H.R. & C.A.R. v. C.P. & J.M. ( 2019 )

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2019 PA Super 357H.R. AND C.A.R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
C.P. AND J.M. :
:
: No. 807 MDA 2019
APPEAL OF: C.P. :
Appeal from the Order Entered April 5, 2019
In the Court of Common Pleas of Schuylkill County Civil Division at
No(s): S-1868-2011
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
OPINION BY BOWES, J.: FILED DECEMBER 18, 2019
C.P. (“Father”) appeals from the April 5, 2019 custody order that
granted the exceptions filed by the maternal grandparents, H.R. and C.A.R.
(collectively “Grandparents”), to the custody officer’s report and
recommendation, denied Father’s counter-exceptions, and awarded Father
periods of supervised physical custody of his ten-year-old son, L.P. We affirm.
L.P. was born in May 2009, of Father’s relationship with J.M. (“Mother”),
whom Father met while they were students at Penn State University. Mother
and Father both struggle with substance abuse, and Father’s recreational use
of marijuana has been a recurring issue throughout the custody litigation.1
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1 According to the custody report that the court-appointed custody evaluator
prepared in 2012, Father acknowledged that he “us[ed ]marijuana for
recreational and social purposes” since he was eighteen. N.T., 6/25/15,
Exhibit 1, Custody Evaluation, 5/30/12 at 10. Likewise, Mother reported that
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The relationship remained intact for the first few years of L.P.’s life. During
this period, the family was transient, and it faced financial hardships.
Following L.P.’s birth, Mother and Father moved from Pennsylvania to
Michigan, in order for Father to obtain a medical marijuana license in that
state. Thereafter, they relocated to Georgia, briefly, before settling in
Maryland immediately before the relationship dissolved during 2012, when
L.P. was approximately three years old.
Since July 2012, Grandparents have maintained primary physical
custody of L.P. pursuant to a stipulated order that was entered after Mother
alleged that Father fed L.P. a “fire cracker,” which Mother described as a
Graham cracker topped with marijuana-laced peanut butter. All four
individuals shared legal custody. Mother, who resided with Grandparents in
Tamaqua, Pennsylvania, for most of the ensuing period, now lives
independently, in Ambler, Pennsylvania and exercises periods of physical
custody for up to four hours on alternating weekends. Similarly, Father
exercises three hours of supervised visitation on alternating Saturdays. His
relationship with Grandparents is strained, and Father contends that
Grandparents intentionally relocated with L.P. from Tamaqua to Denver,
Pennsylvania, after Father moved to Tamaqua to be closer to his son. He
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Father’s fixation with marijuana use was “definitely an issue” for the couple.
Id. at 9. She explained, “[Father was more interested in growing marijuana
than anything else, and he discussed this openly. After [Father’s] mother
found plants growing [in the home that Mother, Father, and L.P. were staying
as guests], she asked [Father] to leave.” Id. at 8.
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complains that it takes approximately two hours to travel from Tamaqua to
Denver, which is about a fifty-five mile car trip. Grandparents counter that
the duration is closer to one and one-quarter hour.
During 2014, Father filed a motion to modify the 2012 custody
stipulation. Following a procedural misstep, the modification request
culminated in a complete custody trial and a determination of L.P.’s best
interests pursuant to the relevant factors outlined in § 23 Pa.C.S. § 5328(a).2
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2Pursuant to 23 Pa.C.S. § 5328(a), the determination of a child’s best interest
requires the examination of the following factors:
(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.
(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.
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(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.
23 Pa.C.S. § 5328. It is within the trial court’s purview as the finder of fact
to determine which enumerated best-interest factors are most salient and
critical in each particular child custody case. M.J.M. v. M.L.G., 63 A.3d 331(Pa.Super. 2013). The trial court weighed the applicable custody factors in
awarding Grandparents primary physical custody. In this vein, it found that
thirteen of the applicable factors militated to varying degrees in favor of
Grandparents. Factors six, seven, and eight were either neutral or
inapplicable. None of the factors favored Father.
