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[U] S.R.E. v. B.E.B.

Superior Court of Pennsylvania

March 4, 2014

B.E.B., Appellant


Appeal from the Order Entered August 19, 2013 in the Court of Common Pleas of Perry County Civil Division, at No. FC-2011-141




B.E.B. (Father) appeals the order of the Court of Common Pleas of Perry County, entered August 19, 2013, that grants Child's maternal aunt, S.R.E. (Aunt), primary physical custody of Father's daughter, B.E.B. (Child), born in May of 2007, grants shared legal custody to the parties, and establishes a schedule of partial physical custody for Father. We affirm.

Father is the natural father of Child. Child's Mother, E.D.E. (Mother), died in March of 2011, when Child was not quite four years old.[1] Mother and Father were separated at the time of Mother's death and were sharing custody of Child on a weekly basis.

Following Mother's death, on May 11, 2011, Father and Aunt entered into a custody agreement whereby they shared legal custody of Child and shared physical custody by permitting Father to have physical custody as the parties agreed. Aunt filed this agreement, together with a complaint for custody, with the trial court on May 26, 2011. The trial court adopted the terms of the parties' custody agreement in an order entered June 3, 2011. That order remained in effect until Father filed a petition to modify custody on October 26, 2012.

Father's petition to modify custody sought shared custody with Aunt. Aunt's answer to the petition included a petition for special relief in which she sought to limit Father to periods of supervised custody because of allegations that the son of Father's girlfriend, K.V., had sexually abused Child. The emergency petition also sought to preclude contact between Child and K.V. In an order entered November 7, 2012, the trial court prohibited K.V. from being present during Father's periods of custody and prohibited any other contact between K.V. and Child.

A temporary order of custody emerged from a pre-trial custody conference held on December 5, 2013. The order granted shared legal custody to the parties, primary physical custody to Aunt, partial physical custody to Father on alternating weekends, and one mid-week visit for Father each week. The order prohibited contact between Child and K.V. and directed the parties to participate in co-parent counseling.

Father, though represented, appeared without counsel at a conciliation conference held on March 20, 2013, where the parties were unable to reach an agreement. The trial court entered an order following the conference that specified a visitation schedule for the coming Easter holiday and, to determine if Father posed a threat to Child, required Father to undergo an evaluation pursuant to 23 Pa.C.S. § 5329.[2]

On March 26, 2013, Father filed an amended petition to modify custody requesting sole legal and physical custody of Child, asking the trial court to excuse him from co-parent counseling, and to excuse him from attending the seminar for separating parents. The trial court listed Father's amended petition to be heard at the hearing on custody and denied his other requests.

The trial court held hearings on Father's petitions on July 19 and August 19 of 2013. Testifying at those hearings, in addition to Father and Aunt, were Stephen P. Lindenburg, Ph.D., and psychologist Stanley E. Schneider, the mental health professionals who conducted Father's section 5329 evaluation; Toinette Shearer, an expert in juvenile sex offender treatment; Father's girlfriend, J.S.; Father's sister, J.D.; Aunt's husband, M.R.; Child's maternal grandmother, S.E.; the director of the Best Idea Child Care Center, A.D.; and a one-time child care provider to Child, S.N.

Father testified that he has a history of drug and alcohol use that began when he was twelve years old. N.T. 7/19/13, at 99. According to Father, he cleaned himself up and was completely sober from the age of 21 until, at the age of 26, he resumed his addiction when he was prescribed pain medication for a work-related injury. Id., at 99-100. When Father's doctor refused to renew his prescription, Father was arrested and acquired a criminal history when he attempted to purchase drugs on the street. Id., at 100.

Father also has a history of inpatient drug and mental health treatment that began in November of 2010. Id., at 100-102. Father testified that he completed his last inpatient treatment in August of 2011 and that he has been clean and sober since then. Id., at 102. Father has not received mental health treatment since he completed his last inpatient stay, but his family doctor prescribed antidepressants while he waited to see a psychiatrist for his section 5329 evaluation. Id., at 104-105.

