D.W. v. S.A. Appeal of: S.A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
S.A.,
Appellant No. 300 MDA 2015
Appeal from the Order entered January 12, 2015
in the Court of Common Pleas of York County
Civil Division, at No(s): 2014-FC-001647-03
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER*, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 14, 2015
S.A. (“Father”) appeals pro se from the order entered on January 12,
2015, awarding D.W. (“Maternal Aunt”) sole legal and physical custody of
the minor child, K.A.D. (“Child”) born in 2000. The order awarded Father,
who is incarcerated, partial supervised physical custody of Child as the
parties may from time to time agree, and as supervised by Maternal Aunt or
her designee, until such time as the court is able to assess Father’s threat of
harm to Child. We affirm.
M.A. (“Mother”) and Father were the natural parents of Child.
Mother, who was married to Father, died unexpectedly in December 2013.
Father is currently incarcerated in the York County Prison. Child has been in
*
Retired Senior Judge assigned to the Superior Court.
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the custody of Maternal Aunt, who resides in York and has been serving in
loco parentis since Mother’s death.
On September 11, 2014, Maternal Aunt filed a complaint in custody,
seeking sole legal custody and sole physical custody of Child. The court
entered an order that appointed a custody conciliator and directed the
parties to attend a custody conciliation conference, in person, on September
29, 2014. The conciliation order further directed Father to be evaluated as
to criminal offenses that would preclude the court from entering an award of
custody to him, including driving under the influence of alcohol or a
controlled substance, set forth in the former 75 Pa.C.S.A. § 3731, and
driving after imbibing alcohol or utilizing drugs, set forth in 75 Pa.C.S.A.
Chapter 38.
The court held a custody conciliation hearing on September 29.
Father, who remained incarcerated, failed to attend the conciliation. On
October 21, 2014, the court entered an interim order for custody pending
the custody hearing, and, due to Father’s multiple Section 5329 convictions,
awarded Maternal Aunt sole legal and physical custody of Child. In the
interim order, the court directed Father to obtain a section 5329 evaluation.1
On October 21, 2014, the court entered an order scheduling a pre-
hearing conference for November 26, 2014. The court held the conference
on November 26, and Father again failed to appear. In the order entered on
1
See 23 Pa.C.S.A. § 5329.
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December 2, 2014, the court stated, “Father must have completed a Section
5329 evaluation before any custody rights are awarded [to] him.”
On December 8, 2014, the court entered an order scheduling the
custody hearing to occur on January 9, 2014, and directed as follows.
The [c]ourt has reviewed the docket in this matter and has
determined pursuant to the Interim Order that Father may pose
a threat of harm to the Child. Father failed to appear at the
scheduled pre-trial conference to present evidence that he does
not pose a threat of harm to the Child. Therefore, the [c]ourt
has set this matter for trial as noted above at which time it will
hear evidence first on whether Father continues to pose a threat
of harm to the Child as directed in the Interim Order, and
secondly on the custody factors outlined in [23] Pa.C.S.A.
§ 5328 by the Plaintiff. The burden is on Father to show that he
does not pose a threat of harm to the Child.
Should Defendant fail to appear or produce evidence that
he does not pose a threat of harm to his Child, then the Court
will enter the Interim Order as a Final Order of Court, as
provided in that Order.
Father is reminded of his obligation to appear at the time
of trial, and if he remains incarcerated, shall contact the York
County Sheriff’s Department to make the appropriate
arrangements for his transportation from the York County Prison
to the York County Judicial Center for his scheduled [c]ustody
[t]rial.
Order Scheduling Custody Hearing, 12/8/14, at 2.
Father failed to appear at the custody hearing on January 9, 2015, and
failed to obtain a custody evaluation by the time of the custody hearing.
The court heard testimony from Child. In an order entered on January 12,
2015, the court awarded Maternal Aunt sole legal and primary physical
custody of Child. The court awarded Father supervised partial physical
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custody, as supervised by Maternal Aunt or her designee, until such time as
the court is able to assess Father’s threat of harm to Child. In addition, the
court provided that Maternal Aunt would retain custody of Child’s passport,
and that the passport is to remain in the custody of Maternal Aunt until
further order of the court. The court further provided that Father, who is
presently in prison, is afforded no rights of unsupervised contact with Child,
but may engage in letter writing and phone calls as can be agreed upon
between the parties.