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As it relates to the issue presented on appeal, the trial court awarded
Grandparents physical custody pursuant to the terms of the initial 2012
stipulation except that it added a provision that conditionally extinguished the
supervision requirement “upon Father’s willingness to demonstrate sobriety
and continued abstinence.” Trial Court Order,7/2/15, at 1. In pertinent part,
the addendum provided,
1. The Order Of Court dated July 16, 2012 per Baldwin, P.J.,
shall remain in full force and effect except that the Order is hereby
amended to include the following with regard to Father’s
supervised partial physical custody as follows:
3(d). Father shall be provided the opportunity for
unsupervised contact within his home setting on alternating
Saturdays for three (3) hours provided and contingent upon
Father’s willingness to demonstrate sobriety and continued
abstinence through submission to hair follicle tests to be
conducted by Compliance Drug and Testing Services, LLC., “NE
Compliance” at intervals of six (6) months for two (2) years
from the date of this Order. In the event the first test
administered within thirty (30) days -of the date of this Order
is negative, then Father may have the aforementioned
unsupervised visitation provided that he continues to submit to
the other hair follicle tests. It is agreed by [Grandparents] that
they shall pay and be responsible for the hair follicle test fees
submitted by NE Compliance to them. Furthermore, Father
shall sign a release authorizing NE Compliance to release the
test result reports to [Grandparents’] counsel who shall be
authorized to provide copies of the same to Mother and the
[Grandparents].
3(e). In the event that any of the four (4) the hair follicle
tests are positive then supervised visitation shall continue until
Father tests negative.
Id. at 1-2.
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The 2015 custody schedule continued unchanged until Father filed his
most recent petition for modification on June 12, 2018. In addition to a
general assertion that the prevailing custody arrangement was contrary to
L.P.’s best interest, Father contended that, in light of his newly-acquired
license to use medical marijuana as a mechanism to manage wrist pain, the
trial court should not weigh the fact of his marijuana use against him. In this
vein, Father argued, “Marijuana is now a state recognized medicine and
shouldn’t be used to keep children from parents.” Petition for Modification of
Custody, 6/12/18, at 2. Following two non-consecutive days of evidentiary
hearings pursuant to Pa.R.C.P. 1915.4-2(b) (regarding record hearings for
determinations of partial custody), the custody officer filed a report noting its
consideration of the best-interest factors and a recommendation that the trial
court (1) terminate the drug-testing conditions on Father’s ability to exercise
unsupervised custody, and (2) significantly increase the duration and nature
of Father’s three-hour period of supervised partial physical custody to nine
hours of unsupervised custody on alternating Saturdays. It further
recommended that Father’s custodial periods increase to overnights in May
2019.
Grandparents filed exceptions to the custody officer’s report and
recommendation. In relevant part, Grandparents challenged the hearing
officer’s findings regarding Father’s alleged medical condition and purported
certification for medical marijuana, and its reliance upon the certification to
discount Father’s history of recreational drug use, and to remove the
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requirement that he submit negative drug-screens before exercising
unsupervised physical custody. Subsumed within these arguments is
Grandparents’ contention that the custody officer erred in admitting into
evidence Father’s documentation concerning both his medical condition and
his certification to use medical marijuana. They also complained that the
hearing officer neglected to consider the presence of Father’s housemates
before awarding unsupervised overnight custody, and that the record did not
sustain Father’s supposition that Grandparents moved from Tamaqua out of
spite or that Father was the primary caretaker when the family lived in
Maryland.
While Father filed “counter exceptions,” he did not assert any challenges
relating to the hearing, report, or recommendation. Father simply responded
to Grandparents’ exceptions by presenting countervailing statements in
opposition to Grandparents’ contentions. Upon review of the record, the trial
court entered the above-referenced order that granted all eight of
Grandparents’ exceptions and denied Father’s counter exceptions.
Specifically, the trial court concluded that, upon review of the § 5328(a)
factors and the safety concerns raised by Mother and Grandparents, it served
L.P.’s best interests to continue with the prior custody arrangement and to
reinstate the hair-follicle-testing condition to unsupervised physical custody.
Trial Court Opinion, 4/5/19, at 12. The court continued,
it is unknown from the record what effect Father’s alleged medical
condition and use of marijuana, whether medically prescribed or
used recreationally, may have on his ability to care for and parent
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the child. [Additional] . . . admissible evidence is necessary before
an increase in Father’s custodial time would be warranted to
insure the child’s safety and well-being.
