D.D. v. L.D. Appeal of: D.D. & D.D. ( 2015 )

J-A22025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
L.D
APPEAL OF: D.D. & D.D.
No. 426 MDA 2015
Appeal from the Order Entered February 25, 2015
In the Court of Common Pleas of York County
Civil Division at No(s): 2009-FC-002198-03
2011-FC-001241-03
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED AUGUST 28, 2015
Appellants D.D. & D.D. (“Grandparents”) appeal from the order
entered in the York County Court of Common Pleas awarding sole legal and
primary physical custody of their daughter’s child (“Child”) to L.D. (“Father”)
and awarding Grandparents custody on alternating weekends. We affirm.
Child was born in March 2008. Mother and Child lived with
Grandparents for Child’s first year, at which time Mother and Child moved in
with Maternal Great-Grandmother for about six months. N.T., 2/19/2015, at
84-85. Mother and Child then moved in with Mother’s fiancé for about a
year and a half. Id. at 85. Mother and Child then returned to Grandparents
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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home. Id. Mother and Child moved back in with Great Grandmother, before
returning to live with Grandparents in the summer of 2012. Id. at 85, 87.
They remained with Grandparents until Mother died of a drug overdose on
August 30, 2014.1 Id. at 85, 87.
On February 19, 2010, the trial court issued a stipulated custody
order, which provided Mother with primary physical custody and Father with
partial physical custody every other week from Wednesday at 9:30 a.m.
until Friday at 2:00 p.m.2 The parties shared legal custody. In September,
2012, after Mother was arrested for heroin offenses, Father filed a Petition
for Special Relief and Petition to Modify Custody.3 On September 18, 2012,
the trial court granted Father’s petition for special relief and awarded Father
sole legal and physical custody of Child.
Grandparents then sought primary physical custody of Child. On
March 1, 2013, the trial court issued an order providing for shared physical
custody between Mother and Father. Mother had custody from Thursday at
____________________________________________
1
The exact time periods of Mother’s time spent away from Grandparents’
house varies in the testimony.
2
In October, 2011, Grandparents were awarded visitation on every third
weekend of the month.
3
It appears Mother spent one to two nights in jail and entered drug court for
the heroin offenses. She was incarcerated for 1 to 2 weeks for violating
probation. N.T., 2/19/2015, at 86.
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8:30 p.m. until Monday at 5:30 p.m. and Father had the remainder of the
week.4 Grandparents received no custody rights.
On August 30, 2014, Mother passed away. Father took custody of
Child. On September 19, 2014, Grandparents filed a petition to modify
custody seeking sole legal and primary physical custody of Child.
On October 23, 2014, the trial court issued an interim custody order,
providing Father with sole legal custody and primary physical custody of
Child and awarding Grandparents custody on alternate weekends.
On February 27, 2015, following a February 19, 2015 custody trial, the
trial court issued an opinion and final order for custody awarding Father sole
legal and primary physical custody. Grandparents were awarded custody on
alternate weekends.
Grandparents filed a timely notice of appeal. Both Grandparents and
the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following claims on appeal:
A. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in determining that
neither party is more likely than the other to encourage
and permit frequent and continuing contact between the
child and the other party/parties where Father has shown
____________________________________________
4
Grandmother testified the parties did not follow this schedule after Child
started school. Rather Child was with Mother on weekdays and Father on
weekends. N.T., 2/19/2015, at 93. She testified they changed it because
Father was unable to transport Child to school during the week because he
did not drive. Id. at 93-94. Father’s house is within walking distance to
Child’s current school.
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repeatedly that he has no respect for Grandparents’ rights
of custody?
B. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in failing to
integrate its finding of contempt against [F]ather in its
best interests analysis?
C. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in determining that
[F]ather performed basic parental duties for [Child] during
his custodial time?
D. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in determining that
stability and continuity in [Child’s] education, family, and
community life would be served by awarding physical
custody to [F]ather where [] Child had lived primarily with
Mother and Grandparents almost all of her life and
attended school in their district for the year prior to Father
be [sic] awarded primary custody?
E. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in determining that
the well-reasoned preference of [Child] only slightly
favored Appellants where [C]hild clearly indicated her
preference to remain with Grandparents and attend
Wrightsville Elementary School?
F. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in determining that
each of the parties was likely to maintain a loving, stable,
consistent and nurturing relationship with [Child] where
the evidence clearly indicates that Father is not nurturing
of [Child] and Grandmother is very nurturing?
G. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in determining that
Appellants would have a need for alternative child care
arrangements which was any greater than arrangements
needed by [F]ather?
H. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in determining that
the level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another
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favored [F]ather, especially in light of the expert testimony
and report, as well as the testimony of the parties?
I. Whether the trial court erred as a matter of law and
committed a gross abuse of discretion in determining it did
not have the benefit of clear and convincing evidence that
[Child’s] best interests would be served by an award of
primary physical custody to Appellants where there was
uncontroverted opinion by an expert that Grandparents
should be awarded primary custody?
Appellants’ Brief at 4-6.
In a custody action “between a parent of the child and a nonparent,
there shall be a presumption that custody shall be awarded to the parent.
The presumption in favor of the parent may be rebutted by clear and
convincing evidence.” 23 Pa.C.S. § 5327(b). The “burden of proof and of
persuasion is on the non-parent, and that burden is heavy.” E.A.L. v.
L.J.W., 662 A.2d 1109, 1113 (Pa.Super.1995) (quoting Ellerbe v. Hooks,
416 A.2d 512 (Pa.1980)). The court, however, “may award custody to a
third party ‘where the best interests of the child will be clearly served by
such a decision.’” Id. (quoting Albright v. Commonwealth ex rel.
Fetters, 421 A.2d 157, 160 (Pa.1980)).
“The standard of clear and convincing evidence means testimony that
is so clear, direct, weighty, and convincing so as to enable the trier of fact to
come to a clear conviction, without hesitation, of the truth of the precise
facts in issue.” V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa.Super.2012) (quoting
In re B.C., 36 A.3d 601, 605–606 (Pa.Super.2012)).
This Court has stated:
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What the judge must do, therefore, is first, hear all
evidence relevant to the child’s best interest, and then,
decide whether the evidence on behalf of the third party is
weighty enough to bring the scale up to even, and down
on the third party’s side.
V.B., 55 A.3d at 1199 (quoting McDonel v. Sohn, 762 A.2d 1101, 1107
(Pa.Super.2000)). Further,
[O]ur Supreme Court noted that “these principles do not
preclude an award of custody to the non-parent. Rather
they simply instruct the hearing judge that the non-parent
bears the burden of production and the burden of
persuasion and that the non-parent’s burden is heavy.”
Essentially, the Supreme Court determined, “where
circumstances do not clearly indicate the appropriateness
of awarding custody to a non-parent, we believe the less
intrusive and hence the proper course is to award custody
to the parent or parents.”
Id. (quoting Ellerbe, 416 A.2d at 514).
When addressing custody issues:
[T]he court shall determine the best interest of the child by
considering all relevant factors, giving weighted
consideration to those factors which affect the safety of the
child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf
of the child.
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(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328.
This Court’s standard of review is:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must
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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., 55 A.3d at 1197 (Pa.Super.2012) (quoting A.D. v. M.A.B., 989 A.2d
32, 35–36 (Pa.Super.2010)).
Here, the trial court discussed the best-interest factors as follows:
The first inquiry the [c]ourt must make is which party is
more likely to encourage and permit frequent and
continuing contact between the child and the other party.
Dr. Thomas’s report reflects that Father is uncomfortable
with the thought of Maternal Grandparents having any
rights to custody which exceed one weekend per month.
Pl.s Ex. 6, at 20. Father exhibited his disdain for sharing
custody in his own testimony. However, in the brief time
since Mother’s passing, the parties have had one incident
involving a custody exchange, which could have been
handled better by Maternal Grandparents. Following the
[p]retrial [c]onference, this [c]ourt ordered an exchange
during the holidays to occur at 2 p.m., but Father was
under the understanding that the pickup was to occur at
the regularly scheduled time of 5 p.m. When Father
arrived to pick up [Child], Maternal Grandparents refused
to exchange custody because Father was late with no
notification. While Maternal Grandparents were technically
correct, they could have been more flexible given that it
appears that Father made an honest mistake as to the
pick-up time. Therefore, based on the history of the parties
and the reluctance on both sides to permit frequent and
continuing contact, the [c]ourt finds that this factor is
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neutral and that both parties need to improve in this
regard.
The second consideration is present or past abuse
committed by either party or a member of a party’s
household and whether there is a continued risk of harm to
the child. Because there is no history of abuse by either
party, the [c]ourt finds that this factor favors neither
party.
