S.S. v. L.S. ( 2019 )

J-S22027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
L.S. : No. 2044 MDA 2018
Appeal from the Order Entered November 28, 2018
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-17-02838
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 13, 2019
Appellant, S.S. (“Father”) appeals from the November 28, 2018 Order
which, inter alia, granted Appellee, L.S. (“Mother”), sole legal and physical
custody of 15-year-old S.S. and 14-year-old S.A.S. (collectively, “Children”),
and granted Father weekly telephone contact and up to two supervised in-
person visits yearly with Children at the prison where Father is incarcerated.
Upon careful review, we affirm.
The relevant factual and procedural history is as follows. Father and
Mother are Children’s biological parents and the parties lived together until
January 2007. On July 18, 2013, Father entered a guilty plea to Third-Degree
Murder and the court sentenced him to 15 to 30 years’ incarceration. On
March 29, 2017, Father filed a pro se Complaint in Custody. On September
14, 2017, after a hearing, the trial court issued an Order by agreement of the
parties which, inter alia, granted Mother sole legal and physical custody of
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* Retired Senior Judge assigned to the Superior Court.
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Children and granted Father weekly telephone contact and two supervised in-
person visits yearly with Children at the prison where Father is incarcerated.
On December 21, 2017, Father filed a pro se Petition for Contempt.
After a conference and numerous hearings, on November 28, 2018, the trial
court issued an Order that denied Father’s Petition for Contempt, granted
Mother sole legal and physical custody of Children, granted Father weekly
telephone contact, and ordered that Children “may elect” to have up to two
supervised in-person visits with Father in prison. Order, 11/28/18, ¶ II(D).
The Order also stated that Father’s paramour, T.H., shall not be present at
Children’s visits with Father. See id. at ¶ II(E).
Father filed a timely pro se Notice of Appeal. Both Father and the trial
court complied with Pa.R.A.P. 1925.1
Father raises the following issues on appeal:
1) The trial court during the hearing on November 6[,] 2018[,]
agreed to [Father’s] request to put in the Order that it would read
that [Father] would be permitted “contact visitation” with
[Children] at SCI Laurel Highlands. This was “not” written in the
Order as stated it would be.
2) The stipulation regarding [T.H.] should be removed and was only
agreed upon for “initial” visit in August 2018 [] and has no reason
to be there other than [Mother] does not like her personally.
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1 Father failed to file a Statement of Errors Complained of on Appeal wih his
Notice of Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). On January 16, 2019,
this Court issued an Order directing Father to file a Statement of Errors by
January 28, 2019 or face waiver and/or dismissal. See Order, 1/16/19. On
January 25, 2019, Father filed a Statement of Errors in the trial court. See
Trial Court Docket.
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3) Issue that [Father] did not get the same respect and [courtesy] in
this case in regards to interviewing the children and/or being
permitted to listen in to the trial Judge while interview was being
conducted.
Father’s Brief at 2 (some capitalization omitted).
The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, governs all custody
proceedings commenced after January 24, 2011. E.D. v. M.P., 33 A.3d 73,
77 (Pa. Super. 2011). The Custody Act requires a trial court to consider all of
the Section 5328(a) best interests factors when “ordering any form of
custody[.]” 23 Pa.C.S. § 5328(a). Moreover, when one parent is
incarcerated, a trial court should consider additional factors unique to prison
cases. See S.T. v. R.W., 192 A.3d 1155, 1167 (Pa. Super. 2018)
(acknowledging that the factors delineated in Etter v. Rose, 684 A.2d 1092,
1093 (Pa. Super. 1996), are now assimilated into the Section 5328(a) analysis
under subsection 16, “Any other relevant factors.”).2
A trial court must “delineate the reasons for its decision when making
an award of custody either on the record or in a written opinion.” S.W.D. v.
