J. S12038/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

L.B.,                                    :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                         Appellant       :
                                         :
                    v.                   :
                                         :        No. 1495 MDA 2017
J.W.                                     :


              Appeal from the Order Entered September 1, 2017,
                in the Court of Common Pleas of Union County
                        Civil Division at No. CV-17-0268


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 20, 2018

        L.B. (“Father”) appeals pro se from the September 1, 2017 order

entered in the Court of Common Pleas of Union County that awarded sole

legal and physical custody of T.A.B. (“Child”) to J.W. (“Mother”).      After

careful review, we affirm.

        The trial court summarized the factual history of this case, which it

gleaned from the custody hearing, as follows:

             The parties met online while Father[1]was living in
             Florida and Mother was living in Middleburg,
             Pennsylvania.    Father moved from Florida to
             Middleburg, Pennsylvania and began residing with
             Mother.    Mother became pregnant shortly after
             Father moved to Pennsylvania and [Child] was born
             January [] 2012. The parties continued to reside

1The trial court referred to the parties as “the Father” and “the Mother.” We
have omitted the article preceding these party designations. We have also
omitted the article where the trial court referred to Child as “the Child.”
J. S12038/18


          together until May of 2015. From here the record is
          confusing as to exactly what the circumstances were
          regarding their separation.       However, it would
          appear to the Court that the parties separated in
          May of 2015.        Until June of 2015 [F]ather had
          supervised visits with [C]hild. [C]hild never spent an
          overnight with Father.       In June of 2015 Mother
          moved to West Virginia and Father had no contact
          with [C]hild until September 8, 2015.              On
          September 8, 2015, Father located Mother, her now
          husband and [C]hild at a convenience store in
          Middleburg.      Father was extremely intoxicated,
          approached Mother and assaulted her. Apparently
          Father attempted to take [C]hild in an intoxicated
          state. Father was driving an automobile and was
          subsequently arrested for this incident. Father was
          then incarcerated and remained incarcerated for a
          period of time.        He was then admitted to the
          17th Judicial District DUI Treatment Court.

          In addition, a Protection from Abuse Order was
          entered following the September 8, 2015 incident.
          The Protection from Abuse Order granted Mother
          custody of [Child].

          Prior to the party’s separation in May of 2015,
          Snyder County Children and Youth Services had been
          involved with the family. In part, it was due to
          sexual acting out of one of Mother’s children that
          were not fathered by Father of [Child] but resided
          with the parties.    The other reason was due to
          Father’s inappropriate discipline of the one child. In
          addition, Mother testified that Father’s drinking,
          discipline and anger were problems while they
          resided together.

          It is significant to note that Father failed to disclose
          his involvement with Snyder County Children and
          Youth Services on his Criminal Record/Abuse History
          Verification.

          In addition, it became evident that Father was
          involved with the Florida equivalent of Children and
          Youth Services and had three (3) children removed


                                   -2-
J. S12038/18


          from his custody while he was in Florida and his
          parental rights were involuntarily terminated to
          those three children. Again, Father failed to disclose
          this contact with Children Services on his Criminal
          Record/Abuse History Verification.

          Father has had absolutely no contact with [C]hild
          since the September 8, 2015 incident. In addition,
          he has not provided any child support, he has not
          provided [C]hild with any gifts, cards or anything to
          acknowledge his paternity or interest in [C]hild until
          he filed for custody on May 2, 2017. Father testified
          that he did not want to become involved in his
          [C]hild’s life until he had his own issues addressed.
          Father testified that he had been in the 17th Judicial
          District DUI Treatment Court Program and graduated
          on May 31, 2017. An issue was raised as to whether
          Father filed for custody after he learned that a
          Petition to terminate his parental rights was being
          filed by Mother (Union County Docket No. OC-17-
          8033).      Father testified that that was not his
          motivation for filing for custody, however the
          Guardian ad Litem questioned his reasoning given
          that he had not completed his Treatment Court
          Program and therefore his statement that he was
          waiting until he had completed all of his issues until
          filing for custody was subject to question. Father
          attempted to explain that he wanted to wait until he
          was sober, however, the Guardian ad Litem observed
          that he had been sober since September of 2015 and
          still had not filed. Father was extremely evasive of
          the Guardian ad Litem’s questions and his actual
          motivation for filing for custody when he did is a
          question that is unresolved. In his current situation
          Father testified that he has been living with his
          current fiancé, [E.E.] since 2015. It is interesting
          that [E.E.] has three (3) sons, one (1) is
          incarcerated in a State Correctional Facility and has
          been for the last three (3) years and she visits him
          one (1) time a year. In addition, her other two (2)
          sons have no contact with her at their request and
          have not done so since they were in their late teens.




