A.M. v. J.L.H.

J-A02009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.L.H. :
:
Appellant : No. 677 WDA 2020
Appeal from the Order Entered June 12, 2020
In the Court of Common Pleas of Butler County Civil Division at No(s):
FC11-90307-C
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED: MARCH 11, 2021
J.L.H. (“Father”) appeals from the child custody order entered June 12,
2020, which modified the prior order regarding his daughter, R.M., born in
July 2006. After careful review, we affirm.
R.M. is the daughter of Father and A.M. (“Mother”). Our review of the
certified record indicates that Father and Mother were not married at the time
of R.M.’s birth, but does not reveal anything else about their relationship.
Since October 16, 2015, Father exercised primary physical custody, and the
parties shared legal custody. Mother was granted partial physical custody
every Tuesday after school until 8:00 p.m. and on alternating weekends from
Friday after school until Sunday at 6:00 p.m. The order did not provide a
summer schedule but stated that the trial court would draft a summer
schedule on motion of either party. Significant to the issues presented in this
appeal, the custody order included a provision forbidding Mother’s boyfriend,
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J.K. (“Boyfriend”), from being present during Mother’s custodial periods due
to his drug addiction.
On July 23, 2019, Mother filed a petition to modify the October 16, 2015
custody order. She initially sought primary physical custody of R.M, but later
moderated her position and requested increased partial physical custody
during the school year and shared physical custody during the summer. She
also requested that the trial court remove the provision forbidding Boyfriend
from being present during her periods of custody.
Subsequently, on November 15, 2019, Father filed a petition for
contempt alleging that Mother was berating R.M. and making critical
comments to R.M. about Father. On January 28, 2020, the court combined
the petitions for disposition, directed Mother to provide Father’s counsel
certain documents, and granted Mother overnight custody with R.M. each
Tuesday if she provided the documents within thirty days.1 On March 5, 2020,
Father filed an affidavit averring that Mother had not complied.
Prior to the custody hearing, the parties agreed to maintain the existing
custody arrangement largely unchanged, except that Mother’s weekend
custody would be extended by thirty minutes. The parties also decided that
Mother would exercise expanded partial physical custody during the summer
____________________________________________
1The order directed that Mother provide (1) proof that she and Boyfriend had
an ownership interest in the home where they resided together, (2) her work
schedule, (3) documentation relating to Boyfriend’s hospitalization in 2018,
and (4) documentation showing that Boyfriend completed a drug treatment
program related to his Driving Under the Influence (“DUI”) arrest in 2017.
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and that Father would withdraw his petition for contempt. On June 12, 2020,
the court entered the custody agreement as an order.
Although the parties were able to resolve the majority of their custody
dispute amicably, they remained in disagreement regarding whether
Boyfriend could be present when Mother exercised custody. Thus, the trial
court held a hearing to address this limited issue. Mother, Boyfriend, and
Father testified at the hearing. Mother provided the bulk of the relevant
testimony, which focused on Boyfriend’s progress toward addressing his drug
addiction. Mother testified that she broke up with Boyfriend in June 2017
because of his drug addiction and “some altercations” during which he pushed
or shoved her. N.T., 6/11/20, at 6-7, 12. Mother rekindled her relationship
with Boyfriend in 2018, after he was the victim of an assault resulting in his
hospitalization.2 Id. at 6.
Mother did not dispute that Boyfriend remained in the throes of addiction
at the time of the assault. Id. at 26-27. However, she insisted that Boyfriend
had “done a complete 180” since his discharge from the hospital in May 2018.
Id. at 9-10. Mother maintained that she was not aware of Boyfriend using
illegal drugs since the spring of 2018. Id. at 9. Moreover, she explained that
she had lived with Boyfriend for about a year at the time of the hearing, and
that he had not exhibited any “anger issues” or become physically aggressive.
____________________________________________
2 Mother added that Boyfriend was diagnosed with a brain tumor at or near
that time. N.T., 6/11/20, at 7-8. Boyfriend testified that he had surgery to
address the brain tumor and now experiences short-term memory loss. Id.
at 44.
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Id. at 11-12. She also explained that she complied with the prior custody
order prohibiting Boyfriend from being present during her periods of custody
by exercising custody at the home of the maternal grandparents. Id. at 11,
36-37.
