H.R. AND C.A.R.
C.P. AND J.M. APPEAL OF: C.P.
from the Order Entered April 5, 2019 In the Court of Common
Pleas of Schuylkill County Civil Division at No(s):
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
("Father") appeals from the April 5, 2019 custody
order that granted the exceptions filed by the maternal
grandparents, H.R. and C.A.R. (collectively
"Grandparents"), to the custody officer's
report and recommendation, denied Father's
counter-exceptions, and awarded Father periods of supervised
physical custody of his ten-year-old son, L.P. We affirm.
was born in May 2009, of Father's relationship with J.M.
("Mother"), whom Father met while they were
students at Penn State University. Mother and Father both
struggle with substance abuse, and Father's recreational
use of marijuana has been a recurring issue throughout the
custody litigation. The relationship remained intact for the
first few years of L.P.'s life. During this period, the
family was transient, and it faced financial hardships.
Following L.P.'s birth, Mother and Father moved from
Pennsylvania to Michigan, in order for Father to obtain a
medical marijuana license in that state. Thereafter, they
relocated to Georgia, briefly, before settling in Maryland
immediately before the relationship dissolved during 2012,
when L.P. was approximately three years old.
July 2012, Grandparents have maintained primary physical
custody of L.P. pursuant to a stipulated order that was
entered after Mother alleged that Father fed L.P. a
"fire cracker," which Mother described as a Graham
cracker topped with marijuana-laced peanut butter. All four
individuals shared legal custody. Mother, who resided with
Grandparents in Tamaqua, Pennsylvania, for most of the
ensuing period, now lives independently, in Ambler,
Pennsylvania and exercises periods of physical custody for up
to four hours on alternating weekends. Similarly, Father
exercises three hours of supervised visitation on alternating
Saturdays. His relationship with Grandparents is strained,
and Father contends that Grandparents intentionally relocated
with L.P. from Tamaqua to Denver, Pennsylvania, after Father
moved to Tamaqua to be closer to his son. He complains that
it takes approximately two hours to travel from Tamaqua to
Denver, which is about a fifty-five mile car trip.
Grandparents counter that the duration is closer to one and
2014, Father filed a motion to modify the 2012 custody
stipulation. Following a procedural misstep, the modification
request culminated in a complete custody trial and a
determination of L.P.'s best interests pursuant to the
relevant factors outlined in § 23 Pa.C.S. §
5328(a). As it relates to the issue presented on
appeal, the trial court awarded Grandparents physical custody
pursuant to the terms of the initial 2012 stipulation except
that it added a provision that conditionally extinguished the
supervision requirement "upon Father's willingness
to demonstrate sobriety and continued abstinence." Trial
Court Order, 7/2/15, at 1. In pertinent part, the addendum
1. The Order Of Court dated July 16, 2012 per Baldwin, P.J.,
shall remain in full force and effect except that the Order
is hereby amended to include the following with regard to
Father's supervised partial physical custody as follows:
3(d). Father shall be provided the opportunity for
unsupervised contact within his home setting on alternating
Saturdays for three (3) hours provided and contingent upon
Father's willingness to demonstrate sobriety and
continued abstinence through submission to hair follicle
tests to be conducted by Compliance Drug and Testing
Services, LLC., "NE Compliance" at intervals of six
(6) months for two (2) years from the date of this Order. In
the event the first test administered within thirty (30) days
-of the date of this Order is negative, then Father may have
the aforementioned unsupervised visitation provided that he
continues to submit to the other hair follicle tests. It is
agreed by [Grandparents] that they shall pay and be
responsible for the hair follicle test fees submitted by NE
Compliance to them. Furthermore, Father shall sign a release
authorizing NE Compliance to release the test result reports
to [Grandparents'] counsel who shall be authorized to
provide copies of the same to Mother and the [Grandparents].
3(e). In the event that any of the four (4) the hair follicle
tests are positive then supervised visitation shall continue
until Father tests negative.