                                  -3-
J. S12038/18


          It is also interesting to note that in spite of Father’s
          drug and alcohol issues, [E.E.], his fiancé, has
          posted alcohol related pictures on Facebook. The
          Court questions the judgment of [E.E.] given her
          fiancé’s involvement with the Criminal Justice
          System related to drugs and alcohol.

          Father also has four (4) other children. The one at
          issue in this case, the three (3) referenced earlier
          where his parental rights were terminated in Florida
          and one (1) other child that lives in Middleburg,
          five (5) miles from Father’s residence and the child
          resides with the paternal grandmother. Father has
          had no contact with this child for twenty-one (21)
          years. He attempted to reach out to his [m]other
          apparently, but she has refused to return the
          contacts. Father did not present any evidence to
          show that he has done anything in an attempt to
          support this child or to establish a parental
          relationship.

          In fact, none of Father’s family has been involved
          with [Child]. To the contrary, Mother has developed
          an extensive support system with her current
          husband, her mother, pastor and friends.           She
          maintains full time employment and a home that has
          a stable family situation. It is also significant that
          Father acknowledged having outstanding arrest
          warrants from the State of Florida for probation
          violations in that state. Father has failed to exercise
          the responsibility in addressing these outstanding
          warrants and is subject to arrest at any time based
          on Florida’s decisions.

          The facts presented to the Court indicate Father has
          significant drug and alcohol issues, domestic violence
          issues, violence that may involve [C]hild through
          discipline at home or assaults in the presence of
          [C]hild, Father’s deceit in failing to disclose his
          substantial involvement with Children and Youth
          Services in two (2) states, mental health issues and
          the fact that he never pursued custody nor
          shown [sic] any interest in being a father from
          September 8, 2015 until the filing of this action on


                                   -4-
J. S12038/18


            May 4, 2017. In fact, Father had one (1) contact
            with [C]hild between June of 2015 and the present
            and that was at a time he was intoxicated and
            subsequently arrested and incarcerated.   Father’s
            testimony was that he doesn’t even remember most
            of that incident.

            When queried about why he wants custody he
            initially stated he “has been a good father[.”] When
            the Court expressed shock at this statement, Father
            recanted and admitted he has not been a good
            father to any of his children. The Court would refer
            the Pennsylvania Superior Court to the transcript of
            the custody hearing of September 1, 2017, Pages
            97-104 for the Court’s analysis of the custody factors
            set forth in 23 Pa.C.S.A. § 5328.

Trial court opinion, 10/25/17 at 3-7 (citations to notes of testimony

omitted).

     The trial court set forth the following procedural history:

            On May 2, 2017, [Father] filed a Complaint for
            Custody against [Mother] seeking custody of [Child].
            Father filed his Criminal Record/Abuse History
            Verifications for himself and his fiancé with whom he
            resides contemporaneously with the filing of the
            Complaint. The Court initially referred the matter to
            mediation consistent with local rules however the
            Court was informed that there was in existence a
            Protection from Abuse Order entered against Father
            naming Mother as a protected party and that the
            matter was not appropriate for mediation.          On
            May 8, 2017, the Court scheduled the matter for a
            custody conference on June 9, 2017.             Mother
            requested a continuance and the matter was
            continued until July 7, 2017 for a hearing before the
            Custody Hearing Officer.

            On July 7, 2017, the Court was available and the
            matter was heard before the undersigned. Based on
            a review of Father’s Criminal Record/Abuse History
            Verification, it appeared that Father had been


                                    -5-
J. S12038/18


          convicted of multiple enumerated offenses under
          23 Pa.C.S.A. § [53]29, specifically aggravated
          assault, terroristic threats, driving under the
          influence of drugs or alcohol and manufacture, sale,
          delivery, holding, offering for sale or possession of
          any controlled substance or other drug or device.
          The Court conducted the initial evaluation as
          required pursuant to 23 Pa.C.S.A. § 5329(c) and
          determined that Father did pose a threat to [C]hild.
          At the July 7, 2017 proceeding, the Court received
          additional information indicating domestic violence
          and a protection from abuse order were issues in this
          matter although not disclosed by Father.

