J-A19044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.A.H.,                                 :       IN THE SUPERIOR COURT OF
                                        :             PENNSYLVANIA
                 Appellant              :
                                        :
           v.                           :
                                        :
D.E.P.,                                 :
                                        :
                 Appellee               :           No. 127 WDA 2015

           Appeal from the Order entered on December 19, 2014
             in the Court of Common Pleas of Greene County,
                    Civil Division, No. A.D. No. 94, 2011

BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED AUGUST 21, 2015

      S.A.H. (“Mother”) appeals from the Order granting primary custody to

D.E.P. (“Father”). We affirm.

      K.O.P. (“Child”) was born to Mother and Father on June 24, 2010.

Mother and Father were never married, and they separated when Child was

seven months old. In an April 2011 custody Order, the trial court granted

both Mother and Father shared legal custody, and ordered that physical

custody be alternated each week. On March 30, 2012, Father filed a Petition

to modify the custody Order.     Following a hearing, the Hearing Officer

recommended a modification of the custody Order, awarding Father primary

physical custody, and Mother partial physical custody on weekends. Mother

requested a de novo hearing.    After the hearing, the trial court entered a

custody Order, which provided Mother and Father physical custody for
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alternating weeks.    On June 12, 2014, Father again filed a Petition for

modification.   The Hearing Officer recommended that Father be awarded

primary custody of Child and Mother partial custody on alternating

weekends, provided that Mother’s new husband, James C. King (“King”), a

registered sex offender,1 was not present.    Mother again requested a de

novo hearing.     Following a hearing, the trial court entered an Order,

agreeing with the custody recommendation of the Hearing Officer. Mother

filed a timely Notice of Appeal.

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

      1. Did the trial court abuse its discretion by modifying custody
      on the basis of Mother’s new spouse when the trial court lacked
      competent evidence establishing [King] posed a danger to
      [C]hild[,] and failed to perform the analysis required by 23
      Pa.C.S.[A.] § 5329?

1
  The trial court noted the following with regard to King’s registration as a
sex offender:

      In 2014, Mother married [King], a 48[-]year[-]old convicted sex
      offender, who is registered under the Pennsylvania Sexual
      Offender’s Registry Act. He was arrested and convicted in Ohio
      in 2005, after driving to Columbus to meet a person whom he
      believed to be a 14[-]year[-]old girl. When he got there[,] he
      learned he had been communicating with an Ohio State
      Policeman. He was sentenced to a term of one to four years.
      After release and while on parole in Pennsylvania, he was
      charged in 2006 with corruption of a minor and indecent assault.
      These charges allege he induced a 15[-]year[-]old girl to engage
      in oral sex. He pled guilty on August 17, 2006, and was
      sentenced to sixteen to thirty-two months. He served out the
      maximum.

Trial Court Opinion, 12/19/14, at 6 (citation omitted).     King is a Tier II
sexual offender and must register for 25 years. Id. at 7.



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      2. Can a trial court reasonably conclude that a forty-eight (48)
      year old heterosexual man married to a younger looking
      woman[,] and who was convicted for inappropriate sexual
      conduct with teenage girls approximately one decade ago[,]
      poses a danger to a four year old boy as the basis to modify
      custody without the assistance of expert testimony?

      3. Does a trial court’s modification of custody on the basis that
      [M]other “displays poor judgment” because she married an older
      man whom she met years before [] Child was born and who has
      completed criminal sentencing for prior inappropriate sexual
      conduct with a teenage girl nearly a decade ago violate Mother’s
      rights as guaranteed by §[] 1 of the Pennsylvania Constitution
      and the Fourteenth Amendment of the United States
      Constitution?

Brief for Appellant at 5-6 (questions reordered).

