J-A06024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.C., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
A.C. & L.C.,
Appellees No. 2601 EDA 2016
Appeal from the Order Entered July 19, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2007-16468
BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 11, 2017
S.C. (“Mother”) appeals from the order entered July 19, 2016,
awarding primary physical custody and sole legal custody of her daughter,
S.C. (“Child”), born in June of 2006, to Child’s maternal grandparents, A.C.
and L.C. (“Grandparents”), and awarding partial physical custody of Child to
Mother.1 We affirm.
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1
We advise the trial court that Child’s father is a necessary party to this
custody action, and that our Rules of Civil Procedure require the court to
enter an order joining him. See Pa.R.C.P. 1915.6(a)(1) (“If the court learns
from the pleadings or any other source that a parent whose parental rights
have not been previously terminated . . . is not a party to the action, it shall
order that the person be joined as a party.”). However, while Mother is
aware of Child’s father’s identity, Mother has refused to identify him.
Complaint, 7/12/07, at 4; N.T., 6/21/16, at 123-124. Thus, we proceed to
review the custody order at issue.
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The trial court summarized the factual and procedural history of this
matter as follows.
Grandparents initially received custody of [Child] when she
was an infant through the state of New York’s family court since
both she and Mother tested positive for drugs at the time of
[Child’s] birth. On July 17, 2007 Mother filed a custody petition
seeking full custody of [Child] alleging that she was the primary
financial support and caregiver for the child. However, it does
not appear that any further action was taken on this petition.
On March 18, 2015 Grandparents filed an Emergency
Petition for Custody seeking temporary and sole physical custody
of [Child]. This filing was precipitated after Grandparents were
contacted by Puerto Rican police informing them that [Child] had
been seen on the beach alone for a few days and that Child
Protective Services was opening a case.[2] Mother had taken
[Child] to Puerto Rico for what she told Grandparents was going
to be a one week vacation but instead remained there for seven
weeks. Grandparents immediately flew down to Puerto Rico
where [Child] was released into their custody. On March 18,
2015 the undersigned entered an order granting temporary sole
legal and sole physical custody of [Child] to Grandparents.
Pursuant to the March 18, 2015 order, Grandparents were given
permission to return with the child from Puerto Rico to
Pennsylvania. Additionally, the order prohibited Mother from
having any kind of contact with the child unless agreed to by
Grandparents and was further prohibited from removing her
from school.
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2
Grandparents presented a slightly different account of Mother’s trip to
Puerto Rico in their emergency petition for custody as compared to their
testimony at the June 21, 2016 hearing. In their petition, Grandparents
averred that Mother was in Puerto Rico for seven weeks, rather than three
months. Emergency Petition for Custody, 3/18/15, at ¶ 5; N.T., 6/21/16, at
43. Grandparents further averred that they learned of Child’s whereabouts
when they received a phone call from the Puerto Rican police, rather than a
concerned bystander. Emergency Petition for Custody, 3/18/15, at ¶ 7;
N.T., 6/21/16, at 42, 44. It appears that the trial court accepted the former
version. Findings of Fact, 7/19/16, at 1.
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On June 10, 2015 Mother filed an Emergency Petition to
Modify Custody. In her petition, Mother denied all of
Grandparents’ allegations and asserted that she was [a] fit and
able parent. The Court deemed Mother’s petition to not be an
emergency. On August 6, 2015 the parties entered into a
Temporary/Interim Agreed Order Without Prejudice.
Grandparents retained primary physical and legal custody of
[Child] and Mother received supervised custodial visits with
[Child] as follows: every Monday from 7:00 p.m. until 9:00 p.m.,
every Saturday from 4:00 p.m. to 8:00 p.m. and every Sunday
from noon to 5:00 p.m. Custodial exchanges were to occur at a
location mutually agreed upon between the parties. Additionally,
the parties were required to notify the other party of a schedule
change at least 48 hours in advance unless there was an
emergency. [C]hild was also permitted to have daily reasonable
phone contact with Mother.
In March of 2016, the Court entered an Order permitting
Mother to have visitation with [Child] from 4:00 p.m. to 8:00
p.m. on Saturdays and from noon to 5:00 p.m. on Sundays with
all other aspects of interim order from August 6, 2015
remaining. On May 27, 2016 Mother filed a Motion for Contempt
alleging that Grandparents were preventing her from having
visitation with [Child].
The parties appeared before the undersigned on June 21,
2016 for a one day protracted hearing.
Findings of Fact, 7/19/16, at unnumbered 1-2 (footnote omitted).