The third factor that the [c]ourt must consider is the
parental duties performed by each party on behalf of the
child. Both parties perform basic parental duties for [Child]
during their custodial time. The [c]ourt therefore finds
that this factor favors neither party.
The next factor for consideration is the need for stability
and continuity in the child’s education, family life, and
community life. [Child] has undoubtedly experienced
substantial change in the past year. Despite this, she has
been doing well in school and at home. Father has had
primary custody since Mother’s passing, but Mother
previously had primary custody while living with Maternal
Grandparents. Given that [Child] is doing well under the
current schedule, this factor slightly favors Father.
The [c]ourt must next consider the availability of extended
family and the child’s sibling relationships. Both parties
have extended family in the general area, and [Child] has
no siblings. These factors favor neither party.
The next factor to consider is the well-reasoned preference
of the child, based on the child’s maturity and judgment.
[Child] expressed a desire to attend her old school -
Wrightsville Elementary, which she attended while living
with Mother and Maternal Grandparents - because she had
more friends there. This is corroborated by Dr. Thomas’s
report. See Pl.’s Ex. 6, at 23. [Child] also stated that she
had some friends at her new school and enjoyed it as well.
Based on [Child’s] age and maturity, the [c]ourt finds that
this factor weighs slightly in favor of Maternal
Grandparents.
The next factor to be considered is any attempts of a
parent to turn the child against the other parent, except in
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cases of domestic violence. As neither party expressed
concern, this factor is neutral.
Next, the [c]ourt must consider which party is more likely
to maintain a loving, stable, consistent and nurturing
relationship with the child adequate for the child’s
emotional needs. Both parties clearly want the best for
[Child], and each party believes that their home provides
the more stable, consistent, and nurturing environment.
The [c]ourt does not find that this factor favors either
party.
The next consideration is which party is more likely to
attend to the daily physical, emotional, developmental,
educational, and special needs of the child. Both parties
properly care for [Child] during their custodial time, and
both parties have taken steps to aid in [Child’s] emotional
development in the past year. At the time of Dr. Thomas’s
evaluation and again at the time of trial, [Child] exhibited
significant attachment to Maternal Grandmother. Given
[Child’s] significant emotional needs since Mother’s death
and the Maternal Grandparents’ resources and relationship
with her to help meet those needs, the [c]ourt finds that
this factor favors Maternal Grandparents.
Next, the [c]ourt must consider the proximity of the
residences of the parties. The parties reside approximately
20-30 minutes apart, so this factor is not significant to
[Child’s] best interests.
The next enumerated factor is each party’s availability to
care for the child or ability to make appropriate child-care
arrangements. Father lives with Paternal Grandmother,
who testified that she is always available for childcare.
Maternal Grandparents testified that they should always be
available to care for [Child] during their custodial time.
However, due to Maternal Grandparents’ irregular work
schedules, there is the potential for the need for
alternative childcare arrangements. Therefore, the [c]ourt
finds that this factor slightly favors Father, but is not
significant to [Child’s] best interests.
The [c]ourt must next consider the level of conflict
between the parties and the willingness and ability of the
parties to cooperate with one another. Each party testified
to the significant level of conflict between Father and
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Maternal Grandparents. Dr. Thomas’s report and
testimony suggest that Father is “likely to be stress
reactive and worry prone,” and that he is vulnerable to
“being suspicious of and mistrustful of others.” Pl.’s Ex. 6,
at 18. The [c]ourt believes that this aspect of Father’s
personality has a substantial negative impact on the
parties’ ability to communicate and cooperate. However,
Maternal Grandparents find difficulty in communicating
effectively with Father, as well. Maternal Grandparents
clearly do not like Father and have shown hostility towards
him. It has long been held that hostility between parents
and grandparents could lead to “devastating
consequences” for the child, and the existence of such
animosity is sufficient to deny partial custody to the
grandparents without a showing that actual harm to the
child has already resulted. Zaffarano v. Genaro, 455
A.2d 1180 (Pa.1983); Wick v. Wick, 403 A.2d 115
(Pa.Super.1979). This factor therefore favors Father.
The [c]ourt must also address any history of drug or
alcohol abuse by a party or a member of a party’s
household. Because neither party has a known history of
drug or alcohol abuse, the [c]ourt finds that this factor is
neutral.
The [c]ourt must also consider the mental and physical
condition of a party or member of a party’s household.