          The Court ordered Father to have an assessment
          completed in writing and submitted to counsel for
          Mother and the Guardian ad Litem prior to the
          hearing.   The Court further directed Father that
          “unless the parties stipulate to the admission of the
          assessment,     the    individual   conducting    the
          assessment shall be present to testify. Without the
          assessment the Court shall not award any type of
          custody to [Father] based on the Court’s concerns
          regarding the safety of [C]hild.”

          At the July 7, 2017 proceeding the Court appointed a
          Guardian ad Litem for [C]hild.

          On July 26, 2017, the Court ordered a full day
          custody trial for September 1, 2017. The parties
          filed the necessary pretrial statements and the
          Guardian ad Litem filed her Report of the Guardian
          ad Litem on August 25, 2017. Recommendation 4 of
          the Guardian ad Litem’s Report, stated “Father, prior
          to any contact with [C]hild, submit an Anger
          Management Certification as the Guardian ad Litem
          has some concerns about his ability to control
          himself, specifically his anger[.”]

          A hearing was held on September 1, 2017 after
          which the Court awarded sole legal and physical
          custody of the minor [C]hild to Mother.




                                  -6-
J. S12038/18


              On September 29, 2017, Father filed his Notice of
              Appeal and on October 16, 2017 Father filed his
              Concise Statement of Errors complained of.

Id. at 1-3.

      The record reflects that the trial court filed its Rule 1925(a) opinion on

October 25, 2017. The record further reflects that on November 1, 2017,

this court entered an order setting forth the briefing schedule in this case.

(Order of court, 11/1/17.)    In that order, we directed that Father file his

brief on or before December 1, 2017. Father failed to comply. (Id. at 1.)

As a result of Father’s failure to file a timely brief as ordered by this court,

this court entered an order on December 28, 2017, directing Father to file a

brief no later than 14 days from the date of the order and informing Father

that his failure to do so would result in dismissal of his appeal. (Order of

court, 12/28/17.)      The record reflects that Father filed his brief on

January 11, 2017.

      Father raises the following issues for our review:

              1.   Did error occur when the Court did not
                   properly consider the impact of the [protection
                   from abuse order (“PFA”)] on Father’s contact
                   with the [C]hild?

              2.   Did error occur when the Court rejected an
                   evaluation by a qualified therapist?

              3.   Did error occur when the Court ignored a
                   request for a bonding evaluation?

Father’s brief at 4.

      With respect to our standard of review, it is well settled that:


                                     -7-
J. S12038/18


           [t]he appellate court’s scope of review in custody
           cases is of the broadest type. This broad power is
           limited to the extent that an appellate court may not
           nullify the fact finding function of the hearing judge.
           We are empowered to form our own independent
           deductions and inferences from the facts found by
           the hearing judge, but may only interfere with the
           decisions of the hearing court where there has been
           a gross abuse of discretion. We must determine
           whether the trial court’s factual findings support the
           trial court’s factual conclusions, but we may not
           disturb    these     conclusions   unless    they    are
           unreasonable in light of the court’s factual findings.

           Our appellate function is to make an independent
           judgment, based on the testimony and evidence
           before us, that is in the best interest of the child.
           We must make an independent examination of the
           record and make an order on the merits of the case
           which is right, just and will serve the best interest of
           the child. After we take full account of the hearing
           judge’s reasoning, still, we must be easy in our own
           conscience that the judge’s award will serve the best
           interest of the child, or children, in question.

           Although we are given a broad power of review, we
           are constrained by an abuse of discretion standard
           when evaluating the court’s order. An abuse of
           discretion is not merely an error of judgment, but if
           the court’s judgment is manifestly unreasonable as
           shown by the evidence of record, discretion is
           abused. An abuse of discretion is also made out
           where it appears from a review of the record that
           there is no evidence to support the court’s findings
           or that there is a capricious disbelief of evidence.

M.A.T. v. G.S.T., 989 A.2d 11, 19-20 (Pa.Super. 2010) (citations omitted).

     In custody disputes, trial courts are statutorily required to consider the

16 factors set forth in the best-interest test when determining the child’s




                                    -8-
J. S12038/18

best interest.2   See 23 Pa.C.S.A. § 5328(a) (“[i]n ordering any form of

custody, the court shall determine the best interests of the child by


2 Section 5328 of the Child Custody Act sets forth the 16-factor best-interest
test, as follows:

            § 5328.     Factors to consider when awarding
            custody

            (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.

