J-S30009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.L.H.,                                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

L.C.,

                            Appellee                  No. 2100 MDA 2016


                Appeal from the Order Entered October 31, 2016
                 In the Court of Common Pleas of York County
                  Civil Division at No(s): 2010-FC-001740-03


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JUNE 22, 2017

        R.L.H. (“Father”) appeals pro se from the October 31, 2016 order

awarding him shared legal and physical custody of his minor children,

E.S.H., a son born in 1999, S.S.H., a daughter born in September of 2001,

B.C.H., a daughter born in 2003, and A.A.H., a son born in 2005 (collectively

“the Children”).1 The order directed that Father was to share custody with

L.C., the Children’s mother (“Mother”).2       The order specified that Mother

would have primary physical custody of E.S.H., S.S.H., and A.A.H., with

partial physical custody awarded to Father, and Father would have primary
____________________________________________


1
    N.T., 10/26/16-10/27/16, at 10.
2
   Father also has a five-year-old son with his current wife, E.H.,
(“Stepmother”). N.T., 10/26-27/16, at 50, 73. The five-year-old son is not
a party and did not participate in these proceedings. Id.
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physical custody of B.C.H., with partial physical custody awarded to Mother.

After careful review, we affirm.

      This Court previously set forth the factual background of the custody

litigation between Mother and Father as follows:

                  Mother and Father were married in 2001 and
            separated in 2008. The parties have four minor
            children, E.H., S.H., B.H., and A.H. (collectively, “the
            Children”). Father originally filed for custody in 2007,
            shortly after Mother left Dauphin County for York
            County. Father resided in Dauphin County, and filed
            for custody in that jurisdiction. It appears that the
            matter was settled by agreement at conciliation on
            December 11, 2007, providing Mother with majority
            physical custody and Father with significant time
            every weekend. This [c]ourt does not have access to
            the complete Dauphin County records, however,
            numerous Dauphin County documents were clocked
            into the York County file when the matter was
            referred to that jurisdiction on September 17, 2010.

                   Early in 2009, Father filed an emergency
            petition to modify custody.        The matter was
            ultimately tried before the Hon. Judge Todd Hoover
            of the Dauphin County Court of Common Pleas with
            an order entered July 6, 2009. The order modified
            custody only slightly, and majority custody remained
            in Mother. Father immediately filed an appeal in
            Superior Court, which ultimately affirmed Judge
            Hoover’s order on March 12, 2010. On the same
            day, Father filed a new petition for emergency
            custody in Dauphin County, along with a petition to
            preclude Judge Hoover from hearing the case as he
            had “shown judicial bias.” ...

                  Without the Dauphin County file, the trial court
            is unable to determine precisely how the case was
            transferred, but the matter ultimately found its way
            to York County, with a significant number of Dauphin
            County    orders    docketed     in  York    County’s
            Prothonotary’s file on September 17, 2010. The

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           matter was tried before the Hon. Judge Clarence N.
           Patterson on January 25, 2011, with an order
           entered on February 9, 2011, confirming majority
           physical custody in Mother.

                  At that time, because of concerns developed
           during the course of the trial that Father had
           significant anger issues, Judge Patterson ordered
           Father to enter into a program of anger management
           within 30 days of the court order and, upon
           completion of the same, to file with the trial court a
           certificate of attendance. Father again appealed to
           the Superior Court, which affirmed the decision of
           Judge Patterson on November 29, 2011.

                  On March 19, 2012, Father again filed a
           petition to modify custody seeking to re-litigate all
           issues from 2007, which initiated the instant matter.
           Father also filed a petition for civil contempt against
           Mother on July 23, 2012, which was ordered to be
           addressed at the trial in the custody matter. As a
           result of the death of Judge Patterson, the matter
           was tried before the Hon. Harry M. Ness on
           November 30, 2012. After significant discussion,
           Father agreed to proceed only on those issues
           arising since the last order of court, as all of the
           other issues had been litigated and ruled upon. At
           this time, Father also agreed to withdraw his petition
           for civil contempt against Mother.

R.H. v. L.H., ___A.3d___, ___, 130 MDA 2013 (Pa. Super. filed September

10, 2013) (unpublished memorandum at 1-2) (quoting Trial Court Opinion,

12/17/2012, at 1-3).

