J-A18007-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

H.E.,                                     :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
D.B.,                                     :
                                          :
                   Appellant              :          No. 276 MDA 2014

              Appeal from the Order entered on January 10, 2014
               in the Court of Common Pleas of Centre County,
                         Civil Division, No. 2004-2845

BEFORE: LAZARUS, WECHT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 01, 2014




affirm.



Mother and Father, who never married, separated when Child was

approximately nine months old. The parties have contested custody of Child

since they separated.    In August 2011, the trial court entered the current

custody Order that stated that the parties share legal custody of Child, and

Mother has primary physical custody subject to periods of partial physical

custody for Father.

        On May 15, 2013, Father filed a Petition for Modification of Custody

and a Motion for Appointment of a Guardian Ad Litem. The trial court held
J-A18007-14

hearings on August 14, August 19, and October 4, 2013.          On August 19,

2013, Father m



to Disqualify.    On October 4, 2013, after the parties agreed that counsel

would not be present, the trial court judge alone questioned Child in her

chambers.       Subsequently, on January 10, 2014, the trial court denied
                                   1



      Father filed a timely Notice of Appeal and a Pennsylvania Rule of

Appellate Procedure 1925(b) Concise Statement.        The trial court issued an

Opinion.

      On appeal, Father raises the following questions for our review:

      I.      Whether the trial court erred as a matter of fact and law
              regarding its analysis of the factors contained in 23
              Pa.C.S.A. [§] 5328?

            A. Whether the trial cour
               and not supported by competent evidence?

            B. Whether the trial court erred in its application of 23
               Pa.C.S.A. [§] 5328 to the facts?

      II.     Whether the trial court erred in failing to disqualify
                                                   fter a conflict of


              being prohibited from interrogating [] Child consistent with
              Pa.R.C.P. [] 1915.11 such that the record regarding []
                     testimony, upon which the [trial] court relied, was a
              record developed by the [trial] court thereby depriving
              Father of due process?

1

Guardian Ad Litem.


                                   -2-
J-A18007-14



Brief for Appellant at 6 (some capitalization omitted).

         Our standard of review is as follows:

         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-
         deductions or inferences from its factual findings. Ultimately,

         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.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

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

child.    See Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005)

(citations omitted); see also Jackson v. Beck, 858 A.2d 1250, 1252 (Pa.




                                                       -by-case basis, requires



physical, intellectual, moral, and spiritual well-being.         See Arnold v.

Arnold, 847 A.2d 674, 677 (Pa. Super. 2004).




                                     -3-
J-A18007-14

     Relevant to this case are the best interest factors set forth in

Section 5328(a) of the Child Custody 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

                  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)
                  education, family life and community life.

            (5)   The availability of extended family.

            (6)

            (7)   The well-reasoned preference of the child, based on


            (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.




                                  -4-
J-A18007-14

             (9)   Which party is more likely to maintain a loving,
                   stable, consistent and nurturing relationship with the


             (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
                  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.
                  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


             (15) The mental and physical condition of a party or


             (16) Any other relevant factor.

                                                      [a]ll of the factors listed

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

entering a                   J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super.

2011) (citation omitted, emphasis in original).

      In his first claim, Father contends that the trial court failed to properly

analyze and apply the provisions of 23 Pa.C.S.A. § 5328(a) in its denial of

his Petition for Modification of the custody Order. Brief for Appellant at 16-

36. Father sets forth various findings, which he considers to be inaccurate



                                  -5-
J-A18007-14




section 5328(a)(1) that Mother was more likely to encourage continuing



5328(a)(12) that the ability to make appropriate childcare arrangements for

Child weighed in favor of Mother; and the trial

section 5328(a)(13), i.e., that the level of conflict between the parties and

the willingness to cooperate with one another weighed in favor of Mother.

Id. at 16-17, 22-34.

      Here, the trial court individually addressed each of the factors set forth

in Section 5328(a) and determined that a modification of the child custody

                                         See Trial Court Opinion, 1/10/14, at

1-

and

credibility and weight of evidence, we must defer to the presiding trial

           C.R.F. III, 45 A.3d at 443. Upon our review of the competent

evidence in the record, we conclude that the trial court properly analyzed all



the custody Order.     See M.J.M. v. M.L.G., 63 A.3d 331, 337 (Pa. Super.

