E.D. v. H.K., A.S. and A.S. ( 2015 )

J-A10016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
H.K., A.S., AND A.S.
Appellee No. 1752 MDA 2014
Appeal from the Order Entered September 26, 2014
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 10580-C OF 2005
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 17, 2015
Appellant, E.D., appeals from the September 26, 2014 order denying
her petition to modify the existing custody order and setting forth a custody
schedule between herself and Appellee, H.K., her former girlfriend, with
respect to the minor female child, H.M.S., born in January 2005.1 After
careful review, we vacate and remand for reconsideration and further
proceedings if necessary.
The trial court set forth the following factual and procedural history of
this case, as follows.
The current custody Order, dated July 16, 2014,
awards [Appellee], primary physical custody of the
child and partial physical custody to [Appellant] with
____________________________________________
1
H.M.S. is not the biological child of E.D. and H.K., as discussed infra.
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shared legal custody to both parties. [Appellant]’s
partial physical custody consists of every other
weekend from Friday until Sunday, every Wednesday
evening, and one week of vacation each June, July,
and August. H.M.S.’s natural parents are … [A.S.]
and [A.S.2] [A.S., the child’s biological mother,] and
[Appellant] are first cousins. The natural parents
had a difficult time taking care of H.M.S. in or around
May of 2005 and they began asking [Appellant] to
help them take care of the child. [Appellant]
testified that in November of 2005, the natural
parents indicated to [Appellant] they wanted her to
take care of [H.M.S.] On November 29, 2005, a
written stipulation was entered between the natural
parents and [Appellant] and [Appellee].[3]
[Appellant] and [Appellee] were in a relationship and
were residing together at the time. The written
stipulation was adopted by Court order which
awarded [Appellant] and [Appellee] primary physical
custody and legal custody of the child. Therefore,
[Appellant] and [Appellee] had primary physical
custody and legal custody of the child from
November 29, 2005 until 2007 when the parties
ended their relationship. [Appellant] and [Appellee]
then had a verbal agreement to share physical
custody. Their agreement provided three (3) days
with one party and four (4) days with the other, on
an alternating basis.
On January 23, 2007, [Appellant] sought
primary physical custody of [H.M.S] against
[Appellee] claiming that it was too difficult for the
child to live with the parties on a shared physical
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2
H.M.S.’s natural parents, A.S. and A.S., were not parties in the subject
proceedings before the trial court. Likewise, they are not parties in this
appeal.
3
We note that preliminarily an order was entered into between only
Appellant and the natural parents on September 20, 2005. By agreement of
the parties, said order was modified on November 29, 2005 to include
Appellee.
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custody basis. [On March 8, 2007, a temporary
order was entered, providing Appellant and Appellee
would continue to have shared physical and legal
custody of H.M.S.] A custody trial took place and
Judge Joseph Augello issued an opinion on October
9, 2007 awarding the parties shared legal custody,
[Appellant] primary physical custody and [Appellee]
partial physical custody on alternating weeks from
Friday at 5:00 p.m. until Tuesday at 6:00 p.m. and
an extra six (6) hours block of time on another day.
In the spring of 2013, a dependency petition
was filed by Children and Youth alleging that
[Appellant] was permitting her teenage son to smoke
marijuana with her and that she was misusing her
prescription medication. Due to the dependency
petition, H.M.S. was removed from [Appellant]’s
home in addition to the three (3) other children
residing with [Appellant]. Pursuant to the
dependency court order, temporary physical and
legal custody of the child was then awarded to
[Appellee] during the summer of 2013. On
September 9, 2013, [Appellant] was required to
complete services pursuant to the Family Service
Plan and had two hours of supervised visits with
H.M.S. [On January 13, 2014, a]fter the
dependency was closed in December of 2013,
[Appellant] filed a Petition to Modify the custody
Order and to reinstate her contact.
Trial Court Opinion, 11/17/14, at 2-3 (some citations omitted).
