J-S41025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 N.A.L.                                  :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 K.S.L. V. C.E.L.                        :    No. 751 MDA 2019

               Appeal from the Order Entered March 21, 2019
  In the Court of Common Pleas of Lebanon County Civil Division at No(s):
                                2012-20014


BEFORE:    LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY MURRAY, J.:                      FILED SEPTEMBER 04, 2019

      N.A.L. (Father) appeals pro se from the order denying his petition to

modify custody with respect to his minor son, R.M.L. (Child), without a

hearing. After careful review, we vacate and remand for further proceedings

consistent with this memorandum.

      The record reveals that Father and K.S.L. (Mother) are the parents of

Child, born January 2011. Complaint in Custody, 1/11/12, at ¶ 3. Father and

Mother married in April 2011.     Complaint in Divorce, 1/6/12, at ¶ 4.     In

January 2012, Father initiated this action by filing a complaint in custody and

a complaint in divorce. In February 2012, the parties entered into a consent

custody order providing shared legal and physical custody of Child. Order,

2/17/12, at ¶ 3.

      On June 24, 2013, Mother filed a petition for emergency custody.

Mother alleged that Father, in an effort to gain custody of Child, “planted”

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* Retired Senior Judge assigned to the Superior Court.
J-S41025-19



drugs in Mother’s vehicle while she took Child to a doctor’s appointment.

Petition for Emergency Custody at ¶¶ 9-11. Accordingly, Father was charged

and convicted of numerous crimes.1             Id. at ¶ 6.   As a result of Mother’s

petition, the court awarded Mother sole legal and physical custody of Child.

Order, 6/25/13.

       Thereafter, the parties continued to litigate custody. On September 4,

2015, C.E.L. (Paternal Grandmother) filed a complaint for custody. In October

2015, the parties reached a custody agreement whereby Mother received sole

legal and primary physical custody of Child; Father was permitted partial

physical custody as he and Mother reasonably agreed upon his release from

prison; Father was permitted to communicate with Child and participate in the

prison Reading to Your Children Program;2 and Paternal Grandmother was

permitted two days of physical custody per month.                Order of Custody,

10/29/15.       In April 2017, Paternal Grandmother filed a petition for

modification of custody.         In January 2018, the parties reached another



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1  The charges included violations of the controlled substance, drug, device
and cosmetic act; criminal use of a communication facility; criminal coercion;
false reports to law enforcement authorities; tampering with or fabricating
physical evidence; retaliation against a witness, victim or party; obstructing
administration of law or other governmental function; and unsworn
falsification to authorities. See Trial Court Opinion, 5/28/19, at 2. A jury
convicted Father on all counts, and Father received a sentence of 6½ to 15
years imprisonment. Id.

2This program permits inmates to have a DVD made of the inmate reading a
book so the DVD can be mailed to their child. Order, 9/22/17, at 2.

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agreement regarding custody which slightly modified the prior order. Order,

1/16/18.

       On July 9, 2018, Paternal Grandmother filed another petition for

modification of custody. On January 22, 2019, following a hearing, the trial

court entered a custody order awarding Mother sole legal and primary physical

custody of Child.      Order, 1/22/19.         Father was not awarded any physical

custody; however, the order permitted Father to participate in the Reading to

Your Children Program, to communicate with Mother regarding Child, and to

communicate with Child by telephone, email, or letter. Id. Further, Paternal

Grandmother was granted periods of partial physical custody for one weekend

per month, two partial weeks of vacation per year, and holiday visits. Id.

       On February 15, 2019, Father filed a petition for modification,

requesting that Child visit Father while Father is incarcerated. On February

21, 2019, the court denied Father’s petition without a hearing. Father then

filed another petition on March 15, 2019, in which he sought modification of

custody and visits with Child. By order dated March 21, 2019, the court denied

Father’s petition without a hearing. On April 19, 2019, Father timely filed this

notice of appeal by placing it in the prison mailbox.3              Father did not


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3 See Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super. 2001) (holding that
“a legal document is deemed filed by an incarcerated litigant, proceeding pro
se, on the date it is delivered to the proper prison authority or deposited in
the prison mailbox.”).




