J.W.L. v. J.L. and A.M.B., Appeal of: J.L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.W.L. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
J.L. AND A.M.B.
APPEAL OF: J.L. No. 1762 WDA 2015
Appeal from the Order Entered October 9, 2015
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 2004 OF 2014-D
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 25, 2016
J.L. (“Mother”) appeals from the order entered October 9, 2015, in the
Court of Common Pleas of Westmoreland County, which awarded partial
physical custody of her son, A.B., and her daughter, N.B. (collectively, “the
Children”), to her father, J.W.L. (“Maternal Grandfather”).1 After careful
review, we affirm.
A.B. was born in February of 2011, and N.B. was born in May of 2012.
In May of 2013, A.M.B. ended his relationship with Mother. During the
summer of 2013, Maternal Grandfather, and his wife, B.L. (“Maternal Step-
Grandmother”), began assisting Mother by babysitting the Children. The
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1
The biological father of the Children is A.M.B. A.M.B. did not appear during
the custody hearing and the trial court did not award A.M.B. any form of
custody. A.M.B. did not appeal from the subject custody order, and he did
not file a brief in connection with the instant appeal.
*Former Justice specially assigned to the Superior Court.
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majority of this assistance was provided by Maternal Step-Grandmother,
because Maternal Grandfather is employed as an “over the road” truck
driver, and spends most of his time away from home. Mother also lived at
Maternal Grandfather’s residence for a period of time.2 After Mother moved
out of Maternal Grandfather’s home, Maternal Grandfather and Maternal
Step-Grandmother continued to visit with the Children. Mother ended these
visits in the fall of 2014.
On November 19, 2014, Maternal Grandfather filed a complaint for
partial physical custody of the Children. A custody hearing was held on June
4, 2015, and July 31, 2015, during which the trial court heard the testimony
of Maternal Step-Grandmother; certified nurse assistant, Diana Jenkins, who
provides care for one of Maternal Grandfather’s neighbors; the Children’s
maternal great uncle, P.L.; the Children’s maternal great grandmother, M.C.;
the Children’s maternal grandmother, T.H.; Mother; Maternal Grandfather;
Lisa Lersch, assistant director of the Children’s former daycare; and Mother’s
boyfriend, M.G. On October 9, 2015, the court issued an order and opinion
awarding Mother primary physical custody and sole legal custody of the
Children. The court awarded Maternal Grandfather partial physical custody
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2
The amount of time that Mother resided at Maternal Grandfather’s home
was a hotly-debated topic during the custody hearing. Maternal Grandfather
testified that Mother resided at his home for at least four months, while
Mother insisted that she only lived there for two-and-a-half weeks. N.T.,
6/4/2015, at 95, 116.
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of the Children “[d]uring such periods that [Maternal Grandfather] is not
attending to his duties as an over-the-road trucker….” Order, 10/9/2015, at
¶ 3a. The court indicated that Maternal Grandfather’s periods of partial
physical custody shall not exceed five days, and, starting in 2020, shall not
exceed seven days. Id. at ¶ 3b. Mother timely filed a notice of appeal on
November 5, 2015.3
Mother now raises the following issues for our review.
1. Whether the trial court erred in its analysis of the evidence by
solely weighing the factors in 23 Pa. C.S.A. §5328(a) and not
considering those factors set forth in 23 Pa. C.S.A.
§5328(c)(1)[?]
2. Whether the trial court could have reasonably arrived at the
same result had it applied the proper analysis of the competent
evidence presented at trial[?]
Mother’s brief at 5 (suggested answers omitted).
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3
Mother failed to file her concise statement of errors complained of on
appeal at the same time as her notice of appeal, in violation of Pa.R.A.P.
1925(a)(2)(i). The trial court ordered Mother to file a concise statement
within twenty-one days on November 10, 2015, and Mother timely complied
by filing a concise statement on November 18, 2015. Maternal Grandfather
has not objected or claimed any prejudice as a result of Mother’s failure to
file a concise statement until ordered to do so by the trial court. Thus, we
have accepted Mother’s concise statement in reliance on our decision in In
re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that a mother’s
failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver
of her claims, as there was no prejudice to any party); cf. J.P. v. S.P., 991
A.2d 904, 908 (Pa. Super. 2010) (stating that an appellant waived her
issues on appeal when she failed to file a concise statement with her notice
of appeal, and then also failed to comply with the trial court’s order to file a
concise statement within twenty-one days).
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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
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.
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(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.
(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.