A hearing on Appellant’s petition occurred on September 3 and 19,
2014. Appellant testified on her own behalf and presented the testimony of
her boyfriend, E.P.; and her father and mother, F.K. and N.K. Appellee
testified on her own behalf and presented the testimony of her mother, L.K.;
Carol McMullen, a friend of Appellee and H.M.S. from church; and Jo Ann
Jason, who is an acquaintance of Appellee and H.M.S. from H.M.S.’s softball
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league. In addition, H.M.S. testified in camera, in the presence of the
parties’ counsel.
At the time of the hearing, Appellant testified that she is the biological
mother of two male children, C.C., age sixteen, and C.D., age seven, and
one female child, A.D., age five. N.T., 9/3/14, at 6-7. Appellant’s younger
children, C.D. and A.D., were born after she and Appellee separated, during
her marriage to C.D.4 N.T., 9/19/14, at 62. Appellant lives in West
Wyoming, in Luzerne County, with her biological children, her boyfriend,
E.P., and his eleven-year-old daughter, O.P. N.T., 9/3/14, at 6-7. Appellant
is not employed. Id. at 7.
Appellee lives with her mother, L.K., and other relatives in Laceyville,
in Wyoming County, in a home located on a 200-acre organic dairy farm.
Id. at 9, 11-12. Appellee’s home is a driving distance of approximately one
hour and 15 minutes from Appellant’s home. N.T., 9/19/14, at 56. Appellee
is employed as a marketing consultant, and she makes her own work
schedule. Id. at 9.
Appellant testified that, in the spring of 2013, a dependency action
was initiated involving H.M.S. and her biological children due to a report
made by her husband, C.D., alleging that Appellant smoked marijuana with
her then 15-year-old son, C.C. N.T., 9/3/14, at 20. In addition, arising
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4
At the time of the subject proceedings, divorce litigation was pending
between Appellant and C.D.
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from the same allegations, Appellant was criminally charged with
endangering the welfare of children. Appellant testified that C.D.’s
allegations were false. Id. at 20. Appellant testified that, as a result of the
dependency action, her biological children were placed in the temporary
custody of her parents. Id. at 22. By court order dated July 5, 2013,
H.M.S. was placed in the custody of Appellee. Id. at 22, 143-144.
In December 2013, the dependency action was closed, and in May
2014, the criminal charges against Appellant were dismissed. Id. at 23,
153-154. In addition, Appellant had appealed the indicated status for child
abuse that was lodged against her during the dependency action, and her
appeal was granted as the accusations were unfounded and the case was
closed. Id. at 24-25, 154.
On January 13, 2014, when Appellant filed the petition to modify the
existing custody order, H.M.S. had been in Appellee’s primary physical
custody for six months. By the time of the hearing, H.M.S. had been in
Appellee’s primary custody for more than 14 months, and she had attended
third grade in Appellee’s school district, Wyalusing Valley. H.M.S. testified in
camera, at which time she was nine years old and had just started fourth
grade. H.M.S. testified that she likes her new school and has friends there,
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but her preference was to return to the Wyoming Area School District.5
N.T., 9/19/14, at 65, 67-68. She testified as follows on inquiry by the trial
court.
Q. So, how do you feel about where you’re living and
going to school right now? How does that make you
feel?
A. I kind of like it.
Q. Would you want it to change?
A. Yeah. I want to go to Wyoming Area. I had more
friends there.
…
Q. [S]o, let me understand what you’re saying. Are
you saying that you would rather go to Wyoming
Area but still live with [Appellee]; or, are you saying
you rather go to Wyoming Area and - -
A. I want to live with [Appellant] and go to Wyoming
Area.
…
Q. If you had a magic wand and you can make
something come true, what is it that that would be?
A. That I can go to Wyoming Area and see my
friends.
Q. So you miss Wyoming Area because you miss
friends, or do you miss Wyoming Area because you
miss going to school there?