After Mother's death, Father and Aunt discussed Aunt's willingness to take on co-guardianship of Child and exchanged emails regarding the paperwork necessary to formalize Aunt's shared custody of Child. Id., at 134-135. The parties signed an agreement while Father was hospitalized, but Father testified that he had agreed to the arrangement prior to entering the treatment facility. Id., at 135-136. Child has resided with Aunt and her husband full-time since Mother's death. Id., at 77.

Father is currently dating J.S. Father and J.S. are the parents of a two-year-old son, M.B. J.S., who lives with her mother, has two other sons, D.V., age fourteen, and K.V. age nine. Id., at 168. Father and J.S. plan to live together eventually. Id., at 127.

Father resided in many locations after he and Mother separated, including motels, an apartment, a halfway house, his sister's basement and his girlfriend's mother's house. Id., at 132. At the time of trial Father was residing in the basement of his sister's home. Id.

Father's driver's license was suspended for unpaid parking tickets and the suspension was extended when he continued to drive without a license. Father anticipates having a limited license reinstated in February of 2014 and full driving privileges restored in July of 2014.

In May of 2011, after Mother's death, Father and Aunt registered Child at Best Idea Childcare. A month after Child began attending Best Idea the daycare center sent an email to Aunt expressing concerns of odd behavior on Child's part that could have been signs of sexual abuse. Id., at 231-232. Father was in rehab at the time so Aunt contacted Father's sister, who begged Aunt not to tell Father because he was just getting out of rehab and she was concerned he might relapse. N.T. 8/19/13, at 41.

Aunt took Child to her counselor to address the concern. Aunt testified that the counselor could not determine whether the behavior was a result of sexual abuse or a result of the major changes in Child's life. Id. Child continued in counseling but never voiced any indication of inappropriate behavior. Id., at 43. Aunt did not receive any further communication from the daycare expressing any additional concerns until 13 months later, when the daycare sent Aunt another email expressing renewed concerns about Child's behavior. Aunt received a third and final email a couple of weeks later. Id., at 42. After she received the third email, Aunt questioned Child again and Child disclosed that K.V. had sexually abused her. Id., at 43-44. Aunt immediately contacted Father, who met with her at her home, and agreed that Child would no longer have contact with K.V. Id., at 46. Two months later, however, Father unilaterally decided to allow Child and K.V. to be together without first consulting with Child's counselors and without advising Aunt. N.T. 7/19/13, at 124, 150-151; N.T. 8/19/13, at 124. It was at this time that Father filed his petition to modify custody and that Aunt filed her answer and counterclaim, together with an emergency petition for special relief.

The trial court issued the order complained of on August 19, 2013. Father filed a motion for reconsideration on September 10, 2013; Aunt filed an answer on September 16, 2013. The trial court did not rule on Father's motion. Father filed his notice of appeal on September 18, 2013, and his statement of errors complained of on appeal on September 27, 2013.[3]

Father presents the following questions for our review:

1. Did the [trial court] abuse its discretion when, although enunciating the correct standard for a third party (Aunt) seeking custody over a biological parent (Father), the [trial court] did not in its evaluation of the custodial factors, accord [Father] a prima facie right to custody, and tip the scales hard in favor of [Father], but rather evaluated the parties on equal footing, and did not require [Aunt] to produce convincing reasons to disturb the parent child relationship?
2. Did the [trial court] infringe upon [Father's] Fourteenth Amendment protections when the [trial court] deprived Father of his custodial rights to [Child] in favor of a third party, without a compelling reason to do so?

Father's Brief, at 6.

Our scope and 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.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012).

We have stated,

[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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

The primary concern in any custody case is the best interests of the child. "The best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child's physical, intellectual, moral, and spiritual wellbeing." Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).

We must accept the trial court's findings that are supported by competent evidence of record, and we defer to the trial court on issues of credibility and weight of the evidence. If competent evidence supports the trial court's findings, we will affirm even if the record could also support the opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).


The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court's consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002) (quoting Robinson v. Robinson, 645 A.2d 836, 838 (Pa. 1994)).