Despite Boyfriend’s history of drug addition, Mother testified that he was
not currently receiving addiction counseling. Id. at 28. She also conceded
that she was not taking any precautions to protect against a possible relapse.
Id. at 31-32. Mother explained, “[Boyfriend] is a man of his own caliber and
his own decision. [Boyfriend] makes the decision every morning to stay up
and be sober. . . . I am not in control of his or anyone’s addiction.” Id. at 32.
She indicated that Boyfriend’s efforts at maintaining sobriety included going
“to some meetings in the past” and being involved “lightly” with a “center
where they can go for . . . meetings and community and play pool.” Id. at
28. Mother added that Boyfriend would be undergoing a drug evaluation,
which could result in additional services, and urine screens as part of the five
years of probation he received for a 2017 DUI. Id. 19, 28, 33, 75-76.
At the conclusion of the hearing, the trial court announced that it would
allow Boyfriend to be present during Mother’s custody time, subject to certain
limitations.3 The next day, on June 12, 2020, the court entered an order
____________________________________________
3 The trial court also reprimanded Mother for failing to comply satisfactorily
with its January 28, 2020 order directing her to provide Father’s counsel with
certain documents. N.T., 6/11/20, at 71, 80.
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outlining when Boyfriend’s presence was permitted.4 The order also directed
Boyfriend to submit to two hair follicle drug screens, one within ten days of
the date of the order, and one within no fewer than eighty and no more than
ninety days of the date of the order, with the results provided to Father’s
counsel. Father timely filed a motion for reconsideration, notice of appeal,
and concise statement of errors complained of on appeal on July 8, 2020. The
court did not rule on Father’s motion for reconsideration.5
Father presents the following questions for our review:
I. Did the [trial c]ourt abuse its discretion and/or misapply the law
in failing to undertake the required risk assessment outlined in 23
Pa.C.S. § 5329 which provides: “...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...”?
____________________________________________
4 Specifically, Boyfriend was permitted to be present each Tuesday during the
school year from the beginning of Mother’s period of custody until 8:00 p.m.
During the summer, the order provided that Boyfriend could be present each
Tuesday after Mother’s weekends from noon until 8:00 p.m., and each
Tuesday after Father’s weekends from 6:30 p.m. until 9:00 p.m. The order
also provided that Boyfriend could be present for one overnight period during
each of Mother’s weekends, beginning with Mother’s first weekend in August
2020.
5 We observe that the order on appeal included a provision scheduling a status
conference for October 2020. The existence of this status conference did not
render the order interlocutory. A custody order is final and appealable “if it is
both: 1) entered after the court has completed its hearings on the merits; and
2) intended by the court to constitute a complete resolution of the custody
claims pending between the parties.” G.B. v. M.M.B., 670 A.2d 714, 720
(Pa.Super. 1996). In the matter at bar, the trial court scheduled no further
substantive hearings after June 11, 2020, and its order resolved all custody
claims pending between the parties. We conclude, therefore, that the order
was final and that we possess jurisdiction to review this appeal.
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II. Did the [trial c]ourt abuse its discretion and/or misapply the
law in failing to undertake the required risk assessment outlined
in 23 Pa.C.S. § 5330 which provides: “...In evaluating any request
under subsection (a), the court shall consider whether the party
who is or has been charged with an offense set forth in section
5329(a) poses a risk of physical, emotional or psychological harm
to the child...”?
III. Did the [trial c]ourt abuse its discretion and/or misapply the
law in failing to consider the mandates of 23 Pa.C.S. [§]
5328(a)(7), which provides: “in ordering any form of custody, the
court shall determine the best interest of the child by considering
all relevant factors... including the following”: (7) “the well-
reasoned preference of the child, based on the child’s maturity
and judgment”?
Father’s brief at 11-12 (emphases omitted).
We consider Father’s claims mindful of the following standard of review:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012) (citations omitted).
Before beginning our review, we briefly address the defective
presentation of Father’s claims on appeal. While Father includes three claims
in his statement of questions involved, he combines them all into a single
argument section in his brief in contravention of our Rules of Appellate
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Procedure. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as
many parts as there are questions to be argued; and shall have at the head
of each part--in distinctive type or in type distinctively displayed--the
particular point treated therein[.]”). However, because Father’s
noncompliance with Rule 2119(a) does not hinder our ability to conduct
meaningful appellate review, we address his claims on the merits. Cf.