2013) (c

custody order and that this Court would not reweigh the                findings




                                  -6-
J-A18007-14

and credibility determinations with regard to the section 5328(a) factors).2

        In his second claim, Father contends that the trial court erred in failing

                          counsel after counsel revealed her relationship with

Child. Brief for Appellant at 39-43. Father argues that this conflict resulted



of Pennsylvania Rule of Civil Procedure 1915.11(b).        Brief for Appellant at

39-40, 43-44. Father further argues that he did not voluntarily waive the

presence of his counsel during the questioning as required under Civil Rule

1915.11(b), but instead did so under duress. Brief for Appellant at 44-45.

Father asserts that his due process rights were violated, as the trial court


2
    We note that Father also raises numerous other claims regarding the trial

conclusion under section 5328(a)(5), relating to the availability of extended

section 5328(a)(8), relating to attempts to turn Child against the other


                                      conclusion under section 5328(a)(14),
relating to history of drug and alcohol abuse, was a neutral factor as Mother

section 5328(a)(15), relating to the mental and physical condition of the



questionable decisi
claims that Father was a drug dealer in rendering its decision. Brief for
Appellant at 18-21, 35-38. However, Father failed to include these claims in
his Rule 1925(b) Concise Statement; thus, the claims are waived on appeal.
See Klos v. Klos, 934 A.2d 724, 731 (Pa. Super. 2007) (stating that claims
                       Pa.R.A.P. 1925(b) concise statement are waived).
Nevertheless, as noted above, the trial court addressed each of the factors
under section 5328(a), and its conclusions were supported by competent
evidence. Thus, we will not disturb its factual and credibility determinations.


                                    -7-
J-A18007-14

                                                                    in camera

questioning. Id. at 39, 45-46.

     Civil Rule 1915.11(b) provides as follows, in relevant part:

     Rule 1915.11. Appointment of Attorney for Child.
     Interrogation of Child. Attendance of Child at Hearing or
     Conference

                                   ***

           (b) The court may interrogate a child, whether or not
     the subject of the action, in open court or in chambers. The
     interrogation shall be conducted in the presence of the attorneys
     and, if permitted by the court, the parties. The attorneys shall
     have the right to interrogate the child under the supervision of
     the court. The interrogation shall be part of the record.

Pa.R.C.P. 1915.11(b); see also Ottolini v. Barrett, 954 A.2d 610, 615 (Pa.

Super. 2008) (stating that a trial court must abide by the terms of Pa.R.C.P.

1915.11(b)).



                                     mindful of the [R]ule 1915.11,
     Interrogation of the Child, the parties agree that the attorneys
     will not be present during the time that the [trial c]ourt will be
     speaking with [Child].



                        ]: That is by agreement of the parties. The
     attorneys have chosen not to be in the presence of the [trial
     c]ourt while the [trial c]ourt questions [Child] and both attorneys
     are okay with that. The attorneys shall have the right to
     interrogate the child is what the rule says.          [Father] has
     submitted proposed interrogatories, which the [trial c]ourt has
     reviewed and we believe that those interrogatories in some

     [Child]. So, counsel for [Father] agrees that he will not exercise
     his right to interrogate [Child] but rather, given the proposed


                                 -8-
J-A18007-14

      interrogatories, will ask those questions subject to the [trial

      [Child] will be on the record and the transcript will be made.




N.T., 10/4/13, at 2-3.

      Here, the    parties agreed to    forego   their   right to   attend the

interrogation of Child under Civil Rule 1915.11. Co

there is no evidence in the record to establish that this waiver was provided



waiver with the understanding that counsel submitted written questions to

be asked of Child by the trial court in the in camera hearing. See Trial Court

Opinion, 2/18/14, at 2 (wherein the trial court stated that it substantially

covered the material in the written questions provided by Father when

questioning Child). Furthermore, Father has not demonstrated that he was



that she desired to spend more time with Father. See N.T., 10/4/13, at 8-

10, 17; see also Trial Court Opinion, 1/10/14, at 5 (wherein the trial court

stated that the well-reasoned preference of Child was to spend more time

with Father and that this factor under section 5328(a)(7) weighed in favor of



attend the interrogation, we conclude that the trial court properly denied the



claim is without merit.


                                 -9-
J-A18007-14

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/1/2014




                          - 10 -