Section 5327 of the Child Custody Act provides:

In any action regarding the custody of the child between a parent of the child and a non-parent, 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(c).

This Court has stated:

[W]here the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, the parents have a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child's best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents' side.
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. v. J.E.B., 55 A.3d 1193, 1199 (Pa. Super. 2012) (citation omitted). "[T]he non-parent bears the burden of production and the burden of persuasion and the non-parent's burden is heavy." Id.

At the close of the hearing on August 19, 2013, the trial court read into the record a complete analysis of all the relevant factors enumerated 23 Pa.C.S.A. § 5323(a). N.T. 8/19/13, at 140-156. See C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super 2013), (holding, inter alia, that the trial court must set forth its mandatory assessment of the sixteen best interest factors in 23 Pa.C.S.A. § 5323(a)).

Father first complains that the trial court did not properly apply the 16 custody factors:

In examining each of the sixteen custody factors enumerated in the new Child Custody Law, the court did not 'tip the evidentiary scales' in favor of Father, but favored Aunt, even when the facts presented dictated otherwise. The court informed Father that he started at 'rock bottom' in pursuing custody, clearly demonstrating that the court did not understand the statutory presumption.

Father's Brief, at 11.

The trial court did not inform Father that he started at "rock bottom" in pursuing custody. The trial court used the term, after it finished discussing the custody factors, when it commented on what Father had accomplished over the years. Here is the term "rock bottom" in context:

I will also tell you that 'I've been impressed with the steps that you are taking to better yourself through the years. You could have rolled over and given up the ship quite a few years ago between the issues that you have that were I believe it was Dr. Lindenbeurg, it was probably him if I remember, testified about. But you worked on those. As you said today, you're willing to accept new ideas, to see how by going to counseling and looking into the various issues, how your mind can change on things. You still have some work to do. I will say that.
You know and I don't mean this as an insult, take it as a compliment, but that's where we're at right now. And this is something that was told to me by I think it was my 10th grade math teacher who was an ex-basketball coach but he still followed basketball. One day he said, "Mummah, you get the most improved award this year." I said, "Thank you." He said, "Really what that means is you stunk last year."

You do get the most improved award. The problem is you started at rock bottom. N.T. 8/19/13, at 154-155.

The trial court was clearly describing the progress Father had made in addressing the problems he faced in past years; it was not describing the point from which Father started when it began its consideration of the sixteen factors that determine custody.

The trial court began its analysis of the sixteen factors by articulating the correct standard:

Normally in a custody case when we start these factors the parties are on an equal footing.

When we have a natural parent versus a third party, the scales are tipped in favor of the natural parents, and there is a presumption that custody should be with the natural parent. But, as you stated, that presumption may be rebutted by clear and convincing evidence.

Id., at 141.

Father argues that the evidence presented was insufficient to permit Aunt to overcome the heavy burden borne by a non-parent and that the trial court therefore abused its discretion when it awarded her primary physical custody. In support of this argument, Father examines the evidence and asks us to reach a decision different from that reached by the trial court. This we may not do. We must accept the trial court's findings that are supported by competent evidence of record, and we defer to the trial court on issues of credibility and weight of the evidence. If competent evidence supports the trial court's findings we will affirm even if the record could also support the opposite result. In re Adoption of T.B.B., supra.

Father also complains that Aunt did not carry her heavy burden of persuasion because she did not call certain professionals who had seen Child who could have testified as expert witnesses. We note that these professionals were apparently available to Father as witnesses, as well as to Aunt, and that he was free to call them if he considered their testimony essential to his case.

That being said, we will briefly review the trial court's analysis of the sixteen factors.

Factor one, who would likely to encourage frequent and continuing contact between the child and the other party. Father complains, "[T]he [trial court] misinterpreted this factor and criticized Father for his anger in communicating with Aunt. [N.T. 8/19/14, at 142] The standard is not the contact between the parties, but rather the contact between the child and the other party." Father's Brief, at 14.