Id. Significantly, the trial court determined that the custody officer erred in
relying upon Father’s contention that he was certified to use medical
marijuana, as Father failed to present medical evidence to establish either a
wrist affliction that necessitates its use or the effect that the use of medical
marijuana will have on Father’s parenting ability. Id. at 12-13. It concluded,
“without benefit of testimony from the doctor who Father alleges authorized
the use of medical marijuana, it is not in the best interest of the child to
expand Father’s partial custody.” Id. at 13.
This timely pro se appeal followed. Father initially failed to comply with
Pa.R.A.P. 1925(a)(2)(i) by contemporaneously filing a concise statement of
errors complained of on appeal. On June 5, 2019, this Court entered an order
directing Father to file and serve the Rule 1925(b) statement with the trial
court by June 12, 2019. He filed the required statement within the designated
period, and the trial court entered an order directing our attention to its
opinion entered on April 5, 2019.
Father presents two issues for our review:
1. Whether the court may ignore a properly [bona fide]
registered medical marijuana card & certificate as substantiated
evidence.
2. [The trial court relied upon h]earsay or [un]substantiated
evidence to show [Father’s] abuse of [marijuana].
Father’s brief at unnumbered 2.
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Our standard of review 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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012) (citations omitted). As
it relates to our deference to the trial court’s role in reviewing the factual
findings of a custody officer, we previously explained that
the trial court is required to make an independent review of the
record to determine whether the hearing officer’s findings and
recommendations are appropriate. Although advisory, the
hearing officer’s report and recommendations are given the fullest
consideration particularly on the issue of credibility of witnesses,
which the trial court is not empowered to second-guess.
T.B. v. L.R.M., 753 A.2d 873, 881-82 (Pa.Super. 2000) (en banc) (cleaned
up).
The argument section of Father’s brief is deficient.3 In its entirety, the
section provides:
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3 Father’s legal argument is undeveloped and without citation to any legal
authority. It is beyond cavil that, “where an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to develop
the issue in any other meaningful fashion capable of review, that claim is
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Argument
My personal good track record and trying to be the most fit –
presenting father I can be and use a safe natural medicine now
approved by the PA state law should assumedly [sic] be
considered fit and allow. . . my natural rights as [F]ather [to be]
restored - as well as . . . [M]other in my argument as we both
should be by default fit until proven unfit. There [are] no grounds
to assume otherwise and request natural parents be given full
rights back to raise our child as we see fit and by default assume
that is one to fulfill the 16 factors of best interest of the child since
naturally we have instinct to care for our own flesh and blood and
successor to our genetics. [M]other and myself both love our child
very much and should be given in light of this a chance to be free
of control in the raising of our child.[4]
Conclusion
I am a [bona fide] medical marijuana participant with [a
Pennsylvania] ID card[.] [Grandparents did not present]
substantiated evidence to show abuse or suggest [that] I would
be unsafe around my child (as protected by medical marijuana
act). [M]other is an excellent parent and has shown to be
responsible with finding work and being there for my son as much
as [G]randparents allow. . . .
Father’s brief at 4-5. No relief is due.
Father’s claims invoke the Medical Marijuana Act, which provides, in
pertinent part,
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waived.” In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011). Instantly,
however, we address the merits of Father’s claim because the deficiency does
not interfere with our review of his central claim that the trial court ignored
the Medical Marijuana Act.
4Mother did not file a brief in this appeal. During the October 2018 custody
hearing, she noted her support of Grandparents’ continuing exercise of
primary custody, at least until she “can provide a nice home and a good school
and everything that comes along with that.” N.T., 10/17/18, at 52.
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(c) Custody determination.--The fact that an individual is certified
to use medical marijuana and acting in accordance with this act
shall not by itself be considered by a court in a custody
proceeding. In determining the best interest of a child with
respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating
to child custody) shall apply.
35 P.S. § 10231.2103 (c).
From the foregoing excerpt, the statements of questions presented, and
other declarative statements that Father asserts in his brief, we can discern
two facets to Father’s argument. Preliminarily, he contends that the trial court
erred in discounting as inadmissible the evidence that he produced to establish
his medical condition and his certification to use medical marijuana in
Pennsylvania. Father argues that the medical marijuana identification card
issued by the Commonwealth was admissible evidence under the business
record exception to the prohibition against hearsay. As to the evidence of his
underlying wrist injury and medical diagnosis, Father asserts that it would be
impractical to require him to present the testimony of his physician.