Following the hearing, on July 19, 2016, the trial court entered an
order awarding primary physical custody and sole legal custody of Child to
Grandparents, and awarding partial physical custody to Mother each
Saturday from 4:00 p.m. to 8:00 p.m. and each Sunday from noon to 5:00
p.m. In addition, the court awarded Mother an overnight visit on the third
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weekend of each month, from Friday after school until 8:00 p.m. on
Saturday.3
Mother timely filed a pro se notice of appeal on August 4, 2016, along
with a concise statement of errors complained of on appeal.4 Mother now
raises the following issues for our review:
1. Did the Trial Court err as a matter of law in applying the
incorrect legal standard in a child custody case where
grandparents sought custody of a child from that child’s
biological mother?
2. Did the Honorable Trial Court abuse its discretion in awarding
custody of the child to the grandparents and not to her Mother in
the absence of a specific finding of unfitness?
Mother’s Brief at 4.
We consider these issues mindful of our well-settled standard of
review.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
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3
The trial court’s desired custody award is somewhat unclear, as the order
on appeal contains a typographical error. The order states that when Mother
exercises her overnight visit with Child, “the weekend visitation schedule in
point (iii) will not apply on that weekend[.]” Order, 7/19/16, at 1.
However, there is no “point (iii)” in the order. It appears that the court may
have been referring to point (i), which sets forth the parties’ normal
weekend custody schedule. Additionally, while the trial court did not
specifically address Mother’s motion for contempt, we are satisfied that the
trial court denied the motion in light of its conclusions. Order, 7/19/16, at
9-10.
4
Mother was pro se during the custody hearing. However, she is
represented by counsel on appeal.
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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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted). The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S. § 5328(a):
(a) Factors.--In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party.
(2) The present and past abuse committed by a
party or member of the party’s household, whether
there is a continued risk of harm to the child or an
abused party and which party can better provide
adequate physical safeguards and supervision of the
child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
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(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.
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23 Pa.C.S. § 5328(a).
Instantly, the trial court addressed each of the Section 5328(a) factors
in its findings of fact accompanying the order on appeal. The court
summarized its decision to award primary physical and sole legal custody of
Child to Grandparents as follows:
It is obvious to the Court that despite the immense tension
and resentment that characterizes the parties’ relationships with
each other, they are united in their deep love and affection for
[Child].
The Court understands Mother’s desire as [Child’s]
biological parent to retain primary custody of her child. The
Court appreciates Mother’s free spirit and her unique approach
to life. However, at this time the Court finds that it is not in
[Child’s] best interest to grant Mother primary and/or sole
physical and legal custody. The Court has serious doubts about
Mother’s ability to provide [Child] with a stable living
environment and attend to her daily needs since she appears
neither to have steady employment nor reliable and/or
permanent housing. It is also evident to the Court that Mother
has chosen to exercise her visitation with [Child] based on her
own convenience. Furthermore, Mother presented little to no
evidence that she undertakes any kind of parental obligation on
[Child’s] behalf (i.e. assisting with homework or attending
[Child’s] parent teacher conferences, extracurricular events or
doctor’s appointments) or has ever made any effort to do so.
Grandparents have provided [Child] with the solid family
structure and stable home environment that a young, developing
child needs. The Court commends Grandparents for their
exemplary efforts in raising [Child] and their willingness to allow
Mother to be a part of [Child’s] life despite the high level of
conflict between them. The Court urges Grandparents to
continue to accommodate Mother’s requests to visit with [Child]
as much as they reasonably can and promote [Child’s] bond with
her Mother.
The Court would like to emphasize that the significant
efforts Grandparents have made to care for [Child] is borne not
only out of a love for their granddaughter but for their daughter
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as well. Regardless of Mother’s feelings towards Grandparents,
she is incredibly fortunate to have parents who are so committed
to ensuring that [Child] has the resources she needs to excel in
school and her extracurricular activities.
Findings of Fact, 7/19/2016, at 9-10 (footnote omitted).
In her first issue on appeal, Mother argues that the trial court erred by
failing to apply the presumption that custody should be awarded to her
rather than Grandparents who are third parties. Mother’s Brief at 9-12.
Mother waived this issue by failing to include it in her concise statement of
errors complained of on appeal. Krebs v. United Refining Co. of Pa., 893
A.2d 776, 797 (Pa. Super. 2006) (citations omitted) (“[A]ny issue not raised
in a statement of matters complained of on appeal is deemed waived.”).5
In her second issue, Mother argues that the trial court abused its
discretion by awarding custody of Child to Grandparents. Mother’s Brief at
12-18. Mother challenges several of the court’s factual findings, including
that Mother does not have an appropriate living arrangement and lacks
stability. Id. at 12-14. Mother also claims that the court overlooked
evidence showing that she did well raising Child for the first ten years of
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5
Mother is correct that “[i]n any action regarding the custody of the child
between a parent of the child and a nonparent, there shall be a presumption
that custody shall be awarded to the parent.” Mother’s Brief at 9. However,
the presumption in favor of the parent may be rebutted “by clear and
convincing evidence.” 23 Pa.C.S. § 5327. Thus, even if Mother had not
waived this issue, the record contains overwhelming evidence in support of
the trial court’s decision to award primary physical and sole legal custody of
Child to Grandparents rather than Mother. We detail this evidence infra.
