Opinion
761 WDA 2024 J-A26015-24
12-30-2024
Z. G. Appellant v. M. C.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered June 4, 2024 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD No. 21-007339-007
BEFORE: BOWES, J., MURRAY, J., and BENDER, P.J.E.
MEMORANDUM
BOWES, J.
Z.G. ("Father") appeals pro se from the order that denied his complaint for custody and petition for modification, and instead gave sole legal and physical custody to M.C. ("Mother"), as it relates to the parties' two minor children, with Father having supervised visitation. We affirm.
Father does not challenge the merits of the custody decision, nor whether giving Mother sole custody is in the best interests of their children. Instead, the focus of Father's appeal is how the trial court treated Father and the conditions it imposed upon Father. Accordingly, we need not delve into the specifics of the protracted and tumultuous custody battle underlying this appeal, and instead provide the following abbreviated history.
Father and Mother married in 2011, separated in 2016, and divorced in 2023. Of note, Father's substance use disorder contributed to the dissolution of the marriage and continued to be a concern "throughout the pendency of the custody case." Trial Court Opinion, 8/5/24, at 4. During the case's pertinent periods, Father, who is a Pennsylvania-licensed attorney, chose to proceed pro se.
Relevantly, Father filed a petition for recusal in October 2023, based upon comments the trial judge allegedly made regarding Father's addiction and treatment. After hearing argument during a judicial conciliation hearing, the court denied Father's motion. The court held a school choice hearing on December 1, 2023. Father did not attend the hearing. Ultimately, the court issued an order directing that the children continue attending school in the Upper St. Clair school district where Mother resides.
Thereafter, the trial court scheduled a custody trial for April 9 and 11, 2024, and then issued an order setting forth the relevant deadlines and procedures for submitting pre-trial matters. Critically, it directed that any motions in limine to exclude expert witness testimony were required to be filed at least fifteen days before the first day of trial. On April 2, 2024, seven days before trial, Father attempted via email to file a motion in limine to exclude testimony from Beth Bliss, Psy.D., the court-appointed custody evaluator, and another petition for recusal. The trial court found that Father had not adhered to its deadlines, including that for filing such motions in limine, and rejected the emailed filings. Based upon these violations, it entered an order precluding Father from presenting witnesses other than himself at the scheduled custody trial and held that neither Father nor Mother were permitted to present motions in limine. As to the recusal motion, the court reiterated that it would not be considered until properly filed. Notwithstanding the court's directives, Father emailed another motion in limine to exclude Dr. Bliss's testimony on April 6, 2024. The court did not entertain this motion.
On April 9, 2024, the custody trial proceeded as scheduled. However, immediately prior to commencement, Father had a disagreement with court staff in the hallway outside the courtroom about who was permitted inside during the trial. This interaction was not transcribed and there is some disagreement as to what precisely occurred. From what we can discern, Father sought to have specific family members present in the courtroom as an accommodation under the Americans with Disabilities Act ("ADA") because the trial court's behavior in past hearings had caused him to suffer post-traumatic stress disorder. He also intended to have his brother appear as his attorney. The trial court determined that as of April 9, 2024, no individual had entered an appearance on behalf of Father, he had not requested an accommodation pursuant to the ADA, and the children's guardian ad litem ("GAL") and Mother's counsel did not consent to the participation of Father's brother as his attorney. Therefore, "[c]ourt staff informed Father that only he may be permitted in the [c]ourtroom, but his 'support person' and family members may be permitted to watch the trial via Microsoft Teams." Order, 4/10/24.
Father did not enter the courtroom that day. He was twice paged over the courthouse's intercom system, but he did not respond and did not appear for the scheduled custody trial either in person or through Microsoft Teams. Therefore, the trial was conducted in Father's absence, with Dr. Bliss, Mother, and the GAL as the sole witnesses. The following day, the court entered an order memorializing this series of events, closing the custody record, cancelling the April 11, 2024 trial date, and indicating that a decision would be forthcoming.
The trial court issued its final custody order on May 23, 2024. Therein, it granted sole legal and physical custody of the children to Mother. Father was provided supervised visitation. As conditions to that visitation, the court ordered Father to, inter alia, begin reunification counseling and submit to a hair follicle test seven days before the first visit. Mother and Father both filed additional motions, which the court declined to address once Father initiated this appeal. He raised thirteen issues in his Pa.R.A.P. 1925(b) concise statement of errors, which the trial court thoroughly addressed in its Rule 1925(a) opinion. In this Court, Father presents five issues for our consideration:
We quashed Father's initial appeal from the interim order entered on April 11, 2024. See Order, 8/5/24 (quashing appeal at 576 WDA 2024).
