J-S61003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.W.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                         v.

S.A.,

                    Appellant                   No. 300 MDA 2015


                Appeal from the Order entered January 12, 2015
                 in the Court of Common Pleas of York County
                  Civil Division, at No(s): 2014-FC-001647-03

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 14, 2015

        S.A. (“Father”) appeals pro se from the order entered on January 12,

2015, awarding D.W. (“Maternal Aunt”) sole legal and physical custody of

the minor child, K.A.D. (“Child”) born in 2000. The order awarded Father,

who is incarcerated, partial supervised physical custody of Child as the

parties may from time to time agree, and as supervised by Maternal Aunt or

her designee, until such time as the court is able to assess Father’s threat of

harm to Child. We affirm.

         M.A. (“Mother”) and Father were the natural parents of Child.

Mother, who was married to Father, died unexpectedly in December 2013.

Father is currently incarcerated in the York County Prison. Child has been in



*
    Retired Senior Judge assigned to the Superior Court.
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the custody of Maternal Aunt, who resides in York and has been serving in

loco parentis since Mother’s death.

        On September 11, 2014, Maternal Aunt filed a complaint in custody,

seeking sole legal custody and sole physical custody of Child.      The court

entered an order that appointed a custody conciliator and directed the

parties to attend a custody conciliation conference, in person, on September

29, 2014. The conciliation order further directed Father to be evaluated as

to criminal offenses that would preclude the court from entering an award of

custody to him, including driving under the influence of alcohol or a

controlled substance, set forth in the former 75 Pa.C.S.A. § 3731, and

driving after imbibing alcohol or utilizing drugs, set forth in 75 Pa.C.S.A.

Chapter 38.

        The court held a custody conciliation hearing on September 29.

Father, who remained incarcerated, failed to attend the conciliation.      On

October 21, 2014, the court entered an interim order for custody pending

the custody hearing, and, due to Father’s multiple Section 5329 convictions,

awarded Maternal Aunt sole legal and physical custody of Child.        In the

interim order, the court directed Father to obtain a section 5329 evaluation.1

        On October 21, 2014, the court entered an order scheduling a pre-

hearing conference for November 26, 2014. The court held the conference

on November 26, and Father again failed to appear. In the order entered on


1
    See 23 Pa.C.S.A. § 5329.
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December 2, 2014, the court stated, “Father must have completed a Section

5329 evaluation before any custody rights are awarded [to] him.”

     On December 8, 2014, the court entered an order scheduling the

custody hearing to occur on January 9, 2014, and directed as follows.

           The [c]ourt has reviewed the docket in this matter and has
     determined pursuant to the Interim Order that Father may pose
     a threat of harm to the Child. Father failed to appear at the
     scheduled pre-trial conference to present evidence that he does
     not pose a threat of harm to the Child. Therefore, the [c]ourt
     has set this matter for trial as noted above at which time it will
     hear evidence first on whether Father continues to pose a threat
     of harm to the Child as directed in the Interim Order, and
     secondly on the custody factors outlined in [23] Pa.C.S.A.
     § 5328 by the Plaintiff. The burden is on Father to show that he
     does not pose a threat of harm to the Child.

           Should Defendant fail to appear or produce evidence that
     he does not pose a threat of harm to his Child, then the Court
     will enter the Interim Order as a Final Order of Court, as
     provided in that Order.

            Father is reminded of his obligation to appear at the time
     of trial, and if he remains incarcerated, shall contact the York
     County Sheriff’s Department to make the appropriate
     arrangements for his transportation from the York County Prison
     to the York County Judicial Center for his scheduled [c]ustody
     [t]rial.

Order Scheduling Custody Hearing, 12/8/14, at 2.

     Father failed to appear at the custody hearing on January 9, 2015, and

failed to obtain a custody evaluation by the time of the custody hearing.

The court heard testimony from Child. In an order entered on January 12,

2015, the court awarded Maternal Aunt sole legal and primary physical

custody of Child.   The court awarded Father supervised partial physical


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custody, as supervised by Maternal Aunt or her designee, until such time as

the court is able to assess Father’s threat of harm to Child. In addition, the

court provided that Maternal Aunt would retain custody of Child’s passport,

and that the passport is to remain in the custody of Maternal Aunt until

further order of the court.   The court further provided that Father, who is

presently in prison, is afforded no rights of unsupervised contact with Child,

but may engage in letter writing and phone calls as can be agreed upon

between the parties.

      On February 12, 2015, Father, acting pro se, filed a notice of appeal

with the Commonwealth Court, which was transferred to the Superior Court.