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contemporaneously file a concise statement of errors complained of on appeal.

By order dated April 24, 2019, the trial court ordered Father to file his

statement of errors complained of on appeal within 21 days. Father timely

complied.4

        Father raises the following issues for our review:5

     1. Would the allowing of visitation between minor child and Father,
        while [F]ather is incarcerated, be in the best interest of the minor
        child?

     2. Did the trial court violate Father’s right to due process by failing
        to hold a hearing to determine the best interest of the minor child?

     3. Did the trial court allow bias to interfere with due process by
        refusing to consider visitation of a minor child to Father in prison?

     4. Did the trial court allow bias as sentencing judge of Father in [his]
        criminal case to prevent due process in [the] custody proceeding?

Father’s Brief at 3.

        At the outset, and consistent with the Child Custody Act, (Act), 23

Pa.C.S.A. §§ 5321-5340, we note:

        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
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4 We are aware of no prejudice arising from Father’s failure to file concurrently
the concise statement with the notice of appeal. Therefore, we will not quash
or dismiss Father’s appeal. See In re K.T.E.L., 983 A.2d 745 (Pa. Super.
2009); Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010) (holding that
appellant waived all issues by failing to file a concise statement of errors
complained of on appeal when directed by the trial court).

5   Neither Mother nor Paternal Grandmother have participated in this appeal.

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         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.

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

         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 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)).

         The Act enumerates the following types of custody awards that a court

may order:

         (a) Types of award. — After considering the factors set forth in
         section 5328 (relating to factors to consider when awarding
         custody), the court may award any of the following types of
         custody if it is in the best interest of the child:

            (1) Shared physical custody.

            (2) Primary physical custody.

            (3) Partial physical custody.

            (4) Sole physical custody.

            (5) Supervised physical custody.

            (6) Shared legal custody.


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         (7) Sole legal custody.

23 Pa.C.S.A. § 5323(a).

     Instantly, we deem Father’s request in the petition for modification as a

request for “supervised physical custody,” which is defined in the Act as

“Custodial time during which an agency or an adult designated by the court

or agreed upon by the parties monitors the interaction between the child and

the individual with those rights.” 23 Pa.C.S.A. § 5322; see also S.T. v. R.W.,

192 A.3d 1155, 1165 (Pa. Super. 2018) (stating, “incarcerated parents who

seek some form of contact with their children - whether it be a request that

the children visit them or otherwise - are seeking an award of ‘supervised

physical custody’ as defined under § 5323.”).

     Accordingly, the trial court was required to consider the following

enumerated list of factors in determining Child’s best interests related to

Father’s request for supervised physical custody at SCI–Camp Hill:

     § 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.

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           (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.

           (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.

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            (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).

     This Court has stated, “[a]ll of the factors listed in [§] 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).

     In deciding custody cases where the parent is incarcerated, this Court

has stated that the factors set forth in Etter v. Rose, 684 A.2d 1092 (Pa.

Super. 1996) — which was decided prior to the effective date of the Act —

“are now assimilated into [the] § 5328(a) analysis under § 5328(a)(16).” S.T.

v. R.W., 192 A.3d at 1167 (citations omitted). The factors include:

     (1)    age of the child;

     (2)    distance and hardship to the child in traveling to the
            visitation site;

     (3)    the type of supervision at the visit;

     (4)    identification of the person(s) transporting the child and by
            what means;

     (5)    the effect on the child both physically and emotionally;

     (6)    whether the parent has and does exhibit a genuine interest
            in the child; and

     (7)    whether reasonable contacts were maintained in the past.

M.G. v. L.D., 155 A.3d 1083, 1094 (Pa. Super. 2017) (quoting D.R.C. v.