                  (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.


                                     -9-
J. S12038/18




               (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.



                                  - 10 -
J. S12038/18

considering all relevant factors . . . .”); see also A.V. v. S.T., 87 A.3d 818,

821   (Pa.Super.   2014)   (reiterating   that   “Section   5328   provides   an

enumerated list of sixteen factors a trial court must consider in determining

the best interests of the child or children when awarding any form of

custody.”).

      Here, the trial court determined the best interest of Child by properly

considering all relevant factors set forth in Section 5328 and, in so doing,

determined that every relevant factor weighed in favor of awarding custody

to Mother. (See notes of testimony, 9/1/17 at 97-104.) As such, the trial

court awarded sole physical and legal custody of Child to Mother.



                   (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.

42 Pa.C.S.A. § 5328(a).


                                    - 11 -
J. S12038/18

      In this appeal, Father first complains that the trial court erred when it

“did not properly consider the impact of a PFA on Father’s contact with the

[C]hild.” (Father’s brief at 7.) With respect to this issue, Father advances

the following six-sentence argument:

            The [t]rial [c]ourt, on page 7 of its opinion, which is
            included as Appendix A, states that Father has no
            one to blame for not pursuing this action since 2015.
            However, the PFA Order was clear. No contact was
            allowed with [Mother] or Child. The PFA Order did
            say a custody action could be initiated, but doing so
            could have involved contact that might be considered
            a PFA violation. Father should not have the fact that
            he followed a Court Order held against him. It was
            an abuse of discretion.

Father’s brief at 7-8.

      In this argument, Father concedes that the PFA did not preclude him

from seeking custody of Child, but he argues that “doing so could have

involved contact that might be considered a PFA violation.” (Id. at 8.) This

argument is at odds with Father’s testimony at the custody hearing. When

first asked at that proceeding why he waited two years to file a custody

action, Father answered, “Because I wanted to be sober and -- I wanted to

be sober when I did -- I wanted to be sober to see my daughter.” (Notes of

testimony, 9/1/17 at 31.) Later in his testimony, however, Father claimed

that he had been sober for “almost two years.” (Id. at 66.) When asked

again at the custody hearing why he waited two years to file a custody

action, Father answered:




                                    - 12 -
J. S12038/18


             Why didn’t I? I had a lot of things going on at that
             point in time, ma’am. I had DUI court to attend to
             every week, I had many -- five AA meetings to do
             every week, I had two meetings with my probation
             officer every week. After my DUI is when I figured I
             was going to go on with and do my -- when I wanted
             to see my daughter.

Id. at 61.

      Clearly, the record belies Father’s first claim that the PFA somehow

precluded him from seeking custody of Child. Consequently, this claim lacks

merit. That being said, however, it is significant that Father fails to advance

any argument in his brief regarding Child’s best interest.      With respect to

Child’s best interest, Father testified at the custody hearing as follows:

             Q.   [Father], why is it in the best interest of your
                  daughter that she reestablishes a relationship
                  with you?

             A.   Why not? I’m sober. I’m clean. I haven’t
                  drank in almost two years. Why wouldn’t she
                  -- why wouldn’t I want to establish a
                  relationship with my daughter?

             Q.   I am not asking why you wouldn’t.            I
                  understand completely why you would want to
                  reestablish a relationship with your daughter.
                  I want to know why that’s in your daughter’s
                  best interest.

             A.   Why wouldn’t it be? I’m a good father. I
                  never abused my daughter. I never laid a
                  hand on my daughter.

             THE COURT: How do you justify that you have been
             a good father? How do you justify that statement?
             What have you done that shows that you’ve been a
             good father to any of your four children?



                                     - 13 -
J. S12038/18


                [FATHER]: That’s true.

Id. at 66-67.           By his own testimony, Father admitted that he has done

nothing to demonstrate that he has been a good father to Child or any of his

other children. Because the record belies Father’s first claim, it necessarily

fails.

         Father next complains that the trial court erred when it “rejected an

evaluation by a qualified expert.”               (Appellant’s brief at 8.)          In this

five-sentence argument, Father contends that:

                The [t]rial [c]ourt on page 8 of its opinion at
                Appendix A, mentions that the [guardian ad litem]
                attempted to introduce an evaluation.        Mother
                objected but did not say why. Her objection should
                have been overruled under Pa.R.E. 103(a)(1). And
                while the [t]rial [c]ourt might not have given the
                evaluation a lot of weight, it should at least have
                considered the evaluation under Pa.R.E. 402. The
                [t]rial [c]ourt again abused its discretion.