____________________________________________
5
H.M.S. attended the Wyoming Area School District while in Appellant’s
primary physical custody. N.T., 9/3/14, at 57.
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A. Miss going to school. I’ve been going to school
there since kindergarten.
Id. at 89, 91-92.
On September 26, 2014, the trial court denied the petition to modify
the existing custody order. The subject order made permanent the award of
shared legal custody between the parties, maintained primary physical
custody in Appellee, and partial physical custody in Appellant on alternating
weekends, from Friday at 5:00 p.m. until Sunday at 7:00 p.m., and every
Wednesday from 5:00 p.m. to 7:00 p.m. In addition, the order set forth a
holiday schedule.
On October 16, 2014, Appellant timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). On November 17,
2014, the trial court issued its Rule 1925(a) opinion.
On appeal, Appellant sets forth the following issue for our review.
[1.] Whether the trial court committed an error of
law and/or abuse of discretion in failing to properly
apply the statutory factors set forth in 23 Pa.C.S.A.
§ 5328(a) requiring a conclusion that it was in the
best interest and welfare of the minor child to return
and/or transfer custody to [] Appellant and whether
said decision was against the weight of the
evidence[?]
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Appellant’s Brief at 26.6
The scope and standard of review in custody matters is as follows.
[T]he appellate court is not bound by the
deductions or inferences made by the trial
court from its findings of fact, nor must the
reviewing court accept a finding that has no
competent evidence to support it…. However,
this broad scope of review does not vest in the
reviewing court the duty or the privilege of
making its own independent determination….
Thus, an appellate court is empowered to
determine whether the trial court’s
incontrovertible factual findings support its
factual conclusions, but it may not interfere
with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 775 A.2d
835, 838 (Pa. Super. 2001)). Moreover,
[O]n issues of credibility and weight of the
evidence, we defer to the findings of the trial
[court] who has had the opportunity to
observe the proceedings and demeanor of the
witnesses.
The parties cannot dictate the amount of
weight the trial court places on evidence.
Rather, the paramount concern of the trial
court is the best interest of the child.
Appellate interference is unwarranted if the
trial court’s consideration of the best interest
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6
We note that Appellant withdrew the other issue raised in her Rule
1925(a)(2)(i) statement asserting that the trial court failed to address the
Section 5328(a) factors, based on the trial court’s November 17, 2014 Rule
1925(a) opinion.
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of the child was careful and thorough, and we
are unable to find any abuse of discretion.
R.M.G., Jr., supra at 1237 (internal citations
omitted). The test is whether the evidence of record
supports the trial court’s conclusions. Ketterer v.
Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations
omitted).
Further, we have stated the following.
[T]he 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).
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual well-being.” Saintz v. Rinker,
902 A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d
674, 677 (Pa. Super. 2004).
Relevant to this custody case are the factors set forth in Section
5328(a) of the Child Custody Act (the Act), 23 Pa.C.S.A. §§ 5321-5340,
which provides as follows.
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§ 5328. Factors to consider when awarding
custody.
(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)(1) and (2) (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
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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.A. § 5328(a).7
This Court has stated that, “[a]ll of the factors listed in section
5328(a) are required to be considered by the trial court when entering a
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7
The Act was amended, effective January 1, 2014, to include the additional
factor at Section 5328(a)(2.1).
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custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)
(emphasis in original; citation omitted).
Section 5323(d) provides that a trial court “shall
delineate the reasons for its decision on the record in
open court or in a written opinion or order.” 23
Pa.C.S.A. § 5323(d). Additionally, “section 5323(d)
requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must
file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
(Pa. 2013)….
In expressing the reasons for its decision, “there is
no required amount of detail for the trial court’s
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), appeal denied, 68 A.3d 909 (Pa. 2013). A
court’s explanation of reasons for its decision, which
adequately addresses the relevant factors, complies
with Section 5323(d). Id.
