Opinion
J-S47028-18 No. 517 WDA 2018
10-10-2018
A.A.H., NOW M. v. S.C.H., SR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order April 5, 2018
In the Court of Common Pleas of Erie County Civil Division at No(s): 13367 of 2013 BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER, J. MEMORANDUM BY McLAUGHLIN, J.:
Retired Senior Judge assigned to the Superior Court.
S.C.H., Sr. ("Father") appeals from the order denying his Motion to Modify Custody, and granting the request of A.A.H., now A.A.M. ("Mother"), to relocate. Because the trial court used the wrong legal standard when deciding Father's Motion, we vacate.
This custody action commenced in 2013, when Father filed a complaint seeking sole custody of both of the parties' biological children, S.H., Jr. (born 2008) and N.H. (born 2013). Following a custody conciliation conference in late 2013, a custody order was entered that provided primary physical custody of S.H. to paternal aunt and uncle with partial physical custody to Father and Mother, and primary physical custody of N.H. to Mother with partial physical custody to Father.
In April 2015, Mother filed a petition for modification seeking primary physical custody of S.H. The court held a hearing on November 19, 2015, at which Father failed to appear. The court granted Mother sole physical custody of both children, and Father was provided supervised visitation by mutual agreement.
On December 4, 2017, Father filed a Motion to Modify Custody seeking visitation with the children at the State Correctional Institution at Albion ("SCI Albion"), where Father was then incarcerated. (Father claims he is due to be released from incarceration on September 22, 2018. See Trial Court Opinion, filed May 18, 2018, at 4 n.4.) Shortly thereafter, on January 24, 2018, Mother filed a Notice of Proposed Relocation from Erie County to York County.
The court held a hearing on both Father's Motion for Modification and Mother's relocation request on March 27, 2018. Mother was represented by counsel; Father was pro se and participated telephonically from SCI Albion. Following the hearing, the court granted Mother's request to relocate and denied Father's Motion to Modify Custody.
Father filed a timely Notice of Appeal, and raises the following issues:
1. Did the Erie County Courts err[] by denying [Father] visitation pursuant to Etter [ v.] Rose [, 684 A.2d 1092 (Pa.Super. 1996)]?
2. Was [Father] denied [d]ue [p]rocess of [l]aw by the Erie County Courts for being denied [r]epresentation . . . at the [c]ustody [t]rial on 03-27-18?
3. W[ere] the Erie County Courts misled by [Mother] and her [c]ounsel[] about [Mother's] mental health problems, past drug abuse, and criminal history?
4. Does the record show that the Erie County Courts were manipulated by [Mother] and her [c]ounsel to degrade [Father] and the constant contact that [Father] had with [the] children?
5. Has [Mother] continued to deny [Father]'s phone, e-mail, visitation, written correspondence, or even photos with [the] children?Father's Br. at 2 (suggested answers omitted).
In contravention of Pennsylvania Rule of Appellate Procedure 2119, Father's brief fails to provide arguments corresponding to the questions Father has raised. See Pa.R.A.P. 2119. In fact, Father sets forth hardly any argument at all, and his "Summary Argument" section, which spans two pages, is not a summary of his "Argument" section, which fills only one page. See Father's Br. at 9-11; Pa.R.A.P. 2118. Father also fails to provide a statement of the scope and standard of review on appeal, or to set forth the text of the order under appeal. See Pa.R.A.P. 2111(a)(3), 2115(a). Additionally, his case summary only partially conforms to the requirements of Pa.R.A.P. 2117. Mother therefore argues that we should deem all of Father's issues waived and dismiss his appeal. Mother's Br. at 8-11.
If an appellant's brief does not substantially conform to the Rules, we have discretion to quash or dismiss the appeal. Pa.R.A.P. 2101. Pro se litigants are obligated to conform to the same Rules as counseled litigants, and face the same result for non-compliance. See Wilkins v. Marsico , 903 A.2d 1281, 1285 (Pa.Super. 2006). Still, because we liberally construe materials filed by a pro se litigant, and in the interests of justice, we will address those arguments we can discern and that Father preserved for review. See Commonwealth v. Lyons , 833 A.2d 245, 251-52 (Pa.Super. 2003); see also Pa.R.A.P. 105 ("These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable").
We review a custody order under an abuse of discretion standard. S.T. v. R.W., ___ A.3d ___, 2018 PA Super 192, *2 (filed June 29, 2018). We must defer to the trial court "with regard to issues of credibility and weight of the evidence," and "accept [the] findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations." Id. (citation omitted). We may reject the conclusions which "involve an error of law, or are unreasonable in light of the sustainable findings of the trial court." Id. (citation omitted).
