H.S. v. T.S.

J-S45042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

H.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
T.S. :
:
Appellant : No. 561 MDA 2018

Appeal from the Order Entered March 1, 2018
in the Court of Common Pleas of Lancaster County
Civil Division at No.: CI-17-01178

BEFORE: PANELLA, J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED AUGUST 28, 2018

T.S. (Father) appeals from the March 1, 2018 child custody order,

granting the petition of H.S. (Mother) to modify the existing custody

arrangement wherein both parents shared legal and primary physical custody

of their son, C.S., born September 2015. After careful review, we affirm.

We derive the following statement of facts and procedural history from

the trial court opinion, and our independent review of the record. (See Trial

Court Opinion, 4/18/18, at 1-5). C.S. was born in September 2015 to Father

and Mother, who were in a relationship at the time of the birth. Mother has a

daughter, C.Z., from a previous relationship, approximately six years of age.

The family resided in Lancaster County. Mother and Father separated in July

2016, and, at first, C.S. spent equal time living with each parent.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S45042-18

Father has moved several times since separating from Mother.

Previously, he lived in East Petersburg, Pennsylvania. Shortly before the

custody hearing he informed Mother he had moved to Harrisburg. Father is

employed as a manager at a truck sales office, where he has worked for fifteen

years. Father has extended family in Lancaster County, who also have

relationships with C.S.

Mother is married to T.E. (“Husband”), and lives in Lancaster County

with Husband, Husband’s sister, and other in-laws. Mother has a nursing

license and was previously employed as a nurse, but left the job to care for

C.Z. and C.S., and is now home full time with the children. Mother also has

extended family in Lancaster County who have relationships with C.S.

In August 2016, Father noticed that C.S. was having difficulty crawling.

The child’s primary care physician saw nothing wrong on the initial x-ray, but

an orthopedist diagnosed a broken arm. The Lancaster County Children and

Youth Agency opened an investigation, meeting with both parents, but

eventually closed the investigation as unfounded. Mother did not participate

in C.S.’s care for this injury.

In February 2017, Father picked up the child from his babysitter to begin

his week of physical custody. When Father arrived home, he noticed what he

at first assumed was a rash on C.S.’s foot and leg. The next day, a doctor

diagnosed the rash as first and second degree burns. Father contacted Mother

on Saturday; Mother stated she was unaware of how C.S. had been injured.

She had given C.S. a bath Thursday night and had not noticed any burns, and

-2-
J-S45042-18

did not know how he could have been burned. Mother stated that when she

took C.S. to the babysitter’s home, he was in good health.

Nevertheless, that Monday, Father contacted the Lancaster County

Children and Youth Agency, which opened a child abuse investigation that was

eventually referred to the local police department. Mother, on the advice of

her attorney, refused to speak to the police. Ultimately, there was insufficient

evidence to bring charges against her and the case was closed.

At the same time, Father filed a petition for and obtained a temporary

protection from abuse (“PFA”) order pursuant to 23 Pa.C.S.A. § 6101 et seq.

As a result of the PFA, Mother was not allowed to see C.S. for approximately

one month. The parties then agreed to allow Mother one supervised visit per

week. Father eventually withdrew the PFA prior to the entry of a final order.

Father stated he did this on the advice of his attorney, who told him he had

insufficient evidence to obtain a final order; Father also testified he regretted

filing the PFA but knew of no other way to protect C.S.

In February 2017, Mother filed a complaint seeking primary custody of

C.S. A temporary custody order was entered; however, due to the PFA

proceedings that had been pending at that time, the initial conference was

postponed until November 2017. A temporary order was entered at that time.

The court convened a custody hearing on February 14, 2018.

At the hearing, Father and Mother, both represented by counsel,

testified on their own behalves. Also testifying were Mother’s father

-3-
J-S45042-18

(“Maternal Grandfather”), G.E.; Husband’s mother, K.E.; Police Officer

Courtenay Delaney; and M.W., C.S.’s babysitter.