Id. at 1-2.
2015 custody schedule continued unchanged until Father filed
his most recent petition for modification on June 12, 2018.
In addition to a general assertion that the prevailing
custody arrangement was contrary to L.P.'s best interest,
Father contended that, in light of his newly-acquired license
to use medical marijuana as a mechanism to manage wrist pain,
the trial court should not weigh the fact of his marijuana
use against him. In this vein, Father argued, "Marijuana
is now a state recognized medicine and shouldn't be used
to keep children from parents." Petition for
Modification of Custody, 6/12/18, at 2. Following two
non-consecutive days of evidentiary hearings pursuant to
Pa.R.C.P. 1915.4-2(b) (regarding record hearings for
determinations of partial custody), the custody officer filed
a report noting its consideration of the best-interest
factors and a recommendation that the trial court (1)
terminate the drug-testing conditions on Father's ability
to exercise unsupervised custody, and (2) significantly
increase the duration and nature of Father's three-hour
period of supervised partial physical custody to nine hours
of unsupervised custody on alternating Saturdays. It further
recommended that Father's custodial periods increase to
overnights in May 2019.
filed exceptions to the custody officer's report and
recommendation. In relevant part, Grandparents challenged the
hearing officer's findings regarding Father's alleged
medical condition and purported certification for medical
marijuana, and its reliance upon the certification to
discount Father's history of recreational drug use, and
to remove the requirement that he submit negative
drug-screens before exercising unsupervised physical custody.
Subsumed within these arguments is Grandparents'
contention that the custody officer erred in admitting into
evidence Father's documentation concerning both his
medical condition and his certification to use medical
marijuana. They also complained that the hearing officer
neglected to consider the presence of Father's housemates
before awarding unsupervised overnight custody, and that the
record did not sustain Father's supposition that
Grandparents moved from Tamaqua out of spite or that Father
was the primary caretaker when the family lived in Maryland.
Father filed "counter exceptions," he did not
assert any challenges relating to the hearing, report, or
recommendation. Father simply responded to Grandparents'
exceptions by presenting countervailing statements in
opposition to Grandparents' contentions. Upon review of
the record, the trial court entered the above-referenced
order that granted all eight of Grandparents' exceptions
and denied Father's counter exceptions.
the trial court concluded that, upon review of the §
5328(a) factors and the safety concerns raised by Mother and
Grandparents, it served L.P.'s best interests to continue
with the prior custody arrangement and to reinstate the
hair-follicle-testing condition to unsupervised physical
custody. Trial Court Opinion, 4/5/19, at 12. The court
it is unknown from the record what effect Father's
alleged medical condition and use of marijuana, whether
medically prescribed or used recreationally, may have on his
ability to care for and parent the child. [Additional] . . .
admissible evidence is necessary before an increase in
Father's custodial time would be warranted to insure the
child's safety and well-being.
Id. Significantly, the trial court determined that
the custody officer erred in relying upon Father's
contention that he was certified to use medical marijuana, as
Father failed to present medical evidence to establish either
a wrist affliction that necessitates its use or the effect
that the use of medical marijuana will have on Father's
parenting ability. Id. at 12-13. It concluded,
"without benefit of testimony from the doctor who Father
alleges authorized the use of medical marijuana, it is not in
the best interest of the child to expand Father's partial
custody." Id. at 13.
timely pro se appeal followed. Father initially
failed to comply with Pa.R.A.P. 1925(a)(2)(i) by
contemporaneously filing a concise statement of errors
complained of on appeal. On June 5, 2019, this Court entered
an order directing Father to file and serve the Rule 1925(b)
statement with the trial court by June 12, 2019. He filed the
required statement within the designated period, and the
trial court entered an order directing our attention to its
opinion entered on April 5, 2019.
presents two issues for our review:
1. Whether the court may ignore a properly [bona
fide] registered medical marijuana card &
certificate as ...