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H.R. v. C.P.

Superior Court of Pennsylvania

December 18, 2019


          Appeal from the Order Entered April 5, 2019 In the Court of Common Pleas of Schuylkill County Civil Division at No(s): S-1868-2011

          BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.


          BOWES, J.

         C.P. ("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.

         L.P. 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.[1] 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.

         Since 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 one-quarter hour.

         During 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).[2] 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 provided,

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.

         The 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.

         Grandparents 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.

         While 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.

         Specifically, 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 continued,

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.

         This 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.

         Father presents two issues for our review:

1. Whether the court may ignore a properly [bona fide] registered medical marijuana card & certificate as ...

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