J-S50043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.W.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
S.M. AND M.C., JR. : No. 794 WDA 2019
Appeal from the Order Entered April 18, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD 17-3448-010
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 16, 2019
Appellant, E.W.H. (“Mother”), pro se, appeals from the order dated
April 18, 2019, granting S.M. (“Paternal Grandmother”) primary physical
custody and sole legal custody of Mother’s biological child, M.C. (“Child”), born
December 2016, and granting partial physical custody to Mother and to Child’s
biological father, M.C., Jr. (“Father”). We affirm.
The facts underlying this appeal are as follows. Mother is currently
incarcerated at the State Correctional Institution (“SCI”) at Cambridge Springs
and will not be released until 2037 at the earliest. Trial Court Opinion (“TCO”),
filed June 25, 2019, at 5. Father is also currently incarcerated. Id.
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* Retired Senior Judge assigned to the Superior Court.
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Prior to Mother’s incarceration, Paternal Grandmother, with the
consent of Mother,[1] filed a Third Party Complaint for
Confirmation of Custody of the Child.
The Complaint alleged that Father was incarcerated and that
Mother would soon be incarcerated and that Paternal
Grandmother was willing and able to provide care for the Child.
Mother accompanied Paternal Grandmother to the courthouse to
file the Complaint.
At the time of presentation of the Complaint, both Mother and
Father were incarcerated.
On May 25, 2017, the [c]ourt confirmed custody of the Child with
Paternal Grandmother.
Neither Mother nor Father appealed the Order or sought
Modification of the Order entered on May 25, 2017.
Paternal Grandmother has been the sole caregiver for the Child
since the confirmation of custody.
The Child is autistic and has special needs. Paternal Grandmother
is meeting those needs.
For a time after custody was confirmed, Paternal Grandmother
was transporting the Child to visit Mother at [SCI] Cambridge
Springs and Father at SCI Greene on the bus as she does not own
a vehicle.
Mother also has nearly daily contact by telephone with Paternal
Grandmother and the Child.
There has been a breakdown in the relationship between Mother
and Paternal Grandmother and Paternal Grandmother is no longer
willing to transport the Child to visit Mother [SCI] Cambridge
Springs.
From time to time, relatives of Mother have transported the Child
to visit Mother at [SCI] Cambridge Springs.
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1Mother’s signature appears on the third party complaint for confirmation of
custody as “Respondent A.” Complaint, 4/25/2017, at 7.
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Id. at 5-6 (some formatting); see also N.T., 4/18/2019, at 7 (Mother testified
that she accompanied Paternal Grandmother to the courthouse to file the
complaint).
In April 2019, Mother filed a petition for special relief, requesting that
primary physical custody of Child be given to Mother’s mother, T.H. (“Maternal
Grandmother”), and shared legal custody of Child be given to Father, Maternal
Grandmother, and Mother, or, in the alternative, asking the trial court to
reinstate Mother’s direct appeal rights nunc pro tunc to appeal from the
custody order of May 25, 2017.2
Following a hearing on April 18, 2019, the trial court entered an order
keeping primary physical custody and sole legal custody of Child with Paternal
Grandmother and allowing Father and Mother to have partial physical custody
of Child. While the order allowed Father’s visitation to be “arranged by
Paternal Grandmother[,]” the order required Mother’s visitation to occur
“monthly at SCI Cambridge Springs pursuant to the visitation policies at SCI
Cambridge Springs.” Order, 4/18/2019, at 1 (not paginated). The trial court
also ordered Maternal Grandmother to transport Child to and from Mother’s
visitation and ordered Maternal Grandmother to have visitation with Child “on
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2 “Maternal Grandmother has never petitioned the [c]ourt for any form of
partial custody or visitation and has had minimal contact with the Child.” TCO,
June 25, 2019, at 7. Furthermore, Mother appears to have abandoned the
contention in her petition that Maternal Grandmother should have shared legal
custody of Child. See Mother’s Brief at 16-35.
