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[U] W.H. v. A.B.

Superior Court of Pennsylvania

February 24, 2014



Appeal from the Order Entered August 21, 2013 In the Court of Common Pleas of Schuylkill County Civil Division at No(s): S-572-2012




Appellant, A.B. (Mother), appeals from the August 21, 2013 order granting sole legal and primary physical custody of Mother's son, J.B. a/k/a J.R., to Appellees, W.H. and S.H. (Maternal Grandparents).[1] After careful review, we affirm.

We summarize the relevant factual and procedural history as follows. Mother and J.R. (Father) are the biological parents of J.B., born in January 2010.[2] Trial Court Opinion, 8/21/13, at 1, 4. Mother also has a daughter, K.B., born in June 1999.[3] Id. at 4.

Maternal Grandparents have been actively involved in the rearing of Mother's children, specifically J.B. Id. at 13. Shortly after J.B.'s birth, Maternal Grandparents took custody of J.B. to ensure his safety. Id. at 13. J.B. lived with Maternal Grandparents from January 2010 through January 2012, and Mother had custody of J.B. on most, but not all, weekends.[4] Trial Court Opinion, 4/26/12, at 2. The parties never reduced this custody arrangement to writing.

In January 2012, Mother expressed a desire to have more contact with J.B. Trial Court Opinion, 8/21/13, at 13. Maternal Grandparents complied with Mother's request. Id. Shortly thereafter, Maternal Grandparents obtained knowledge that Mother was planning to move to Florida. Id. As Mother had no family or employment in Florida, Maternal Grandparents were concerned for the safety and wellbeing of J.B. Id. Accordingly, they filed the instant custody action on March 16, 2012. Id. As part of the custody action, Maternal Grandparents filed a petition for special relief requesting primary legal and physical custody of J.B. until the culmination of the custody proceedings. As Maternal Grandparents were unable to serve Father with their complaint and petition, the trial court did not conduct a hearing on their petition for special relief until after Mother moved to Florida. Trial Court Order, 4/26/12, at 1-2.

Mother left Pennsylvania on the evening of April 1, 2012. Trial Court Opinion, 8/21/13, at 3, 5. Mother asked one of her friends, R.W., to accompany her on the trip because "she was depressed and concerned about driving to Florida alone with the children." Id. at 5. Before leaving the Commonwealth, Mother and R.W. burglarized a home of a drug dealer, obtaining drugs, money, and possibly a gun. Id. at 3-4, 5. This incident occurred in the early-morning of April 1, 2012. Id. at 5. Mother and R.W. committed these acts because R.W. wanted money to go to Florida. Id. R.W. then traveled with Mother, J.B., and K.B. to Florida that evening. Id. at 6. R.W. stayed in Florida with the family for a short time before returning to Pennsylvania. Id. at 7.

On April 16, 2012, Maternal Grandparents filed a second petition for special relief. Within that complaint, Maternal Grandparents requested primary legal and physical custody of J.B., as a criminal complaint was filed against Mother pertaining to the April 1, 2012 incident. Specifically, Maternal Grandparents were concerned that J.B. would be taken into custody of Florida's Department of Children's Services if Mother was arrested in Florida. Id.

In early May 2012, Mother drove with J.B. and K.B. back to Pennsylvania. Id. at 7. Mother drove to Pennsylvania to transport R.W. back to Florida. Id. At that time, Mother knew that there were outstanding warrants for both her and R.W.'s arrest. Id. Mother also picked up A.P., A.P.'s girlfriend, and A.P.'s child while in Pennsylvania to transport them to Florida as well. Id. A.P. was a convicted felon. Id. at 8. Once back in Florida, Mother, J.B., K.B., R.W., A.P., A.P.'s girlfriend, and A.P.'s child all resided in Mother's two-bedroom home. Id. at 7.

On May 9, 2012, Mother and R.W. were arrested in Florida. Id. J.B. was present during the arrest. Id. When police searched Mother's home, they found two handguns that Mother was planning to sell at a pawn shop. Id. Following Mother's arrest, J.B. was placed with L.I.G., Paternal Grandmother, who lives in Florida. Id. We note K.B. remained in the Florida home with A.P.'s girlfriend, as Paternal Grandmother was of no relation to K.B. Id. A.P. was also arrested on an outstanding warrant while in Florida. Id.

On May 11, 2012, the trial court entered an order regarding Maternal Grandparents' March and April petitions for special relief. On that date, the trial court denied Maternal Grandparents' March 16, 2012 petition, concluding that Mother had both an adequately furnished apartment in Florida and sources of income. Trial Court Order, 5/11/12. Yet, the trial court granted Maternal Grandparents' April 16, 2012 petition, concluding that J.B. was in imminent danger of being placed with a child protective service agency in Florida. Id. Accordingly, the trial court entered an interim custody order granting Mother and Maternal Grandparents legal custody of J.B. and Maternal Grandparents primary physical custody. Id. Mother's periods of partial physical custody were to be exercised at times agreed upon by the parties. Id. Following the entry of this order, Maternal Grandparents retrieved J.B. and K.B., from Florida. Id. at 7-8. Maternal Grandparents testified that Mother's Florida home was dirty. Id. at 8.