I. Whether the trial court committed reversible error by permitting at trial the testimony of an expert witness who was appointed - over Father's objection - in response to a petition of Mother that was adjudicated and resolved by a trial judge who subsequently recused herself from this action because of her pre-existing social relationship with Mother[.]
II. Whether the trial court committed reversible error and/or violated Father's constitutional and statutory rights by denying Father's attorney's attempt to enter an appearance before the April 9, 2024, trial held in this matter.
III. Whether Father's fundamental constitutional right to parent his children and participate in their upbringing, other fundamental rights of Father, and/or Father's rights under the ADA were violated by the manner in which the trial court disposed of his petition for custody in various respects.
IV. Whether the trial court committed reversible error by virtue of the procedure through which the presiding jurist addressed Father's petitions for recusal as well as the presiding jurist's refusal to recuse herself from any further participation in this action after she made several unprofessional and entirely unwarranted accusations about Father.
V. Whether the standard operating procedures . . . of the trial court were applied in a manner that constitutes an abuse of discretion.Father's brief at 6-7 (capitalization altered, reordered for ease of disposition).
We review custody orders "for a gross abuse of discretion." Rogowski v. Kirven, 291 A.3d 50, 60 (Pa.Super. 2023) (cleaned up). We will only find that kind of abuse "if the trial court, in reaching its conclusion, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias, or ill-will as shown by the evidence of record." Id. (cleaned up).
As noted, Father does not challenge the substance of the custody order or the merits of the court's best-interest determination. Rather, he attacks several ancillary aspects of the underlying custody proceedings, including the custody trial and the school choice hearing, both of which he failed to attend. In light of his non-participation, the trial court urges us to find many of Appellant's claims waived. Our Supreme Court has explained that "[i]n order to preserve an issue for appellate review, a litigant must place a timely, specific objection on the record. Issues that are not preserved by specific objection in the lower court are waived." Jones v. Ott, 191 A.3d 782, 787 (Pa. 2018) (cleaned up); see also Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.").
With these two principles in mind, we consider Father's issues in turn to determine: (1) whether they are properly before us and, (2) if they are, whether Father is entitled to relief.
Admissibility of Expert Testimony
Beginning with the admissibility of Dr. Bliss's testimony, we observe that Father clearly did not lodge a contemporaneous objection to her testimony because he elected not to attend the custody trial. Nonetheless, Father insists that he preserved this issue through his pre-trial motion in limine. See Father's brief at 84. As explained above, the motions in limine that Father purported to file to exclude her testimony violated the court's case management order and its subsequent order precluding him from filing such a motion. Pennsylvania courts have long upheld the import of adhering to deadlines within case management orders: "[T]hese deadlines are far from meaningless. They are court orders[, and w]hen these deadlines are violated with impunity, . . . the abusing party must be prepared to pay the consequences." Kurian ex rel. Kurian v. Anisman, 851 A.2d 152, 162 (Pa.Super. 2004) (emphasis in original). Since no motion concerning the admissibility of Dr. Bliss's testimony was properly presented to, or considered by, the trial court, no motion preserved the issue. Thus, we deem it waived.
New Attorney's Entry of Appearance
We turn next to Father's issue regarding the court's decision as to whether his brother could represent him at the custody trial. The underlying premise, that Father's brother attempted to enter an appearance as his attorney and Father objected to the rejection, is not supported by the record. At the relevant time, Father had been proceeding pro se. However, he maintains that on the morning of the trial, he tried to have his brother enter his appearance as his attorney of record to the court staff present in the hallway, and that he objected to the court's rejection of this request to the same staff member. See Father's brief at 83.
Despite his averments as to what happened off the record in the hallway, the record evidence reveals that: (1) his brother never entered a written appearance pursuant to Pa.R.C.P. 1012 or otherwise file a pleading on behalf of Father, (2) his brother did not enter an oral appearance on the record with the trial court, and (3) Father lodged no record objection to any purported off-the-record denial of an attempted entry of appearance. Voicing disagreement with court staff off the record does not amount to either an entry of appearance or a timely, contemporaneous, on-the-record objection to a denial of such entry. Simply stated, there is nothing in the certified record for us to review as it relates to this issue. Accordingly, it is waived.