A.V., supra at 822-823. With these standards in mind, we turn to the
merits of this appeal.
Instantly, in the subject order, without setting forth with specificity its
reasons in support of each factor, the trial court nevertheless stated that it
considered the Section 5328(a) custody factors in reaching its custody
determination. Custody Order, 9/26/14, at 2-3.8 In its Rule 1925(a)
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8
The custody order does not contain pagination. For ease of review we
have assigned each page a sequential page number.
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opinion, the trial court remedied said error and set forth its mandatory
assessment of the custody factors. Trial Court Opinion, 11/17/14, at 6-23.
On appeal, Appellant argues that the trial court committed an error of
law and/or abused its discretion in failing to weigh the Section 5328(a)
custody factors in her favor. Appellant’s Brief at 29. Specifically, Appellant
addresses each factor listed in Section 5328(a) in the order they appear.
The crux of her argument is that H.M.S. should be returned to her primary
physical custody because the dependency action has been closed, and the
criminal action against her dismissed. Id. at 46.
A review of the trial court’s opinion demonstrates that the trial court
found a majority of the factors did not weigh in favor of either Appellant or
Appellee. See Trial Court Opinion, 11/17/14, at 6-23. Specifically, under
Section 5328(a)(1), the trial court found that both parties “testified as to
problems they were having with each other regarding the other party not
likely encouraging and permitting frequent and continuing contact between
the child and that party.” Trial Court Opinion, 11/17/14, at 6. In its Rule
1925(a) opinion, the trial court reviewed the testimony involving the parties’
allegations and defenses thereto. Id. at 6-8. The trial court concluded that,
“[b]ased on the testimony of the parties and witnesses, and the parties’
explanation for their conduct, the [trial] court finds that there was not
sufficient testimony to indicate that either party would be more likely than
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the other to encourage and permit frequent contact versus the other.” Id.
at 8.
Next, in regards to Section 5328(a)(3), the parental duties performed
by each party on behalf of the child, the trial court found that, “both parties
provide for the daily needs of the child, through the performance of parental
duties.” Id. at 11. Likewise, the trial court did not find significant the
factors listed in Section 5328(a)(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, and Section 5328(a)(10), which party is
more likely to attend to the daily physical, emotional, developmental,
education and special needs of the child. Regarding these two factors, the
trial court found that, “[b]oth parties offer their love and support to the
child. Both parties have the child involved in sports activities and both
parties do homework with the child each night when the child is in their
custody.” Id. at 20. The testimonial evidence of the parties, H.M.S., and
the witnesses supports this finding. Additionally, the trial court found that
pursuant to Section 5328(a)(11), although the distance between the parties
homes was one hour and 15 minutes, it was in H.M.S.’s best interest to
spend time with both parents. Id.
Similarly, with respect to Section 5328(a)(13), the level of conflict
between the parties, and the willingness and ability of the parties to
cooperate with one another, “both [Appellant] and [Appellee] indicated in
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their testimony that the other party is not willing and able to cooperate with
the other.” Id. at 21. The trial court found that, while “communication
between the parties must improve in order to serve the best interests and
welfare of the child[,]” “there was no testimony to support the belief that
one party versus the other would in any way cooperate better than or be
ready to inform the other party of information regarding the child.” Id. at
22.
Finally, with respect to Section 5328(a)(12), each party’s availability
to care for the child or ability to make appropriate child-care arrangements,
the trial court found as follows.
Both parties are available to care for the child and
both parties are able to make appropriate child-care
arrangements. [Appellant] testified that she is a
“stay at home” mother and therefore available to
take care of the child. Her father and mother are
also available to help if needed. [Appellee] testified
that although she works full time, her work is flexible
which enable[s] her to take care of H.M.S. In the
event she is not available, her mother resides in the
same home and she is able to help if needed. Also,
[Appellee]’s grandmother can [ ] help with the bus
stop if needed. In the summer, [Appellee] also has
an accessible day care to use if needed. Therefore,
this factor does not weigh in favor of one party
versus the other.