     In the amended custody order entered December 18, 2012, the trial

court awarded shared legal custody of the Children to the parties, primary

physical custody to Mother, and partial physical custody to Father.   This

Court affirmed the order based upon the finding that Father had failed to


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preserve his claims pursuant to Pa.R.A.P. 1925(a)(i)(2) and (b).          The

December 18, 2012 order provided that Father was to have partial physical

custody of all four children on alternating weekends.      The parties would

alternate physical custody on weekends, and Father was to have physical

custody on alternating weeks during the summer. Each parent was to confer

with the other on all matters of importance relating to the Children’s health.

The parents were to listen carefully and consider the wishes of the Children

in addressing any parenting issues.

      The parties do not dispute that, in early 2015 when S.S.H. was

thirteen years old, she became pregnant by the son (“Stepbrother”) of

Mother’s then paramour, now husband (“Stepfather”).         Stepbrother was

fourteen years old at the time.       At the time of the pregnancy, both

Stepbrother and Stepfather were residing with Mother and the Children.

Upon learning of the pregnancy, York County Children Youth and Families

(“CYF”) conducted an investigation.     Mother took S.S.H. to Philadelphia,

where the child had an abortion.      Subsequently, S.S.H. has remained in

Mother’s home, where Stepfather continues to reside.         Stepbrother has

moved into his grandmother’s home. Since the entry of the December 18,

2012 custody order, B.C.H. began residing with Father, who assumed

primary physical custody of the child, with Mother’s agreement. On June 29,




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2016, Father filed a petition to modify custody and a petition for contempt

against Mother.3 In the petition to modify, Father asserted the following:

             While in the [M]other’s continuous unsupervised care,
       many things have continued to happen against the “Best
       Interest” of the [C]hildren. And though I the father have fought
       to avoid such things, it has been brought to me [sic] attention
       that my daughter was sexually assaulted while in her mother’s
       home by [M]other’s paramour’s child, and impregnated through
       the assault, and then transported to Philadelphia to terminate
       this pregnancy to cover up this act.

              WHEREFORE, Petitioner requests your Honorable Court to
       modify the Custody Order as follows: Father shall be given full
       custody of the younger two children, the older two children shall
       remain with [M]other. Though [F]ather is more than willing to
       have all four of his children, it is likely that his 14 and 17 year
       old continue to rebel and bring more upset than relief to their
       lives. At this time this is the father’s request, and any other
       relief as your Honorable Court deems just.

Petition to Modify, 6/29/16, at 2.             Thus, in the petition for modification,

Father sought primary physical custody of B.C.H. and A.A.H., but not

necessarily E.S.H. and S.S.H. The trial court held an evidentiary hearing on

the modification petition on October 26, 2016, and October 27, 2016.

       At the hearing, the parties acted pro se.           Father first presented the

testimony of Kristy Rivera, S.S.H.’s therapist, who did not testify concerning

S.S.H.’s treatment due to patient confidentiality. N.T., 10/26-27/16, at 8-

14. With the agreement of the parties, the court then questioned the four

____________________________________________


3
   On December 29, 2016, the trial court denied Father’s petition for
contempt.   Father did not appeal the order denying his petition for
contempt, and it is not before this Court on appeal.



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children individually, in the courtroom, in the presence of the parties. Id. at

18.   When the court completed its questioning of the Children, Father

requested that the trial court return his papers to him on which he had typed

questions he had planned to ask the Children. Id. at 50. The court returned

the papers to Father and, with the agreement of Father and Mother, did not

make them part of the record. Id.

      Father then questioned Cynthia Sindlinger, the program specialist at

CYF. N.T., 10/26-27/16, at 51. Ms. Sindlinger testified concerning the CYF

investigation into the allegations that Stepbrother had sexually abused

S.S.H.    Id. at 52-57.   Ms. Sindlinger also testified concerning prior CYF

investigations of the Children in Mother’s care. Id. at 52-61. Ms. Sindlinger

testified that the assigned caseworker had gone to S.S.H.’s school on

March 22, 2016, after S.S.H. stated that she was engaging in self-harm in

the form of cutting her arm because she did not want to be in Father’s

physical custody. Id. at 61-63.

