J-A20006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 R.W. AND L.W.                            :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 J.W. AND E.S.                            :
                                          :
                                          :
 E.S.                                     :
                                          :
               v.                         :
                                          :
 J.W.                                     :
                                          :
 APPEAL OF: J.W.                          :    No. 284 WDA 2018




                Appeal from the Order Entered January 26, 2018
               in the Court of Common Pleas of Crawford County
                    Civil Division at No(s): F.D. 2017-369-S


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E..:                  FILED SEPTEMBER 17, 2018

        J.W. (Father) appeals from the order entered on January 26, 2018, that

awarded primary physical custody of M.M.W. (Child) to E.S. (Mother) and

partial physical custody to Father. Mother and Father were awarded joint legal

custody. After review, we vacate and remand.

        In its memorandum accompanying its order, dated January 26, 2018,

the trial court provided the following brief, procedural history of this case:

        The child who is the subject of this custody proceeding is
        [M.M.W.,] who was born [i]n July [of] 2013 and is therefore four
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       years old. [R.W.] and [L.W.] are the paternal grandparents of
       [C]hild. [J.W.] is the father and [E.S.] is the mother of [C]hild.

       These two separate custody proceedings have been consolidated.

       A mediation was held resulting in an order of October 26, 2017.

       Both the paternal grandparents and [F]ather requested a De Novo
       hearing which we conducted on January 17, 2018.

       By that time[,] counsel for the paternal grandparents explained
       that since their son was not incarcerated as was previously
       expected but was instead on house arrest/electronic monitoring,
       they no longer were seeking physical custody of the child but were
       instead taking the position that [F]ather should have primary
       physical custody.

       Therefore, in their case in chief the paternal grandparents called
       as witnesses, [F]ather, the paternal grandmother and Amber Kull
       from CYS.

       [F]ather in his case in chief testified and while we explained to
       [M]other that she could testify or call any witnesses that she
       wished to call and that we would decide the case based on
       whatever evidence we heard at the De Novo hearing[,] she
       declined to testify or call any witnesses.

Trial Court Memorandum (TCM), 1/26/18, at 1-2.1             The trial court then

discussed the facts as they related to the factors listed in 23 Pa.C.S. §

5328(a), which the court determined supported the award of primary physical

custody to Mother with Father being granted partial physical custody.

       Father filed a timely notice of appeal and a concise statement of errors

complained of on appeal, raising the following issue for our review:

       Did the trial court err or otherwise abuse its discretion in awarding
       primary physical custody of a minor child to [M]other when
____________________________________________


1We also note that Mother did not file a brief with this Court in connection
with Father’s and/or Paternal Grandparent’s appeal.

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       [M]other did not testify or otherwise have her significant other
       who resided with her testify or present any testimony or evidence
       whatsoever[?]

Father’s brief at 7 (unnecessary capitalization omitted).2

       We address Father’s claims mindful of our well-settled standard of

review.

       In reviewing a custody order, our scope is of the broadest type
       and our standard is abuse of discretion. We must accept findings
       of the trial court that are supported by competent evidence of
       record, as our role does not include making independent factual
       determinations. In addition, with regard to issues of credibility
       and weight of the evidence, we must defer to the presiding trial
       judge who viewed and assessed the witnesses first-hand.
       However, we are not bound by the trial court’s deductions or
       inferences from its factual findings. Ultimately, the test is whether
       the trial court’s conclusions are unreasonable as shown by the
       evidence of record. We may reject the conclusions of the trial
       court only if they involve an error of law, or are unreasonable in
       light of the sustainable findings of the trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

       “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S. § 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:


____________________________________________


2 Following the appeal filed by Father, the trial court issued a Pa.R.A.P.
1925(a) opinion, which refers this Court to the memorandum decision it issued
on January 26, 2018, that provides the reasoning for its decision.

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          (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.

          (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.

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              (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).