Id. at 21. The testimonial evidence supports the trial court’s findings.
Accordingly, we discern no abuse of discretion by the court in its factual
findings with respect to Section 5328(a)(1), (3), (9), (10), (11), (12) and
(13), and the weight the court placed on these factors.
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Notably, however, there were only three factors the trial court found
weighed in favor of either Appellant or Appellee. Specifically, those factors
were, Section 5328(a)(4), the need for stability and continuity in the child’s
education, family life and community life, Section 5328(a)(6), the child’s
relationship with siblings, and Section 5328(a)(7), the well-reasoned
preference of the child.
The trial court weighed Section 5328(a)(4), the need for stability and
continuity in the child’s education, family life and community life,
significantly in favor of Appellee. The trial court found as follows.
Based on the parties’ testimony, it appears that both
parties show stability and continuity in family life;
however, it appears that [Appellee] offers more
stability and continuity in the child’s education and
community life. [Appellee] demonstrated stability in
insuring that the child arrives to school on time and
does not have excessive absences as compared to
the prior years of tardies and absences when the
child was under [Appellant]’s care. Furthermore,
although the child is involved in activities with both
parties, the child also is involved with her church
under [Appellee]’s care. The child participates in her
church by being the torch bearer and by working
with the elderly. The court finds that by insuring the
child arrives promptly to school, not having
excessive absences, being involved in church
activities by helping people[,] are lessons in life that
the child is learning and can utilize in her future as a
result of being under [Appellee]’s care.
Id. at 15.
The testimonial and documentary evidence the trial court relied on in
reaching this conclusion is as follows. During Appellee’s direct examination,
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her counsel introduced H.M.S.’s report cards from kindergarten through third
grade. N.T., 9/19/14, at 23. She testified that Appellant lived five minutes
from the school that H.M.S. attended while in her primary custody, which
was from kindergarten through second grade. Id. at 23-24. Appellee
testified that the kindergarten report card indicated that H.M.S. had four
absences and eleven tardies; the first grade report card indicated that
H.M.S. had thirteen absences and five tardies; the second grade report card
indicated that H.M.S. had eleven absences and nine tardies. Id. at 24. The
third grade report card, when H.M.S. was in Appellee’s primary physical
custody, indicated that H.M.S. had two and one-half absences and no
tardies. Id. Nowhere in the record, however, is any evidence explaining the
reasons for H.M.S. arriving to school late, or being absent. It is unclear
whether H.M.S. was sick, attending doctor’s appointments, had a death in
the family, etc., during these periods of time. Therefore, it is speculative to
assume these absences and tardies reflect negatively on Appellant, absent
any support in the record.
Further, and arguably more importantly, the record indicates H.M.S.
was thriving in school under Appellant’s care. Appellant testified that in
kindergarten H.M.S.’s school did not give grades, but in first and second
grade Appellant received mostly straight A’s, bringing home B’s only in
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math. N.T., 9/3/14, at 56-58.9 Specifically, Appellant testified that the
grades H.M.S. received were as follows.
Q. I’m going to show you a document which I’m
marking P-7 for identification. Would you please
identify this?
A. This is [H.M.S.]’s first grade report card.
…
Q. Okay. Can you please tell the Judge the grades
that your child had in first grade?
A. Reading first semester, they don’t give grades.
She got an S. And then she got an A, A, A-. English
first semester, there was no grade. And then she
got an A, A, A-. Spelling, there was no grade and
then A, A, A. Mathematics was an S. Second was A-
, B-, B.
Q. [H.M.S.] likes school?
A. She loves it.
Q. I’m going to show you what I’m marking as P-8.
Can you please tell us what P-8 is?
A. This is [H.M.S.]’s second grade report card.
Q. And can you please tell us her grades for grade
two?