Unfortunately for Father, these arguments are predicated upon the
faulty legal position that, upon demonstrating his certification to use medicinal
marijuana, the Medical Marijuana Act barred the court from considering any
aspect of its use in reaching the best interest determination. As our review of
this latter aspect of Father’s claim is dispositive, we need only address the
merits of that component.
We reject Father’s contention that the trial court flouted the legislature’s
directive to forego consideration of marijuana use in the determination of
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L.P.’s best interests. Chiefly, this argument fails because the trial court did
not weigh the fact of Father’s purported certification against him. In reality,
the court examined Father’s well-documented history of recreational drug use,
including the allegations that Father laced his toddler’s food with marijuana,
incorporated those considerations into its best-interest determination, and
concluded that it served L.P.’s best interests to employ the proven custody
arrangement that had been in effect since 2012 and to reinstate the hair-
follicle-testing conditions of unsupervised custody. Trial Court Opinion,
4/5/19, at 12.
Plainly, the Medical Marijuana Act does not preclude the trial court from
making relevant findings concerning the effect of marijuana use, whether
medical or recreational, on a parent’s ability to care for his or her child.
Indeed, contrary to Father’s assertion, the Medical Marijuana Act expressly
reaffirms § 5328(a) as the controlling mechanism for determining a child’s
best interest. See 35 P.S. § 10231.2103(c) (“In determining the best interest
of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating
to child custody) shall apply.”). That statutory framework explicitly requires
the fact-finder to consider not only a parent’s history of drug and alcohol use
but also their mental health and physical conditions. Thus, rather than
requiring the court to ignore Father’s marijuana use, the Medical Marijuana
Act obligated the trial court to contemplate Father’s physical condition, i.e. the
nerve pain he complains of in his right wrist, and his reliance upon medication
to subdue that pain. By way of comparison, OxyContin®, Vicodin®, codeine,
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and morphine are legal substances when prescribed by a physician; however,
it is beyond cavil that, prior to making a custody determination, § 5328(a)
(14) and (15) mandates that a trial court consider how a parent’s legal use of
any of these substances impacts his or her child’s best interest. That is
precisely the analysis that the trial court performed in the case at bar.
Moreover, notwithstanding Father’s protestations to the contrary, the
certified record establishes that Father previously abused marijuana and was
unsafe around his child. In this vein, during the October 2018 evidentiary
hearing, Mother confirmed that she and Father engaged in the illegal use of
marijuana recreationally and recounted Father’s feeding to L.P. a marijuana-
laced snack. N.T., 10/17/18, at 47-48. While Father continues to challenge
the veracity of Mother’s testimony, the trial court made credibility
determinations in Mother’s favor on these precise points during the 2015
litigation, and since the certified record supports those findings, we will not
disturb them. See Trial Court Opinion, 6/25/15, at 8-9.
Accordingly, for all of the foregoing reasons, Father’s argument that the
trial court violated the Medical Marijuana Act is baseless. While that act
prohibits the fact-finder from penalizing a parent simply for utilizing medical
marijuana, the trial court did not deny Father’s motion to modify custody
simply because Father sought to utilize a medical marijuana card. In actuality,
following its consideration of the enumerated best-interest factors in light of
the testimony presented during the two-day evidentiary hearing, the trial
court concluded that it was not in L.P.’s best interests to expand Father’s
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three-hour period of supervised partial custody to unsupervised overnight
custody without requiring Father to continue to submit to the drug screening
regimen. Thus, no relief is due.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2019
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5 In addition to sustaining Grandparents’ exceptions for the above-referenced
reasons, the trial court accurately determined that the custody officer
neglected to address best interest factors two, fourteen, and fifteen in relation
to the unidentified members of Father’s household. See Trial Court Opinion,
4/5/19, at 14 (“It is unknown whether Father’s home is safe and appropriate
for the child at the present time. The Custody Conciliation Officer failed to
establish the identity and the background of the residents of Father’s home in
accordance with the [best interest] factors[.]”).
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