Opinion
J-S71002-19 No. 2481 EDA 2019
02-28-2020
J.W. v. B.B Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 22, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): 0C1208305 BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J. MEMORANDUM BY BOWES, J.:
B.B. ("Father") appeals pro se from the August 22, 2019 custody order that awarded him and J.W. ("Mother") shared legal custody of their son, A.W., and awarded Mother primary physical custody during the academic year. The order granted Father periods of partial physical custody during the school year and shared physical custody during the summer. We affirm.
A.W. was born in July 2010. Mother initiated the underlying custody litigation during July 2012, and since January 2013, Mother exercised shared legal custody and primary physical custody in Philadelphia pursuant to a custody consent order. Father shared legal custody and exercised periods of partial physical custody at his home in Camden, New Jersey.
On March 22, 2017, Father filed separate petitions for contempt and to modify the existing custody order. The trial court summarized the ensuing procedural history as follows:
Father's March 22, 2017 Petition for Modification of Custody was initially heard by a custody master who submitted a proposed order on May 8, 2017, to which Father filed [e]xceptions, alleging that the child was sexually abused by a maternal uncle, that Mother was aware of same[,] and that the Philadelphia Department of Human Services [("DHS")] was involved and recommended the child remain with Father. Mother filed for [e]xpedited [r]elief on July 17, 2017, to have the child returned to her custody.Trial Court Opinion, 10/9/19, at 2-3 (footnotes omitted).
Mother's Petition for Expedited Relief was heard on August 30, 2017, when an interim order was entered awarding primary physical custody to Father and providing that Mother was to have supervised partial physical custody on alternating Sundays at Family Court.
. . . .
Father's Petition for Contempt was denied and an interim order was entered to continue supervised partial physical custody for Mother with the child on alternating Sundays. Records concerning the allegations of sexual abuse were ordered to be produced from [DHS], as well as from the Philadelphia Children's Alliance ("PCA"), together with a copy of the DVD recording of the interview of the child at the agency.
Following several evidentiary hearings, the trial court entered the above-referenced order awarding Mother primary physical custody of the child during the school year and shared physical custody during the summer. In rendering its decision on the record, the trial court delineated its consideration of the pertinent statutory custody factors enumerated in 23 Pa.C.S. § 5328(a). See N.T., 8/22/19, at 83-100; M.J.M., supra , at 335 ("[W]hen making a custody award, '[t]he court shall delineate the reasons for its decision on the record in open court or in a written opinion or order.'") (quoting 23 Pa.C.S. § 5323(d)). As it relates to the abuse allegations against Mother and the child's uncle, the court determined that both were unfounded. See N.T., 8/22/19, at 87, 126-27.
Pursuant to 23 Pa.C.S. § 5328(a), the factors to be considered by the court include the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.23 Pa.C.S. § 5328(a).
(2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household.
(16) Any other relevant factor.
Father filed a timely appeal and a contemporaneous concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The concise statement asserted four issues concerning the court's decision to admit or exclude evidence relating to: (1) the DHS investigation, (2) A.W.'s prior therapy; (3) video evidence concerning Mother's alleged abuse; and (4) A.W.'s preference. The remaining issue involved allegations of trial court bias that resulted in a decision that was contrary to the weight of the evidence. See Father's Rule 1925(b) Statement, 8/29/19, at 2-4. On October 9, 2019, the trial court entered a Rule 1925(a) opinion that addressed each of Father's assertions comprehensively.
Not all of foregoing issues listed in the Rule 1925(b) statement align with the following questions that Father enumerates in his brief:
1. Did [Father] or [Mother] display they are willing to allow access to [A.W.'s] school, therapy[,] and activities?Father's brief at 5-6.
2. [Was] [Father] or [Mother] ever indicated for abusing or neglecting [A.W.]?
3. Who is more likely to keep the child safe from future abuse or neglect . . . ?
4. Who has maintained a stable environment for [A.W., and] consistently provided a safe household with no [household members who have] criminal records . . . ?
5. Who has provided more care [to] the child[,] such as therapy[,] counseling, [and] self-defense classes . . . ?
6. [With whom] . . . does [A.W.] have sibling. . . relationships [that] are affected by custody?
7. [With] [w]hich party . . . [does A.W.] prefer to live with . . . ?
8. Who has provided a more stable child care environment for [A.W.,] [Father] or [Mother]?
Mother did not file a brief with this Court.
First, we address whether Father's issues are preserved for our review. Pursuant to Pa.R.A.P. 1925(b)(4)(vii), issues that are not included in the Rule 1925(b) statement are waived. In comparing the questions presented in Father's brief with the issues identified in his Rule 1925(b) statement, we find that Father's fifth and sixth questions, relating to extracurricular activities and sibling relationships, respectively, are waived because they were not included in the Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii). The remaining questions were either raised in, or fairly suggested by, the Rule 1925(b) statement.
We employ the following scope and standard of review in custody matters.
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.M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013).
With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.
After a thorough review of the certified record, the Father's brief and the pertinent law, we affirm the August 22, 2019 custody order on the basis of the cogent and well-reasoned opinion entered on October 9, 2019, by the distinguished Judge Doris A. Pechkurow, who explicitly incorporated the prior on-the-record delineation of the relevant best-interest factors.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/28/20
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