (citations omitted).
In custody disputes, trial courts are statutorily required to consider the
16 factors set forth in the best-interest test when determining the child’s
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best interest.2 See 23 Pa.C.S.A. § 5328(a) (“[i]n ordering any form of
custody, the court shall determine the best interests of the child by
2 Section 5328 of the Child Custody Act sets forth the 16-factor best-interest
test, as follows:
§ 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 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.
(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.
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(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.
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considering all relevant factors . . . .”); see also A.V. v. S.T., 87 A.3d 818,
821 (Pa.Super. 2014) (reiterating that “Section 5328 provides an
enumerated list of sixteen factors a trial court must consider in determining
the best interests of the child or children when awarding any form of
custody.”).
Here, the trial court determined the best interest of Child by properly
considering all relevant factors set forth in Section 5328 and, in so doing,
determined that every relevant factor weighed in favor of awarding custody
to Mother. (See notes of testimony, 9/1/17 at 97-104.) As such, the trial
court awarded sole physical and legal custody of Child to Mother.
(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.
42 Pa.C.S.A. § 5328(a).
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In this appeal, Father first complains that the trial court erred when it
“did not properly consider the impact of a PFA on Father’s contact with the
[C]hild.” (Father’s brief at 7.) With respect to this issue, Father advances
the following six-sentence argument:
The [t]rial [c]ourt, on page 7 of its opinion, which is
included as Appendix A, states that Father has no
one to blame for not pursuing this action since 2015.
However, the PFA Order was clear. No contact was
allowed with [Mother] or Child. The PFA Order did
say a custody action could be initiated, but doing so
could have involved contact that might be considered
a PFA violation. Father should not have the fact that
he followed a Court Order held against him. It was
an abuse of discretion.
Father’s brief at 7-8.
In this argument, Father concedes that the PFA did not preclude him
from seeking custody of Child, but he argues that “doing so could have
involved contact that might be considered a PFA violation.” (Id. at 8.) This
argument is at odds with Father’s testimony at the custody hearing. When
first asked at that proceeding why he waited two years to file a custody
action, Father answered, “Because I wanted to be sober and -- I wanted to
be sober when I did -- I wanted to be sober to see my daughter.” (Notes of
testimony, 9/1/17 at 31.) Later in his testimony, however, Father claimed
that he had been sober for “almost two years.” (Id. at 66.) When asked
again at the custody hearing why he waited two years to file a custody
action, Father answered:
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Why didn’t I? I had a lot of things going on at that
point in time, ma’am. I had DUI court to attend to
every week, I had many -- five AA meetings to do
every week, I had two meetings with my probation
officer every week. After my DUI is when I figured I
was going to go on with and do my -- when I wanted
to see my daughter.
Id. at 61.
Clearly, the record belies Father’s first claim that the PFA somehow
precluded him from seeking custody of Child. Consequently, this claim lacks
merit. That being said, however, it is significant that Father fails to advance
any argument in his brief regarding Child’s best interest. With respect to
Child’s best interest, Father testified at the custody hearing as follows:
Q. [Father], why is it in the best interest of your
daughter that she reestablishes a relationship
with you?
A. Why not? I’m sober. I’m clean. I haven’t
drank in almost two years. Why wouldn’t she
-- why wouldn’t I want to establish a
relationship with my daughter?
Q. I am not asking why you wouldn’t. I
understand completely why you would want to
reestablish a relationship with your daughter.
I want to know why that’s in your daughter’s
best interest.
A. Why wouldn’t it be? I’m a good father. I
never abused my daughter. I never laid a
hand on my daughter.
THE COURT: How do you justify that you have been
a good father? How do you justify that statement?
What have you done that shows that you’ve been a
good father to any of your four children?
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[FATHER]: That’s true.
Id. at 66-67. By his own testimony, Father admitted that he has done
nothing to demonstrate that he has been a good father to Child or any of his
other children. Because the record belies Father’s first claim, it necessarily
fails.