On February 12, 2015, Father, acting pro se, filed a notice of appeal
with the Commonwealth Court, which was transferred to the Superior Court.
Father did not file a Statement of Errors Complained of on Appeal on that
date. On March 19, 2015, this Court ordered Father to file a Statement of
Errors pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On March 26, 2015,
Father was granted an extension of time to file his Statement of Errors
Complained of on Appeal until April 6, 2015. On April 14, 2015, this Court
received Father’s response and his Statement (titled as “Petition/Motion Of A
Statement Of Errors”). On April 20, 2015, we discharged our March 19,
2015 order. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)
(holding that an appellant’s failure to strictly comply with Pa.R.A.P.
1925(a)(2)(i) did not warrant an application of the waiver rule, as no court
order had been violated, and there was no prejudice to any party). Cf. J.P.
v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010 (stating the appellant waived
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her issues on appeal with her notice of appeal and subsequently failed to
timely comply with the court’s order to file a concise statement).
On appeal, Father claims that the court erred in granting Maternal
Aunt sole legal and physical custody of Child.
Preliminarily, we note that, although this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers
no special benefit upon an appellant. See First Union Mortg. Corp. v.
Frempong, 744 A.2d 327, 333 (Pa. Super. 1999) (“[P]ro se status does not
entitle a party to any particular advantage because of his … lack of legal
training.”); Strawn v. Strawn, 664 A.2d 129, 132 (Pa. Super. 1995).
Accordingly, a pro se litigant must comply with the procedural rules set forth
in the Pennsylvania Rules of Court. See Jones v. Rudenstein, 585 A.2d
520, 522 (Pa. Super. 1991). This Court may quash or dismiss an appeal if
an appellant fails to conform to the requirements set forth in the
Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2101; Laird v.
Ely & Bernard, 528 A.2d 1379 (Pa. Super. 1987).
The applicable rules of appellate procedure mandate that an
appellant’s brief shall consist of the following matters, separately and
distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
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(6) Summary of the argument.
(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence,
if applicable.
(8) Argument for the appellant.
(9) A short conclusion stating the precise relief
sought.
(10) The opinions and pleadings specified in
Subdivisions (b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
the matters complained of on appeal filed with the
trial court pursuant to Rule 1925(b), or an
averment that no order requiring a Rule 1925(b)
statement was entered.
Pa.R.A.P. 2111.
Further, the Pennsylvania Rules of Appellate Procedure provide:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as
the circumstances of the particular case will admit,
otherwise they may be suppressed, and, if the defects are
in the brief or reproduced record of the appellant and are
substantial, the appeal or other matter may be quashed or
dismissed.
Pa.R.A.P. 2101 (emphasis added). See also Pa.R.A.P. 2114-2119
(addressing specific requirements of each subsection of brief on appeal).
Instantly Father is proceeding pro se on appeal. Father’s brief is in the
form of a letter addressed to the Court detailing Father’s grievances. The
brief fails to conform to most of the requirements set forth under the
Pennsylvania Rules of Appellate Procedure, and fails to present cogent
arguments or appropriate citations to legal authority or to the certified
record. See Pa.R.A.P. 2111(a); Pa.R.A.P. 2119. The substantial defects in
Father’s brief constitute sufficient grounds to dismiss the appeal. See
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Laird; Pa.R.A.P. 2119. Nevertheless, in our exercise of discretion, we will
examine the issue on appeal as the court framed it.
Initially, we observe that, as the hearing in this matter was held on
January 9, 2015, the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321 to
5340, is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super.
2012) (holding that, if the custody evidentiary proceeding commences on or
after the effective date of the Act, i.e., January 24, 2011, the provisions of
the Act apply).
In custody cases, our standard of review is as follows.
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.
Id., at 443 (citation omitted).
We have stated that
[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.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard.
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id., at 18-19 (quotation and citations omitted).
The paramount concern is the best interests of the child. See 23
Pa.C.S.A. §§ 5328, 5338. The Act provides that, upon petition, a court may
modify a custody order if it serves the best interests of the child. See 23
Pa.C.S.A. § 5338. The Act sets forth the sixteen best interest factors that
the court must consider. See 23 Pa.C.S.A. § 5328(a). See also E.D. v.