Because there are no known physical or mental conditions
relevant to the best interests of [Child], this factor is
neutral.
The next factor is any Children, Youth, and Families
involvement with the case. There is no history of
involvement with CYF, and therefore this factor is also
neutral.
Lastly, the [c]ourt must consider any other relevant issue.
Two relevant issues work to the Maternal Grandparents’
favor: [Child] resided with Maternal Grandparents for four
out of the previous six years of her life, and she has
developed a strong emotional attachment to them.
Additionally, Father does not have a driver’s license, which
may make a shared arrangement more difficult.
While the [c]ourt finds Dr. Thomas’s report and testimony
to be highly credible and the factors to weigh somewhat in
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Maternal Grandparents’ favor, the [c]ourt does not have
the benefit of clear and convincing evidence that [Child’s]
best interests will be served by an award of primary
custody to Maternal Grandparents. Therefore, the [c]ourt
grants Father sole legal and primary physical custody of
[Child]. Maternal Grandparents will be awarded significant
rights of partial physical custody, given [Child’s] strong
emotional attachment to Maternal Grandparents, Maternal
Grandparents’ greater resources, the unlikelihood of Father
fostering a relationship between [Child] and Maternal
Grandparents, and the expressed desire of [Child] to see
all of the parties. The [c]ourt believes that it is in [Child’s]
best interests for Maternal Grandparents to exercise
physical custody on alternate weekends and for half of the
summer months. An [o]rder will be entered in
conformance with this [o]pinion.
Opinion, 2/27/2015, at 3-6.
Grandparents first challenge the trial court’s determination that neither
party is more likely than the other to encourage and permit frequent and
continuing contact between Child and the other party. Appellants’ Brief at
15-16. At the hearing, the trial court received the following evidence:
Father did not wish to share custody with Grandparents; Grandparents
refused Father his custody period when he mistakenly arrived three hours
late; and Father withheld Child on Grandparents’ weekend, as he missed his
prior custody period. See Peter H. Thomas, Ph.D., Psychological Evaluation
for Child Custody, at 20 (Father did not want to share custody with
Grandparents); N.T., 2/19/2015, at 174-77 (when Father mistakenly
believed exchange time was 5:00, rather than 2:00, and arrived for the
exchange at 5:00, Grandparents refused to allow him his time); N.T.,
2/19/2015, at 115-16 (Father did not permit Grandparents to take custody
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of Child for weekend); Opinion, 2/25/2015, at 8-9 (Father withheld custody
to make up for the time he lost when Grandparents withheld custody). The
trial court acted within its discretion in finding this factor favored neither
party.
Grandparents next claim the trial court abused its discretion when it
failed to integrate its finding of contempt against Father into its best interest
analysis. Appellants’ Brief at 16. Regarding the contempt finding, the trial
court found:
With respect to the petition for contempt, the [c]ourt finds
that Father did violate the [o]rder dated October 23, 2014,
by withholding custody during Maternal Grandparents’
custodial time to make up for the time that he lost when
Maternal Grandparents withheld custody during the
holidays. Although, as mentioned, Maternal Grandparents’
withholding of custody was not a violation of the [o]rder, it
was a display of unwillingness to cooperate with Father.
Given the forgoing, the [c]ourt will not impose any
sanctions for Father’s violation of the [o]rder.
Opinion, 2/15/2015, at 8. The trial court viewed Father’s non-compliance as
a violation of the order, but also noted Grandparents showed an
unwillingness to cooperate with Father and it chose to not sanction Father.
Given the circumstances of the violation, the trial court did not err by not
expressly considering this violation in its analysis.
Grandparents’ third issue claims the trial court erred when it
determined Father performed basic parental duties for Child. Appellants’
Brief at 16-17. Grandparents focus on Father’s “historical lack of
involvement with [Child].” Appellants’ Brief at 17. Although Father was
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absent when Child was an infant, he has had at least partial custody since
2010, and has had shared or primary custody since September of 2012.
Further, contrary to Grandparents’ contentions, Father has taken Child to the
doctor, dentist, and eye doctor. N.T., 2/19/2015, at 248-49. There was no
evidence Father did not properly care for Child. The trial court did not err in
finding both Father and Grandparents perform basic parental needs.