Father next complains that the trial court erred when it “rejected an
evaluation by a qualified expert.” (Appellant’s brief at 8.) In this
five-sentence argument, Father contends that:
The [t]rial [c]ourt on page 8 of its opinion at
Appendix A, mentions that the [guardian ad litem]
attempted to introduce an evaluation. Mother
objected but did not say why. Her objection should
have been overruled under Pa.R.E. 103(a)(1). And
while the [t]rial [c]ourt might not have given the
evaluation a lot of weight, it should at least have
considered the evaluation under Pa.R.E. 402. The
[t]rial [c]ourt again abused its discretion.
Father’s brief at 9.
Father has failed to provide any record citations to support his claim.
On that basis alone, Father waives this claim on appeal. See
Pa.R.A.P. 2119(c); see also J.J. Deluca Co. v. Toll Naval Assocs., 56
A.3d 402, 413 (Pa.Super. 2012) (reiterating that a failure to present any
record citation to support a claim results in waiver). Nevertheless, we
further note, that Father has also failed to develop a legal argument capable
of meaningful appellate review. Specifically, Father fails to articulate why
Rule 103(a)(1) would apply when that rule concerns preservation of a claim
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of error in a ruling that admitted evidence. Pa.R.E. 103(a)(1) (requiring that
a party claiming error in a ruling that admits evidence must, on the record,
make a timely objection, motion to strike, or motion in limine and state the
specific ground for the objection, unless it was apparent from the context).
Father also fails to articulate why the evaluation was admissible under
Rule 402, which addresses the general admissibility of relevant evidence.
Therefore, even if Father provided record citations, Father would have
waived this issue on appeal for failure to develop a legal argument. See
In re Lokuta, 11 A.3d 427, 436 (Pa. 2011) (reiterating that a failure to
develop issues results in waiver).
Even if Father did not waive this issue, however, the record belies
Father’s claim. Our review of the record reflects that the trial court entered
an order on July 7, 2017, that directed Father, in relevant part,
to have his assessment completed in writing, and
submitted to counsel for [Mother] and the Guardian
Ad Litem prior to the hearing. Unless the parties
stipulate to the admission of the assessment, the
individual conducting the assessment shall be
present to testify. Without the assessment, the
Court shall not award any type of custody to [Father]
based on the Court’s concerns regarding the safety
of [C]hild.
Order of court, 7/7/17 at 2; docket no. 26.
The record reflects that the parties did not stipulate to the admission
of Father’s assessment by Laura Gargano. (Notes of testimony, 9/1/17 at
95.) Consequently, the July 7, 2017 court order required that Ms. Gargano
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be present at the custody hearing and testify. The record reflects that
Ms. Gargano was not present to testify because, according to Father, “she
couldn’t make it.” (Id. at 98.)
Father finally complains that the trial court erred when it ignored a
request for a bonding evaluation. In Father’s seven-sentence argument on
this issue, Father cites to notes of testimony from an alleged custody
conference that took place on July 7, 2017. (Appellant’s brief at 10-11.)
Although we note that the transcript of that conference is not part of the
certified record before us, Father claims that at this conference Mother
requested a bonding evaluation. On the basis of Mother’s alleged request,
Father now complains that he “should have been given the option to make
the request as well.” (Appellant’s brief at 11.) Nothing in the record before
us demonstrates that Father was prevented from requesting a bonding
evaluation. Therefore, this claim lacks merit.
Finally, we reiterate that the trial court determined the best interest of
Child by properly considering all relevant factors set forth in Section 5328
and determined that every factor weighed in favor of awarding custody to
Mother. In so doing, the trial court conducted the following analysis:
THE COURT: [T]his case is unique in the regard that
it is probably the only case that I have ever heard
where every single factor the Court is to consider
weighs towards one party.
The Court has to balance what I believe to be
the best interests of this [C]hild with the rights of a
parent to be involved in [C]hild’s life.
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[Father], I believe you have been deceitful. In
your abuse affidavit you failed to list two PFAs, one
that resulted in a Final Protection From Abuse. You
failed to list your involvement with Children & Youth
Services in Florida which resulted in the involuntary
termination of four -- three children. You failed to
disclose your involvement with Children & Youth
Services in Snyder County between 2012 and 2014.
