J-S16030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.M.                                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

P.M.

                            Appellee               No. 3007 EDA 2015


              Appeal from the Order Entered September 14, 2015
                In the Court of Common Pleas of Wayne County
                      Civil Division at No(s): 61-2012-DR


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                             FILED MARCH 17, 2016

       R.M. (“Father”) appeals pro se from the order entered on September

15, 2015, in the Court of Common Pleas of Wayne County, denying his

exceptions to the custody master’s report filed on July 14, 2015, with

respect to his children, C.M., a female, born in October of 2006, and C.M., a

male, born in October of 2008 (collectively, “the Children”).   The master’s

report recommended that the court deny Father’s petition for modification of

the existing custody order, which granted Father supervised visitation, 1 at

his financial expense. We vacate and remand.


____________________________________________


1
 We observe that the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321-5340,
does not use the term “visitation” to describe periods of partial physical
custody, shared physical custody, or supervised physical custody. See 23
(Footnote Continued Next Page)
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      The certified record reveals an extensive procedural history of the

underlying custody matter initiated by Father in February of 2012, when he

requested primary physical and shared legal custody of the Children.

Father’s custody action proceeded to a custody conference on February 8,

2012, before Warren Schloesser, Esquire, who served as the custody master

throughout this case. The parties entered into an interim agreement during

the custody conference granting P.M. (“Mother”) primary physical custody

and Father supervised physical custody “[u]p to two, two hour sessions” per

week, at the office of Wayne County Children and Youth Services

(“WCCYS”), with Father to pay the costs.2 Interim Agreement, 2/8/12, at 2.

We summarize the remaining relevant history as follows.

      By agreed-upon order dated April 20, 2012, the court directed that a

Wayne County Sheriff’s Deputy be present in the visitation room at WCCYS,

along with the WCCYS aide supervising the visits, at Father’s financial

expense.    Agreement, 4/20/12, at ¶¶ 1-2.        On May 11, 2012, the parties

agreed, inter alia, that the WCCYS aide was no longer obligated to supervise

the visits; rather, Dr. [Michael] Stefanov would supervise the visits at

                       _______________________
(Footnote Continued)

Pa.C.S.A. § 5322(b).     Herein, we refer to Father’s custody award as
supervised physical custody.
2
  The certified record reveals, by the time of this custody conference, a
Protection from Abuse (“PFA”) order was entered against Father on behalf of
Mother and the Children for a period of three years.




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WCCYS.      Stipulation and Order, 5/11/12, at ¶ 1.        On June 13, 2012, the

parties agreed that Father will begin individual counseling with Dr. Stefanov,

and that they will begin family counseling with Dr. John Seasock. Second

Interim Agreement, 6/13/12, at 7. In addition, Father and Mother agreed to

follow the custody recommendations made by Dr. Seasock. Id. at 7, 11-12.

        On September 7, 2012, Father filed pro se a petition for contempt

against Mother, alleging that Mother failed to participate in the counseling

with Dr. Seasock. A hearing occurred before the trial court on October 11,

2012.     By order the same date, the court dismissed Father’s petition for

contempt.

        In addition, on September 7, 2012, Father filed pro se a petition for

custody wherein he requested shared physical custody.                 Following an

evidentiary hearing, by report and recommendation dated November 8,

2012, the master maintained Father’s supervised physical custody for two,

two-hour     sessions     per    week     at   WCCYS.      Master’s   Report   and

Recommendation, 11/8/12, at ¶¶ 1-3.              Further, the master directed that

Father undergo a psychological evaluation by Dr. Stefanov within 90 days, at

Father’s expense.3 Id. at ¶ 5. Father filed pro se exceptions to the master’s

____________________________________________


3
  The record includes a confidential psychological evaluation by Dr. Stefanov
dated January 14, 2013, wherein he opined that no evidence exists
indicating that Father suffers from any psychological or anger-related
disorder. See Psychological Evaluation, 1/14/13, at 5. In the evaluation,
Dr. Stefanov stated that he did not observe Father with the Children. Id.



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report, which the trial court denied by order dated December 17, 2012.