Pa.R.A.P. 2101 (“[I]f the defects are in the brief . . . of the appellant and are
substantial, the appeal or other matter may be quashed or dismissed.”).
We begin with Father’s interrelated first and second claims, in which he
contends that the trial court erred in failing to consider whether Boyfriend
poses a risk of harm to R.M. Father’s brief at 19-21. Father directs this
Court’s attention to § 5329 of the child custody law, which provides as follows,
in relevant part:
(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 party when
considering the following offenses:
....
75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or
utilizing drugs).
....
(c) Initial evaluation.--At the initial in-person contact with the
court, the judge, conference officer or other appointed individual
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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.
(d) Counseling.—
(1) Where the court determines under subsection (c)
that counseling is necessary, it shall appoint a
qualified professional specializing in treatment
relating to the particular offense to provide counseling
to the offending individual.
(2) Counseling may include a program of treatment or
individual therapy designed to rehabilitate the
offending individual which addresses, but is not
limited to, issues regarding physical and sexual abuse,
the psychology of the offender and the effects of the
offense on the victim.
(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. § 5329(a)-(e).
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Father interprets § 5329 as being the first of two interworking statutory
provisions that a trial court must apply when conducting a risk evaluation.
Father argues that 23 Pa.C.S. § 5330 is the second of these provisions, which
“outline[s]” the evaluation that § 5329 requires. Father’s brief at 20-21. The
relevant portion of this section provides as follows:
(a) Expedited hearing.--A party who has obtained information
under 42 Pa.C.S. § 1904 (relating to availability of criminal charge
information in child custody proceedings) or otherwise about a
charge filed against the other party for an offense listed under
section 5329(a) (relating to consideration of criminal conviction)
may move for a temporary custody order or modification of an
existing custody order. The court shall hold the hearing under this
subsection in an expeditious manner.
(b) Risk of harm.--In evaluating any request under subsection
(a), the court shall consider whether the party who is or has been
charged with an offense set forth in section 5329(a) poses a risk
of physical, emotional or psychological harm to the child.
23 Pa.C.S. § 5330(a)-(b).
Father is mistaken in his interpretation of our custody statute. First,
§ 5329 applies only “[w]here a party seeks any form of custody[.]” 23 Pa.C.S.
§ 5329(a). This Court has interpreted the words “form of custody” to refer to
the seven custody awards enumerated at 23 Pa.C.S. § 5323(a), which include
primary physical custody, partial physical custody, and shared legal custody,
among others. S.W.D., supra at 402. In this case, the trial court was not
considering whether to award or modify a form of custody, but was deciding
the “discrete and ancillary” issue of whether Boyfriend could be present during
Mother’s custody time. See id. at 402 (discussing M.O. v. J.T.R., 85 A.3d
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1058 (Pa.Super. 2014), and explaining that the “discrete and ancillary issue”
in that case, whether the father needed to take off from work when exercising
custody over the summer, “did not require the trial court to order any form of
custody”) (emphasis omitted).
Additionally, the language of § 5330 indicates that it applies in situations
where a party learns that a criminal charge listed at § 5329(a) has been filed
against an opposing party. In such situations, the party who is not facing the
criminal charge may request a temporary or permanent custody modification.
The trial court must hold a hearing “in an expeditious manner” to address that
request and consider whether the party facing the criminal charge poses a risk
of harm to the child. 23 Pa.C.S. § 5330(a). Here, § 5330 would apply only if
it was Father who was seeking modification of the custody order and only if
he sought modification because he discovered that there was a pending
criminal charge against Mother.6
Although § 5329 and § 5330 did not apply to this case, our law required
that the trial court render its decision in accordance with R.M.’s best interest.
See S.W.D., supra at 403 (“[I]n all matters affecting custody, the child’s best
interest is still paramount.”). The record confirms that the court complied
____________________________________________
6 Father’s belief that § 5330 outlines the risk evaluation required in § 5329
appears to derive from the language in § 5330(b) referencing “any request
under subsection (a)[.]” 23 Pa.C.S. § 5330(b). Father apparently interprets
this language as referring back to § 5329(a). To the contrary, this language
refers to a request for modification under § 5330(a). The requirements for a
risk evaluation under § 5329(a) appear in § 5329(c)-(e), quoted above.