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(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
In addition, when awarding partial physical custody to a grandparent
who has standing pursuant to 23 Pa.C.S. § 5325(1) or (2),4 the court must
consider the following factors:
(i) the amount of personal contact between the child and the
party prior to the filing of the action;
(ii) whether the award interferes with any parent-child
relationship; and
(iii) whether the award is in the best interest of the child.
23 Pa.C.S. § 5328(c)(1).
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4
Sections 5325(1) and (2) provide as follows:
In addition to situations set forth in section 5324 (relating to
standing for any form of physical custody or legal custody),
grandparents and great-grandparents may file an action under
this chapter for partial physical custody or supervised physical
custody in the following situations:
(1) where the parent of the child is deceased, a
parent or grandparent of the deceased parent may
file an action under this section;
(2) where the parents of the child have been
separated for a period of at least six months or have
commenced and continued a proceeding to dissolve
their marriage….
23 Pa.C.S. § 5325(1)-(2). Here, there is no dispute that Maternal
Grandfather had standing to seek custody pursuant to Section 5325(2).
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Instantly, in its opinion accompanying the subject custody order, the
trial court discussed each of the Section 5328(a) factors. The court found
that Sections 5328(a)(3), (10), and (14) weigh in favor of Mother, and that
Section 5328(a)(8) weighed in favor of Maternal Grandfather. Trial Court
Opinion, 10/9/2015, at 2, 4-5. The court concluded that the remaining
factors did not weigh in favor of either party. Id. at 1-6. The court
subsequently filed an additional opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii).
In the supplemental opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the court
discussed the factors listed in Section 5328(c)(1). The court concluded that
Section 5328(c)(1)(i), weighs in favor of Mother, while Sections
5328(c)(1)(ii) and (iii) weigh in favor of Maternal Grandfather. Trial Court
Opinion, 12/11/15, at 2-3. In its opinions, the court observed that there is
“an apparent affinity between the minor children, both Parties, and their
extended family.” Trial Court Opinion, 10/9/2015, at 4. The court noted
that it was “struck by the clear adoration and affection of [Maternal
Grandfather] and his wife, … toward the minor children[,]” and that there is
a “need and benefit of individuals like [Maternal Grandfather] in the minor
children’s lives.” Trial Court Opinion, 12/11/15, at 3, 3 n.1.
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On appeal, Mother presents two interrelated issues, which we address
together.5 Mother argues that the trial court abused its discretion by
awarding partial physical custody to Maternal Grandfather, in the light of the
Section 5328(a) and (c)(1) factors. Mother discusses each of these factors,
and offers her own interpretation as to how the court should have applied
the evidence presented during the custody hearing. Mother contends, inter
alia, that Maternal Grandfather has only a minimal relationship with the
Children, and that Maternal Step-Grandmother uses drugs and has a history
of involvement with child protective services. Mother’s brief at 12-14, 18-
19, 22-25. Mother also asserts that the subject custody order fails to specify
how often Maternal Grandfather will be permitted to exercise his periods of
partial physical custody, and that the order takes an unreasonable amount
of custody time away from Mother. Id. at 14-15. Mother argues that
Maternal Grandfather could have partial physical custody for as much as
eighty-four days a year starting in 2020 if he exercises monthly visits, and
that this arrangement “prevents [M]other and other family members from
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5
Mother indicates that her first issue is that the trial court erred by
considering the Section 5328(a) factors only, and by failing to consider the
factors listed at Section 5328(c)(1). However, the actual substance of
Mother’s argument is not that the court failed to consider the Section
5328(c)(1) factors, but that the court reached improper conclusions during
its consideration of those factors. As noted supra, the court considered
Section 5328(c)(1) in its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii).
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planning family time together without the risk that [Maternal G]randfather
will call to exercise his period of partial custody and ruin their plans.” Id.