      Next, Father questioned Detective Robert Ryman of the Northern York

County Regional Police Department regarding the police investigation into

the allegations that Stepbrother had sexually assaulted S.S.H. and that

Mother had taken S.S.H. to Philadelphia for an abortion. N.T., 10/26-27/16,

at 66-67. When Detective Ryman spoke with Mother and asked her about

S.S.H., Mother initially responded that “nothing really is going on.”   Id. at

67.      When Detective Ryman asked about Mother taking S.S.H. to


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Philadelphia to have an abortion, Mother responded, “Oh, that.”        Id.   She

then related the details of the matter to Detective Ryman.       Id.   After an

investigation, the District Attorney’s Office closed the case. Id. at 67-68. In

January of 2016, the police received another report that Stepbrother was

telling people at school that he was having sex with S.S.H., and students

were teasing S.S.H.       Id. at 68.   Police investigated the complaint, and

S.S.H. informed them that she wanted the matter concluded and for

Stepbrother to get help. Id. at 69. On February 11, 2016, Stepbrother was

charged with a number of criminal offenses, but Detective Ryman was

uncertain of the outcome. Id. at 69-70. Detective Ryman said that since

his investigation in January of 2016, there was an allegation that

Stepbrother had come into S.S.H.’s room, exposed himself, and climbed into

bed with her. Id. Both juveniles were fourteen years old at the time. Id.

To clarify his testimony, Detective Ryman stated that Mother was not initially

forthcoming about the fact that she had taken S.S.H. to Philadelphia to have

an abortion. Id. at 71.

      Father then presented the testimony of his wife (“Stepmother”). N.T.,

10/26-27/16, at 73. Stepmother described an incident in which Mother and

Stepfather came to Father’s home to take custody of the Children, and

Stepfather allegedly assaulted Father, resulting in criminal charges against

Stepfather. Id. at 82-84.




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      Next,    Mother   presented     the   testimony   of   Stepfather,   through

questioning by the court. N.T., 10/26-27/16, at 102. Stepfather testified

that Stepbrother was fifteen years old at the time of the hearing and was

fourteen years old at the time of the sexual assault on S.S.H. N.T., 10/26-

27/16, at 106. As a result of the criminal charges against him, Stepbrother

was found to have engaged in indecent contact, and he was placed on

probation for one year. Id. at 107. Stepbrother was in therapy at the time

of the hearing and was instructed not to have any contact with S.S.H. as a

term of his probation.        Id.   As noted, Stepbrother now lives with his

grandmother, but he attends the same high school as S.S.H.              Id. at 107,

119-120.      Stepfather stated that pursuant to a court order, Stepbrother

must be kept away from S.S.H. until he has completed his counseling and

therapy. Id. at 109-110.

      Mother then questioned Stepfather.          N.T., 10/26-27/16, at 109.

Stepfather explained the incident for which he was criminally charged with

simple assault in relation to his altercation with Father.          Id. at 110-112.

Stepfather testified that all of the Children have anxiety relating to going to

Father’s house, with the exception of B.C.H.       Id. at 112-113.       S.S.H. has

stated to him that she was cutting herself because of her anxiety over being

at Father’s home. Id. at 112.

      On      October   27,   2016,    Father   presented     the    testimony   of

Vanessa Cattano, Mother’s previous landlord.        N.T., 10/26-27/16, at 125,


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129-130. Ms. Cattano testified that during the ten years that Mother lived in

the building she managed, eviction proceedings previously had been brought

against Mother on many occasions, which did not result in her eviction,

because Mother always eventually paid her late rent.        Id. at 129-131.

Mother was eventually evicted in August 23, 2016. Id. at 131. Father then

presented the testimony of Mother’s mother, regarding the fact that Mother,

Stepfather, E.S.H., S.S.H., and A.A.H., were staying with her in her one-

bedroom apartment at the time of the hearing. Id. at 133-134.

      Finally, Father and Mother testified on their own behalf, questioned by

the trial court.   N.T., 10/26-27/16, at 177, 203.    Father also questioned

Mother. Id. at 232.

      In the October 31, 2016 order, the trial court awarded Mother and

Father shared legal custody of the Children, with Mother having primary

physical custody of E.S.H., S.S.H., and A.A.H., and Father having primary

physical custody of B.C.H. During the school year, the parties were to share

physical custody of the Children on alternate weekends, so that the Children

would be together on all weekends. In the summer, Mother and Father were

each to have custody of all four children on alternating weeks.

      On December 1, 2016, Father timely filed a notice of appeal, along

with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court, however, entered an order

on December 6, 2016, directing Father to file a concise statement within


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twenty-one days.4       On December 27, 2016, Father filed a second concise

statement, raising an additional issue.5

       In his brief, Father raises the following issues for this Court’s

consideration:

       1. Whether the trial court erred and abused its discretion by
       awarding the mother continued primary custody of the
       [C]hildren by misapplying and/or ignoring the factors outlined in
       23 Pa.C.A.S. [sic] § 5328(a)?

       2. Whether the trial court erred by repeatedly interfering with or
       just completely taking over the plaintiff’s questioning and
       examination of the witness?