And, quite frankly, the timing of your custody
petition, while it may raise suspicion, there has not
been sufficient proof to establish that your motive for
filing a custody action was that you got wind of the
termination proceedings which may in the long run
be a benefit to you.
Quite frankly, it is commendable that you
completed treatment court, you graduated, you’re
getting your life straightened out. You should be
commended for that.
[FATHER]: I am.
THE COURT: The problem is our children don’t wait
for us to get our acts together. Your daughter is
growing, and now she has developed a relationship
with somebody else who has been a father to her.
[FATHER]: I know.
THE COURT: Quite frankly, you shocked me with
your statement that you are a good father. That just
shows you are so totally clueless as to what you
have done to your daughter to get to where you’re at
today, but her formative years are almost gone.
They develop quickly. They don’t wait for us.
Your statements showed that you made you
the priority to the sacrifice of your daughter. You
didn’t do anything with her while you were getting
your act together. There’s a lot of people in
treatment court that are single parents that are
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finding ways to deal with their issues but also deal
with their children. You chose not to.
[FATHER]: I had a PFA on me for three years.
THE COURT: You did not file your custody action
until a couple weeks before you graduated from
treatment court. You could have filed a custody
action at any time. You chose not to.
In any event, the Court finds that you have
other children. You’ve had no contact with one.
Three your rights were involuntarily terminated. One
of the other things that I found very significant is
[Mother’s] statement that the two boys seem to be
doing very well now that you are not around. I
found that very interesting.
As far as other children on Ms. -- well, I will
address her factors in a -- I will address the sixteen
factors in a minute.
You have no extended family. You have
alienated your family; and [your fiancé], while [your
fiancé] presented extremely well today and is
probably a good influence in your life, her one son is
incarcerated and her two other sons have nothing to
do with her. That’s not a good sign.
You have not had any contact with [Child]
since she was three years old, over two years, in key
developmental times. You don’t even know her.
She probably doesn’t even know you. And you have
taken no action, nothing until May of this year to see
her.
And you have an outstanding arrest warrant in
Florida for something that if they decide that it is
going to be changed to not an in-state, you’re gone.
I can’t believe Snyder County Probation allowed you
to go through their treatment court program with an
outstanding bench warrant. I would be curious to
hear from Ms. Kuhns, who I am going to call after
this, to see whether she is aware of it.
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You have multiple criminal convictions
involving drugs, alcohol; well, substances. You have
multiple issues regarding violence, PFAs.
I completely believe [Mother’s] testimony
regarding your last contact with [Child] and how that
whole thing went. And because of that, our statute
does not allow me to give you any type of physical
custody until that assessment is done, and I told you
what you had to do and you didn’t do it. I don’t
have a choice by law. Quite frankly, I was torn and
would have probably been inclined to at least some
version of supervised custody, not frequent; but you
didn’t follow the Order. I can’t give you custody by
law.
In any event, the Court considered the factors
in Section 5328.
“Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party?” I find that favors
[Mother]. She’s done that in the past in spite of
[Father’s] behaviors.
“The past and present abuse committed by a
party or member of a party’s household, whether
there is a continued risk of harm,” and “Which party
can better provide adequate safeguards and
supervision for the child?” Clearly we have a [PFA],
multiple convictions of violence, even though this
most recent one was dismissed, I assume as part of
a plea agreement. I find [Mother’s] testimony
regarding the incident credible.
“Child abuse and involvement with protective
services.” I don’t know the extent of that in Florida
other than his parental rights were terminated which
is an extreme measure, and the [PFAs] and finding
of abuse.
“Parental duties performed by each parent on
behalf of the child.” Since two thousand and what,
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fourteen, 2015, [Mother] has performed all of the
parental duties.
“The need for stability and continuity in the
child’s education, family life, and community life; the
availability of extended family; and the child’s sibling
relationships.” [Mother] testified as to her current
situation with her current husband. Her mother’s
here and involved. Her husband’s here and involved.