In addition to the facts outlined above, Father testified that Mother was

an inattentive parent who delivered C.S. to the babysitter in soiled diapers

and without the necessary supplies; that she kept soiled diapers and rotten

food in C.S.’ diaper bag; and that on at least one occasion she had failed to

dispose of dirty diapers in their home. Father admitted that he also sometimes

forgot necessary items when dropping C.S. off with the babysitter, and that

he had left C.S. overnight with M.W. on several occasions. Father claimed

that Mother was not involved in C.S.’ daycare, but also admitted he did not

consult Mother on the choice of daycare. Finally, Father admitted that he had

moved again two weeks before the custody hearing, and that he was not on

the lease at his new residence. He intended to move back to Lancaster once

he had saved enough money to do so.

Mother denied Father’s testimony and noted that C.S. had sustained

other injuries, including two separate head wounds, while in Father’s care, as

well as other injuries while in the care of M.W. Mother testified that she

believed Father has used the PFA process to limit her custodial time, and that

Father resents Husband spending time with C.S.

On March 1, 2018, the court entered a custody order and opinion

detailing its analysis of the sixteen custody factors. (See Opinion and Order,

3/01/18, at 1-16); see also 23 Pa.C.S.A. § 5328(a). The order granted

shared legal custody to both parents and primary physical custody to Mother.

-4-
J-S45042-18

In addition, the order granted partial physical custody to Father every other

weekend from 12:00 p.m. on Friday to 9:00 a.m. Monday, and on weeks

Father did not have weekend custody, two weeknights, from 3:00 p.m. to

8:00 p.m., the Thursday evening before and the Tuesday evening after the

weekend. Additionally, the order set out a shared holiday custody schedule

and miscellaneous provisions.

Father timely filed a notice of appeal and a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Father presents eight questions for our review:

1. Whether the trial court’s award of primary physical custody to
Mother is unreasonable, an abuse of discretion, and not supported
by credible evidence of record[?]

2. Whether the trial court failed to give proper weight to Father’s
role in the child’s life as well as the bond with Father and extended
paternal relatives with whom the child has frequent regular
contact[?]

3. Whether the trial court’s decision to award Father partial
physical custody on alternate weekends is sufficient to maintain
the need for stability and continuity of care for the minor child
when the parties have historically equally shared physical custody
of the child[?]

4. Whether the trial court’s finding that Mother is better able to
provide stability and continuity in family life is an abuse of
discretion and not supported by the credible evidence of record[?]

5. Whether the trial court’s failure to find evidence compelling as
related to Mother’s inability and unlikelihood to attend to the
child’s needs, was an abuse of discretion[?]

6. Whether it was an abuse of discretion for the trial court to
penalize Father for trying to protect the minor child from physical
abuse when there was medical evidence of a broken arm, first and

-5-
J-S45042-18

second degree burns on the child’s foot and lower leg, and no
credible explanation was provided as to the cause of the child’s
injuries[?]

7. Whether the trial court’s finding that “Father used the
Protection from Abuse statute in bad faith to manipulate the
custody arrangements...”, and “Father was quick to use the
Protection from Abuse statute as well as reports to the Children
and Youth Agency, to gain advantage relative to custody”, was an
abuse of discretion and not supported by credible evidence of
record[?]

8. Whether the trial court erred by failing to draw a negative
inference from Mother’s refusal to cooperate in the investigations
to ascertain how the minor child sustained first and second degree
burns on his foot and lower legs[?]

(Father’s Brief, at 17-18) (unnecessary capitalization omitted).

Our standard of review in custody appeals is well-settled.

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.

E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015), appeal denied, 135 A.3d

586 (Pa. 2016) (citation omitted).