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Child’s life. Id. at 14-16. Mother contends that the court improperly based
its decision on Grandparents’ superior financial resources. Id. at 16-17.
Our review of the record belies Mother’s claim. During the custody
hearing, Child’s grandfather, A.C. (“Grandfather”), testified at length
concerning Mother’s history of instability and erratic behavior, which
culminated in her trip to Puerto Rico in December of 2015. N.T., 6/21/16, at
43. Mother initially informed Grandfather that she and Child would be
travelling to Puerto Rico for one week, but they stayed for several weeks.
Id. Grandfather explained that he began receiving phone calls from Child’s
school due to her lengthy absence. Id. Grandfather attempted to call
Mother on her cellphone, but she failed to return his calls. Id. When Mother
did return Grandfather’s calls, she claimed that she and Child would be
returning to Pennsylvania in two days. Id. However, they did not return.
Id.
According to Grandfather, he remained unable to locate Mother and
Child until he received a telephone call from a woman in Puerto Rico who
informed him that she had seen Child alone on the beach “for a couple of
days,” and that she reported it to the police. N.T., 6/21/2016, at 42, 44.
Grandfather spoke with the police in Puerto Rico, and a police officer
informed Grandfather that he had received a complaint concerning Child, but
that “he didn’t have a chance to go pick her up because she was on the
beach on an island and she couldn’t go anywhere except by ferry.” Id. at
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42, 47. The officer informed Grandfather that Child would be sent to social
services and probably placed in foster care. Id. at 44, 47. Grandfather
obtained a custody order and flew immediately to Puerto Rico in order to
retrieve Child. Id. at 42, 44, 47. Grandfather spoke to Child after this
incident; Child informed Grandfather that she was not attending school while
in Puerto Rico, and that “we were just staying on the beach all day. I sleep
on the beach.” Id. at 45. Meanwhile, Mother remained in Puerto Rico for
another month, until Grandfather paid for her return trip to Pennsylvania.
Id. at 47.
Grandfather further testified that Mother has failed to remedy her
instability and erratic behavior since her return from Puerto Rico.
Grandfather explained that Mother is no longer allowed to visit his home
because she “always starts an argument, starts yelling and screaming[.]”
N.T., 6/21/16, at 35. When Grandfather informed Mother that she could no
longer visit, she became violent and attacked him. Id. Grandfather
recalled, “[Mother] started pushing me and she says if you don’t let me in,
I’m going to beat you up. She spit in my face and she says as a matter of
fact, I’m going to have somebody beat you up.” Id. at 35-36. Because
Mother is no longer allowed to visit his home, Grandfather insists that
Mother obtain custody of Child in a public place, such as a park or shopping
center. Id. at 10, 37. Nonetheless, Mother continues to arrive at
Grandfather’s home seeking custody of Child. Id. at 12, 34-35.
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Grandfather described an incident on June 18, 2016, after Mother informed
him that she would pick up Child “at a specific place[.]” Id. at 82. Mother
stated that she would call Grandfather when she arrived at the exchange
location. Id. Instead, Mother went directly to Grandfather’s home,
demanded to see Child, and even called the police. Id. at 35, 82.
Grandfather reported that Mother does not appear to have a place to live,
other than sleeping occasionally at the home of Grandfather’s sister. Id. at
46.
Further, L.C. (“Grandmother”) testified that Mother has often been late
to her visits with Child and failed to attend some visits entirely. For
example, Grandmother testified that Mother missed visits on April 2, 2016,
April 3, 2016, April 9, 2016, April 10, 2016, April 16, 2016, April 17, 2016,
and April 23, 2016. N.T., 6/21/2016, at 92; Exhibit GP-2 (Calendar of
Visits). On April 18, 2016, Mother arrived for a visit at 9:10 p.m., after Child
was asleep. Id. at 92; Exhibit GP-2 (Calendar of Visits).
The record supports the trial court’s decision to award primary physical
and sole legal custody of Child to Grandparents. The testimony presented
during the hearing establishes that Mother has a history of instability and
erratic behavior. More concerning, Mother has a history of neglecting Child
and placing her in danger, as demonstrated by the fact that Mother left Child
alone to wander a beach in Puerto Rico. Mother appears to have made little
progress in terms of remedying these issues. Mother is uncooperative and
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hostile. Mother also fails to attend her visits with Child consistently, and she
barely visited with Child at all during April of 2016. The court was well
within its discretion when it concluded that Mother lacks the stability
necessary to care for Child and to ensure her best interests. Accordingly, we
affirm the trial court’s July 19, 2016 order awarding primary physical and
sole legal custody of Child to Grandparents and awarding partial physical
custody to Mother.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2017
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