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the first and third Saturday of each month from 10:00 A.M. until 8:00 P.M.[,]”
with “overnight and extended visitation” “[u]pon agreement of the parties[.]”
Id. at 2 (not paginated). Mother thereafter filed this timely appeal.3
Mother now presents the following issues for our review:
I. Did the [t]rial [c]ourt err in abusing its discretion in failing
to grant [Mother]’s Leave to Appeal Nunc Pro Tunc from the
Orders of Court based upon the [t]rial [c]ourt failing to thoroughly
consider the violation of [Mother]’s procedural rights, considering
but not limited to the following factors:
a. Trial [c]ourt did not notify [Mother], an inmate, that she
had a right to request to be present at the hearing.
b. Trial [c]ourt did not arrange for her transportation to the
hearing.
c. Fatal defect was discovered that [Mother] was not
informed of when the hearing was held[?]
II. Did the [t]rial [c]ourt err and abuse its discretion in
accepting as true [Paternal Grandmother’s] unsupported
testimony of the care that she provides to the minor child, while
denying [Mother] direct examination or the opportunity to call
witnesses[?]
[III.] Did the [t]rial [c]ourt err and abuse its discretion when it
did not produce [Father?]
[IV.] Did the [t]rial [c]ourt err and abuse its discretion in failing
to grant shared custody to [Mother] based upon [t]rial [c]ourt
failing to consider factors established in 23 Pa. C.S. § 5328 (a), et
seq., and relevant case law[?]
Mother’s Brief at 5-6 (re-ordered to facilitate disposition) (suggested answers
omitted).
____________________________________________
3Appellant filed her statement of errors complained of on appeal on June 6,
2019. The trial court entered its opinion on June 25, 2019.
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We begin by acknowledging our scope and standard of review in
custody cases:
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.
D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (quoting J.R.M. v.
J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).
Mother first contends that the trial court erred by denying her petition
to appeal nunc pro tunc from the custody order entered May 25, 2017.
Mother’s Brief at 16-24. However, only a party who has been aggrieved by
an appealable order may appeal to this Court. Pa.R.A.P. 501. Mother was not
aggrieved by the May 25, 2017, custody order. That initial custody order
granting Paternal Grandmother custody of Child was entered with Mother’s
consent, and Mother had accompanied Paternal Grandmother to the
courthouse to file the complaint. Complaint, 4/25/2017, at 7; N.T.,
4/18/2019, at 7; TCO, June 25, 2019, at 5. No additional relief was requested
in the complaint. Accordingly, Mother received what she wanted from the
2017 custody order and, consequently, could not have appealed from it. Ergo,
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there was no basis for the trial court to grant a petition to appeal nunc pro
tunc from an order which could not have been appealed by Mother in the first
place.
Additionally, for Mother’s second issue, she never asked the trial court
to allow her to present witnesses during the 2019 hearing. Since she never
raised this issue before the trial court, it is waived. Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
Similarly, Mother’s claim that the trial court should have “produced”
Father is waived for failure to raise it during the 2019 hearing. Id. Assuming
it were not waived, the trial court “submit[s] that Father’s presence would not
have affected the outcome of the matter.” TCO, June 25, 2019, at 12. While
Mother argues that the trial court “cannot be certain” that this belief is true,
Mother fails to elaborate as to how Father’s presence would have altered the
outcome. Mother’s Brief at 34. To the extent that Father should have been
present, his absence thereby was harmless error.
As for Mother’s contention that she was not permitted to ask Paternal
Grandmother any questions, when she interrupted Paternal Grandmother’s
testimony to inquire of the trial court if she could ask Paternal Grandmother a
question, which the trial court allowed, the only query she made was a
procedural question about the date of the 2017 custody hearing. N.T.,
4/18/2019, at 43-44. She never indicated to the trial court that she wished
to cross-examine Paternal Grandmother on any other subject. Accordingly,
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any claim that she did not have the opportunity to ask Paternal Grandmother
any questions is also waived. Pa.R.A.P. 302(a).