“The primary concern in any custody case is the best interests of the

child.” J.M.R. v. J.M., 1 A.3d 902, 911 (Pa. Super. 2010). “The best-interests

standard, decided on a case-by-case basis, considers all factors that

-6-
J-S45042-18

legitimately have an effect upon the child’s physical, intellectual, moral and

spiritual well being.” Id. (citation omitted). With regard to the abuse of

discretion standard,

[a]lthough 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, 18-19 (Pa. Super. 2010) (en banc) (citations

omitted).

By statute, the court must consider the following custody factors:

(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.

-7-
J-S45042-18

(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.

(15) The mental and physical condition of a party or
member of a party’s household.

(16) Any other relevant factor.

-8-
J-S45042-18

23 Pa.C.S.A. § 5328(a); see also J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.

Super. 2011) (trial court errs if it fails to consider required factors in rendering

custody decision).

Here, the trial court made a thorough analysis of the custody factors

listed above and found factors 1, 2, 4, 6, 8, 11, and 16 in favor of Mother:

1. Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
Father filed a protection from abuse action on behalf of the Child
and against Mother; this kept the Child from Mother for
approximately one month and has significantly limited her custody
time. Father testified that he filed the PFA action because of the
Child’s injuries and because he knew of no other way to protect
the Child. Father expressed regret in his testimony that the PFA
kept the Child away from Mother for so long. The court does not
find Father’s testimony credible in this regard. It appears to the
court that Father used the protection from abuse statute in bad
faith to manipulate the Child’s custody arrangements. Mother also
testified that Father withheld the Child from her shortly after their
separation, and Father did not deny this testimony. Father offered
no testimony that Mother ever withheld the Child from him.

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. Father
requested and received a temporary protection from abuse order
against Mother on behalf of the Child following his discovery of
burns on the Child’s foot and leg. Father eventually withdrew this
order upon the advice of his attorney that he did not have
evidence to be granted a final order. The court entered no final
order against Mother and made no finding of abuse.

2.1 The information set forth in section 5329.1(a) (relating to
consideration of child abuse and involvement with protective
services). The Children and Youth Agency investigated Mother on
two separate occasions. First because of the Child’s broken arm.
The Agency marked this investigation as unfounded for abuse on
Mother’s part. The second Agency investigation began following
Father’s discovery of what proved to be first and second degree

-9-
J-S45042-18

burns on the Child’s foot and leg. The Agency listed Mother as the
perpetrator of the injury and referred the investigation to law
enforcement. The local police department investigated but did not
have evidence to bring any charges against Mother. The case has
been closed by both the Agency and law enforcement.

3. The parental duties performed by each party on behalf of the
child. Both parties perform parental duties when the Child is in
their care. Mother is not currently employed and is available to
care for the Child fulltime. Father works fulltime, and the Child is
enrolled in daycare during these hours. Prior to their separation,
both parties worked and the Child was left with a babysitter.
Mother testified that she provided more childcare while the parties
were together, as Father worked some evenings and weekends at
a second job. Father testified that [he] shared equally in parental
duties but allowed that he did work a number of extra hours.

4. The need for stability and continuity in the child’s education,
family life and community life. The Child is two years old, and
does not have significant educational or community involvement.
However, he does have significant family involvement with both
his parents[’] extended families. At the moment, Mother appears
better able to provide stability and continuity in family life. While
she and her husband do not have an ownership interest or lease
on their current residence, they are surrounded by family who can
help provide stability for the Child. For his part, Father has stable
employment. He works as a manager at [a truck auto sales
company], and has been there for fifteen years. Father’s
residence, however, is unstable. He recently moved from East
Petersburg, Pennsylvania to Harrisburg, Pennsylvania. This is his
fourth residence in under two years. He is living with friends and
does not have an ownership interest or lease on the residence.
This relocation has also moved Father away from his extended
family. At the moment, Father is less able than Mother to provide
stability and continuity in the Child’s life.

5. The availability of extended family. Both parties have extended
family who are available to care for the Child. Mother lives with
her in-laws. The maternal grandfather lives only fifteen minutes
away, served as her custodial supervisor, and has a well-
developed relationship with the Child. The maternal grandmother
lives forty minutes away and also has a well-developed
relationship with the child. Although Father’s family does not live
near his current residence, they do live in Lancaster County. Both

- 10 -
J-S45042-18

Father’s parents and his two sisters have well-developed
relationships with the Child.

