Opinion
J-S71031-19 No. 2129 EDA 2019
02-24-2020
T.A.D. v. T.O. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 27, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): Case ID. OC1308438 BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.:
T.O. ("Mother") appeals from the order modifying custody of M.D. ("Child"). She argues the court erred when it ordered that T.A.D. ("Caretaker") would have partial custody of Child, without placing adequate safeguards, and when it denied Mother's petition to modify, which requested sole physical and legal custody of Child. We affirm.
The trial court set forth the factual and procedural history of this case, which we adopt and incorporate herein. Trial Court Opinion, filed Sept. 12, 2019, at 2-5. We will provide a brief summary.
Caretaker filed a petition for custody in March 2016. The parties reached a custody agreement, whereby Mother had primary physical and legal custody of Child and Caretaker had partial physical custody every other weekend. The parties agreed to share holidays. In July 2018, Mother filed a petition to modify custody, seeking sole custody of Child. Mother claimed Caretaker's nephew inappropriately touched Child. Around this time, Mother also moved to Delaware. In September 2018, Caretaker filed a Petition for Contempt, claiming Mother refused to comply with the custody order.
In June 2019, following a hearing, the trial court found Mother in contempt and ordered that Mother would continue to have primary physical custody of Child and that Caretaker would have partial physical custody every weekend. The court further ordered Caretaker not to leave Child alone with her nephew and referred her nephew for evaluation and counseling.
Mother filed a timely notice of appeal, and raises the following issues:
1. Did the trial court err by stating in the June 27, 2019 order that it issued a temporary order?Mother's Br. at 3.
2. Did the trial court err by ordering partial physical custody for T.A.D. without placing adequate safeguards in place to protect [C]hild?
3. Did the court err by not granting the petition to modify the custody order?
Caretaker did not file an appellate brief.
Because the June 2019 order addressing both the motion for contempt and the petition for modification stated it was a "temporary order," we issued an order directing Mother to show cause why we should not quash her appeal as interlocutory. Mother responded that although the order stated it was "temporary," there were no further custody hearings scheduled and the order was final as to custody. The trial court agreed, stating in its Pa.R.A.P. 1925(a) opinion that the order was temporary as to "Caretaker's petition for contempt only." 1925(a) Op. at 6.
We conclude that the order was final and appealable as to custody. Mother's substantive issues on appeal relate to the custody aspect of the order, and by the time the court entered the order, it had completed its hearings on the custody matter. See G.B. v. M.M.B., 670 A.2d 714, 720 (Pa.Super. 1996) (en banc) (concluding custody order is final if "1) entered after the court has completed its hearings on the merits; and 2) intended by the court to constitute a complete resolution of the custody claims pending between the parties"). We therefore have jurisdiction to address Mother's issues.
Mother's next two issues challenge the custody order entered by the trial court. When reviewing a custody order, our scope of review is broad and our standard of review is an abuse of discretion. P.J.P. v. M.M., 185 A.3d 413, 417 (Pa.Super. 2018) (citing V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012)). We must accept the trial court's factual findings and credibility determinations, so long as the evidence of record supports them. However, we are not bound by the trial court's deductions or inferences from that evidence. Id. We will reverse a trial court's custody order only if, after giving due deference to a trial court's credibility determinations, we conclude that the court committed an error of law or an abuse of discretion. Hanson v. Hanson , 878 A.2d 127, 129 (Pa.Super. 2005).
"When a trial court orders a form of custody, the best interest of the child is paramount." P.J.P., 185 A.3d at 417 (quoting S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014)). A non-exclusive list of factors a court should consider when awarding custody are set forth at 23 Pa.C.S.A. § 5328(a):
(a) Factors.- In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(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) (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.23 Pa.C.S.A. § 5328(a).
(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.
Mother contends the court erred in granting Caretaker overnight visits because Caretaker denied Child was sexually abused. The trial court rejected this claim, noting that the "order clearly states Child is not to be left alone at any time with [Caretaker's nephew] [and] [Caretaker's nephew] was referred for evaluation and counseling, if needed." 1925(a) Op. at 7. The court further pointed out that "Caretaker and Child have had a relationship since Child's birth, and a prior agreed order gave Caretaker partial physical custody." Id. at 8. The court thus concluded that Mother had failed to prove that giving Mother sole legal and sole physical custody was in Child's best interest. Id.
Mother's argument fails. The court considered the alleged sexual abuse, and put in place safeguards to ensure Child was not left alone with Caretaker's nephew.
Mother next contends the court erred in not granting her sole custody of Child. She claims that the trial court "misplaced its focus," because it was not "that Mother is unwilling to foster a relationship between the Child and Caretaker," but "[r]ather, it is because the Caretaker is in denial about the sexual abuse that happened." Mother's Br. at 11. She argues that the court ignored that Caretaker denied the abuse happened and claims the court erred relying on the lack of criminal prosecution. She further argues that the court failed to give any weight to Child's statement that she did not want to see Caretaker. Mother states that the court abused its discretion in finding Mother previously lived in Philadelphia, claiming "[i]t is quite common that a litigant uses an address for court purposes that is not the actual residence." Id. at 16.
The trial court addressed the custody factors and made factual findings, which were supported by the record. These findings include:
• "Mother is unwilling, while Caretaker is willing, to foster a relationship between Child and the other party";
• Caretaker's nephew touched Child at the nephew's home and the court referred the nephew for evaluation;
• Mother was the primary parent after the June 2017 order, but the parties both had taken care of Child prior to the termination of their
relationship in 2013 and Caretaker had primary custody from 2013 to 2014;
• both Mother and Caretaker provide stability and continuity, but Mother moved to Delaware and ceased contact with Caretaker without following the appropriate relocation procedure;
• Child expressed a preference not to see Caretaker, but could not express a reason other than bullying by children and inappropriate touching by H.D.;
• Mother withheld Child from Caretaker even after the investigation of the abuse had concluded;
• both parties maintain a loving, stable, consistent, and nurturing relationship with Child;
• both parties are capable of attending to Child's needs;
• the parties live one to one and a half hours apart due to Mother's unilateral move;
• both parties are available to care for Child; and
• Mother has been unwilling to cooperate with Caretaker since June 2018. 1925(a) Op. at 9-14.
The court concluded that, on balance, "continued contact between Child and Caretaker was in the best interest of [C]hild on a regular, consistent bases." Id. at 15.
After review of Mother's brief, the trial court record, the relevant case law, and the opinion by the Honorable Holly J. Ford, we perceive no abuse of discretion. We therefore affirm on the basis of the trial court opinion, which we adopt and incorporate herein. 1925(a) Op. at 10-15.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/24/20
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