      Our standard of review for modification of a custody order is as

follows:

      [W]e are not bound by findings of fact made by the trial court[,]
      which are unsupported by the record, nor are we bound by the
      court’s inferences drawn from the facts. However, on issues of
      credibility and weight of the evidence, we defer to the findings of
      the trial judge, who had the opportunity to observe the
      proceedings and the demeanor of the witnesses. Only where we
      find that the custody order is manifestly unreasonable as shown
      by the evidence of the record will an appellate court interfere
      with the trial court’s determination. Therefore, unless the trial
      court’s ruling represents a gross abuse of discretion, we will not
      interfere with an order awarding custody.

Andrews v. Andrews, 601 A.2d 352, 353 (Pa. Super. 1991) (quotations

marks and citations omitted). “[T]he ultimate consideration for the court is

a determination of what is in the best interest of the child, and all other

considerations are deemed subordinate to the child’s physical, intellectual,




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moral, and spiritual well-being.” Nonnenman v. Elshimy, 615 A.2d 799,

801 (Pa. Super. 1992).

      In modifying a custody order, the trial court must consider the

following factors:

      1)    Which party is more likely to encourage and permit
            frequent and continuing contact.

      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 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 child’s daily
            physical, developmental and special needs.

      11)   The proximity of the residences of the parties.



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     12)   Each party’s availability to care for the child or ability to
           make appropriate 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 conditions of a party or member
           of a party’s household.

     16)   Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

     We will address Mother’s first two claims together. Mother asserts that

the trial court abused its discretion in awarding primary custody to Father

without any evidence to show that King is a threat to Child.         Brief for

Appellant at 14, 24. Mother claims that Father presented no evidence that

Mother’s relationship with King was harmful to Child. Id. at 16-17. Mother

argues that the trial court’s conclusions were unreasonable, and that the




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trial court did not conduct proper analysis under 23 Pa.C.S.A. § 5329.2 Brief

for Appellant at 20-21; see also id. at 18 (wherein Mother argues that the

trial court only relied upon section 5328(a)(16) in modifying the custody

order). Mother argues that the trial court needed expert testimony in order

2
    23 Pa.C.S.A. § 5329 states the following:

        (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
        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:

                                      ***

        18 Pa.C.S.[A.] § 3126 (relating to indecent assault)

                                      ***

        18 Pa.C.S.[A.] § 6301 (relating to corruption of minors)

                                      ***

        (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.

23 Pa.C.S.A. § 5329.




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to find that King posed a threat to Child.   Id. at 20-21, 26-27.    Further,

Mother contends, the trial court abused its discretion when it partially based

its decision on the negative reaction that other parents would have to King.

Id. at 22.

      At the de novo hearing, Father testified that he is a meat department

associate at Wal-Mart, and that he typically works 11 a.m. to 7 p.m. on

Tuesdays and Thursdays, and 6 a.m. to 3 p.m. the rest of the week. N.T.,

12/10/14, at 16.     Father stated that his sister, his nephews, and his

daughter helped with Child whenever he needed it.      Id. at 21-22. Father

testified that Mother liked to “party” a lot and although Child has suffered

from severe diaper rash in the past, while in Mother’s care, Father has not

had any problems with Mother’s care since that time. Id. at 17-18.

      Father stated that he petitioned for a modification of custody because

he discovered that Mother was married to a sex offender. Id. at 18. Father

testified that he would have no objection to Mother having visitation with

Child as long as King was not present. Id. at 8. Father also testified that he

made attempts to reach out to Mother and allow Child to have visits outside

of the schedule set forth in the custody Order while King was not present, so

that Child could see his half-brother, but that Mother never responded. Id.

at 22. Father further noted that prior to King, Mother dated Robert Vonvital

(“Vonvital”), who was also a registered sex offender. Id. at 9; see also id.

at 26-27 (wherein Amanda Wilson, Mother’s ex-girlfriend, testified that



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despite the fact that Vonvital was not allowed around children, Mother took

both Child and her other son to Vonvital’s house).

