Opinion
1713 EDA 2021
04-05-2022
OBIANUJU S. OLIVER Appellant v. STACEY L. OLIVER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 22, 2021 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): 0C1000943
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J. [*]
MEMORANDUM
PELLEGRINI, J.
Obianuju S. Oliver (Mother) appeals from the July 22, 2021 order of the Court of Common Pleas of Philadelphia County (trial court) granting shared legal and physical custody of C.S.O. (Child) to her and Stacey L. Oliver (Father). We vacate the order and remand with instructions.
I.
We glean the following facts from the certified record. Mother and Father have been engaged in a custody dispute since shortly after Child's birth in 2010. Mother filed the instant petition to modify custody on April 23, 2019, seeking primary physical and shared legal custody. At that point, the custody order provided that the parties would share custody of Child on a week-to- week basis. Mother alleged that Child had been abused by a 9-year-old child, D.M.K., who resided with Father and that there was a temporary Protection from Abuse (PFA) order in effect against D.M.K. She stated that Child had returned from Father's custody with a burn mark on her leg and that Father was abusive toward Mother and told Child lies about her. She said that Child did not have her own bed at Father's home, would be sent to school without her uniform, and that Father did not enforce bedtimes or ensure that Child completed her homework while she was in his care.
In response to Mother's petition, the trial court entered custody orders prohibiting contact between Child and D.M.K. during Father's custodial periods and requiring both parents to cooperate with Child's therapist. Following a two-week period where Father had only supervised visits, the trial court reinstated the week-to-week custody schedule. Mother's petition to modify custody was continued for "status." Trial Court Opinion, 11/30/21, at 6. After a delay due to court closures during the pandemic, the trial court held a hearing on the petition on June 3, 2021, via video conference.
Mother and Father both filed contempt petitions and motions for expedited relief during this period. Those petitions are not germane to this appeal.
Mother and Father proceeded pro se at the hearing and on appeal.
The trial court began the hearing by questioning Mother about the current custody arrangement. Mother said she lives in an apartment approximately 15 minutes away from Father. She and Child have their own beds but share a bedroom. Child was in fifth grade, had attended her school since kindergarten and had an Individualized Education Plan (IEP). Mother had attended school full-time and worked part-time prior to the pandemic and was currently obtaining a master's degree. She had been laid off during the pandemic and had not returned to work because she had to supervise Child's virtual learning.
Mother said that Child had made significant progress with speech and language therapy through her school. She had been referred for trauma-focused therapy and was diagnosed with an adjustment disorder. Mother attended family therapy with Child and Father after Child was sexually abused by D.M.K. She said Father did not believe the abuse occurred, encouraged Child to recant, and would be hostile toward Mother and call her names during sessions. The therapist then suggested each parent attend sessions with Child separately, but Mother said Child refused to attend sessions with Father because Father did not believe that she had been abused by D.M.K. Mother did not think that D.M.K. had contact with Child after the custody order was amended to prohibit it. Child told her that Father planned to bring D.M.K. back to his home after the court proceedings were resolved.
Mother also said that Father was inconsistent in exercising his periods of custody and had failed to pick Child up for approximately six months in 2020. She believed that Father would leave Child in the care of others rather than watching her himself during his periods of custody. She said that on one occasion, Father took Child to the hospital and told her to lie and say Mother had abused her. The Department of Human Services (DHS) had investigated four claims against her initiated by Father and had determined they were unfounded. DHS had only ever recommended services for the family in response to the case concerning D.M.K.
Mother said that she met Father online when she lived in Nigeria and the two married in 2006. Father lived in the United States and Mother joined him in 2009 after completing her degree. Mother said that while they lived together, Father would call her names and threaten her, and she obtained a temporary PFA against him in 2010 after separating from him following Child's birth. No criminal charges were ever filed against Father. She ultimately declined to seek a three-year PFA because he told her he would lose his job and she relied on him financially. She lived in a women's shelter with Child for several months before obtaining an apartment through the Philadelphia Housing Authority, where she still resides. She did not obtain employment until 2017. Mother said that she did not believe Father would physically harm Child but she wanted to protect her from further contact with D.M.K.
The certified record contains docket sheets for two temporary PFAs Mother obtained against Father in 2010 and 2011, respectively. Both were vacated without prejudice.
Next, the trial court questioned Father. Father said that he was a mechanic at SEPTA, where he had worked for almost 15 years. He lived alone and had a separate bed and bedroom for Child. He agreed that there was conflict in his current relationship with Mother but said it was not as high as she had described. He lived near Child's school, which was also close to his work, and in the summer he arranged for her to attend camp at his church during his work hours.