Father’s brief at 9.

         Father has failed to provide any record citations to support his claim.

On       that   basis    alone,   Father   waives    this   claim   on    appeal.      See

Pa.R.A.P. 2119(c); see also J.J. Deluca Co. v. Toll Naval Assocs., 56

A.3d 402, 413 (Pa.Super. 2012) (reiterating that a failure to present any

record citation to support a claim results in waiver).                   Nevertheless, we

further note, that Father has also failed to develop a legal argument capable

of meaningful appellate review.            Specifically, Father fails to articulate why

Rule 103(a)(1) would apply when that rule concerns preservation of a claim



                                            - 14 -
J. S12038/18

of error in a ruling that admitted evidence. Pa.R.E. 103(a)(1) (requiring that

a party claiming error in a ruling that admits evidence must, on the record,

make a timely objection, motion to strike, or motion in limine and state the

specific ground for the objection, unless it was apparent from the context).

Father also fails to articulate why the evaluation was admissible under

Rule 402, which addresses the general admissibility of relevant evidence.

Therefore, even if Father provided record citations, Father would have

waived this issue on appeal for failure to develop a legal argument.     See

In re Lokuta, 11 A.3d 427, 436 (Pa. 2011) (reiterating that a failure to

develop issues results in waiver).

      Even if Father did not waive this issue, however, the record belies

Father’s claim. Our review of the record reflects that the trial court entered

an order on July 7, 2017, that directed Father, in relevant part,

            to have his assessment completed in writing, and
            submitted to counsel for [Mother] and the Guardian
            Ad Litem prior to the hearing. Unless the parties
            stipulate to the admission of the assessment, the
            individual conducting the assessment shall be
            present to testify.   Without the assessment, the
            Court shall not award any type of custody to [Father]
            based on the Court’s concerns regarding the safety
            of [C]hild.

Order of court, 7/7/17 at 2; docket no. 26.

      The record reflects that the parties did not stipulate to the admission

of Father’s assessment by Laura Gargano. (Notes of testimony, 9/1/17 at

95.) Consequently, the July 7, 2017 court order required that Ms. Gargano



                                     - 15 -
J. S12038/18

be present at the custody hearing and testify.        The record reflects that

Ms. Gargano was not present to testify because, according to Father, “she

couldn’t make it.” (Id. at 98.)

      Father finally complains that the trial court erred when it ignored a

request for a bonding evaluation. In Father’s seven-sentence argument on

this issue, Father cites to notes of testimony from an alleged custody

conference that took place on July 7, 2017.      (Appellant’s brief at 10-11.)

Although we note that the transcript of that conference is not part of the

certified record before us, Father claims that at this conference Mother

requested a bonding evaluation. On the basis of Mother’s alleged request,

Father now complains that he “should have been given the option to make

the request as well.” (Appellant’s brief at 11.) Nothing in the record before

us demonstrates that Father was prevented from requesting a bonding

evaluation. Therefore, this claim lacks merit.

      Finally, we reiterate that the trial court determined the best interest of

Child by properly considering all relevant factors set forth in Section 5328

and determined that every factor weighed in favor of awarding custody to

Mother. In so doing, the trial court conducted the following analysis:

            THE COURT: [T]his case is unique in the regard that
            it is probably the only case that I have ever heard
            where every single factor the Court is to consider
            weighs towards one party.

                  The Court has to balance what I believe to be
            the best interests of this [C]hild with the rights of a
            parent to be involved in [C]hild’s life.


                                    - 16 -
J. S12038/18



                 [Father], I believe you have been deceitful. In
          your abuse affidavit you failed to list two PFAs, one
          that resulted in a Final Protection From Abuse. You
          failed to list your involvement with Children & Youth
          Services in Florida which resulted in the involuntary
          termination of four -- three children. You failed to
          disclose your involvement with Children & Youth
          Services in Snyder County between 2012 and 2014.

                 And, quite frankly, the timing of your custody
          petition, while it may raise suspicion, there has not
          been sufficient proof to establish that your motive for
          filing a custody action was that you got wind of the
          termination proceedings which may in the long run
          be a benefit to you.