To the extent that Mother is challenging Paternal Grandmother’s
credibility, “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.” D.K., 102 A.3d at 478. In the current action, the trial court
“found Paternal Grandmother to be a credible witness[,]” as “[s]he gave very
detailed testimony about the special needs of the Child as well as her
relationship with Mother.” TCO, June 25, 2019, at 8. As the trial court “viewed
and assessed” Paternal Grandmother “first-hand[,]” we are obligated to defer
to its finding that Paternal Grandmother’s testimony about the care she
provides to Child was credible, and we cannot and will not substitute our
judgment for that of the trial court. See D.K., 102 A.3d at 478.
Mother’s final challenge is that the trial court failed to consider the
custody factors enumerated in 23 Pa.C.S. § 5328(a) when it entered the
modified custody order dated April 18, 2019. Mother’s Brief at 28. However,
Mother fails to address which of the 16 factors listed in that statute were not
considered or were improperly analyzed by the trial court. See id. at 28-31.
Even if her claim were more specific, it would still fail, because the
record reflects that the trial court did examine each of the factors in 23 Pa.C.S.
§ 5328(a). According to 23 Pa.C.S. § 5328(a)(1):
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
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the child, including . . . (1) Which party is more likely to encourage
and permit frequent and continuing contact between the child and
another party.
The trial court addressed this factor, as follows:
It is clear from the testimony presented at the hearing the
Paternal Grandmother, has been responsible for ensuring that the
Child has developed and maintained a bond and relationship with
both parents. Paternal Grandmother (who does not have a car)
has transported the Child by bus to visit her parents in their
respective correctional institutions. Even after the relationship
between Mother and [P]aternal Grandmother deteriorated,
Paternal Grandmother has allowed others to transport the Child to
visit her Mother and has permitted [Child] to continue almost daily
telephone contact with her Mother.
TCO, June 25, 2019, at 9-10.
The second factor – “[t]he 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” – is inapplicable to this
appeal, as there are no allegations of abuse against Child. 23 Pa.C.S.
§ 5328(a)(2).
The third custody factor is “[t]he parental duties performed by each
party on behalf of the child.” Id. § 5328(a)(3). The trial court asserted that
“Paternal Grandmother has performed the parental duties for the Child for
nearly her entire life.” TCO, June 25, 2019, at 10. The trial court also noted
that Mother and Father are “unable to provide daily care for the Child” due to
their incarceration. Id. at 5.
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For the fourth custody factor, “[t]he need for stability and continuity in
the child's education, family life and community life[,]” 23 Pa.C.S.
§ 5328(a)(4), the trial court stated: “Obviously, neither parent can provide
this as they are both incarcerated and will be incarcerated until well after the
Child reaches the age of majority. The evidence shows that Paternal
Grandmother provides the needed stability and continuity in [C]hild’s
education, family life and community life.” TCO, June 25, 2019, at 10.
For the fifth custody factor – “[t]he availability of extended family[,]” 23
Pa.C.S. § 5328(a)(5), the trial court acknowledged that Mother had extended
family but noted that “Mother’s extended family has had little contact with the
Child, despite Paternal Grandmother’s willingness to allow this [contact].”
TCO, June 25, 2019, at 10.
The sixth custody factor, concerning a child’s sibling relationships, is
irrelevant to the current action, because Child has no siblings. 23 Pa.C.S.
§ 5328(a)(6). Likewise, the seventh custody factor about a child’s
preferences is immaterial, as Child is barely verbal and unable to articulate
his choice. Id. § 5328(a)(7). The eighth factor, “[t]he 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[,]” is also inconsequential, because there are no allegations that any
party has attempted to “turn” Child against either of his biological parents.