6. The child’s sibling relationships. The Child has one half-sibling,
Sister, who is Mother’s other child. Mother testified that these two
children share a close bond, and that Sister is always anxious to
have her little brother nearby.

7. The well-reasoned preference of the child, based on the child’s
maturity and judgment. The Child is only two years old, not yet
old enough to express[] a well-reasoned preference.

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.
Neither party offered any testimony that the other attempts to
turn the Child against them. Mother did testify that Father made
comments to Sister that might be construed as driving a wedge
between her and/or the Child and Mother. Father did not rebut
this testimony. The [c]ourt finds that Father was quick to attempt
to use the [PFA] statute, as well as reports to the Children and
Youth Agency, to gain advantages relative to custody.

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. Both parents are equally likely to
maintain a loving, stable, consistent, and nurturing relationship
with the Child adequate for the Child’s emotional needs. While
Father expressed concern regarding the quality of care the Child
received when in Mother’s custody . . . Father did not suggest that
Mother had deliberately injured the Child or that she was unable
or unwilling to love and nurture the Child.

10. Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
Children. The Child has no special needs. Father presented a
significant amount of testimony regarding his belief that Mother
was unlikely to attend adequately to the Child’s other needs.
Father presented evidence and testimony that Mother delivered
the Child to the babysitter with soiled diapers; that she left soiled
diapers, rotten food, and spoiled bottles in the Child’s diaper bag;
and that she failed to properly dispose of diapers in the home on
one occasion. Some of this testimony was corroborated by the
parties’ babysitter. While the court does not question Father’s

- 11 -
J-S45042-18

credibility in this regard, it also does not find this evidence
compelling regarding Mother’s ability and likelihood to attend to
the Child’s needs. Father also testified that Mother has never
contacted the Child’s daycare provider, except shortly before the
hearing to obtain incident reports. The [c]ourt finds that Mother’s
ability to gain information relative to the Child has been hampered
because of the ongoing investigations and Father’s intentional
notification of those investigations to the U-GRO Learning Center
personnel. Father also chose the daycare unilaterally, without
seeking Mother’s input. Father further testified that, while Mother
attended the initial visit to the child’s orthopedic physician, she
declined to attend or assist with any of the follow-up visits.
Mother did not rebut this testimony, but the court notes that it
occurred only weeks after the parties’ acrimonious separation.
Finally, and of greatest concern to the court, are the numerous
injuries sustained by the Child. Some of these were indisputably
sustained while in Father’s custody, including two serious head
wounds. However, Mother did not fault Father for these injuries.
More serious, and of more concern to the court, are the broken
arm, which occurred in August 2016, and the burns, which
occurred in February 2017. Father noticed both these injuries and
took appropriate steps to provide medical treatment. Father
argues that both injuries occurred during Mother’s custodial time.
While he did not testify that Mother had herself caused the
injuries, he suggested that they demonstrate that she is
insufficiently attentive to the Child’s physical needs. The court
does not agree. Father provided no evidence that the arm break
occurred in Mother’s custody. Father took the child to hospital for
examination but none of the initial treating personnel saw
evidence of an arm injury. It was only after Father took the child
for a second opinion that evidence of a break was discovered.
Likewise, Father offered no evidence that the burns occurred in
Mother’s custody, and Mother credibly rebutted his testimony.
While the investigating officer expressed the opinion that Mother
caused or knew of the source of the burns, this officer never
interviewed Mother and did not bring charges due to lack of
evidence. The officer’s opinion fails to take into account
constitutional safeguards that prevent such conclusory leaps but
her ultimate decision not to charge Mother evidences the officer’s
proper understanding of the law as applied to the facts in this
case. Based on the evidence presented, the court cannot conclude
in whose custody the injuries occurred—Mother’s, Father’s, or the
babysitter’s—and it cannot conclude that these injuries

- 12 -
J-S45042-18

demonstrate that Mother is less likely than Father to attend to the
Child’s physical needs.