                Quite frankly, it is commendable that you
          completed treatment court, you graduated, you’re
          getting your life straightened out. You should be
          commended for that.

          [FATHER]: I am.

          THE COURT: The problem is our children don’t wait
          for us to get our acts together. Your daughter is
          growing, and now she has developed a relationship
          with somebody else who has been a father to her.

          [FATHER]: I know.

          THE COURT: Quite frankly, you shocked me with
          your statement that you are a good father. That just
          shows you are so totally clueless as to what you
          have done to your daughter to get to where you’re at
          today, but her formative years are almost gone.
          They develop quickly. They don’t wait for us.

                Your statements showed that you made you
          the priority to the sacrifice of your daughter. You
          didn’t do anything with her while you were getting
          your act together.     There’s a lot of people in
          treatment court that are single parents that are



                                  - 17 -
J. S12038/18


          finding ways to deal with their issues but also deal
          with their children. You chose not to.

          [FATHER]: I had a PFA on me for three years.

          THE COURT: You did not file your custody action
          until a couple weeks before you graduated from
          treatment court. You could have filed a custody
          action at any time. You chose not to.

                In any event, the Court finds that you have
          other children. You’ve had no contact with one.
          Three your rights were involuntarily terminated. One
          of the other things that I found very significant is
          [Mother’s] statement that the two boys seem to be
          doing very well now that you are not around. I
          found that very interesting.

                As far as other children on Ms. -- well, I will
          address her factors in a -- I will address the sixteen
          factors in a minute.

                You have no extended family.          You have
          alienated your family; and [your fiancé], while [your
          fiancé] presented extremely well today and is
          probably a good influence in your life, her one son is
          incarcerated and her two other sons have nothing to
          do with her. That’s not a good sign.

                You have not had any contact with [Child]
          since she was three years old, over two years, in key
          developmental times. You don’t even know her.
          She probably doesn’t even know you. And you have
          taken no action, nothing until May of this year to see
          her.

                 And you have an outstanding arrest warrant in
          Florida for something that if they decide that it is
          going to be changed to not an in-state, you’re gone.
          I can’t believe Snyder County Probation allowed you
          to go through their treatment court program with an
          outstanding bench warrant. I would be curious to
          hear from Ms. Kuhns, who I am going to call after
          this, to see whether she is aware of it.


                                  - 18 -
J. S12038/18



                You    have    multiple    criminal  convictions
          involving drugs, alcohol; well, substances. You have
          multiple issues regarding violence, PFAs.

                I completely believe [Mother’s] testimony
          regarding your last contact with [Child] and how that
          whole thing went. And because of that, our statute
          does not allow me to give you any type of physical
          custody until that assessment is done, and I told you
          what you had to do and you didn’t do it. I don’t
          have a choice by law. Quite frankly, I was torn and
          would have probably been inclined to at least some
          version of supervised custody, not frequent; but you
          didn’t follow the Order. I can’t give you custody by
          law.

                In any event, the Court considered the factors
          in Section 5328.

                “Which party is more likely to encourage and
          permit frequent and continuing contact between the
          child and another party?”       I find that favors
          [Mother]. She’s done that in the past in spite of
          [Father’s] behaviors.

                “The past and present abuse committed by a
          party or member of a party’s household, whether
          there is a continued risk of harm,” and “Which party
          can better provide adequate safeguards and
          supervision for the child?” Clearly we have a [PFA],
          multiple convictions of violence, even though this
          most recent one was dismissed, I assume as part of
          a plea agreement.       I find [Mother’s] testimony
          regarding the incident credible.

                “Child abuse and involvement with protective
          services.” I don’t know the extent of that in Florida
          other than his parental rights were terminated which
          is an extreme measure, and the [PFAs] and finding
          of abuse.

                “Parental duties performed by each parent on
          behalf of the child.” Since two thousand and what,


                                  - 19 -
J. S12038/18


          fourteen, 2015, [Mother] has performed all of the
          parental duties.

                 “The need for stability and continuity in the
          child’s education, family life, and community life; the
          availability of extended family; and the child’s sibling
          relationships.” [Mother] testified as to her current
          situation with her current husband. Her mother’s
          here and involved. Her husband’s here and involved.
          They have the pastor of the church here and
          involved. That is what we in dependency court are
          looking for for our safety net to build around our
          children. Where the phrase -- and you don’t hear it
          as much anymore -- is it takes a village to raise a
          child. Clearly [Mother] has done that and built that
          around not just [Child] but all of her children; and
          the fact that her children are with her, well, except
          one that’s of age, is no longer a child but an adult.
          The other cousins with her husband’s family; the fact
          that [Child] has playmates, siblings around her. On
          [F]ather’s side there’s none. He has alienated them
          all or lost his parental rights.