They have the pastor of the church here and
involved. That is what we in dependency court are
looking for for our safety net to build around our
children. Where the phrase -- and you don’t hear it
as much anymore -- is it takes a village to raise a
child. Clearly [Mother] has done that and built that
around not just [Child] but all of her children; and
the fact that her children are with her, well, except
one that’s of age, is no longer a child but an adult.
The other cousins with her husband’s family; the fact
that [Child] has playmates, siblings around her. On
[F]ather’s side there’s none. He has alienated them
all or lost his parental rights.
[Mother], the same thing with the extended
family and friends to take care of [Child], that clearly
favors [Mother]. In fact there doesn’t -- other than
the past year, there’s no stability on [Father’s] side
except for the past year. And he’s to be commended
for that. Hopefully he continues on this path of
sobriety.
“The well-reasoned preference of the child.”
My understanding from [the guardian ad litem’s]
position is [C]hild doesn’t really even know who her
biological father is.
“The attempts of a parent to turn the child
against the other parent, except in cases of domestic
violence or reasonable safety measures are
necessary to protect the child.” She got a [PFA] by
Judge Hudock saying that you were a danger to that
[C]hild.
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“Which party is more likely to maintain a
loving, stable, consistent, and nurturing relationship
with the child adequate for the child’s emotional
needs?” Clearly that’s mom. Mom’s been there for
[C]hild. [Father’s] been busy taking care of himself.
And it appears [Child] is doing well, hitting -- in
kingergarten, doing chores.
“The proximity of the residences.” Mifflinburg
to Middleburg is not that far apart. It’s not really a
factor in the Court’s decision.
“Each party’s availability to care for the child or
ability to make appropriate childcare arrangements.”
[Mother’s] husband is there and so are the extended
family members.
“The level of conflict.” While it may not exist
now, it’s only because of the [PFA], but the level of
conflict in the past was very violent to the fault of
[Father].
“History of drug and alcohol abuse.” I have
not heard of any drug and alcohol abuse by
[Mother]. It is rampant from [Father] for at least a
significant part of his life.
“The mental and physical condition of a party
or a member of the party’s household.” I heard
about [Father’s] recent diagnosis of I believe it was
bipolar. I didn’t hear anything more, although, he’s
on four medications that he doesn’t even know what
they are. He knows he takes four pills a day. That
is an issue that is frightening.
It’s clear that [Mother] should have legal and
primary physical custody. The question is, what
contact should [Father] have or what type of custody
rights should [Father] have. And the problem is
when someone is convicted of certain offenses, the
Court is to conduct an initial evaluation; and where
the Court determines that counseling is [a]
necessity, it shall appoint a qualified counselor.
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I allowed [Father] to obtain -- well, I actually
in Subsection C in Section 5329 I ordered that he
obtain further evaluation, and I told him what he had
to do; and he didn’t do it. . . . “The Court shall
consider such conduct and determine that the party
does not pose a threat of harm to the child before
making any order of custody to that parent.”
I cannot make that determination because you
didn’t follow my order and have the evaluator
present, and even though -- I suppose if there had
not been the inconsistencies between the evaluator’s
report and the testimony today, I may have
overruled [Mother’s counsel’s] objection and still
considered it. But there’s serious question of the
validity of the evaluation or even the qualifications.
I don’t know this person. In fact I can’t even read
her name, and it is not written anywhere. So I don’t
have a curriculum vitae, a resume, anything to tell
me who this evaluator is. I suppose the initials of
her degree follow her -- well, no, her name’s not
even -- yeah, there aren’t -- nothing to even indicate
her degree and whether she’s even qualified to do
this.
....
And now, this 1st day of September, 2017, for
the reasons stated on the record, [Mother] is
awarded sole legal and physical custody of the minor
[C]hild . . . .
Notes of testimony, 9/1/17 at 97-104.
Our review of the record in this case demonstrates that the evidence
supports the factual findings made by the trial court when it applied the
16-factor best-interest test to award custody of Child to Mother because that
award was, and is, in Child’s best interest. Accordingly, we discern no abuse
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of discretion and affirm the order that awarded sole legal and physical
custody of Child to Mother.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/20/2018
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