…
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9
We note that the exhibits entered at trial were not made part of the
certified record. Nevertheless, Appellant testified to the content of the
exhibits, and thus, for purposes of our review we have quoted from the trial
testimony.
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A. Reading, A-, A-, A-, A-; English, A, A, A-, A-;
Spelling, A, A, A, A; Math, A, B, B, A-.
Q. Are you happy with her grades?
A. Yes.
Q. And this was while she was in your primary
physical custody?
A. Correct.
Q. I’m now going to show you what’s been marked
P-10 for identification and ask you to identify P-10.
What is P-10?
A. This was [H.M.S]’s first quarter report card from
Wyalusing.
Q. Now, why was she - - when was this? This was
the first semester of what year?
A. Of last year, third grade.
Q. And she was in the custody of whom at that
point?
A. [Appellee].
…
Q. Can you please tell the Court what her grades
were while she was in the custody of [Appellee] in
Wyalusing?
A. Reading was an 86, B. Math was an 88, B.
Spelling was a 97, A. Composition was a 92, B.
Science was an 83, C. Social Studies was a 77, D.
Id. at 56-59. As evidenced by this testimony, the trial court’s conclusion
that H.M.S. should remain in Appellee’s care based on her attendance record
clearly fails to take into consideration the far more important issue, H.M.S.’s
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academic success under Appellant’s care. Further, the record indicates that
after H.M.S. was removed to Appellee’s custody, Appellee was not providing
Appellant with H.M.S.’s report card upon request. Id. at 42-43.
In the same portion of her testimony, Appellant stated that despite
multiple requests to Appellee for H.M.S.’s softball schedule, Appellee
continued to ignore her requests and failed to provide her with the schedule.
Id. at 43. Appellant’s testimony indicates that when H.M.S. resided with
her, H.M.S was involved in bowling, softball, and dance twice a week, taking
tap, jazz and ballet. Id. at 61. Appellant provided photographic evidence of
H.M.S.’s extensive trophy collection earned throughout her several seasons
in her bowling league, noting however, that last season Appellant only
received one trophy as she missed one-quarter of the season. Id. at 64
With respect to H.M.S.’s involvement in Appellee’s church, Appellee
testified that she belongs to St. Luke’s Episcopal Church in Scranton. N.T.,
9/19/14, at 18. Appellee, upon identifying photographs of H.M.S. introduced
as exhibits, testified to the following.
[H.M.S.] loves to help out at the church with an
event that we have. It’s called Senior Base. It’s
where we invite the seniors that live in the
downtown high rises to come in. We feed them, and
we have entertainment and door prices [sic].
Id. at 15-16. Appellant, however, also testified that when H.M.S. is in her
care every other weekend Appellant, E.P., H.M.S. and all of the other three
children attend church as a family. N.T., 9/3/14, at 69. Accordingly, the
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record evidence demonstrates that Appellant and Appellee are both making
sure that H.M.S. regularly attends church. Accordingly, we conclude that the
record does not support the trial court’s finding that this factor weighs in
favor of Appellee.
Turning to the next factor, Section 5328(a)(6), the child’s relationship
with siblings, the trial court stated that “[a]lthough the tenet of custody law
is to raise siblings together, that tenet is only one factor and it is not
controlling.” Trial Court Opinion, 11/17/14, at 27 (citation omitted).
Appellant has three biological children, as well as E.P.’s daughter, O.P., living
in her home. H.M.S. refers to all of these children as her brothers and
sisters. N.T., 9/3/14, at 79. Additionally, H.M.S. has two biological younger
sisters, who live with H.M.S.’s biological mother, but H.M.S. believes they
are her cousins.10 Id. at 76. Appellant testified that these two children are
in the same bowling league as H.M.S., and she sees them while bowling on
Saturday mornings. Id. The trial court reasoned that H.M.S.’s “stability and
her school attendance are compelling factors which outweigh the policy of
raising H.M.S. with her cousins whom she believes are her brothers and
sisters.”11 Trial Court Opinion, 11/17/14, at 17.