Thereafter, the custody litigation continued, as follows.4

       By order dated June 18, 2013, the trial court adopted the master’s

report and recommendation filed on May 28, 2013, that Father have

visitation one hour per week, to be supervised for a 90-day period by

“Douglas Bill or a similar clinically experienced male supervisor.”   Master’s

Report and Recommendation, 5/28/13, at ¶¶ 1, 3. The order provided that

the male supervisor issue a report after 75 days, and that a hearing be

subsequently scheduled.5 Id. at ¶¶ 4-5.

       On September 19, 2013, Father filed a motion for a hearing before the

custody master to “allow [him] to have eight [ ] hours a week of
____________________________________________


4
  Relevant to Father’s issues on appeal is the indicated finding by WCCYS in
December of 2012, concerning Mother’s allegation that Father sexually
abused his daughter, C.M. Father filed an appeal to the Pennsylvania
Department of Public Welfare (“DPW”), Bureau of Hearing and Appeals
(“Bureau”), to expunge the indicated report of child abuse. By order dated
January 16, 2014, the Bureau directed that DPW expunge the indicated
report from the ChildLine Registry. See Order, 1/16/2014.
5
  In the May 28, 2013 report, the master stated that a hearing was held on
May 14, 2013. The master stated that, prior to the commencement of the
hearing, Father had agreed to supervised physical custody by “Douglas Bill
or some other male clinician who would then be able to submit a report of
his observations.” Master’s Report and Recommendation, 5/28/13, at 1-2
(unpaginated). In addition, the parties had agreed that the supervised
physical custody would occur “outside of the [WCCYS] office.” Id. at 1
(unpaginated). Notably, the record includes a letter from Douglas Bill to the
custody master dated September 6, 2013, wherein he stated that Father
attended four sessions of supervised physical custody. Father then “chose
to suspend the visits and return to your [c]ourt to seek a decision.” Letter,
9/6/13, at 1.



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unsupervised visits” with the Children. Motion, 9/19/13, at ¶ 4. On January

24, 2014, following a hearing, the master filed a report and recommendation

that Father’s supervised physical custody be held at the office of Dr.

Stefanov for one hour per week for eight sessions, and that a subsequent

hearing be held with respect to Dr. Stefanov’s observations of Father’s

custodial periods. Master’s Report and Recommendation, 1/24/14, at ¶¶ 2-

3. By order dated April 1, 2014, following exceptions filed by Mother, the

trial court adopted the master’s report.

      On July 3, 2014, Father filed pro se a petition for modification of the

existing custody order dated April 1, 2014, wherein he requested, inter alia,

three overnights of physical custody per week.     Following a hearing, the

custody master, by report and recommendation filed on August 5, 2014,

maintained the April 1, 2014 custody order. Father filed exceptions, and the

trial court scheduled an oral argument. By order dated October 16, 2014,

the trial court denied Father’s exceptions. On November 19, 2014, the trial

court adopted the master’s August 5, 2014 report and recommendation.

      This appeal arises from the petition for modification of the existing

custody order filed by Father pro se on May 18, 2015, wherein he again

requested shared custody. The master held a hearing on June 30, 2015. By

report and recommendation filed on July 14, 2015, the master maintained

the existing custody order. On July 27, 2015, Father filed exceptions pro se.

The trial court held oral argument on September 2, 2015.


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      By order dated September 14, 2015, and entered on September 15,

2015, the trial court denied Father’s exceptions and adopted the master’s

July 14, 2015 report and recommendation.        Father timely filed pro se a

notice of appeal and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court issued a Rule

1925(a) opinion on October 29, 2015.

      Father presents the following issues for our review:

      1. Why is the Wayne County court system doing this to me?

      2. Why is [Mother] doing this to me?

      3. Why if I am innocent, proven innocent and cleared[] am [I]
      being persecuted, punished and extorted?

      4. Why take a good father away from two young children who
      need him so very much[] if the dad is innocent?

      5. Why is [the trial court] manipulating, skewing, dishonest and
      ste[a]ling children from innocent parent – me?

      6. Why can’t I have my kids back in my life in the form of a
      shared legal [and] physical custody order?

Father’s brief at 13.

