Collins, A. v. Collins, M. ( 2022 )

J-A24017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMANDA COLLINS N/K/A AMANDA : IN THE SUPERIOR COURT OF
CONNELLY : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1253 EDA 2022
MICHAEL COLLINS :
Appeal from the Order Entered April 18, 2022
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2018-60181
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 22, 2022
Amanda Connelly (“Mother”) and Michael Collins (“Father”) entered into
a stipulated custody agreement regarding their now five-year-old child, A.C.
(“Child”), and the Bucks County Court of Common Pleas entered an order
approving the agreement. The court ultimately modified the custody order,
allowing Father’s younger sister, C.K., (“Paternal Aunt”) to have unsupervised
contact with Child during Father’s custodial time and allowing Father’s mother
(“Paternal Grandmother”) to have supervised contact with Child during
Father’s custodial time. Mother appeals that modified order, arguing that this
modification puts Child’s safety at risk and is not in Child’s best interests. She
also complains the court abused its discretion by finding that Father was not
in contempt of the order. After review, we find that Mother has either waived
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her claim or failed to establish the court abused its discretion. We therefore
affirm.
The facts leading up to the modification of the custody order are not in
dispute. Mother initially filed a complaint in custody for Child in February 2018,
and Mother and Father entered into a stipulated custody agreement. The court
entered a custody order approving that agreement on February 8, 2018.
Under that order, Mother and Father shared legal custody, with Mother having
primary physical custody and Father having partial physical custody every
other Friday night. The stipulated order also specifically provided that “at no
time during Father’s partial custody or at any other time shall Father have
[Child] in the company of [Father’s older sister, J.C.] or [Paternal
Grandmother].” Custody and Stipulation Order, 2/8/18, at 2, ¶ 11.
Mother sought a temporary protection from abuse (“PFA”) order against
Father in June 2020, which the trial court granted. The PFA order limited
Father’s contact with Child to phone/Facetime and Zoom calls, and awarded
temporary sole physical custody to Mother. This PFA order was in effect from
July 27, 2020 through July 25, 2021.
On June 17, 2021, Mother filed a petition to modify the custody order,
seeking sole physical and legal custody of Child. Mother asked that Father only
be allowed supervised visitation as she had recently become aware that Father
had been convicted of sexual assault in 2004.
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Father also filed a petition for modification of the custody order in July
2021. In this petition, Father sought additional time with Child and requested
that “there be no restrictions such as supervised visit[ation] nor avoidance of
[Father’s] family members.” Petition on Behalf of Defendant Michael For
Modification of a Custody Order, 7/31/21, at 3. The court scheduled a
conference on both Mother’s and Father’s modification petitions for October
15, 2021.
Mother and Father, however, entered into another stipulated custody
agreement, which the trial court entered as an order on October 28, 2021.
This stipulated order awarded Mother primary physical custody, but it also
provided Father with additional custody time. Specifically, Father was to have
physical custody of Child: one weekday from 5 p.m. to 7 p.m. every week,
every other weekend from Friday evening through Sunday evening, on certain
holidays, and for two weeks of vacation each year. The stipulated order further
provided that “[u]nder no circumstances shall a person with a violent criminal
history be permitted around [Child].” Stipulation and Agreement Regarding
Child Custody, 10/27/21, at 4, ¶ 6. The order also provided that “neither party
shall disparage the other in front of [Child], nor allow others to do so in
[Child’s] presence, during his/her respective period of custody.” See id. at 4,
¶ 10.
Mother filed a petition of contempt just days after the court entered the
stipulated custody order. In her petition, Mother argued generally that Father
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had violated the custody order by disparaging her in front of Child and by
allowing Child to be around individuals with a violent criminal history. She did
not name those individuals in the petition.
A custody conference was held on the petition, but the parties were not
able to fully resolve the issues and the matter was listed for a hearing. In her
report, the custody conference officer noted Mother’s and Father’s unresolved
dispute regarding whether Paternal Aunt and Paternal Grandmother should be
permitted any contact with Child. The report included Mother’s concerns
regarding Paternal Grandmother, who had been convicted of child
endangerment in 1996, and Paternal Aunt, who had been convicted of armed
robbery and assault in 2016. The report also noted Father’s position that Child
should be allowed to have contact with Paternal Grandmother, given the age
of the endangerment conviction at issue, and that Child should also be allowed
to have contact with Paternal Aunt, as she had recently been released from
prison after serving her sentence for the armed robbery. See Report of the
Custody Conference Officer, 12/16/21, at 2-3.