Rule 1012(a) denotes how to enter a written appearance, though that is not the exclusive means for entering one's appearance as the attorney of record:
Although Rule 1012 provides that an attorney "may" enter a written appearance, it does not require an attorney to do so. The comment to Rule 1012 states that "entry of a written appearance is not mandatory." Pa.R.C.P. 1012, Cmt. See also Fleck v. McHugh, 361 A.2d 410, 413 (Pa.Super. 1976) (holding entry of written appearance not required if pleadings provide sufficient information notifying parties where legal papers may be served).Mazzuca v. Abreu, 310 A.3d 775, 783 (Pa.Super. 2024) (cleaned up).
Constitutional and ADA Rights
In his third claim of error, Father presents multiple arguments that the trial court rendered a custody decision in violation of his rights guaranteed by the federal constitution and the ADA. See Father's brief at 105. We begin with his challenge to the school choice decision. Therein, he contends that the court's ruling, which moved the children's school closer to Mother and further from Father, "contravened [his] right to enjoy an equal parenting opportunity" and violated the ADA because he lacks a support network in the chosen school district. Id. at 109-10. Father had the opportunity to attend that hearing and voice any concerns but neglected to do so or to ask for a continuance. Accordingly, any challenge to the school choice proceedings has been waived for failure to first present the issue in the trial court. See Pa.R.A.P. 302(a).
The record indicates that Father may have missed the hearing due to his simultaneous participation in an accelerated rehabilitation disposition program for criminal charges pertaining to driving under the influence of a controlled substance. Notwithstanding the legitimacy of this other engagement, the fact remains that Father neither attended the pre-scheduled school choice hearing nor sought a continuance of that hearing based upon his criminal court obligations.
Next, Father avers that he has a fundamental right to parent his children and that he is protected by the ADA from negative stereotypes associated with both his opioid use disorder and receipt of medication-assisted therapy. See Father's brief at 105-06. Specifically, he assails the court's decision regarding family therapy services as violative of his parental decision-making. The court acknowledged Father's right to parent his children, but determined that clear and convincing evidence established "that he, at times, has been a detriment to the children's safety." Trial Court Opinion, 8/5/24, at 47. After finding the issue waived because Father failed to participate in the custody trial, the court expanded thusly:
Th[e trial] court has fairly given Father the ability to participate in every proceeding and listened to both parents; Father has made the decision to either not show up in proceedings or not behave in a calm fashion. Based on Father's actions, th[e trial] court correctly placed the children with Mother, placed conditions on Father's physical custody, and disallowed him from participating in such decisions that were for the welfare of the children.Id. Our review of the record reveals that the court conscientiously considered the particular circumstances in this case throughout its history, and did not rely upon impermissible stereotypes. Since the record belies the underpinnings of Father's claim, he is not entitled to relief.
In his penultimate sub-argument, Father claims that the court abridged his free speech rights by imposing guidelines on how the parties were to communicate. See Father's brief at 110. Critically, Father does not elucidate what guidelines curtailed these rights. Therefore, he has waived any challenge in this regard for lack of development. See Commonwealth v. Armolt, 294 A.3d 364, 377 (Pa. 2023) ("[When an appellant] fails to develop the issue in any other meaningful fashion capable of review, that claim is waived. It is not the obligation of an appellate court to formulate an appellant's arguments for him." (cleaned up)).
Even if not waived, he would not be entitled to relief. In First Amendment cases, "an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." S.B. v. S.S., 243 A.3d 90, 104 (Pa. 2020) (cleaned up). What we glean from the record is that the trial court required the parties to only communicate through the Our Family Wizard application. It is well-settled that "[r]estrictions on the time, place and manner of expression, whether oral, written or symbolized by conduct, are a form of a content-neutral regulation of speech." Id. at 105 (cleaned up). Such restrictions pass constitutional muster if they: "(1) are justified without reference to the content of the regulated speech; (2) are narrowly tailored to serve a significant governmental interest unrelated to speech; and (3) leave open ample alternative channels for communication of the information." Id. (cleaned up). Here, the court imposed this guideline after Mother sought relief from Father's inflammatory and threatening text and email messages. Given the context and the reasonableness of the restriction, we conclude that it withstands constitutional scrutiny.