Father said he was in contact with Child's school regarding her education and IEP. He believed that she was still somewhat delayed and would benefit from therapy. He said that at her current age of 11, she lacks social skills, had few friends and was unable to cross the street by herself. He said that she did not learn English until she was five years old because Mother chose to speak to her in her native language. He agreed that there was conflict during the family therapy sessions but said that he and Mother both contributed to it. He believed Mother prevented Child from attending therapy with Father during the pandemic by refusing to log Child on to the video sessions.
Father said that D.M.K. was Child's only friend, but Mother coached Child to accuse him of abuse. He said that after 8 months of hearings and proceedings on the PFA against D.M.K., the trial court dismissed the petition. He said that Mother interrogates Child regarding how they spend Father's custodial time. He denied telling Child to lie and say that Mother had hurt her.
A docket sheet in the certified record confirms the petition was dismissed without prejudice following a hearing.
Father has four other children who are all adults, including D.M.K.'s father. Father testified that Child sees the two other sons who live locally at family events, but the situation with D.M.K. has severed his relationship with that son. Father denied Mother's allegation that he had failed to exercise custody for six months in 2020. He said that when the courts were closed during the pandemic, Mother refused to transfer custody of Child even though Father tried to retrieve her. He said that Mother began letting him see Child again after she filed a new custody petition.
When asked whether Mother's accusations of domestic violence were true, Father responded that there were "[t]hirteen false claims ordered to vacate" and that a final PFA order had never been entered against him. N.T., 6/3/21, at 72-73. He had filed one PFA petition against Mother when he found abrasions on Child in 2020 which he ultimately withdrew, but he still believed Mother had hit Child on that occasion.
Father said that since the custody order prohibited contact between Child and D.M.K., his son had not allowed him or Child to see D.M.K. He alleged that Child told him that she had lied about the abuse by D.M.K. and was sad and remorseful over the situation. He said that Child and D.M.K. had been friends and that she had been negatively affected by losing him from her life. He believed the allegations were false and he had never seen signs of abuse or inappropriate behavior between the children. He said that Mother had alleged that the abuse occurred at his church, not in his home.
In response, Mother stated that on multiple occasions, D.M.K. pulled his pants down and exposed himself to Child. One of those instances occurred at the church and several others were at Father's home. She said that D.M.K. also sat on top of Child and grinded on her.
At the conclusion of the hearing, the trial court read the statutory custody factors onto the record and found that five factors favored Mother, one favored Father and the remaining factors were neutral. On July 22, 2021, the trial court entered a final custody order granted the parties shared legal custody and shared physical custody on an alternating weekly basis, with the non-custodial parent receiving one overnight visit during the other parent's custodial week. It ordered that Child continue therapy and that D.M.K. could not be present in Father's home or have unsupervised contact with Child during his custodial periods. Mother timely appealed, and she and the trial court have complied with Pa. R.A.P. 1925.
II.
In her brief, Mother raises seven issues challenging the custody order.We confine our analysis to her first issue, as it is dispositive: "Did the [c]ourt fail to delineate its reasons for its decision on the record in [o]pen [c]ourt or in a written opinion or order?" Mother's Brief at 5.
When reviewing a custody order,
our scope is of the broadest type and our standard is an 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.C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
When deciding a petition to modify custody, the trial court must conduct a thorough analysis of the best interests of the child based on the relevant Section 5328(a) factors set forth in the Child Custody Act, 23 Pa.C.S. § 5321 et seq. See E.D. v. M.P., 33 A.3d 73, 80 (Pa. Super. 2011). "All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order." J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted). Additionally, the Child Custody Act requires that a trial court "delineate the reasons for its decision on the record in open court or in a written opinion or order" when it awards any form of custody. 23 Pa.C.S. § 5323(d). We have held that these two provisions, read together, require a trial court to address each of the statutory custody factors on the record in open court or in a written opinion when it issues a custody order, or, at the very least, prior to the expiration of the appeal period for such an order. See S.W.D. v. S.A.R., 96 A.3d 396, 402 (Pa. Super. 2014); C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013).
The relevant factors are:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(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)(1) and (2) (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.23 Pa.C.S. § 5328(a).