On July 30, 2012, the parties entered into a stipulated custody order.[5]The order retained primary physical custody of J.B. with Maternal Grandparents. However, the order granted Mother partial physical custody every Tuesday to Wednesday, and, on alternating weekends, from Friday to Sunday. Mother also obtained custody on alternating weeks from Sunday to Monday, to occur following Mother's non-custodial weekend. This custody arrangement was in place at the time of the parties' custody trial. Appellant's Brief at 6 n.3.

The trial court held a hearing on Maternal Grandparents' custody petition on August 5-6, 2013. During this hearing, Mother testified as to the circumstances surrounding this custody action. Initially, we note that the trial court concluded that "much of the testimony offered by Mother throughout the entire trial was often vague, deceptive or simply not credible." Trial Court Opinion, 8/21/13, at 5. Maternal Grandparents and a custody evaluator, Dr. S., among others, testified as well. We summarize the pertinent testimony as follows.

Mother presently lives in Berks County, Pennsylvania. Id. at 2. Mother owns her home. Id. However, when the custody evaluator performed home studies, Mother was residing in her Step Mother's home in Schuylkill County. Id. at 2-3. Accordingly, Mother's current home was not evaluated for custody purposes. Id. at 2. Also, Mother is employed by a taxi service. Id. at 4. Mother works from 5:00 a.m. through 5:00 p.m. on Monday, Tuesday, Thursday, and Friday; Mother additionally works on some Sundays. Id.

"Mother has an extensive criminal record and for years has associated with others involved in illegal drug use and criminal activity, including felons convicted of violent crimes." Id. at 3; see also id. at 5-7, 8-9. Mother's most recent arrest arose out of the April 1, 2012 incident. Following that incident, Mother was in police custody from May 9, 2012 through June 29, 2012. Id. at 4. On July 25, 2013, Mother pled guilty to felony criminal trespass and was sentenced to five years' probation. Id. at 3. The Commonwealth dismissed the more serious charges against Mother in light of her cooperation in the prosecution of R.W. Id. at 3-4. Mother also pled guilty to driving under the influence (highest rate of alcohol) in 2009; possession of a controlled substance in 2008; and theft, receiving stolen property (four counts), theft by unlawful taking, intentionally possessing a controlled substance, and forgery in 1997. Id. at 3. Additionally, in 2012, Mother pled guilty to driving a motor vehicle without being properly licensed. Id. at 10. Mother also admitted that when she obtained her DUI in 2009, she was driving with a suspended license. Id.

"Mother report[ed] that she started using illegal drugs when she was [18] years old. [She] claims that she is sober now, although she [still] consumes alcohol[.]" Id. at 11. Mother testified that she no longer wanted to get high after J.B. was born. Id. Mother testified that she last used marijuana in 2012. Id. at 4, 11. Mother was under the influence of both alcohol and ecstasy when arrested in 2009. Id. at 4. Mother obtained some counseling after this conviction. Additionally, Mother attended outpatient counseling in 2006. Mother's 1997 convictions involved marijuana, cocaine, and crack cocaine. Mother entered an inpatient rehabilitation center for some time in 1997. Id. Mother claimed she used drugs to escape her reality, specifically, to escape from Maternal Grandmother. Id. at 11.

The trial court also received volumes of testimony regarding Maternal Grandparents safeguarding Mother's money for her, as Mother was impulsive in her spending. Id. at 11-12.

Maternal Grandmother reported that Mother is physically abusive towards both J.B. and K.B. Id. at 14. Specifically, "[Maternal] Grandmother has seen Mother smack [K.B.] in the face and pull her hair and smack [J.B.] so hard that he has been left with handprints on his body." Id. Additionally, Mother "yells and curses in front of the children." Id. J.B. has used vulgar language in front of Maternal Grandmother after returning from Mother's care. Id.

Maternal Grandmother also noted concern regarding Mother's stability. Throughout the course of these proceedings, Mother has resided in both Florida and Berks County. Id. at 14. Additionally, Mother has moved since her return to Pennsylvania, causing K.B. to change school districts. Id.

Mother also has a history of mental health issues. Id. Of most concern to the trial court was Mother's claimed depression on or around April 1, 2012. Id. Mother did not obtain treatment during this time. Id. Instead, Mother travelled with R.W. and her children to Florida. Id. at 5.

Additionally, Dr. S., an expert psychologist and custody evaluator, testified regarding Mother's mental health. "Dr. S[.] found Mother to have anti-social traits and that [she] had difficulties showing affection and nurturing." Id. at 16. Dr. S. also concluded that "Mother had limited parenting skills, slight knowledge of [J.B. and K.B.], and determined that [K.B.] had been told by Mother to provide negative information to [him] about [Maternal] Grandmother." Id. Accordingly, "Dr. S. recommended that [Maternal] Grandparents have primary custody of [J.B.] and that Mother exercise custody every other weekend, but not overnight, as [Dr. S.] was concerned for the safety of [J.B.]" Id.

Thereafter, on August 21, 2013, the trial court entered an order awarding Maternal Grandparents sole legal and primary physical custody of J.B. On August 28, 2013, Mother filed a timely notice of appeal. Mother filed her concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b) on September 11, 2013.[6] The trial court filed its Rule 1925(a) opinion on October 1, 2013.

On appeal, Mother raises the following issues for our review.

[1.] Whether the trial court misapplied 23 Pa.C.S.A. ยง 5329 and abused its discretion when it stripped []Mother of unsupervised visitations with her minor child for criminal convictions [of] drug possession and DUI that happened prior to [J.B.]'s birth and without a finding ...

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