Father did not file a Statement of Errors Complained of on Appeal on that

date. On March 19, 2015, this Court ordered Father to file a Statement of

Errors pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).     On March 26, 2015,

Father was granted an extension of time to file his Statement of Errors

Complained of on Appeal until April 6, 2015. On April 14, 2015, this Court

received Father’s response and his Statement (titled as “Petition/Motion Of A

Statement Of Errors”).   On April 20, 2015, we discharged our March 19,

2015 order.   See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)

(holding that an appellant’s failure to strictly comply with Pa.R.A.P.

1925(a)(2)(i) did not warrant an application of the waiver rule, as no court

order had been violated, and there was no prejudice to any party). Cf. J.P.

v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010 (stating the appellant waived


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her issues on appeal with her notice of appeal and subsequently failed to

timely comply with the court’s order to file a concise statement).

      On appeal, Father claims that the court erred in granting Maternal

Aunt sole legal and physical custody of Child.

      Preliminarily, we note that, although this Court is willing to construe

liberally materials filed by a pro se litigant, pro se status generally confers

no special benefit upon an appellant.       See First Union Mortg. Corp. v.

Frempong, 744 A.2d 327, 333 (Pa. Super. 1999) (“[P]ro se status does not

entitle a party to any particular advantage because of his … lack of legal

training.”); Strawn v. Strawn, 664 A.2d 129, 132 (Pa. Super. 1995).

Accordingly, a pro se litigant must comply with the procedural rules set forth

in the Pennsylvania Rules of Court.      See Jones v. Rudenstein, 585 A.2d

520, 522 (Pa. Super. 1991). This Court may quash or dismiss an appeal if

an appellant fails to conform to the requirements set forth in the

Pennsylvania Rules of Appellate Procedure.        See Pa.R.A.P. 2101; Laird v.

Ely & Bernard, 528 A.2d 1379 (Pa. Super. 1987).

      The   applicable   rules   of   appellate   procedure   mandate   that   an

appellant’s brief shall consist of the following matters, separately and

distinctly entitled and in the following order:

            (1)   Statement of jurisdiction.
            (2)   Order or other determination in question.
            (3)   Statement of both the scope of review and the
                  standard of review.
            (4)   Statement of the questions involved.
            (5)   Statement of the case.

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            (6)  Summary of the argument.
            (7)  Statement of the reasons to allow an appeal to
                 challenge the discretionary aspects of a sentence,
                 if applicable.
            (8) Argument for the appellant.
            (9) A short conclusion stating the precise relief
                 sought.
            (10) The     opinions  and    pleadings     specified in
                 Subdivisions (b) and (c) of this rule.
            (11) In the Superior Court, a copy of the statement of
                 the matters complained of on appeal filed with the
                 trial court pursuant to Rule 1925(b), or an
                 averment that no order requiring a Rule 1925(b)
                 statement was entered.

Pa.R.A.P. 2111.

     Further, the Pennsylvania Rules of Appellate Procedure provide:

        Briefs and reproduced records shall conform in all material
        respects with the requirements of these rules as nearly as
        the circumstances of the particular case will admit,
        otherwise they may be suppressed, and, if the defects are
        in the brief or reproduced record of the appellant and are
        substantial, the appeal or other matter may be quashed or
        dismissed.

Pa.R.A.P.   2101   (emphasis   added).    See   also   Pa.R.A.P.   2114-2119

(addressing specific requirements of each subsection of brief on appeal).

     Instantly Father is proceeding pro se on appeal. Father’s brief is in the

form of a letter addressed to the Court detailing Father’s grievances. The

brief fails to conform to most of the requirements set forth under the

Pennsylvania Rules of Appellate Procedure, and fails to present cogent

arguments or appropriate citations to legal authority or to the certified

record. See Pa.R.A.P. 2111(a); Pa.R.A.P. 2119. The substantial defects in

Father’s brief constitute sufficient grounds to dismiss the appeal.         See

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Laird; Pa.R.A.P. 2119. Nevertheless, in our exercise of discretion, we will

examine the issue on appeal as the court framed it.

      Initially, we observe that, as the hearing in this matter was held on

January 9, 2015, the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321 to

5340, is applicable.   See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super.

2012) (holding that, if the custody evidentiary proceeding commences on or

after the effective date of the Act, i.e., January 24, 2011, the provisions of

the Act apply).

      In custody cases, 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-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.

Id., at 443 (citation omitted).

      We have stated that

      [t]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge
      gained by a trial court in observing witnesses in a custody
      proceeding cannot adequately be imparted to an appellate court
      by a printed record.

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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

     In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard.

           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.

Id., at 18-19 (quotation and citations omitted).