Finally, Father attacks the court's requirement that he submit to hair-follicle testing as non-compliant with the ADA because it is inaccurate, invasive, and imposes an onerous financial burden. See Father's brief at 111-13. He insists that "[n]either Mother nor the trial court has shown any objective evidence - which the ADA requires - that demonstrates why hair-follicle testing must be employed here rather than the urine testing that Father already submits to through his treatment program[.]" Id. at 113. Consequently, Father asks us to ban the trial court from forcing him to submit to any more such tests. Id.
Notably, Father's concise statement set forth a single issue pertaining to the hair-follicle testing:
Whether this Court committed reversible error by subjecting Father, at Mother's behest, to invasive, inherently-unreliable, hair-follicle testing by a purported forensic laboratory that previously had its license to conduct forensic testing revoked due to unscientific practices in which it engaged in connection with a criminal action before the Court of Common Pleas of Philadelphia County, Pennsylvania.Pa.R.A.P. 1925(b) statement, 6/24/24, at ¶ 11. He makes no reference to the ADA nor to the urine testing. In a similar vein, his complaint about the ADA violations does not explicitly mention the hair-follicle testing. In order to find this issue preserved, we would need to extrapolate from "the conditions th[e trial c]ourt placed on Father's exercise of physical custody of the children" as referencing the hair-follicle testing. Id. at ¶ 4. The court has historically imposed many such conditions, including supervised visitation, reunification counseling, random drug screens, prohibiting Father from driving the children, and restricting Father from consuming alcohol or illicit substances within twenty-four hours of his custodial time. Notably, the court did not interpret any of Father's issues as challenging ADA complicity of the hair follicle testing. Plainly, the argument Father presents on appeal regarding the hair-follicle testing was not presented to the trial court. Accordingly, it is waived. See Pa.R.A.P. 302(a).
We note that had Father not waived this issue, he still would not be entitled to relief. The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.A. § 12132. The regulations interpreting this provision ensure that "charges for services violate the ADA (1) when the fee pays for services required by the ADA; and (2) when nondisabled people do not also incur the fee." Robishaw v. The Providence Prob. Ct., 206 F.Supp.3d 723, 730-31 (D.R.I. 2016) (citing 28 C.F.R. § 35.130(f)). The hair follicle testing in this case fails both requirements. It is not a service compelled by the ADA, and any individual, regardless of whether they suffer from opioid use disorder, may be required to pay for the testing if the court so orders. Accordingly, Father's ADA challenge fails.
Standard Operating Procedures
In his next issue, Father argues "that the trial court enforced its [standard operating procedures] in a manner that would inflict maximum damage to Father's position at any given time." Father's brief at 115. He does not specify which procedures were improperly enforced or which sanctions were too extreme, but rather contends summarily that the court abused its discretion because it held Father accountable for what he deemed to be merely minor deviations from the court's procedures. As such, Father waived this issue by not developing it. See Armolt, 294 A.3d at 377.
Even if not waived, the trial court properly imposed its standard operating procedures upon Father as it would any party, whether represented by counsel or proceeding pro se. As our Supreme Court has explained:
Under Pennsylvania law, pro se [litigants] are subject to the same rules of procedure as are represented [litigants]. Although the courts may liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon a litigant, and a court cannot be expected to become a litigant's counsel or find more in a written pro se submission than is fairly conveyed in the pleading.Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) (cleaned up). Father, a licensed attorney, chose to represent himself at various times during the custody proceedings. He was held to the same standards as any pro se litigant, with or without formal legal training and practical experience. The trial court was not required to grant him any special treatment when he failed to abide by those procedures and certainly did not abuse its discretion in not granting him leniency. Further, our review of the record revealed no instances where the court imposed an outlandish sanction for Father's non-compliance.
Motion to Recuse
Finally, Father attacks the court's decision not to recuse itself in the underlying matter. He highlights several instances of court conduct in August and September 2023, upon which he based his petitions for recusal. See Petition for Recusal, 10/13/23, at 4-6; Father's brief at 89-90. Father argues that the trial judge's "comments not only demonstrated animus towards Father as someone who suffers from a federally-protected disability, they also reflected stereotypical beliefs about large men who suffer from mental and behavioral health issues and included comments that contained a racial component such as [the] remark that Father appeared 'flushed.'" Id. at 94-95. He insists that he presented ample evidence to demonstrate that the trial judge's impartiality may reasonably be questioned in this custody matter, and that he was entitled to a hearing to present witness testimony on his recusal request. Id. at 92, 95.