However, "[i]t is within the trial court's purview as the finder of fact to determine which factors are most salient and critical in each particular case." M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). "The best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well[-]being." Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
Here, at the conclusion of the hearing, the trial court read the 16 custody factors and summarily stated whether the factor favored Mother, Father or was neutral. The trial court made minimal comment on three of the factors.The only factor for which it made any significant factual findings was the sixteenth, "[a]ny other relevant factor," and its findings were simply undisputed facts in the record. 23 Pa.C.S. § 5328(a)(16). After reciting the factors, the trial court reserved its decision and informed the parties that they would receive the final custody order in the mail. It did not explain the weight it attached to each factor, discuss Child's best interests, or make any factual findings or credibility determinations regarding Mother's allegations of abuse against Father or D.M.K.
We also note that the trial court did not speak with Child at the hearing or attempt to ascertain her preference before issuing the custody order. N.T., 6/3/21, at 86 (reviewing factor 7 concerning the child's preference and stating, "I'm not interviewing the child today."). This was error. The "well-reasoned preference of the child, based on the child's maturity and judgment" is a mandatory factor for consideration in the custody analysis. 23 Pa.C.S. § 5328(a)(7); E.C.S. v. M.C.S., 256 A.3d 449, 458 (Pa. Super. 2021). Given the numerous factual disputes between the parties regarding Child's development and best interests, and that Child was 11 years old at the time of the hearing, the trial court erred by failing to consider her preference when ruling on Mother's petition.
For factor 6, the child's sibling relationships, it stated, "Mother has no other children; Father has adult children. That factor is neutral." N.T., 6/3/21, at 86. For factor 11, the proximity of the parties' residences, it stated, "It's 10 to 15 minutes by car. That factor is neutral." Id. For factor 13, concerning the level of conflict between the parties, it stated, "Mother describes as high-conflict; Father describes something less. So maybe that's moderate. That factor is neutral." Id. at 87.
For this factor, the trial court stated, "Mother's 47 years old. She's in grad school. She's in a one-bedroom apartment. She's presently not employed. She has no criminal record. She has a vehicle and a driver's license. Father's 54 years old. He works for SEPTA, for about 15 years. He works from 8 to 4, Monday to Friday. He has an undergraduate degree. He has a driver's license and vehicle. He's in a two-bedroom apartment. He's been there for less than a year. He has no criminal record. Those factors are neutral." N.T., 6/3/21, at 87.
Similarly, the final written order states: "Following a hearing before the court on June 3, 2021 and after careful consideration of the evidence and the custody factors pursuant to 23 Pa.C.S. Section 5328, the court enters the following final order of court[.]" Order, 7/22/21, at 1. The order does not include an explanation of the trial court's rationale, nor is there a separate opinion issued in conjunction with the order in which the trial court set forth its reasoning.
By failing to place its factual findings and reasoning on the record when it issued the custody order, the trial court committed an error of law. See S.W.D., supra. While we recognize that "there is no required amount of detail for the trial court's explanation," it must nonetheless provide sufficient information for litigants to glean the rationale for its order. M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013) (rejecting argument that trial court must include detailed discussion of testimony with citations to the record in its explanation pursuant to Section 5323(d)).
Here, Mother and Father offered conflicting testimony regarding several factors, including who was more likely to encourage or permit continued contact with the other party, Section 5328(a)(1); past or present abuse committed by a party or member of a party's household, Section 5328(a)(2); parental duties performed by each party, Section 5328(a)(3); attempts of each parent to turn Child against the other, Section 5328(a)(8); which party is more likely to maintain a loving, stable, consistent and nurturing relationship with Child, Section 5328(a)(9); and which party is more likely to attend to Child's myriad daily needs, Section 5328(a)(10). For these factors, the trial court summarily stated that they either favored Mother or were neutral, without any factual findings or explanation for that determination. The trial court deferred ruling on Mother's petition and did not issue a written opinion explaining its reasoning when it entered the final custody order over a month later in violation of Sections 5323(d) and 5328.
The trial court also did not address each individual custody factor in its opinion pursuant to Pa. R.A.P. 1925. Regardless, a trial court cannot cure its failure to comply with Section 5323(d)'s mandate by including its reasoning in its opinion pursuant to Pa.R.A.P. 1925(a). See C.B. v. J.B., 65 A.3d 946, 954-55 (Pa. Super. 2013).
Thus, we vacate the July 22, 2021 custody order and remand for further proceedings. The trial court must consider each of the custody factors and issue a new order addressing Mother's petition. Due to our disposition, we do not address Mother's additional issues on appeal.
Order vacated. Case remanded for further proceedings. Jurisdiction relinquished.
Judge Nichols joins the memorandum.
Judge Sullivan concurs in the result.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.