      Mother testified that she works in a nursing home, and that she is

pursuing a degree in nursing at a community college.         Id. at 51.   Mother

stated that her other child, Child’s half-brother, and Child are very close and

love each other very much.       Id. at 52.      Mother also testified that she

believes that Father is jealous of her new marriage and is only using this

Petition to get to her. Id. at 51.

      Mother stated that she was aware of King’s past before she married

him. Id. at 53. Mother testified that since King was released from prison,

he has not approached any underage children, and he had never done

anything to her children.   Id. at 42.     Mother stated that King loves Child,

and that Child is completely safe with King. Id. at 43.

      King testified that he is no longer a danger to children.       Id. at 64.

King also testified that he attended a sex offender group while in prison. Id.

King stated that he recognized that his actions were wrong, and that he was

ashamed for his prior actions.       Id. at 65-66.   King asserted that he loves

Child, and that Child is 100% safe with him. Id. at 67.

      After considering all 16 factors in section 5328(a), the trial court found

that no factor favored either side except for factor 16 (“any other factor”).

See Trial Court Opinion, 12/19/14, at 2-6. With regard to factor 16, the trial

court stated as follows:



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      We have much less confidence than Mother that King can confine
      his sexual interest to pubescent women or girls (Mother appears
      young enough to be his daughter) rather than prepubescent
      boys. The fact that King pleaded guilty to a violation of 18
      Pa.[C.S.A.] § 3126(a)(8) means that he is a Tier II sexual
      offender, pursuant to 42 Pa.[C.S.A.] § 9799.14(c)(1.3), and
      must register with the Pennsylvania State Police for 25 years. In
      fact, the mother of King’s Pennsylvania victim lives nearby and
      posted a notice on her home that King, a registered sex
      offender, lived in the neighborhood. What parent would let her
      child befriend [Child]? We believe that Mother’s marriage to
      King displays poor judgment on her part.

Trial Court Opinion, 12/19/2014, at 7. As a result, the trial court modified

the custody Order and granted Mother partial physical custody on alternating

weekends so long as King was not present. Id.

      Our review of the record discloses that the trial court did not abuse its

discretion in modifying the custody Order and awarding primary custody to

Father.   The trial court determined that King, as a sex offender, poses a

threat to Child.   See 23 Pa.C.S.A. § 5329(c) (stating that “[t]he court ...

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. . . .”); see also Andrews, 601 A.2d at 353 (stating that

“[o]n issues of credibility and weight of the evidence, we defer to the

findings of the trial judge, who had the opportunity to observe the

proceedings and the demeanor of the witnesses.”). The trial court was not

required to have an expert determine whether or not King was a threat to

Child. See 23 Pa.C.S.A. § 5329 (stating that “[t]he court may order further

evaluation or counseling by a mental health professional if the court


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determines it is necessary.”) (emphasis added). Thus, because the trial

court determined that it would be in the best interest of Child for primary

custody to be awarded to Father, Mother’s first two claims are without merit.

        In her third claim, Mother argues that the trial court’s decision

infringes upon her constitutional rights.      Brief for Appellant at 24. Mother

asserts that marriage and child-rearing are inalienable rights, and that the

trial court can only take away the right to visitation under the strictest

scrutiny. Id. Mother contends that because the trial court lacked evidence

and had no reasonable basis to find that King posed a threat, the trial court

has infringed upon her constitutional right to marriage and right to her child

without having a valid state interest. Id. at 25.

        As noted above, the trial court had a reasonable basis to conclude that

King was a danger to the Child. See Nonnenman, 615 A.2d at 801 (stating

that “[t]he ultimate consideration for the court is a determination of what is

in the best interest of the child, and all other considerations are deemed

subordinate to the child’s physical, intellectual, moral, and spiritual well-

being.”). Further, the trial court has not taken away Mother’s visitation, but

has merely limited her visitation to alternate weekends without King being

present. See Order, 12/19/14, at 2 (unnumbered). Therefore, Mother’s final

claim    is   without   merit,   as   Mother   has   not   demonstrated   that   her

constitutional rights were violated.

        Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




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