Appeal from the Order Entered August 19, 2013 in the Court of Common Pleas of Perry County Civil Division, at No. FC-2011-141
BEFORE: PANELLA, OLSON, and PLATT [*] , JJ.
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. 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.
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.
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 ...