      As best as we can discern, Father argues on appeal that the evidence

is insufficient to support the subject custody order due to (1) the written

report by Dr. Stefanov dated January 14, 2013; and (2) the indicated report

of child sexual abuse being expunged from the ChildLine Registry pursuant

to the Bureau’s January 16, 2014 order. See Father’s brief at 17.

      The scope and standard of review in custody matters is as follows.


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               [T]he appellate court is not bound by the deductions or
            inferences made by the trial court from its findings of
            fact, nor must the reviewing court accept a finding that
            has no competent evidence to support it. . . . However,
            this broad scope of review does not vest in the reviewing
            court the duty or the privilege of making its own
            independent determination. . . . Thus, an appellate court
            is empowered to determine whether the trial court’s
            incontrovertible factual findings support its factual
            conclusions, but it may not interfere with those
            conclusions unless they are unreasonable in view of the
            trial court’s factual findings; and thus, represent a gross
            abuse of discretion.

         R.M.G., Jr. v. F.M.G., 2009 PA Super 244, 986 A.2d 1234, 1237
         (Pa. Super. 2009) (quoting Bovard v. Baker, 2001 PA Super
         126, 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,

              [O]n issues of credibility and weight of the evidence,
            we defer to the findings of the trial [court] who has had
            the opportunity to observe the proceedings and
            demeanor of the witnesses.

               The parties cannot dictate the amount of weight the
            trial court places on evidence. Rather, the paramount
            concern of the trial court is the best interest of the child.
            Appellate interference is unwarranted if the trial court’s
            consideration of the best interest of the child was careful
            and thorough, and we are unable to find any abuse of
            discretion.

         R.M.G., Jr., supra at 1237 (internal citations omitted). The test
         is whether the evidence of record supports the trial court’s
         conclusions. Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d
         533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

         The primary concern in any custody case is the best interests of the

child.     “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s


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physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004).

     Relevant to this custody case are the factors set forth in Section

5328(a) of the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321-5340, which

provides:

     § 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.

              (2.1) The information set forth in section 5329.1(a)(1)
            and (2) (relating to consideration of child abuse and
            involvement with protective services).

              (3) The parental duties performed by each party on behalf
            of the child.

              (4) The need for stability and continuity in the child’s
            education, family life and community life.

              (5) The availability of extended family.

              (6) The child’s sibling relationships.




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              (7) The well-reasoned preference of the child, based on
            the child's maturity and judgment.

              (8) The attempts of a parent to turn the child against the
            other parent, except in cases of domestic violence where
            reasonable safety measures are necessary to protect the
            child from harm.

              (9) Which party is more likely to maintain a loving, stable,
            consistent and nurturing relationship with the child
            adequate for the child's emotional needs.

              (10) Which party is more likely to attend to the daily
            physical, emotional, developmental, educational and special
            needs of the child.

               (11) The proximity of the residences of the parties.

              (12) Each party’s availability to care for the child or ability
            to make appropriate child-care arrangements.

              (13) The level of conflict between the parties and the
            willingness and ability of the parties to cooperate with one
            another. A party’s effort to protect a child from abuse by
            another party is not evidence of unwillingness or inability to
            cooperate with that party.

             (14) The history of drug or alcohol abuse of a party or
            member of a party’s household.

             (15) The mental and physical condition of a party or
            member of a party’s household.

               (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).6


____________________________________________


6
  The Act was amended, effective January 1, 2014, to include the additional
factor at 23 Pa.C.S. § 5328(a)(2.1).




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     This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a

custody order.”   J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original). Further,

     Section 5323(d) provides that a trial court “shall delineate the
     reasons for its decision on the record in open court or in a
     written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
     “section 5323(d) requires the trial court to set forth its
     mandatory assessment of the sixteen [Section 5328 custody]
     factors prior to the deadline by which a litigant must file a notice
     of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
     appeal denied, 70 A.3d 808 (Pa. 2013). . . .

     In expressing the reasons for its decision, “there is no required
     amount of detail for the trial court’s explanation; all that is
     required is that the enumerated factors are considered and that
     the custody decision is based on those considerations.” M.J.M.
     v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,
     [620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of
     reasons for its decision, which adequately addresses the relevant
     factors, complies with Section 5323(d). Id.