The matter proceeded to a hearing on April 6, 2022, with the issues
limited to whether Father was in contempt of the custody order because he
had made disparaging remarks about Mother or allowed Child to be around
Paternal Grandmother and Paternal Aunt, and whether the custody order
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should be modified to allow Child to be in the company of Paternal
Grandmother and Paternal Aunt during Father’s custodial time.1
Mother testified at the hearing. She essentially maintained that both
Paternal Grandmother and Paternal Aunt were violent individuals who should
not have any contact with Child. To that end, Mother testified that Paternal
Grandmother had been convicted of child endangerment and had a past of
being violent towards her children, causing their removal from her care at one
point. Mother further testified that Paternal Aunt had been convicted of
robbery involving a firearm and then was convicted in November 2021 for an
offense stemming from her involvement in a physical altercation. Mother also
maintained that Child had been around both Paternal Grandmother and
Paternal Aunt during Father’s custody time, which violated the terms of their
custody order prohibiting contact with individuals with a violent criminal
history. According to Mother, Father had also violated the custody order by
making disparaging remarks about her on Facebook posts and in text
messages, which were admitted into evidence. Mother also testified that she
had a current PFA order against Father.
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1 Prior to the hearing, Mother filed a modification and amended contempt
petition, wherein she requested that the custody order be modified to
specifically name the individuals who were prohibited from being in Child’s
presence. Presumably, Mother’s request included Paternal Grandmother and
Paternal Aunt. In his answer, Father averred that neither Paternal
Grandmother or Paternal Aunt were violent individuals.
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Paternal Aunt testified after Mother. Paternal Aunt reported she had
been released from prison for the robbery conviction in August 2020 and
following that release, had been convicted of disorderly conduct. She shared
she had a history of drug addiction and mental illness, but was sober and
attending support programs, though she was not currently in treatment.
Paternal Aunt further testified she had been removed from the care of Paternal
Grandmother when she was a child, and agreed she had a “traumatic
childhood.” N.T., 4/6/22, at 64. However, according to Paternal Aunt, she now
sees Paternal Grandmother on an almost-daily basis, and Paternal
Grandmother loves Child very much and does not pose any threat to him. See
id. at 67.
Father then took the stand. He testified that Mother and Paternal
Grandmother had a history of fighting. He conceded he had been removed
from Paternal Grandmother’s care when he was a child due to violence and
that her behavior can be erratic. Father asserted, however, that he wanted
Child to have a relationship with Paternal Grandmother and Paternal Aunt
because they love Child. See id. at 77-78. He insisted he had never seen
Paternal Grandmother or Paternal Aunt hurt or berate Child. See id. at 78.
Following the hearing, the court entered an order denying the petition
for contempt, citing insufficient evidence. The court also modified the custody
order so Paternal Aunt “shall not be restricted from having contact with
[Child]” and Paternal Grandmother “shall only be allowed to be in the presence
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of [Child] if Father is physically present with her at the time.” Order, 4/19/22,
at 2.2
Mother filed a timely notice of appeal. Although Mother presents four
separate questions in her statement of questions presented section, she
provides only a single argument in the argument section of her brief. In
essence, Mother contends the trial court abused its discretion by modifying
the custody order to allow Paternal Aunt and Paternal Grandmother, who
Mother asserts have criminally violent backgrounds, to have contact with Child
and also abused its discretion by not finding Father in contempt. We conclude
Mother has failed to establish that the trial court committed an abuse of
discretion on either front.
“Our standard of review over a custody order is for a gross abuse of
discretion.” A.L.B. v. M.D.L., 239 A.3d 142, 147 (Pa. Super. 2020) (citation
omitted). Such an abuse of discretion will only be found if the “trial court, in
reaching its conclusion, overrides or misapplies the law, or exercises judgment
which is manifestly unreasonable, or reaches a conclusion that is the result of
partiality, prejudice, bias or ill will as shown by the evidence of record.” Id.(citation omitted).
Additionally, when we review a custody order:
We must accept findings of the trial court that are supported by
competent evidence of record, as our role does not include making
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2 The order also specifically provided that K.K., Father’s stepfather, is not
allowed to have any contact with Child. That modification is not contested.
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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.
Id. at 147-148. (citation omitted).
As with any custody matter, including petitions for modification, the
paramount concern is the best interest of the child involved. See Johns v.
Cioci, 865 A.2d 931, 936 (Pa. Super. 2004). Relevant to the case at hand, if
it is in the best interest of a child to have contact with a third party, the trial
court may allow for that contact. See MacDonald v. Quaglia, 658 A.2d 1343,
1346 (Pa. Super. 1995).
Here, Mother claims the court erred by modifying the custody
agreement to allow Child to be in the presence of Paternal Grandmother and
Paternal Aunt. In support, Mother recites testimony given at the hearing, and
makes general references to the evidence she presented at the hearing about
Paternal Aunt’s and Paternal Grandmother’s criminal history, history of drug
abuse and mental illness and lack of a bond with Child. She summarily asserts
that this evidence “should be sufficient enough to find a finding that Paternal
Aunt and Paternal Grandmother should not be around [Child], and can be
detrimental to [Child’s] wellbeing and safety.” Appellant’s Brief at 11.
In effect, Mother’s entire argument amounts to no more than a
disagreement with the court’s determination that, based on the testimony and
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evidence presented, it was in Child’s best interest to allow Paternal
Grandmother and Paternal Aunt to be in the company of Child during Father’s
custodial time. Merely expressing one’s disagreement with the court’s
decision, as Mother does here, simply does not establish that the court’s
conclusions were unreasonable in light of the record or that the court
committed a gross abuse of discretion by allowing contact between Child and
Child's two paternal relatives. See M.D.L., 239 A.3d at 147-148.