After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion by awarding partial physical
custody to Maternal Grandfather. At the outset, we express our concern
about Maternal Step-Grandmother’s ongoing drug use, and we stress that
our affirmance of the subject custody order does not suggest that we
condone Maternal Step-Grandmother’s behavior. During the custody
hearing, Maternal Step-Grandmother admitted that she engages in daily
marijuana use. N.T., 6/4/2015, at 13. Maternal Step-Grandmother stated
that she used marijuana even when the Children were at her home, but she
claimed that she did not use marijuana in the presence of the Children, and
that she would smoke marijuana while the Children were outside. Id. While
Maternal Step-Grandmother’s use of an illegal substance is troubling, we
note that there also was testimony indicating that Mother’s boyfriend, M.G.,
drove the Children home after consuming alcohol, which is similarly
concerning. Specifically, Maternal Grandfather described an incident during
which M.G. consumed alcohol “excessively,” and then put the Children in his
pickup truck and drove away. Id. at 116. According to Maternal
Grandfather, he protested that M.G. should not be driving the Children in his
drunken state, but Mother intervened, saying, “he’ll be okay, he’s a safe
driver.” Id. Both of the parties in this matter, and their significant others,
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have placed the safety of the Children at risk by engaging in, or permitting,
these types of activities.6
Despite these issues, the record supports the trial court’s finding that
the Children are bonded with Maternal Grandfather and Maternal Step-
Grandmother, and Maternal Grandfather and Maternal Step-Grandmother
care deeply for the Children. Mother acknowledged during the custody
hearing that the Children have asked to visit Maternal Grandfather’s home,
but that Mother has told them that they were not permitted to go. Id. at
110. Mother stated, “they wanted to go over at first, like when everything
was going on. I told them no, they’re mean to Mommy, they’re not being
good. … They know what’s going on, and after that, they haven’t asked for
you guys at all.” Id. It was reasonable for the trial court to conclude that
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Additionally, there was testimony presented during the custody hearing
that Maternal Grandfather consumes alcohol excessively, and that Mother
has engaged in excessive drinking and marijuana use. In its opinion
accompanying the subject custody order, the court stated,
the [trial c]ourt finds credible evidence that [Maternal
Grandfather] has a history of the use and likely abuse of alcohol.
However, it is not apparent that [Maternal Grandfather]
currently has issues with abuse of alcohol. … However, the
[c]ourt left the record open for the limited purpose of receiving a
report from SPHS of Greensburg, which the [c]ourt received on
or about August 4, 2015. That report confirms the [c]ourt’s
belief that [Maternal Grandfather] exhibits no present abuse of
drugs or alcohol.
Trial Court Opinion, 10/9/2015, at 5-6. The court did not indicate whether it
found the testimony concerning alleged drinking and drug use by Mother to
be credible.
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the Children would benefit from spending time in the custody of Maternal
Grandfather, and that allowing Mother to withhold the Children would not be
in their best interest. As this Court has explained,
the discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). “[I]f
competent evidence supports the court’s findings, we will affirm even if the
record could also support the opposite result.” In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa. Super. 2003) (quoting In re N.C., 763 A.2d 913,
917 (Pa. Super. 2000)).
Additionally, we reject Mother’s claim that the subject custody order
fails to specify how often Maternal Grandfather may exercise partial physical
custody of the Children, and/or unreasonably interferes with Mother’s
relationship with the Children. As noted supra, the court awarded Maternal
Grandfather partial physical custody of the Children “[d]uring such periods
that [Maternal Grandfather] is not attending to his duties as an over-the-
road trucker….” Order, 10/9/2015, at ¶ 3a. During the custody hearing,
Maternal Grandfather testified that the company he works for requires him
to be on the road for at least twenty-eight days before he is allowed to
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return home, and that he is allowed to spend only two days at home before
returning to road. N.T., 6/4/2015, at 120. Maternal Grandfather explained
that he prefers to spend five to six weeks on the road at a time, because this
allows him to return home for four or four-and-a-half days instead of just
two. Id. Maternal Grandfather noted that he spent nearly seven weeks on
the road immediately prior to the first day of the custody hearing, and that
he anticipated spending another six to seven weeks on the road afterward.
Id. at 120-21. At the conclusion of the second day of testimony, Maternal
Grandfather stated that he would likely be on the road for six to eight weeks
and/or until the end of October. N.T., 7/31/2015, at 48.
Based on this testimony, it would be difficult, if not impossible, for the
trial court to make its award of partial physical custody any more specific.
Attempting to set a frequency for Maternal Grandfather’s periods of partial
physical custody would prove to be futile, given that Maternal Grandfather
can go anywhere from twenty-eight days to months at a time without being
home. While it may be difficult for Mother to predict when she will need to
provide Maternal Grandfather with the Children, we note that Mother is
unemployed, and she does not appear to have any scheduling restraints.
Further, it is clear that Maternal Grandfather’s periods of partial
physical custody will have a minimal impact on Mother’s relationship with the
Children. Based on Maternal Grandfather’s testimony, he will be exercising
about four days of partial physical custody of the Children less than once per
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month. Mother’s claim that Maternal Grandfather may end up exercising
greater amounts of partial physical custody in the future is mere speculation,
as there was no testimony during the custody hearing that Maternal
Grandfather’s work schedule is likely to change.
Accordingly, because we conclude that the trial court did not abuse its
discretion by awarding partial physical custody of the Children to Maternal
Grandfather when he is not working, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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