       3. Whether the court erred by failing to give proper weight to the
       testimony of North Regional Police Detective Robert Ryman,
       when testifying to the Sexual Assault of child SSH by the son of
       [M]other’s then paramour?

       4. Whether the court erred by failing to give proper weight to the
       mother’s untruthfulness regarding her knowledge of the sexual

____________________________________________


4
  In its Pa.R.A.P. 1925(a) opinion, the trial court explained that it issued this
order because Father had left a numbered paragraph blank, and had failed
to sign the concise statement. Trial Court Opinion, 12/30/16, at 1.
5
   The trial court explained that the issue was in addition to Father’s
completion of the paragraph that he had previously left blank. Trial Court
Opinion, 12/30/16, at 1. We will not penalize Father for his filing his
completed concise statement after his notice of appeal, as he complied with
the trial court’s order. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009)
(finding that the appellant’s failure to simultaneously file a Rule 1925(b)
Statement did not result in waiver of all issues for appeal where the
appellant later filed the Statement, and there was no allegation of prejudice
from the late filing). Cf. J.P. v. S.P., 991 A.2d 904 (Pa. Super. 2010)
(finding that the appellant waived issues for appeal by failing to comply with
the trial court’s order directing her to file a Rule 1925(b) Statement within
21 days).



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      assault, as well as her attempt to cover it up by taking the child
      to Philadelphia for an abortion of the products of said assault?

      5. Whether the court erred to truly consider what is in the best
      interest of the [C]hildren when learning that while under
      investigation as a “Perpetrator by omission” for the sexual
      assault of SSH, [M]other decided to have a rushed wedding to
      [Stepfather,] the father of the perpetrator against child SSH?

      6. Whether the court erred by failing to hold [M]other in
      contempt for her perjury, as well as child endangerment when
      she denied being informed by child SSH that she had attempted
      to overdose on medications when placed in plaintiff’s home by
      CYFS [Children and Youth Family Services]?

      7. Whether the court erred by failing to hold [M]other in
      contempt for withholding the [C]hildren from [Father] for a
      period of thirteen (13) [months] despite [Father’s] attempts to
      exercise the previous order[?]

      8. Whether the court erred by failing to hold [M]other in
      contempt for failing to comply with pretrial instructions as she
      did not: File a pretrial memorandum, File a parenting plan,
      Attend the Co-parenting class, nor did she attend the court
      appointed mediation[?]

      9. Whether the court erred by failing to ask the [C]hildren the
      questions [Father] had written for the court to ask, only to then
      ask the same questions to the mother when the [C]hildren were
      no longer available for reexamination?

Father’s Brief at 16.

      In custody cases under the Child Custody Act (“the Act”), 23 Pa.C.S.

§§ 5321-5340, 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

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     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). We

have stated:

     The 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.

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).    “An abuse of discretion is

not merely an error of judgment; if, in reaching a conclusion, the court

overrides or misapplies the law, or the judgment exercised is shown by the


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record to be either manifestly unreasonable or the product of partiality,

prejudice, bias or ill will, discretion has been abused.”      Bulgarelli v.

Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation omitted).

      With any custody case decided under the Act, the paramount concern

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section

5338 of the Act provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child. 23 Pa.C.S. § 5338.

Section 5328(a) sets forth the best-interest factors that the trial court must

consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). Trial

courts are required to consider “[a]ll of the factors listed in section

5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,

652 (Pa. Super. 2011) (emphasis in original).

      Section 5328(a) 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.

            (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.




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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. § 5328.

      Furthermore, we have explained:

      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(a) 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. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).

      In issues one, three, and four, Father assails the trial court’s

consideration of Section 5328, the weight of the evidence, and Mother’s

credibility. In addressing these issues in its opinion, the trial court adopted

its consideration of the Section 5328 factors that it provided on the record at

the conclusion of the hearing on October 27, 2016.        Trial Court Opinion,

12/27/16, at 1-7; N.T., 10/26-27/16, at 255-272.           While lengthy, we



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reproduce the trial court’s on-the-record discussion as it aptly addresses

Father’s issues. The trial court reasoned as follows:

            Now, I caution you that this is not a situation where I
      decide which factors favor which party, then add up the factors
      on each side and whoever has more factors wins. That’s not the
      way it works. So be aware of that. Some factors have more
      weight in some cases than in others.

           So the first factor, which party is more likely to encourage
      and permit frequent and continuing contact between the child
      and another party.