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with this requirement and took the possible safety risk to R.M. seriously. The
court expressed sympathy for Father’s concerns at the hearing on June 11,
2020. See N.T., 6/11/20, at 78 (“I don’t have any doubt [Father] is going to
be rightfully keeping an eye on things. . . . He just wants to be careful, to put
it mildly. And so do I.”). More significantly, the court included precautions in
its order to protect R.M., directing that Boyfriend could not be present during
Mother’s overnight custody periods until August 2020 and thereafter could be
present for only one overnight period during each of Mother’s weekends. The
court also directed that Boyfriend submit to two drug screens within ninety
days of its order, the second of which would occur shortly after the start of
these overnight periods, between late August and early September 2020. The
court addressed R.M.’s safety in its opinion, as follows:
The [c]ourt, most certainly, did not overlook or disregard its duty
to ensure the minor child will be safe when she is in the limited
presence of [Boyfriend]. Father failed to provide a crumb of
evidence indicating [Boyfriend] poses a risk to the [c]hild at this
moment. His sole focus was upon [Boyfriend’s] past, bringing
evidence of drug abuse from over two . . . years ago. [Boyfriend]
is on probation. A condition of his probation requires him to be
drug screened. All of his prior tests were negative. [Boyfriend]
has not had any additional “run-ins” with the law since he quit
using illegal drugs. The above-ordered phase-in schedule is
created for the sole purpose of keeping the minor child safe, while
giving her sufficient introduction time to become comfortable with
[Boyfriend].
Trial Court Opinion, 9/15/20, at 7-8 (unnumbered pages). Thus, contrary to
Father’s contentions, the trial court properly considered whether Boyfriend
poses a risk of harm to R.M.
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As part of this initial argument, Father also challenges the trial court’s
determination that Boyfriend does not pose a risk of harm to R.M. Father’s
brief at 22-29. For the reasons explained below, no relief is due.
Essentially, Father asks this Court to reweigh the evidence in his favor.
He summarizes the testimony presented at the hearing on June 11, 2020, and
argues that Boyfriend’s history of drug addiction, criminal history, and
memory issues resulting from his brain surgery, render him an ongoing threat
to R.M. Father’s brief at 23-25. Father emphasizes Mother’s testimony that
Boyfriend was not receiving drug treatment and that she was not taking
precautions to prevent him from relapsing. Id. at 25-29. He also underscores
that Mother previously failed to comply with the court’s order to produce
certain documents. Id. at 26-28.
The trial court explained its decision as follows:
This [c]ourt’s order [entered June 12,] 2020, granted
Mother’s requested relief by allowing a phase-in schedule slowly
introducing [Boyfriend] into the child’s life. After several hours of
receiving evidence and testimony, it was apparent [Boyfriend]
does not pose a threat of harm to either Mother or the minor child.
Mother, Father, and [Boyfriend] testified. The [c]ourt finds all
parties to be credible witnesses.
. . . Despite Father’s reasonable parental reluctance for
[Boyfriend] to be introduced into the custodial arena, this [c]ourt
is confident an introduction of the minor child to [Boyfriend] is
more than appropriate at this time, so long as Mother proceeds
with the introduction in a slow, careful, and methodical manner.
[Boyfriend] and Mother have been together for several years.
[Boyfriend] is clean and drug-free for the past two . . . years. This
[c]ourt believes it is time for Mother to move on with her
relationship with him. She is capable of building a family with
[Boyfriend] and the minor [c]hild, brick-by-brick. Currently,
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Mother exercises her custodial time at Maternal Grandmother’s
house to ensure [Boyfriend] is not present. This [c]ourt finds the
record failed to establish any grounds in which it can continue
enforcing such a drastic limitation in Mother’s life, who should be
allowed to move forward with her life outside of Father. She has
waited several years and abided by the prior [c]ourt [o]rder’s
provision keeping [Boyfriend] away from the minor child.
Trial Court Opinion, 9/15/20, at 5-6 (unnumbered pages) (emphasis omitted).
As this Court has often stated, credibility and weight of the evidence
determinations are within the discretion of the trial court, and this Court must
defer to those determinations when the record supports them. V.B., supra
at 1197. Here, Mother and Boyfriend testified that Boyfriend has remained
drug-free, and the trial court accepted their testimony.7 N.T., 6/11/20, at 9,
46-47. Father did not present any evidence to contradict that testimony or to
suggest that Boyfriend posed a risk of harm to R.M. at the time of the hearing,
but raised various speculative concerns that he might pose a risk in the future.