      As noted above, in its memorandum accompanying the custody order,

the trial court addressed each of the section 5328(a) factors. See TCM at 2-

7. The court found that factors 1, 2, 2.1, 4, 6, 7, 8, 9, 10, 11, 12, 13, and 15

favored neither party. The court found that factor 3 slightly favored Mother,

and that factor 14 favored Mother, while factor 5 favored Father. Specifically,

with regard to factors 3, 5, and 14, the court stated:

      [Factor 3] We next consider the parental duties performed by
      each party on behalf of the child. It appears that the parties
      shared responsibility for the parental duties (although [F]ather’s
      testimony would indicate that he felt he did a better job of those
      duties) until the separation of the parties on or about August 28,
      2017.

      Since [C]hild has been with [M]other as a result of the mediation
      order of October 26, 2017, she has been primarily responsible for
      the parental duty and we find that this factor slightly favors
      [M]other.

      . . .




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     [Factor 5] The next factor we consider is the availability of
     extended family and as we have indicated [F]ather has his parents
     involved in the care and custody of this child. He also indicated
     that his sister has some limited contact with the child but the
     contact is limited because his sister resides with an individual who
     is registered as a sex offender. That limited contact with his sister
     appears to be as a result of CYS involvement in the life of this
     child over the last approximate year.

     There was no indication that [M]other has any extended family
     available for the child and therefore this factor favors [F]ather.

     . . .

     [Factor 14] The next factor we consider is the history of drug and
     alcohol abuse of a party or member of a party’s household.

     [F]ather had a DUI in 2009[,] which included a corruption of
     minors charge because apparently he had one or more minors in
     the vehicle with him. He also had the DUI for which he is currently
     on house arrest/electronic monitoring in March of 2017[,] which
     was a drug related DUI. He was only sentenced for that DUI in
     the fall of 2017 and his operating privileges are suspended for a
     period of 18 months as a result.

     He indicated that [M]other had a continuing drug problem and
     when CYS was called while the parties were still together in 2017,
     he took a drug test and tested positive for THC[,] but [M]other
     would not take a drug test.

     Apparently, ultimately she did so and any restrictions on her time
     with the child were removed by CYS as a result of that drug test.

     We find this factor favors the mother in light of the father’s recent
     DUI and positive test for THC.

TCM at 3, 4 and 5-6.

     As for factor 16 (“Any other relevant factor”), the court did not

definitively indicate whether this factor favored Mother or Father or neither

parent. Rather, the court stated:



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     While we had limited information about [M]other, based on the
     testimony of other witnesses she did indicate that the gentleman
     she lives with had no criminal record.

     We would have preferred to have heard from him and her, but we
     also have concerns about [F]ather and the fact that he is newly
     on supervision for his second driving under the influence including
     currently house arrest/electronic monitoring.

     Apparently[,] the parties stipulated that he was not a threat to the
     child pursuant to the provisions of 23 Pa.C.S.[] § 5329 and while
     that does not disqualify him from having custody we can still
     consider the information we have with regard to his criminal
     background regarding the DUIs and corruption of minors in
     deciding what is in the best interest of [C]hild.

     We frankly are also concerned about the continued reporting to
     CYS when it appears that there really isn’t anything (other than
     some possible drug use by both parties when they were together)
     that is indicated or founded, particularly the allegations that
     [C]hild was sexually abused. There is an indication [C]hild told
     CYS her [F]ather told her to lie about what may or may not have
     happened to her regarding any sexual abuse in [M]other’s home.

     It appeared from the paternal grandmother’s testimony that all
     started because she felt [C]hild did not want her to touch [C]hild
     when [C]hild was being bathed and she concluded that [C]hild had
     been sexually abused and between her and [F]ather concluded
     that it had occurred because [C]hild allegedly had contact with a
     friend of [M]other[] or [M]other’s boyfriend who was a registered
     Megan’s Law offender.

     We note that while the evidence is sketchy, [C]hild may well have
     also had contact with the paternal aunt’s boyfriend who is a
     registered sex offender.

     At this time we believe [C]hild is most stable in [M]other’s home
     and we are not prepared to disrupt that based on the evidence at
     the De Novo hearing. Hopefully these parties can parent [C]hild
     together going forward for her benefit.

TCM at 6-7.