Nor do we discern any abuse of discretion by the trial court, which
extensively explained its reasons for allowing the contact:
Although there may have been criminal acts in the past by
Paternal Aunt and Paternal Grandmother, said acts were both
attenuated in time and place, and had not been directed toward
[Child]. Further, there was no evidence presented that Paternal
Aunt had ever been violent toward [Child], or any other child.
Mother did not present any reports or clinical notes from
therapists, doctors, teachers, or counselors supporting her
petition to bar Paternal Aunt and/or Paternal Grandmother from
contact with [Child].
Paternal Aunt conceded that she had been involved in an
armed robbery for which she completed her sentence. … Paternal
Aunt said she had been in therapy for drug addiction, and [had]
been in [various support] programs.
Paternal Grandmother and Paternal Aunt have both been
diagnosed as bipolar and are prescribed Seroquel. Paternal Aunt
credibly testified that Paternal Grandmother loves [Child] and
does not constitute a threat to him. Nonetheless, the Court did
place the restriction that Father must be in [the] presence of
Paternal Grandmother and [Child], at all times, during any periods
of contact.
***
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Father disputed Mother’s claims that Paternal Grandmother
and/or Paternal Aunt posed a threat to [Child]. Father testified
that both the Paternal Grandmother and the Paternal Aunt loved
[Child] and would never harm [him].
On cross-examination, Father conceded that a video of an
altercation between Paternal Grandmother and Mother was
authentic, but he said it dated back to approximately 2017. Father
testified that Paternal Grandmother had been violent towards him
when he was a child. Mother testified that she herself had been
the victim of child abuse in her youth, and that Father and her
shared a background of having been abused as youngsters.
No evidence was adduced at the April 6, 2022 hearing that
Paternal Grandmother or Paternal Aunt had ever committed any
violent act against [Child] or threatened [Child] with violence.
Also, although Paternal Aunt had been incarcerated for
participating in a robbery, she had served her time and obtained
post release counseling.
Trial Court Opinion, 5/24/22, at 8-10 (citations to notes of testimony omitted).
The court stated that after hearing “the testimony and evidence
presented by both Father and Mother[, it] had reasonably determined under
the applicable standard of review that the best interests of [Child] were to
permit contact [with] the Paternal Aunt, and supervised contact [with] the
Paternal Grandmother.” Id. at 6. Again, we see no abuse of discretion in the
trial court’s conclusion, and Mother’s bald protests to the contrary do not
convince us otherwise.
Mother also summarily asserts that Paternal Aunt and Paternal
Grandmother have no standing in this custody matter, and therefore no
custodial rights to Child. In the first place, this argument is waived for its sheer
lack of development. See Commonwealth v. Love, 896 A.2d 1276, 1287
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(Pa. Super. 2006) (stating that arguments that are not sufficiently developed
are waived).
However, even if not waived, the issue lacks merit. As the trial court
repeatedly stated, it had not vested any independent custodial rights in
Paternal Aunt or Paternal Grandmother, but rather, had merely allowed them
to have contact with Child during Father’s custodial time pursuant to Father’s
custodial rights. That contact was, the trial court explained, merely a
modification of Father’s custodial rights as outlined in the order. Mother does
not even address these conclusions by the trial court, much less establish they
were in any way erroneous.
We add that neither Paternal Aunt nor Paternal Grandmother filed any
petition seeking any kind of custodial rights to Child. Rather, it was Father’s
and Mother’s filings which sought clarification in the custody order as to
whether Paternal Grandmother and Paternal Aunt were permitted to be in the
presence of Child during Father’s custody time. The court modified Father’s
custody rights in the custody order in response to those filings. Accordingly,
in the end, Mother has failed to show, and we fail to see, an abuse of discretion
on the trial court’s part when it modified the custody order.
Mother also argues the court abused its discretion by denying her
petition for contempt. Much like in her first issue, Mother summarily claims
the trial court abused its discretion by not finding the evidence she presented
at the hearing established Father had made disparaging remarks about Mother
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in front of Child. She points out the trial court found that Father only told
Mother he was going to make disparaging remarks to Child, not that he had.
Mother asserts, however, that her testimony and the Facebook posts she
presented as exhibits at the hearing showed Father had, in fact, done so.
Nowhere in her brief does Mother specify what testimony or which Facebook
posts she is referring to, where they are in the record, or how their content
supports her contentions. This claim is waived. See Love, 896 A.2d at 1287;
Pa.R.A.P. 2119(c) (providing that when an appellate brief references a matter
appearing in the record, the brief must identify the place in the record where
the matter appears); Pa.R.A.P. 2119(d) (stating that when the refusal to find
a fact is argued, the argument must “contain a synopsis of all the evidence on
the point, with a reference to the place in the record where the evidence may
be found”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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