He suggested that Boyfriend might relapse, that the aftereffects of his brain
surgery might make him prone to violence due to a lack of impulse control,
and that he might simply “flake out and disappear in two months.” Id. at 58-
62. The court was free to conclude under these circumstances that it would
be in R.M.’s best interests to have a more normal familial relationship with
Mother, including spending time at Mother’s home, where Boyfriend resides.
On these points, we must defer to the trial judge who viewed and assessed
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7 Boyfriend’s only caveat was that he “might have had a beer with [his] dad”
since he had been living with Mother. N.T., 6/11/20, at 47.
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the witnesses first-hand. V.B., supra at 1197. Further, we highlight that the
court did not simply grant Boyfriend unfettered access to R.M. The court
crafted an order that would introduce Boyfriend into R.M.’s life gradually,
which included limiting his presence during overnight custody periods and
mandating drug screens. We discern no abuse of discretion in the court’s
decision or its approach.
In his final claim, Father contends that the trial court erred in failing to
consider R.M.’s well-reasoned preference pursuant to 23 Pa.C.S.
§ 5328(a)(7). Specifically, Father emphasizes that R.M. is flourishing in his
primary physical custody and argues that the court “refused to hear
testimony” from the child about her preference. Father’s brief at 29-32.
The trial court addressed Father’s claim in its opinion as follows:
The child’s comfort and emotional well-being were both
considered when this Court determined to forego interviewing the
minor child. She is very well-adjusted and incredibility successful
in school. To submit her into the boiling water of her parent[s’]
custody dispute, again, and question her about [Boyfriend] is
contrary to the minor child’s best interest. Furthermore, given the
nature of why Father objects to his daughter being in the presence
of [Boyfriend], the Court did not feel it was appropriate to ask a
child about those issues. [Pa.R.C.P.] 1915.11 makes it clear the
Court was not required to interview her. The Rule is permissive,
not mandatory.
Trial Court Opinion, 9/15/20, at 8 (unnumbered pages).
The child custody law dictates that a trial court analyze a series of
factors to determine a child’s best interest when “ordering any form of
custody[.]” 23 Pa.C.S. § 5328(a). This includes § 5328(a)(7), which requires
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consideration of “[t]he well-reasoned preference of the child, based on the
child’s maturity and judgment.” 23 Pa.C.S. § 5328(a)(7). As we discussed
above, however, the trial court in this case was not ordering, or considering
ordering, a form of custody. The court was resolving the discrete and ancillary
issue of whether Boyfriend could be present during Mother’s custody time.
While the court was bound to base its decision on R.M.’s best interest, it was
under no obligation to consider § 5328(a)(7). See S.W.D., supra at 403
(“The failure to address all factors under 5328(a) did not constitute reversible
error, because the trial court was not required to consider and apply all the
§ 5328(a) factors. In deciding that Child should attend West Hills Primary
School, the trial court did not order a form of custody.”).
Moreover, as the trial court observed in its opinion, our Rules of Civil
Procedure provide that interviewing a child in a custody case is discretionary
rather than mandatory:
(b) The court may interview a child, whether or not the child is
the subject of the action, in open court or in chambers. The
interview shall be conducted in the presence of the attorneys and,
if permitted by the court, the parties. The attorneys shall have
the right to interview the child under the supervision of the court.
The interview shall be part of the record.
Pa.R.C.P. 1915.11(b); see also T.D. v. E.D., 194 A.3d 1119, 1125 (Pa.Super.
2018) (“[Rule] 1915.11(b) is discretionary and does not mandate that a trial
court interview a child in a custody matter.”).
It was well within the trial court’s discretion to decline to interview R.M.,
given the sensitive information at issue in this case and the risk of embroiling
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her unnecessarily in the parties’ custody dispute. Notably, it appears doubtful
that R.M. would have been able to contribute any relevant information even if
the court had interviewed her. The purpose of the hearing was to determine
whether Boyfriend could be present during Mother’s custody time. R.M. had
not seen Boyfriend in years, and there was no reason to believe that she would
know whether he remained sober or posed a safety risk. Thus, Father’s claim
fails.
For all of the foregoing reasons, we conclude that the trial court did not
abuse its discretion in permitting Boyfriend to be present during portions of
Mother’s custodial periods, with appropriate limitations. Accordingly, we
affirm the court’s June 12, 2020 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2021
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