11. The proximity of the residences of the parties. Mother lives in
New Holland, Pennsylvania. Father previously lived in East
Petersburg, Pennsylvania. This placed the parties approximately
seventeen miles and thirty minutes apart. However, Father
recently relocated to Harrisburg, Pennsylvania . . . This places the
parties approximately sixty miles and one hour apart.

12. Each party’s availability to care for the child or ability to make
appropriate child-care arrangements. Mother is available to care
for the Child fulltime, as she is currently not working. Father
works fulltime and uses a day care during his work hours. Both
parties are able to make appropriate childcare arrangements.

13. The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. Right
now the level of conflict between the parties is high. Both the
nature of their separation and, especially, the PFA, have not
created a cooperative environment between them. However, the
court both believes and expects that, with the PFA withdrawn and
a custody routine in place, the parties’ ability to cooperate will
increase.

14. The history of drug or alcohol abuse of a party or member of
a party’s household. Not an issue based on the evidence or
testimony presented. In his letter brief filed after the hearing,
Father’s counsel mentioned an incident where Father found
Mother asleep next to a glass of wine and a bottle of pills.
However, neither Father nor Mother offered any testimony
regarding a bottle of pills. Mother did not deny Father’s testimony
that he once found her asleep next to a glass of wine, but such a
fact does not establish that Mother has a history of alcohol abuse.

15. The mental and physical condition of a party or member of a
party’s household. Not an issue based on the testimony and
evidence presented.

16. Any other relevant factor. Father recently relocated from East
Petersburg to Harrisburg. He did this without following the notice
requirements outlined in 23 Pa.C.S.A. [§] 5337. In fact, Mother
found out about Father’s move only shortly prior to the hearing.
Father argued that his move was not a relocation under the

- 13 -
J-S45042-18

statute. Mother had only partial custody and Father was providing
transportation, so Father’s move did not significantly impair
Mother’s custody rights. However, even if this court were to
accept Father’s legal argument, it cannot condone his unilateral
action. Mother has always had legal custody of the Child and the
right to know where the Child is living.

Upon consideration of these statutory factors, the court
finds it in the best interest of the Child for the parties to share
legal custody, for Mother to have primary physical custody, and
for Father to have partial physical custody . . .

(Trial Ct. Op., 3/01/18, at 6-13).

Father first contends that the court erred in awarding primary physical

custody to Mother because the decision was an abuse of discretion that was

not supported by the credible evidence of record. (See Father’s Brief, at 25).

Essentially, Father takes issue with the court’s findings regarding the custody

factors and the weight accorded to each factor, challenging each finding by

pointing to testimony in the record which he claims shows an abuse of

discretion. (See id. at 26-37).

The trial court suggests that we find this issue waived for lack of

specificity. (See Trial Ct. Op., 4/18/18, at 7-8); see also Commonwealth

v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006), appeal denied, 919 A.2d 956

(Pa. 2007) (noting that if Rule 1925(b) statement is too vague, trial court may

find issues waived). We decline to find waiver in this instance. However,

Father’s claim does not merit relief.

As already noted, the trial court is required to consider all of the Section

5328(a) factors in entering a custody order. See J.R.M., supra at 652.

Although the court is required to give “weighted consideration to those factors

- 14 -
J-S45042-18

which affect the safety of the child” pursuant to 23 Pa.C.S.A. § 5328(a), we

have acknowledged that the amount of weight a court gives any one factor is

almost entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super.

2013), appeal denied, 68 A.3d 909 (Pa. 2013) (“It is within the trial court's

purview as the finder of fact to determine which factors are most salient and

critical in each particular case.”).