Grandparents next contend the trial court erred when it found that
stability and continuity in Child’s education, family, and community life
would be served by awarding physical custody to Father. Appellants’ Brief at
18. Grandparents analogize this case to Albright v. Commonwealth ex
rel. Fetters, 421 A.2d 157 (Pa.1980) and Ellerbe v. Hooks, 416 A.2d 512,
513 (Pa.1980). In Albright, after their parents’ divorce, the two minor
children lived with their grandparents for four years. After that time, they
lived with their mother and their half-brother on weekdays, and visited
Father one weekend a month. They spent every summer with the
grandparents as well as three out of every four weekends during the winter.
After their mother passed away they remained with the grandparents. The
trial court awarded custody to the grandparents, not the father, reasoning
the children had been in chaotic conditions throughout their lives and the
grandparents’ home “had proven to be the single stabilizing factor in their
lives” and custody with the father would separate the children from their
stepbrother. Id. at 160.
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In Ellerbe, the Supreme Court of Pennsylvania found the trial court
did not err in awarding custody to the grandmother where “[child], then
eleven years old, had been living with her grandmother since she was less
than two years old. [Child] had developed stable and happy relationships
with her grandmother, with neighborhood friends and, importantly, at
school.” 416 A.2d at 515.
Unlike Albright and Ellerbe, Father has had at least partial custody
of Child since 2010, and has had shared or primary custody since 2012.
Although Grandparents had visitation rights prior to Mother’s death, they
never had custody of Child. Rather, when Child resided with Grandparents,
Mother also resided with them. The trial court did not err in finding this
factor favored Father.
Grandparents’ fifth claim alleges the trial court erred when it
determined the well-reasoned preference of Child only slightly favored
Grandparents. Appellants’ Brief at 21-22. The trial court found:
[Child] expressed a desire to attend her old school -
Wrightsville Elementary, which she attended while living
with Mother and Maternal Grandparents - because she had
more friends there. This is corroborated by Dr. Thomas’s
report. See Pl.’s Ex. 6, at 23. [Child] also stated that she
had some friends at her new school and enjoyed it as well.
Based on [Child’s] age and maturity, the [c]ourt finds that
this factor weighs slightly in favor of Maternal
Grandparents.
Opinion, 2/27/2015, at 5. The trial court did not err. The trial court
considered Child’s testimony, which focused on her preference for her prior
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elementary school, but noted that “[b]ased on [Child’s] age and maturity, . .
. this factor weighs slightly in favor of [Grandparents].”
Grandparents’ sixth claim maintains the trial court erred in
determining both parties were likely to maintain a loving, stable, consistent,
and nurturing relationship with Child. Appellants’ Brief at 22-23. Based on
the testimony presented, including Father’s and Child’s testimony, the trial
court did not err. Grandparents rely on the expert report, which noted the
expert observed no nurturing during the session. However, the session with
Father was a half hour session, during which Father was answering
questions. N.T., 2/19/2015, at 53, 222. Father testified he has a consistent
job, and walks Child to and from school if weather permits, they play, he
grocery shops for Child and cooks for her, and he helps Child with her
homework. N.T., 2/19/2015, at 218, 233, 238, 246, 255-56. Child also
testified that Father played with her. Id. at 68. Although Grandmother may
be more nurturing, there is no indication Father does not provide a loving,
stable, consistent, and nurturing relationship.
Grandparents’ seventh claim is that the trial court erred when it found
Grandparents would have a greater need for daycare than Father.
Appellants’ Brief at 24-25. The trial court found this factor slightly favored
Father, as his mother was always available to care for Child, but it was “not
significant to [Child’s] best interest.” Opinion, 2/27/2015, at 6. Therefore,
the trial court did not give this factor any weight in the best interest
analysis.
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Grandparents’ eighth claim asserts the trial court erred in finding the
level of conflict between the parties and the willingness and ability of the
parties to cooperate with each other favored Father. Appellants’ Brief at 25.
The trial court adequately addressed this issue, including that Father was
vulnerable to “being suspicious and mistrustful” and Grandparents have
shown hostility toward Father. See Opinion, 2/27/2015, at 7. The trial
court acted within its discretion and did not err.
Grandparents’ last issue claims the trial court erred when it did not
find clear and convincing evidence that Child’s best interest would be met by
custody with Grandparents. Appellants’ Brief at 28-29. Again, the trial court
did not err. As outlined above, the trial court considered all factors, and all
evidence and testimony presented. Grandparents had a heavy burden, clear
and convincing evidence, which they failed to meet.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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