     The paramount concern is the best interests of the child.         See 23

Pa.C.S.A. §§ 5328, 5338. The Act provides that, upon petition, a court may

modify a custody order if it serves the best interests of the child. See 23

Pa.C.S.A. § 5338. The Act sets forth the sixteen best interest factors that

the court must consider.   See 23 Pa.C.S.A. § 5328(a).      See also E.D. v.

M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).

     Section 5328 of the Act provides 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.

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          (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.

          (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.

          (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.

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           (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).2

     Section 5329 of the Act provides, in relevant part, the following.

     § 5329. Consideration of criminal conviction

     (a) Offenses.—Where a party seeks any form of custody, the
     court shall consider whether that party or member of that party’s
     household has been convicted of or has pleaded guilty or no
     contest to any of the offenses in this section or an offense in
     another jurisdiction substantially equivalent to any of the
     offenses in this section. 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
     when considering the following offenses:

                                     ***
           The former 75 Pa.C.S. § 3731 (relating to driving under
     influence of alcohol or controlled substance)

            75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol
     or utilizing drugs).

           Section 13(a)(1) of the act of April 14, 1972 (P.L. 233, No.
     64), known as The Controlled Substance, Drug, Device and
     Cosmetic Act, to the extent that it prohibits the manufacture,
     sale or delivery, holding, offering for sale or possession of any
     controlled substance or other drug or device.

                                    ***


2
  The Act was amended, effective January 1, 2014, to include an additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child
abuse and involvement with child protective services).
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     (c) Initial evaluation.—At the initial in-person contact with the
     court, the judge, conference officer or other appointed individual
     shall perform an initial evaluation to determine whether the
     party or household member who committed an offense under
     subsection (a) poses a threat to the child and whether
     counseling is necessary. The initial evaluation shall not be
     conducted by a mental health professional. After the initial
     evaluation, the court may order further evaluation or counseling
     by a mental health professional if the court determines it is
     necessary.

                                   ***

     (e) Subsequent evaluation.—

     (1) At any time during or subsequent to the counseling under
     subsection (d), the court may require another evaluation to
     determine whether further counseling is necessary.

     (2) If the court awards custody to a party who committed an
     offense under subsection (a) or who shares a household with an
     individual who committed an offense under subsection (a), the
     court may require subsequent evaluations on the rehabilitation
     of the offending individual and the well-being of the child
     subsequent to the order. If, upon review of a subsequent
     evaluation, the court determines that the offending individual
     poses a threat of physical, emotional or psychological harm to
     the child, the court may schedule a hearing to modify the
     custody order.

                                   ***

23 Pa.C.S.A. § 5329.

     The record fully supports the court’s conclusions regarding custody. In

this case, the court did proceed to assess the sixteen factors set forth in

section 5328(a), as the court found that father had committed offenses that

resulted in criminal convictions that were to be considered under section

5329 of the Act. The court found that Father had been convicted of three


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counts of driving under the influence, which were convictions for the court to

consider under section 5329. See N.T., 1/9/15, at 12-13. The court also

found that Father had been charged with possession with intent to deliver,

which was an offense that is to be considered under section 5329. See id.,

at 13. Moreover, the court found that Father had pending a fourth driving

under the influence charge.     See id.   The court stated that it needed to

consider Father’s criminal convictions under section 5329 in order to

determine whether Father’s criminal conduct posed a threat of harm to Child

before making any order of custody with regard to Father. See id.

      Father did not appear at the pre-hearing conciliation, the pre-trial

conference, or at the custody hearing on January 9, 2015, although the

court had notified him that it was his responsibility to attend the pre-hearing

conciliation and the hearing.   See id., at 11-12.    The court also notified

Father in the pre-trial order, entered on December 2, 2014, that he must

have first completed a section 5329 custody evaluation before the court

could award him any custody rights. See id., at 12-13. He failed to do so.

      As a result, the court was precluded from being able to assess whether

Father poses a risk of physical, emotional, or psychological harm to Child.

See id., at 13. At the hearing, the court had the opportunity to speak with

Child, however. Child, who was fourteen at the time of the hearing, stated

that she does not have a desire to see Father at this time.         See N.T.,

1/9/2015, at 13.


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      In view of the circumstances, as set forth by the court, we find that

the competent evidence in the record supports the court’s determination,

under section 5329 of the Act, awarding Maternal Aunt primary physical

custody and primary legal custody of Child, and Father supervised partial

physical custody until such time as the court may assess the threat of harm

that Father may pose to Child. The court’s conclusion is not unreasonable in

light of its findings.    Accordingly, we find no error of law or abuse of

discretion, and we affirm the court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2015




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