Father’s first issue is at root a challenge to the trial court’s findings of

fact and determinations regarding the credibility and weight given to the

evidence introduced at the hearing. Father questions the court’s conclusions

and invites us to re-find facts, re-weigh evidence, and re-assess the credibility

of witnesses in line with his view of the case. This we cannot do. We do not

disturb the trial court’s findings of fact and determinations regarding the

credibility and weight of the evidence absent an abuse of discretion, which we

do not find in this case. See E.R., supra at 527.

The trial court thoroughly and reasonably analyzed and addressed each

Section 5328(a) factor. (See Trial Ct. Op. and Order, 3/01/18, 6-13; see

also Trial Ct. Op., 4/18/18, at 7-8). After a careful review of the record, we

conclude that the court’s findings and determinations are supported by

competent evidence of record. See E.R., supra at 527. Accordingly, Father’s

first claim fails.

Father’s second through seventh claims reiterate specific problems with

the trial court’s findings, but mostly take issue with the weight the trial court

- 15 -
J-S45042-18

afforded to each statutory factor or in whose favor each factor was found.

(See Father’s Brief, at 37-40).

Initially, we note that Father, who is represented by counsel, has cited

no case law or any legal authority in support of his arguments. See In re

Estate of Whitley, 50 A.3d 203, 209-10 (Pa. Super. 2012), appeal denied,

69 A.3d 603 (Pa. 2013) (noting that failure to cite to relevant legal authority

constitutes waiver of claim on appeal); see also Pa.R.A.P. 2119(b), Pa.R.A.P.

2101. Accordingly, Father has waived these issues.

Moreover, each issue is supported by one or two paragraphs of

argument, mostly consisting of conclusory statements and calls for this Court

to re-weigh the trial court’s findings of fact and credibility determinations,

which were supported by the record. As we have previously stated, the

standard does not allow for this manner of review. See .E. R., supra at 527.

Accordingly, we find that Father has waived these issues for purposes of

appeal, but that, even if he had not, they lack merit. See E.R., supra at 527;

Estate of Whitley, supra at 209-10.

In Father’s eighth and final issue, he contends that the court erred by

failing to draw a negative inference from Mother’s refusal to cooperate in the

investigations to ascertain how C.S. sustained first and second degree burns

on his foot and leg. (See Father’s Brief, at 44). Father argues that although

Mother was entitled to her Fifth Amendment right to remain silent during a

criminal proceeding, the trial court can and should draw a negative inference

from Mother’s “silence” in a civil proceeding. (Id. at 45). We disagree.

- 16 -
J-S45042-18

Father relies on Baxter v. Palmigiano, 425 U.S. 308, 310 (1976) to

support his argument that in civil cases, adverse inferences may be drawn

from a party’s invocation of their Fifth Amendment right to remain silent. See

id. at 1559. In Baxter, the issue was an inmate’s silence during a civil

disciplinary proceeding. The Court ultimately found that permitting an

adverse inference to be drawn from such a silence was not, on its face, an

invalid practice. See id.

Here, the trial court noted:

While Mother did refuse to speak with the investigating officer on
the advice of her attorney, her refusal was in the face of a criminal
proceeding. In this she relied upon her right guaranteed in the
Fifth Amendment that “[n]o person shall be compelled in any
criminal case to be a witness against himself.” U.S. Const.
Amend. V. In contrast, in the civil proceeding—the custody
hearing—Mother did not remain silent. She testified at the
direction of her counsel and was cross-examined by Father’s
counsel. Father’s reliance on Baxter is therefore misplaced, and
the court did not commit an abuse of discretion by declining to
draw a negative inference based on Mother’s refusal to speak with
the investigating officer.

(Trial Ct. Op., at 14). We discern no error or abuse of discretion in this

analysis and conclusion. Accordingly, we conclude that Father’s claim does

not merit relief. See M.A.T., supra at 18-19; E.R., supra at 527.

Accordingly, we affirm the trial court’s custody order.

Order affirmed.

- 17 -
J-S45042-18

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/28/2018

- 18 -