To clarify, Father maintains that the "flushed" comment had "a definite racial component" because Father is white and the trial judge is "a woman of color[,]" "only people of certain skin tones are capable of being described as 'flushed,'" and the judge had no medical training that would otherwise enable her to opine on his appearance. See Father's brief at 95 n.48. If anything, we find Father's statements to have not only a racial, but a racist, component, which we vehemently condemn.
Regarding the procedure employed, it is well-settled that "recusal motions are routinely addressed in the first instance by the judge whose recusal is sought." Commonwealth v. Dip, 221 A.3d 201, 208 (Pa.Super. 2019) (citation omitted). Consequently:
[I]t cannot be the case that any question of fact even remotely involving a judge's impartiality requires a separate hearing before a separate judge. Instead, the general rule is that a party seeking the recusal of a judge, at a minimum, must satisfy a burden of production and persuasion to show that the recusal claim is not frivolous. This may require the presentation of witnesses or evidence before the judge whose recusal is sought.Id. (cleaned up). However, "where fabricated, frivolous[,] or scurrilous charges are raised against the presiding judge during the course of the proceeding, the court may summarily dismiss those objections without hearing where the judge is satisfied that the complaint is wholly without foundation." Id. at 209 (cleaned up); see also Commonwealth v. Cherpes, 520 A.2d 439, 447 (Pa.Super. 1987) (rejecting outright appellant's claim that the court was required to hold an evidentiary hearing on a recusal motion).
We consider substantive challenges to the denial of a recusal motion pursuant to the following principles:
[O]ur review of a trial court's denial of a motion to recuse is exceptionally deferential. We recognize that our trial judges are
honorable, fair[,] and competent, and although we employ an abuse of discretion standard, we do so recognizing that the judge himself is best qualified to gauge his ability to preside impartially. A trial judge should grant the motion to recuse only if a doubt exists as to his or her ability to preside impartially or if impartiality can be reasonably questioned.
In order to prevail on a motion for recusal, the party seeking recusal is required to produce evidence establishing bias, prejudice[,] or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially.Int. of L.V., 209 A.3d 399, 415 (Pa.Super. 2019) (cleaned up).
Here, the court entertained Father's arguments regarding his recusal motion during a previously scheduled judicial conciliation hearing because "[i]t's very hard to get court dates in this district[.]" N.T. Conciliation, 10/16/23, at 5-6. Father argued that some of the trial judge's actions evinced "stereotypical and biased and prejudiced beliefs towards people who suffer from opioid use disorder and potentially also due to [his] gender as someone who identifies as male." Id. at 6. He averred that while similarly situated pro se women had been "treated with compassion and grace" for admitting to custody violations, he had been "humiliated" and "shamed in front of [his] peers in the legal community[.]" Id. at 6-7. Father further maintained that throughout the custody proceedings the judge had focused on his addiction instead of the best interests of the children. Id. at 7.
Tellingly, we reiterate that Father has elected not to challenge the court's best-interests analysis in this Court.
Mother's counsel wholly refuted Father's accusations, characterizing them as "untrue[,]" "impertinent[,]" and "slanderous to the court." Mother's brief at 9; see also Answer to Petition for Recusal, at ¶ 47 ("Father's [p]etition recites offensive, impertinent, and slanderous allegations against this [c]ourt that are entirely untrue. Father's lies are not a basis for this [c]ourt to recuse itself."). The GAL added that she "ha[d] not seen any indications of bias that [she was] concerned about" and that introducing a new judge at the time Father filed the motion would not have been in the children's best interest. See N.T. Judicial Conciliation, 10/16/23, at 10. Ultimately, as noted, the court denied the recusal motion. It did not rule upon Father's renewed motions immediately preceding the custody trial because they were not properly filed.
Based on the foregoing, we discern no error in how the court considered Father's recusal request. The statements Father attributes to the trial judge do not appear of record and, in any event, were refuted by Mother's counsel. The certified record we have reviewed contains no evidence warranting a reasonable person to question the trial judge's impartiality in the custody proceedings. Therefore, we conclude that the trial court did not err in denying Father's recusal petition, and he is not entitled to relief on this issue.
Based on the foregoing, Father has not convinced us of any reason to disturb the court's custody order. Accordingly, we affirm.
Order affirmed.
Judgment Entered.