A.V., 87 A.3d at 822-823.

     Upon review of the certified record before this Court, the trial court

failed to apply the Section 5328(a) custody factors when entering the

subject order. Likewise, the court failed to enumerate the Section 5328(a)

factors in its Rule 1925(a) opinion. As such, we do not know what facts the

trial court considered when reaching its custody decision.    Without factual

findings, we cannot conduct a meaningful appellate review of Father’s

asserted errors. See 23 Pa.C.S.A. § 5323(d); A.V., supra at 823.




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      Likewise,   to   the   extent   the   court   relied   upon   the   master’s

consideration of the Section 5328(a) custody factors in its July 14, 2015

report and recommendations, we conclude that the master cursorily

considered them and failed to discuss findings of fact in support of these

legal conclusions. The master stated as follows, in part:

      [T]he undersigned is seriously concerned about the materials
      posted on [Father]’s Facebook page, and what those postings
      indicate about his character and thought process.          This
      questionable judgment touches on the consideration set forth in
      23 Pa.C.S.[A.] [§] 5328(a)(15) which includes the mental
      condition of the party. Based upon his June 30, 2015 testimony,
      the mental condition of [Father] is a cause for concern.

      However, the statute requires that all of those considerations be
      dealt with and [Father] in his testimony, raised many of them for
      consideration. I find that the mother is better able to provide
      adequate physical safeguards and supervision of these two
      children; that the mother is better able to provide for stability
      and continuity in the children’s education, family life and
      community life; that the mother is more likely to maintain a
      loving, stable, consistent and nurturing relationship with the
      children adequate for their emotional needs; that the mother is
      more likely to attend to the daily physical, emotional,
      developmental, educations and special needs of the children;
      that the mother has greater availability to care for the children;
      and most particularly, that the level of conflict between the
      parties is such that cooperation between them with respect to
      the children’s well-being at this time is not possible.

      Admittedly in the context of this case, it is difficult to consider
      the other factors for various reasons, such as the still young age
      of the children gives limited weight to their preference, and since
      the father refuses to avail himself of supervised visitation, it is
      difficult to assess his ability to care for the children-testimony a
      custody supervisor could provide.

Master’s Report and Recommendation, 7/14/15, at 3-4 (unpaginated).




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       Based on the foregoing, we conclude that neither the trial court’s

September 15, 2015 order, nor its Rule 1925(a) opinion, “delineate[s] the

reasons for its [custody] decisions[.]”           23 Pa.C.S.A. § 5323(d).   The trial

court also failed to state this reasoning in open court following the

conclusion of the trial testimony.             As such, we conclude the trial court

erred.7

       Order vacated. Case remanded for further proceedings.            Jurisdiction

relinquished.


____________________________________________


7
   Notably, in the July 14, 2015 report and recommendations, the master
stated that Mother testified and introduced documentary evidence during the
hearing on June 30, 2015, which is not included in the transcript certified
before this Court. Master’s Report and Recommendation, 7/14/15, at 2
(unpaginated). In addition, the master stated that Father testified he is
employed, and he received written communication from the Children, which
is not included in the transcript. Id. Rather, the June 30, 2015 transcript in
the certified record includes only Father’s testimony on direct examination
regarding his visit to the Children’s school and a statement made by Father
after the hearing but while still on the record. Id. at 3-4.

       “It is the obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents necessary to
allow a complete and judicious assessment of the issues raised on appeal.”
Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996) (citation
omitted); Kessler v. Broder, 851 A.2d 944, 950 (Pa. Super. 2004). Where
an appellant fails to fulfill his obligation, “the appellate court may take such
action as it deems appropriate, which may include dismissal of the appeal.”
Pa.R.A.P. 1911(d); 42 Pa.C.S.A. § 706. Based on our conclusion that the
trial court erred in failing to consider the Section 5328(a) custody factors,
we do not dismiss this appeal. Rather, we caution Father that, had the court
set forth its mandatory assessment of the factors, we would have been
unable to conduct a proper review of Father’s issues without complete
transcripts of the relevant hearings in the certified record.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2016




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