The trial found this factor to be almost neutral but concluded, "Although neither party is great, I would give the checkmark here to [Aunt] if one side had to be picked over the other." N.T. 8/19/14, at 142. The trial court did not fault Father for his anger any more than it faulted Aunt. The trial court favored Aunt's ability to keep the lines of communication open only slightly over Father. In addition, Father misinterprets the standard. The question is not who has contact with the child but who best permits contact between the child and the other party.

Factor two related to past and present abuse. The trial court found for Aunt here because K.V. abused Child while Child was in Father's care. The trial court did not blame this on Father, but found that "it did occur on [Father's] watch." Id., at 143.

Factor three, parental duties, went in favor of Aunt because she has been performing the parental duties for Child. The trial court admitted to Father, "I find you are capable sir. It's just that you have not had [Child] consistent periods of time, other than weekends, for a long time at this point." Id., at 144.

Factor four is the need for stability and continuity. The trial court found that Aunt has a stable home and that she "takes care of all school duties, has all [C]hild extracurricular activities lined up, participating in that, takes care of any homework, all those things." Id. It found that Father, by contract, has had "very limited participation with school activities, " and faulted Father for not taking the initiative to stay informed about Child's progress at school. Id., at 144-145.

The trial court found that there was no advantage to either side in regard to factor five, the existence of extended family.

Child is not old enough for the trial court to consider Child's preference, factor six.

The trial court found, "There are instances on both sides[.]" and did not find that factor seven, who might turn the child against the other, favored either side.

The trial court found for Aunt on the question of factor eight, who is more likely to maintain a loving, stable consistent and nurturing relationship with Child. The trial court found that Aunt and her mother had been there for Child "throughout the unstable times in the natural parents' lives. "That's the one place, either Aunt's or her mother's house where Child had gone almost as a refuge when times were tough." Id., at 147. The trial court found that Father, in addition to the problem of housing, has had, "problems with addiction, anger issues, mental health issues." Id.

The trial court also found for Aunt on the question of Child's physical, emotional, developmental, educational, and special needs. According to the trial court:

Again, [Aunt] has been the one to do that. She's attended parent-teacher conferences, and she is the one who, you know, makes sure all the meals and those things are taken care of on a daily basis, counseling, dance class, all those types of things, takes care of all schoolwork work, doctor and dentist appointments.

Id., at 148.

The trial court found that the proximity of the residences would not be a factor except for the fact that, at the time of the hearing, Father did not possess a valid driver's license.

The trial court found that each party "made appropriate childcare arrangements." Id., at 149.

On the question of the level of conflict, the trial court found for Aunt, primarily on the basis of Father's tendency to anger, "[W]hen you lose your temper and scream and yell and make threats, whatever you want to call it, it doesn't help." Id.

The trial court found that Aunt and her husband have no history of drug and alcohol abuse while Father's is well documented.

Similarly, Aunt and her husband have no history of mental health problems while Father does.

The trial court found that "both homes are appropriate."

In regard to other factors, the trial court faulted Father's lack of a driver's license and Father's difficulty in communicating with others that leads to conflict.

Our review of the record reveals there is sufficient evidence in the record to support the trial court's findings. Child enjoys a safe, secure, and stable home with Aunt in an environment which has, historically, been a refuge from the problems her parents faced. The evidence demonstrates, and the trial court found, that Father is working hard to improve his life. He still struggles, however, with the issues of his drug use and his mental health. It was not an abuse of the trial court's discretion for it to conclude, at least at this point in Child's life, that it was in Child's best interest to award primary physical custody to Aunt.

Father has waived the issue of his Fourteenth Amendment right to due process by failing to raise it before the trial court. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302; see Dilliplane v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Father failed to raise any constitutional claim before the trial court. There is no mention in the record before us of Father's claim that the award of primary physical custody to Aunt somehow violates Father's rights under the Fourteenth Amendment to the United States Constitution, and that claim is waived. Pa.R.A.P. 302, Dilliplaine.[4]

Accordingly, for the reasons stated above, we affirm the order of the trial court entered August 19, 2013.

Order affirmed.

Judgment Entered.

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