J.A.Z., 31 A. 3d 677, 687 (Pa. 2011)). In addition, we recognized that the

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D.R.C. provided another relevant consideration not included in Etter, that is,

“the nature of the criminal conduct that culminated in the parent’s

incarceration, regardless of whether that incarceration is the result of a crime

enumerated in section 5303(b).”6 M.G., 155 A.3d at 1094 (quoting D.R.C.,

31 A.3d at 686).

       Because we conclude that it is dispositive, we first address Father’s

assertion that the trial court erred in denying his petition for modification

without holding a hearing. Father’s Brief at 7-8. Father contends that by

failing to conduct a hearing, the trial court violated his due process rights and

entered an order that is inconsistent with Child’s best interests. Id.

       Generally, “petitions for modification of custody orders may be

entertained at any time without regard to whether there have been any

material changes which would warrant a reevaluation.” Martin v. Martin,

562 A.2d 1389, 1390 (Pa. Super. 1989) (citation omitted).         Our Supreme

Court has provided “a directive that petitions for modification of custody


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6In M.G., we explained that our Supreme Court in D.R.C. interpreted Section
5303, which was repealed and then reenacted as Section 5329 of the Act. We
continued, “However, since § 5329 is materially indistinguishable from its
predecessor, we follow the guidance that our High Court provided in
addressing prison visitations in D.R.C.” M.G., 155 A.3d at 1094.

  We observe that Section 5329 relates to consideration of a criminal
conviction by a party or member of the party’s household who is seeking any
form of custody based on an enumerated list of crimes. The provision directs
the trial court to determine whether the party poses a threat of harm to the
child prior to entering a custody order.


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orders may be filed at any time, and in all such cases the court hearing the

petition must consider the best interests of the child or children.” Id. at 1391.

Further, “[a] change in custody is just as important to the child and to others

as an original award of custody, and the parties should be afforded the same

type of hearing on the subsequent application as they are entitled to on an

original award.” Clapper v. Harvey, 716 A.2d 1271, 1275 (Pa. Super. 1998)

(quoting Rosenberg v. Rosenberg, 504 A.2d 350, 353 (Pa. Super. 1986)).

      Moreover:

      Due process mandates that an incarcerated parent have a
      meaningful opportunity to expose all the relevant factors in a
      custody analysis. Under the revised Custody Law, incarcerated
      parents do not need to make a prima facie showing that contact
      with the child is feasible based on those custody factors relating
      to logistics. Parties cannot fully address all the relevant factors if
      trial courts preliminarily disqualify them on certain factors before
      a hearing even occurs. Additionally, parties cannot expose all the
      relevant factors if they cannot advocate for themselves in real
      time, i.e., cross-examine witnesses of the other party and respond
      to arguments.

S.T. v. R.W., 192 A.3d 1155, 1164 (Pa. Super. 2018) (emphasis in the

original).

      In denying Father’s petition for modification, the trial court noted that it

presided over a custody trial on January 10, 2019, issued a custody order on

January 22, 2019, and “absolutely nothing has changed since. . . .” Trial Court

Opinion, 5/28/19, at 3, 9.     The court acknowledged that Father’s petition

requested face-to-face physical custody with Child and denied Father’s request

as “obviously ridiculous.”   Id. at 3-4.      The court explained that it denied



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Father’s petition because Father is a state-sentenced prisoner, and that such

locations have a high level of security. Id. at 6. The court also expressed

concern that prisoners would use custody litigation to harass non-incarcerated

parents. Id. at 7. The court concluded it would be “a grave mistake to afford

[s]tate-[s]entenced prisoners with a common law ‘right’ to seek face-to-face

contact.” Id. Further, the court observed that because Father’s crime was

directed at Mother, and Mother and Child were the victims of the crime, the

Department of Corrections will not permit the visits. Id. at 9-10.

        Upon review of prevailing legal authority, we conclude that the trial court

erred in denying Father’s petition for modification without a hearing and

without examining the Section 5328(a) custody best interest factors, including

the additional factors applicable to incarcerated parents. We stress that our

decision does not mean that the trial court must award Father supervised

physical custody, or any type of custody for that matter. We conclude only

that the court cannot make its custody determination without first providing

Father an opportunity for a hearing, and by rendering a decision after

consideration of the best interest factors.        Therefore, we vacate the order

dismissing Father’s petition for modification of custody.7

        Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.



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7   Because of this disposition, we do not address Father’s remaining issues.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/4/2019




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