                [Mother], the same thing with the extended
          family and friends to take care of [Child], that clearly
          favors [Mother]. In fact there doesn’t -- other than
          the past year, there’s no stability on [Father’s] side
          except for the past year. And he’s to be commended
          for that. Hopefully he continues on this path of
          sobriety.

                 “The well-reasoned preference of the child.”
          My understanding from [the guardian ad litem’s]
          position is [C]hild doesn’t really even know who her
          biological father is.

                “The attempts of a parent to turn the child
          against the other parent, except in cases of domestic
          violence or reasonable safety measures are
          necessary to protect the child.” She got a [PFA] by
          Judge Hudock saying that you were a danger to that
          [C]hild.




                                   - 20 -
J. S12038/18


                “Which party is more likely to maintain a
          loving, stable, consistent, and nurturing relationship
          with the child adequate for the child’s emotional
          needs?” Clearly that’s mom. Mom’s been there for
          [C]hild. [Father’s] been busy taking care of himself.
          And it appears [Child] is doing well, hitting -- in
          kingergarten, doing chores.

                “The proximity of the residences.” Mifflinburg
          to Middleburg is not that far apart. It’s not really a
          factor in the Court’s decision.

                 “Each party’s availability to care for the child or
          ability to make appropriate childcare arrangements.”
          [Mother’s] husband is there and so are the extended
          family members.

                 “The level of conflict.” While it may not exist
          now, it’s only because of the [PFA], but the level of
          conflict in the past was very violent to the fault of
          [Father].

                 “History of drug and alcohol abuse.” I have
          not heard of any drug and alcohol abuse by
          [Mother]. It is rampant from [Father] for at least a
          significant part of his life.

                 “The mental and physical condition of a party
          or a member of the party’s household.” I heard
          about [Father’s] recent diagnosis of I believe it was
          bipolar. I didn’t hear anything more, although, he’s
          on four medications that he doesn’t even know what
          they are. He knows he takes four pills a day. That
          is an issue that is frightening.

                It’s clear that [Mother] should have legal and
          primary physical custody. The question is, what
          contact should [Father] have or what type of custody
          rights should [Father] have. And the problem is
          when someone is convicted of certain offenses, the
          Court is to conduct an initial evaluation; and where
          the Court determines that counseling is [a]
          necessity, it shall appoint a qualified counselor.



                                   - 21 -
J. S12038/18


                 I allowed [Father] to obtain -- well, I actually
           in Subsection C in Section 5329 I ordered that he
           obtain further evaluation, and I told him what he had
           to do; and he didn’t do it. . . . “The Court shall
           consider such conduct and determine that the party
           does not pose a threat of harm to the child before
           making any order of custody to that parent.”

                  I cannot make that determination because you
           didn’t follow my order and have the evaluator
           present, and even though -- I suppose if there had
           not been the inconsistencies between the evaluator’s
           report and the testimony today, I may have
           overruled [Mother’s counsel’s] objection and still
           considered it. But there’s serious question of the
           validity of the evaluation or even the qualifications.
           I don’t know this person. In fact I can’t even read
           her name, and it is not written anywhere. So I don’t
           have a curriculum vitae, a resume, anything to tell
           me who this evaluator is. I suppose the initials of
           her degree follow her -- well, no, her name’s not
           even -- yeah, there aren’t -- nothing to even indicate
           her degree and whether she’s even qualified to do
           this.

           ....

                 And now, this 1st day of September, 2017, for
           the reasons stated on the record, [Mother] is
           awarded sole legal and physical custody of the minor
           [C]hild . . . .

Notes of testimony, 9/1/17 at 97-104.

     Our review of the record in this case demonstrates that the evidence

supports the factual findings made by the trial court when it applied the

16-factor best-interest test to award custody of Child to Mother because that

award was, and is, in Child’s best interest. Accordingly, we discern no abuse




                                   - 22 -
J. S12038/18

of discretion and affirm the order that awarded sole legal and physical

custody of Child to Mother.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/20/2018




                                - 23 -