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      The main thrust of Father’s argument in his brief is that “even though

[F]ather made the allegations of the lack of care of [C]hild by [M]other, the

failure to cook or clean or engage in any activities with [C]hild, the continuous

use of serious drugs and finally the removal of [C]hild from daycare and the

Head Start program, [M]other at no time took the stand to refute any of the

testimony presented by [F]ather.”      Father’s brief at 11.   Moreover, Father

acknowledged his two DUI arrests, but noted that the parties agreed that he

“did not present a risk or threat of harm to [C]hild as a result of said DUI

arrests.” Id. at 12. Father also points out that CYS’s caseworker testified

that “a case is still open regarding the minor [C]hild[’s] due to said [C]hild

acting out sexually, parent’s substance abuse, inadequate health care and

inappropriate discipline.” Id.

      Generally, Father contends that in discussing the section 5328 factors,

the court erred because no evidence exists in the record that supports the

court’s determinations. Specifically, Father discusses factor 2, claiming that

based upon the evidence presented, the court erred in finding that this factor

did not favor either party. Rather, Father explains that he presented evidence

of suspected abuse with a knife and sexually, but that Mother refused to allow

Child to undergo a physical examination. Father also relies on the absence of

testimony from Mother or her significant other, which deprived the court of an

ability to evaluate Mother’s or her significant other’s ability to care for Child.

Father claims that this circumstance led to the court’s making assumptions

that are not supported by any evidence.

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      Father also discusses the court’s conclusion that factor 3 slightly favors

Mother, basing its conclusion on the fact that since Mother had cared for Child

for a few months prior to the hearing, “she must be doing a good job.” Id. at

13. Again, Father contends that nothing in the record supports this finding.

The lack of testimony from Mother about her or her significant other’s care of

Child, balanced against Father’s testimony about what he has done to care for

Child, does not support a conclusion that should weigh in Mother’s favor. In

particular, he emphasized his arrangements for day care and the Head Start

program and counseling for Child, which Mother refused to allow to continue.

Based upon the evidence presented and the lack of evidence to the contrary,

Father contends that this factor should have weighed in his favor.

      Father also mentions factors 4 and 10, which the court found favored

neither party. He points out evidence he presented that was not contradicted

by any evidence from Mother. With regard to factor 4, he mentions enrollment

in daycare and Head Start and his providing transportation to these programs

even though Mother was not working. In addition, as for factor 10, Father

again relies on his provision for Child’s education, while Mother cancelled these

activities.   Thus, he asserts that the evidence should have supported a

conclusion that these factors favored Father. Likewise, Father contends that

factor 12 should have favored him. Specifically, in his brief, he states:

      Once again[,] the [c]ourt is assuming that [M]other is capable to
      care for [Child] or has the ability to even make appropriate child
      care arrangements. What we have is un-rebutted testimony of
      [F]ather that it was he and his family who got [C]hild to daycare
      and to Head Start even though [M]other lived in the house and

                                      -9-
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      was at home and not working. It was [F]ather who enrolled
      [C]hild into [c]ounseling. It was [F]ather who attempted to get
      medical treatment for [C]hild at a hospital. Unfortunately, it was
      [M]other who canceled the two matters. Clearly[,] if the [c]ourt
      is going to strictly review the evidence presented, then the un-
      rebutted evidence presented is that [M]other does not have the
      availability or ability to care for [C]hild and there is no evidence
      presented that she has in the past or would in the future. In
      addition, there is no evidence that her significant other has the
      ability or even the desire to be available for the care of [C]hild.

Father’s brief at 15.

      We are compelled to agree with Father.       As we noted above, Father

claims that many of the court’s findings are based upon assumptions and are

not supported by any evidence in the record. Our review of the record in this

matter reveals that Father’s assertion is correct. Accordingly, we vacate the

order presently on appeal and remand this case to the trial court for further

proceedings. The trial court may schedule another hearing. However, if after

a newly scheduled hearing is held and nothing more specific is forthcoming

from or about Mother’s and her significant other’s care of Child, the court must

revise its findings to comport with the evidence before it. Its decision cannot

be based on assumptions.

      Order vacated. Case remanded for further proceedings.         Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2018




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