In his first issue, Father complains that the trial court erred in denying him visitation at SCI Albion under Etter v. Rose , 684 A.2d 1092 (Pa.Super. 1996). Although he does not specify in what manner the court erred, Father claims that visitation would be appropriate because the "children live approximately [four] miles from their paternal grandparents . . . who are willing to bring [them] to see [Father] in prison and endu[r]e the costs to ensure [Father]-child contact." Father's Br. at 9. Father also claims that Mother lives "less than [30] minutes from SCI Albion and has visited [Father] in prison before with [S.H.] and has knowledge of the security and safety within the prison setting." Id. Father argues that he "loves and cares deeply about his children and desires to maintain a healthy relationship with the [] children, even though [he] is incarcerated." Id. at 11. According to Father, he "has taken several rehabilitation based classes, parenting classes, fatherhood classes, and is involved in [Alcoholics Anonymous, Narcotics Anonymous, and SMART Recovery]." Id. Father further claims that he has "maintained a father/son relationship with the []children since birth, although not on an everyday basis but constant basis," and that he "does call every week if not available to actually be present and does speak to [the children] personally to convey [his] love and care of their wellbeing and [to ask] how things are going." Id.
Father's argument apparently does not take into account that the trial court granted Mother leave to relocate to York. Because we remand on Father's first issue for another reason, and because Father did not separately challenge the trial court's treatment of Mother's relocation request, we need not review the trial court's treatment of that request. We caution the trial court, however, that courts "should avoid dissociating" the questions custody and relocation, "and should instead decide the two issues together under a single umbrella of best interests of the children." S.S. v. K.F., 189 A.3d 1093 (Pa.Super. 2018) (quotation marks and citation omitted).
Under the Child Custody Act, which took effect in 2011, any decision involving child custody is to be determined using the best interests standard, guided by the factors enumerated in 23 Pa.C.S.A. § 5328(a). This includes a petition for modification seeking visitation with an incarcerated parent. See S.T. v. R.W., 2018 PA Super 192, *7-8; see also 23 Pa.C.S.A. § 5338 ("Upon petition, a court may modify a custody order to serve the best interest of the child").
In Etter , which pre-dates the Child Custody Act, this Court gave a specific list of factors for a court to consider when ruling on a request for visitation with an incarcerated parent. Etter , 684 A.2d at 1093. The Etter factors include:
the age of the child, distance and hardship to the child in traveling to the visitation site, the kind of supervision at the visit, identification of the person(s) transporting [the child] and by what means, the effect on the child physically and emotionally, whether the [parent] has and does exhibit a genuine interest in the child, whether [the parent] maintained reasonable contacts in the past and any other relevant matters impinging on the child's best interest.Id. Although Etter was decided prior to the 2011 adoption of the Act, our Supreme Court has approved the continued application of the Etter factors in conjunction with the Section 5328(a) factors, with which there is some overlap. See S.T. v. R.W., 2018 PA Super 192, *9-10 n.10. Failure to consider the Etter factors may constitute reversible error. Id. at *11.
An additional factor for the court's consideration in this scenario is "the nature of the criminal conduct that culminated in the parent's incarceration, regardless of whether that incarceration is the result of a crime enumerated in [section 5329(b)]." S.T. v. R.W., 2018 PA Super 192 at *9 (quoting M.G. v. L.D., 155 A.3d 1083, 1094 (Pa. Super. 2017) (alteration in original)).
However, Etter also held that where an incarcerated parent requests visitation, there is a rebuttable presumption that such visitation is not in the best interest of the child. Etter , 684 A.2d at 1093. This presumption no longer applies under the current statutory scheme. See S.T. v. R.W., 2018 PA Super 192, *10-11. This Court has acknowledged that, to the contrary, visitation with an incarcerated parent may be in a child's best interest more often than not, particularly when the child feels loss due to his or her inability to maintain contact with a parent that he or she sees or talks to on a regular basis. Id. at *11 (quoting the Judicial Dependency Court Benchbook).
In its Pa.R.A.P. 1925(a) opinion, the trial court reviewed both the Section 5328 factors and Etter factors. See Trial Ct. Op. at 9-15. However, the court also recited the now-obsolete presumption announced in Etter , and repeated twice that "Father did not meet his burden of rebutting the presumption that amending the custody order to allow for visitation would be in the children's best interests." Id. at 12, 13, 15. Thus, the trial court applied an inappropriate standard when deciding whether to grant relief on Father's Motion to Modify.
We note, however, that unlike the concerns expressed by this Court in S.T., this is not a case where Father had been in the habit of exercising physical custody of the children and sought only to modify the custody arrangement due to his incarceration. Just as there is no presumption that visitation with an incarcerated parent is not in a child's best interest, neither is there a presumption that visitation with an incarcerated parent who has heretofore been absent is in a child's best interest.
Because this error of law controlled the court's analysis, we vacate the order denying Father's Motion to Modify, and remand for further proceedings consistent with this opinion.
Because we remand on Father's first issue, we need not reach the other issues he has raised. Nevertheless, we briefly observe that in Father's second issue, he complains that he was not provided counsel for the custody hearing. As the trial court explained, there is no right to counsel in custody matters. See Trial Ct. Op. at 15-16; Karch v. Karch , 879 A.2d 1272, 1274 (Pa.Super. 2005).
Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018