S.A.R., 96 A.3d 396, 401 (Pa. Super. 2014). See also 23 Pa.C.S. § 5323(a)
and (d). However, “there is no required amount of detail for the trial court’s
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2 These factors include: (1) age of the child; (2) distance and hardship to the
child in traveling to the visitation site; (3) the type of supervision at the visit;
(4) identification of the person(s) transporting the child and by what means;
(5) the effect on the child both physically and emotionally; (6) whether the
parent has and does exhibit a genuine interest in the child; (7) whether
reasonable contacts were maintained in the past, and (8) the nature of the
criminal conduct that culminated in the parent’s incarceration. S.T., 192 A.3d
at 1167.
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explanation; all that is required is that the enumerated factors are considered
and that the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013).
“The paramount concern in child custody cases is the best interests of
the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018) (citation omitted).
“The best-interests standard, decided on a case-by-case basis, considers all
factors which legitimately have an effect upon the child's physical, intellectual,
moral and spiritual well-being.” M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super.
2017) (citations omitted).
This Court reviews a custody determination for an abuse of discretion.
In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse
of discretion “merely because a reviewing court would have reached a different
conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial
court abuses its discretion if, in reaching a conclusion, it overrides or
misapplies the law, or the record shows that the trial court's judgment was
either manifestly unreasonable or the product of partiality, prejudice, bias or
ill will.” Id. (citation omitted).
Further, when this Court reviews a trial court’s “best interests” analysis
in custody matters, our scope of review is broad, but we are “bound by
findings supported in the record, and may reject conclusions drawn by the
trial court only if they involve an error of law, or are unreasonable in light of
the sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509,
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512 (Pa. Super. 2006) (quotation and citation omitted). “On issues of
credibility and weight of the evidence, we defer to the findings of
the trial judge who has had the opportunity to observe the proceedings and
demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super.
2015) (citation omitted). Importantly, “[a]lthough the discretion remains
exclusively with the trial court, a child's well-reasoned preference, based on
her age and judgment, could carry more weight in an incarceration case than
it might otherwise would have.” S.T., 192 A.3d at 1168. We can only interfere
where the “custody order is manifestly unreasonable as shown by the evidence
of record.” Saintz, 902 A.2d at 512 (citation omitted).
In Father’s first issue, he avers that the trial court abused its discretion
when it failed to specify in its November 28, 2018 Order that Children should
have a “contact visit” with him, as opposed to a visit with a glass barrier, when
they visit him in prison. Father’s Brief at 6 (unpaginated). He argues that the
trial court judge “stated he would include this wording in the [n]ew Order.”
Id. Our review of the record belies this claim.
At the November 6, 2018 custody hearing, Father requested to have the
Order specify that Children’s visits at the prison be “contact visits.” N.T.
Custody Hearing, 11/6/18, at 29. In his Brief, Father mischaracterizes the
trial court’s response. Initially, the trial court did consider including language
that allowed a “contact visit” if Children so desired, stating: “Well, then how
about I put in the order that if desired, it shall be a contact visit.” Id. at 30.
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However, after hearing testimony from Children in chambers, the trial court
decided that it would be in Children’s best interest for them to pick the type
of visitation.
The trial court opined:
The record is clear that [Children] have had their share of
struggles with the difficult circumstances surrounding [Father]’s
incarceration.
The trial court had the opportunity to interview both children in
chambers. [N.T. Custody Hearing at 41-75.] The trial court
accorded great weight to the teenage [C]hildren’s preference as
to how and when they visit their incarcerated father. [Children]
were polite, articulate, and set forth a well-reasoned preference
to visit [Father] on their own terms as their relationship with him
evolves. [Father] desired for the trial court to enter mandatory
language, i.e., that [Children] must visit him at certain intervals
and those visits must be in-person, contact visits. The trial court
does not want to mandate that [Children] must have a specific
kind of visit with [Father], but that they have the flexibility to pick
the visitation type (i.e. contact or no-contact) as they become
more comfortable visiting with their incarcerated [F]ather. The
trial court made this clear to the parties at the November 6, 2018
hearing.