____________________________________________
10
Appellant testified that they will eventually inform H.M.S. that the girls are
her sisters.
11
As clarified above, the opposite is actually true. The two girls the trial
court is referencing are actually H.M.S.’s biological siblings, who live with
(Footnote Continued Next Page)
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Additionally, as to Section 5328(a)(7), the well-reasoned preference of
the child based on the child’s maturity and judgment, the trial court
concluded that although H.M.S. has expressed that she would rather live
with Appellant, “the child’s preference is an important factor to be
considered in a custody action, [but] a child’s expressed wishes are not
controlling[.]” Id. at 19 (citation omitted); see also Cardamone v.
Elshoff, 659 A.2d 575, 583 (Pa. Super. 1995) (citations omitted).
Moreover, this Court has explained that, “[t]he weight to be given to a
child’s preference can best be determined by the judge before whom the
child appears.” Id. (citations omitted). In this case, the trial court
considered H.M.S.’s preference but concluded it was not determinative for
the following reasons.
Although H.M.S. testified that she prefers to reside
with [Appellant] and attend Wyoming Area, the [trial
c]ourt does not believe it is in the child’s best
interest to reside with [Appellant]. Based on the
testimony of witnesses and parties, [Appellee] offers
H.M.S. a more stable home environment and insures
that she is thriving academically. When [Appellant]
was in charge of taking H.M.S. to school from
Kindergarten through second (2nd) grade, [Appellant]
exhibited a consistent pattern of H.M.S. having
excessive tardiness and absences from school. As
the child gets older, the school subjects tend to be
more complicated and should H.M.S. continue to
miss school on a consistent basis, her grades would
more than likely be je[o]p[a]rdized. Also, [Appellee]
_______________________
(Footnote Continued)
H.M.S.’s biological mother, but H.M.S. believes are her cousins. N.T.,
9/3/14, at 76.
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is insuring that [the] child thrives not only
academically, but also spiritually by having the child
involved in church activities and by helping the
elderly. Th[is] forms an appreciation of helping
others in life. Aside from church activities,
[Appellee] is also permitting the child to try new
activities such as karate and girl scouts.
Trial Court Opinion, 11/17/14, at 19. Further, the trial court acknowledged
that H.M.S. calls Appellee “Meme,” and Appellant “Mommy,” nevertheless,
the trial court concluded that Appellee “offers H.M.S. with a more stable
home environment and insures that she is thriving academically.” Id.
After careful review, we conclude the trial court abused its discretion.
Our standard of review dictates that we must examine the record evidence
to see if the trial court’s conclusion is supported by the record. A.V., supra
at 820. The trial court elected not to modify custody despite its
determination that Sections 5328(a)(6) and (7) did weigh in Appellant’s
favor, and to base its decision solely on weighing Section 5328(a)(4) in
Appellee’s favor. The trial court placed undue emphasis on the amount of
times H.M.S. was late to, or missed school, without any evidence that said
tardies or absences in any way affected her performance or in any way were
related to adverse parenting on the part of Appellant. Furthermore, the
record evidence illustrated that H.M.S. was actually thriving academically
under Appellant’s care, and has had a decline in her academic performance
over the year she resided in Appellee’s care.
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Because the trial court found only Section 5328(a)(4) in favor of
Appellee, a factor which we conclude was an abuse of discretion as the
record evidence does not support the trial court’s finding, we are constrained
to vacate the trial court’s custody order.
Based on the foregoing, we conclude the trial court abused its
discretion when it denied Appellant’s petition for modification. See Johns v.
Cioci, 865 A.2d 932, 944 (Pa. Super. 2004). On remand, the trial court
shall reconsider the hearing testimony from September 3rd and 19th, and if
necessary, conduct a new custody hearing. Accordingly, the trial court’s
September 26, 2014 order is vacated, and the case is remanded for further
proceedings, consistent with this memorandum.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2015
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