M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).
Section 5328 of the Act provides as follows.
§ 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.
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(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.
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
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(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).2
Section 5329 of the Act provides, in relevant part, the following.
§ 5329. Consideration of criminal conviction
(a) Offenses.—Where a party seeks any form of custody, the
court shall consider whether that party or member of that party’s
household has been convicted of or has pleaded guilty or no
contest to any of the offenses in this section or an offense in
another jurisdiction substantially equivalent to any of the
offenses in this section. The court shall consider such conduct
and determine that the party does not pose a threat of harm to
the child before making any order of custody to that parent
when considering the following offenses:
***
The former 75 Pa.C.S. § 3731 (relating to driving under
influence of alcohol or controlled substance)
75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol
or utilizing drugs).
Section 13(a)(1) of the act of April 14, 1972 (P.L. 233, No.
64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, to the extent that it prohibits the manufacture,
sale or delivery, holding, offering for sale or possession of any
controlled substance or other drug or device.
***
2
The Act was amended, effective January 1, 2014, to include an additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child
abuse and involvement with child protective services).
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(c) Initial evaluation.—At the initial in-person contact with the
court, the judge, conference officer or other appointed individual
shall perform an initial evaluation to determine whether the
party or household member who committed an offense under
subsection (a) poses a threat to the child and whether
counseling is necessary. The initial evaluation shall not be
conducted by a mental health professional. After the initial
evaluation, the court may order further evaluation or counseling
by a mental health professional if the court determines it is
necessary.
***
(e) Subsequent evaluation.—
(1) At any time during or subsequent to the counseling under
subsection (d), the court may require another evaluation to
determine whether further counseling is necessary.
(2) If the court awards custody to a party who committed an
offense under subsection (a) or who shares a household with an
individual who committed an offense under subsection (a), the
court may require subsequent evaluations on the rehabilitation
of the offending individual and the well-being of the child
subsequent to the order. If, upon review of a subsequent
evaluation, the court determines that the offending individual
poses a threat of physical, emotional or psychological harm to
the child, the court may schedule a hearing to modify the
custody order.
***
23 Pa.C.S.A. § 5329.
The record fully supports the court’s conclusions regarding custody. In
this case, the court did proceed to assess the sixteen factors set forth in
section 5328(a), as the court found that father had committed offenses that
resulted in criminal convictions that were to be considered under section
5329 of the Act. The court found that Father had been convicted of three
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counts of driving under the influence, which were convictions for the court to
consider under section 5329. See N.T., 1/9/15, at 12-13. The court also
found that Father had been charged with possession with intent to deliver,
which was an offense that is to be considered under section 5329. See id.,
at 13. Moreover, the court found that Father had pending a fourth driving
under the influence charge. See id. The court stated that it needed to
consider Father’s criminal convictions under section 5329 in order to
determine whether Father’s criminal conduct posed a threat of harm to Child
before making any order of custody with regard to Father. See id.
Father did not appear at the pre-hearing conciliation, the pre-trial
conference, or at the custody hearing on January 9, 2015, although the
court had notified him that it was his responsibility to attend the pre-hearing
conciliation and the hearing. See id., at 11-12. The court also notified
Father in the pre-trial order, entered on December 2, 2014, that he must
have first completed a section 5329 custody evaluation before the court
could award him any custody rights. See id., at 12-13. He failed to do so.
As a result, the court was precluded from being able to assess whether
Father poses a risk of physical, emotional, or psychological harm to Child.
See id., at 13. At the hearing, the court had the opportunity to speak with
Child, however. Child, who was fourteen at the time of the hearing, stated
that she does not have a desire to see Father at this time. See N.T.,
1/9/2015, at 13.
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In view of the circumstances, as set forth by the court, we find that
the competent evidence in the record supports the court’s determination,
under section 5329 of the Act, awarding Maternal Aunt primary physical
custody and primary legal custody of Child, and Father supervised partial
physical custody until such time as the court may assess the threat of harm
that Father may pose to Child. The court’s conclusion is not unreasonable in
light of its findings. Accordingly, we find no error of law or abuse of
discretion, and we affirm the court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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