Id. § 5328(a)(8).
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The ninth custody factor is “[w]hich party is more likely to maintain a
loving, stable, consistent and nurturing relationship with the child adequate
for the child’s emotional needs.” Id. § 5328(a)(9). The trial court asserted:
“Paternal Grandmother is more likely to do this. Both parents are incarcerated
and physically unable to parent the child on a daily basis.” TCO, June 25,
2019, at 11. Similarly, for the tenth custody factor, “[w]hich party is more
likely to attend to the daily physical, emotional, developmental, educational
and special needs of the child[,]” 23 Pa.C.S. § 5328(a)(10), the trial court
reiterated, “Paternal Grandmother is the only one that can do this, due to the
incarceration of both parents.” TCO, June 25, 2019, at 11.
The eleventh custody factor is “[t]he proximity of the residences of the
parties.” 23 Pa.C.S. § 5328(a)(11). The trial court considered this factor, but
explained that it is “not relevant as both parents are incarcerated in different
correctional facilities.” TCO, June 25, 2019, at 11.
For the twelfth custody factor, “[e]ach party’s availability to care for the
child or ability to make appropriate child-care arrangements[,]” 23 Pa.C.S.
§ 5328(a)(12), the trial court repeated that “Paternal Grandmother is the only
one who can do this, due to the incarceration of both parents.” TCO, June 25,
2019, at 11.
The next factor is “[t]he 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.” 23 Pa.C.S.
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§ 5328(a)(13). The trial court acknowledged that “[t]here is certainly high
conflict between Mother and Paternal Grandmother” but still found that
“Paternal Grandmother is still willing for the Child to maintain a relationship
with her Mother.” TCO, June 25, 2019, at 11.
The fourteenth and fifteenth factors concerns the parties’ histories of
drug or alcohol abuse and mental and physical health, respectively, but these
factors do not affect the current action, as there is no evidence that any of the
parties have a history of substance abuse or mental or physical health issues.
See 23 Pa.C.S. § 5328(a)(14)-(15); TCO, June 25, 2019, at 11-12.
The final custody factor is a “catch-all” that allows the trial court to
consider “[a]ny other relevant factor.” 23 Pa.C.S. § 5328(a)(16). For this
factor, the trial court wrote:
What is relevant here is that Paternal Grandmother has been the
primary caregiver for this Child for nearly the Child’s entire life.
Grandmother received custody of the Child with the knowledge
and assistance of Mother. Mother now seeks to change this due
to a breakdown in the relationship with Paternal Grandmother.
TCO, June 25, 2019, at 12.
Hence, the record demonstrates that Mother’s contention that the trial
court failed to consider all of the custody factors enumerated in 23 Pa.C.S.
§ 5328(a) is erroneous. Mother’s Brief at 28.
As for Mother’s repeated assertion throughout her brief that the 2019
custody order was not in the best interests of Child, Mother’s Brief at 15, 20,
24, 29-30, 35, we agree that “[o]ur paramount concern and the polestar of
our analysis in this case, and a legion of prior custody cases, is the best
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interests of the child.” S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002)
(citation and internal brackets and quotation marks omitted); see also 23
Pa.C.S. § 5328(a) (“[i]n ordering any form of custody, the court shall
determine the best interest of the child”). However, it is indisputable that
Mother and Father are unable to provide daily care for Child and cannot have
primary physical custody of Child. TCO, June 25, 2019, at 5. Mother and
Father do not know Child’s day-to-day needs well enough “to make major
decisions on behalf of [C]hild, including, but not limited to, medical, religious
and educational decisions.” 23 Pa.C.S. § 5322 (definition of “legal custody”).
Thus, it is in the best interests of Child that they do not have shared legal
custody of Child, and we conclude that the trial court did not abuse its
discretion in entering the 2019 modified custody order. See D.K., 102 A.3d
at 478.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2019
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