Trial Ct. Op., filed 1/15/19, at 5. The trial court highlights two different parts
of the transcript where it conveyed this to the parties. See id. First, the trial
court stated on the record:
. . . I think one of the things that we have to be careful of is not
putting undue pressure on [Children] to do things they don’t want
to do, that it then becomes a negative experience. We want it to
be a positive experience.
Id. citing N.T. Custody Hearing at 31. Then, after hearing testimony from
Children in chambers, the trial court stated on the record:
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But again, I want it to be the type of order that doesn’t force
[Children] to do things against their will, but encourages them to
do things and to expand the kinds of things they do and
experience with you as they move forward, because I do believe
that’s in their best interest.
Id. citing N.T. Custody Hearing at 38-39.
Our review of the record reveals that the trial court did not abuse its
discretion when it declined to include language in the Order that compelled
Children to have a “contact visit” with Father in prison. The trial court found
Children’s testimony that they prefer to visit Father on their own terms to be
credible, and concluded that a flexible visitation Order was in Children’s best
interest. The trial court engaged in an analysis of the Section 5328(a) factors,
including the factors unique to prison cases, when making its custody
determinations and the record supports the trial court’s findings. We will not
reweigh the evidence or interfere with the trial court’s credibility
determinations. Accordingly, we find no abuse of discretion.
In his second issue, Father asserts that the trial court abused its
discretion when it ordered that his paramour, T.H., should not be present
during Children’s visits with Father. Father’s Brief at 7 (unpaginated).
Essentially, Father argues that that there is no evidence in the record to
support this prohibition. Id. at 7-8. We disagree.
The trial court included this prohibition against T.H. attending visits
based on testimony from Mother, which the trial court deemed to be credible.
The trial court opined:
[Mother] stated that she was not comfortable with [T.H.]’s
presence at the visits, that she believes that the son does not want
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her there, and that [T.H.] has a proclivity for undermining
[Mother] as a mother. The trial court found [Mother]’s statements
to be credible, her rationale to be reasonable, and the trial court
simply endeavors for [Father] and [Children] to first reestablish
some semblance of a parent/child relationship unfettered by the
unnecessary turmoil that comes with introducing [Father]’s
girlfriend into the situation.
Trial Ct. Op. at 5-6. As stated above, we decline to reweigh the evidence or
interfere with the trial court’s credibility determinations. As the record
supports the trial court’s findings, we find no abuse of discretion.
In his final issue, Father contends that the trial court erred and violated
his due process rights when the court did not permit him to interview Children,
or to be present during the trial court’s interview of Children. Father’s Brief
at 8 (unpaginated). Father argues that he has a constitutional right to cross-
examine witnesses, face accusers, and present a proper defense. Id. at 9
(unpaginated).3 We find that Father has waived this issue.
In presenting this argument, Father does not cite any legal authority,
provide citation to the record, or engage in any constitutional analysis to
support his argument pursuant to Pa.R.A.P. 2119. Because this argument is
underdeveloped, we are unable to conduct meaningful review. While this
Court is willing to liberally construe materials filed by a pro se appellant, “pro
se status confers no special benefit upon the appellant.” Commonwealth v.
Adams, 882 A.2d 496, 498 (Pa. Super. 2005). Therefore, Father’s
pro se status does not relieve him of his duty to properly raise and develop
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3Some of the pages in Father’s Brief are paginated and some are unpaginated.
This page is labeled “10” but is actually page 9.
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his claims on appeal. Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa.
Super. 1996). Accordingly, this issue is waived. See Pa.R.A.P. 2119
(describing briefing requirements); Hayward v. Hayward, 868 A.2d 554,
558 (Pa. Super. 2005) (finding that appellant waived issue when he failed to
cite pertinent authority, reference the record, and engage in a specific
discussion of error).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/13/2019
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