            Frankly, from the evidence that I found credible, I don’t
      think either one of you is particularly likely to encourage or
      permit that kind of contact. But I will say that [M]other has,
      without the necessity of court intervention, agreed that one of
      the [C]hildren, [B.C.H.], would basically be with [F]ather most of
      the time. So to that extent, the factor favors [M]other.

            But I again caution you, my impression of both of you,
      based upon the testimony I heard, is that, what can I say? You
      have, your relationship needs so much work that I’m not sure it
      could ever rise to the level of even being able to communicate as
      reasonable human beings regarding the best interests of your
      children. That’s too bad. I wish that could be changed. At the
      present time, it is a nonexistent to negative relationship.

            The next factor is the present and past abuse committed
      by either 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 best provide adequate physical safeguards
      and supervision of the child.

             [W]ell, [S.S.H.] was abused by [S]tepbrother while in the
      physical custody and in the home of [M]other that resulted in a
      CYF investigation, at which time the other children in [M]other’s
      household were placed with [F]ather for a period of time. The
      [C]hildren were then returned to [M]other and her custody to
      live in her household when CYF was satisfied that [S.S.H.] and
      the other children were no longer at risk of harm.




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            I’m satisfied that [M]other has taken appropriate steps,
     either because she has been ordered to or because she thought
     it was best, to make sure that [S]tepbrother had no contact with
     [S.S.H.]. By the same token, it must be said, if [S.S.H.] was
     living with [F]ather[,] the ability of [S]tepbrother to have contact
     with [S.S.H.] would be greatly reduced.

           This was certainly a traumatic incident for [S.S.H.] and I
     think for both of her parents. I am satisfied that [S.S.H.] is safe
     with [M]other where she is now. I don’t believe that [M]other is
     culpable for the abuse visited upon [S.S.H.] by [S]tepbrother,
     and I am satisfied that [M]other has taken appropriate steps to
     eliminate the risk of harm to [S.S.H.] by [S]tepbrother.

           But it happened. There’s no doubt in my mind that
     [F]ather would be vigilant, as I believe [M]other is. So I don’t
     believe that that factor substantially favors either party.

           The next factor is the information set forth in Section
     5329.1(a) relating to consideration of child abuse and
     involvement with protective services.

           [W]ell, both parents have a long history of involvement
     with CYF. I conclude, based upon the testimony that I’ve heard,
     that the complaints of one parent, about one parent have been
     made by the other parent, and vice versa, with the exception of
     the CYF investigation regarding abuse of [S.S.H.] by
     [S]tepbrother, I am satisfied that all of those other CYF
     investigations were determined by CYF to be unfounded.

           Therefore, that factor favors neither party.

           The next factor is the parental duties performed by each
     party on behalf of the [C]hildren. [W]ell, if we are just judging
     who has, who has performed more parental duties, by virtue of
     [M]other’s majority physical custody of the [C]hildren, she has.
     But I am satisfied also that [F]ather, when the [C]hildren are in
     his custody, performs the parental duties that are necessary,
     and that if the [C]hildren were in his custody the same amount
     of time as [M]other, he would certainly fulfill those duties. I
     don’t think the factor favors either party.

           The next factor is the need for stability and continuity in
     the child’s education, family life, and community life.

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           [W]ell, I think these children do need stability and
     continuity. I’m not sure there’s any child that doesn’t, and there
     is nothing in the evidence I have been presented that would
     indicate to me that these children are different in any of those
     ways.

           Since the parents separated and stopped living together in
     one household, the [C]hildren have primarily lived with [M]other.
     They have gone to the same -- they have attended school in the
     same school district probably for their entire school careers.
     That would be [C]entral York.        So certainly stability and
     continuity regarding education would favor [M]other.

            I heard really nothing significant about the community life
     of the [C]hildren from either parent, and both parents have
     families. It’s clear to me that up to the present most of the
     stability and continuity has been provided by [M]other’s family.
     So that would be a change if the [C]hildren were to live with
     [F]ather primarily.

           So that factor does favor [M]other.

           The availability of extended family. Mother has a number
     of extended family members in the York area, particularly her
     grandparents, who the [C]hildren interact with probably on what
     I remember being a weekly basis, and I’m satisfied that on the
     various holidays the extended family celebrates those together
     and the [C]hildren are a part of that.

           Father has no extended family close by. His family is in
     Georgia and Florida. There is certainly communication between
     his extended family and the [C]hildren. But it is simply by virtue
     of the distance, they are not as available as [M]other’s extended
     family, so that factor does favor [M]other.

           The [C]hildren’s sibling relationships. I’m satisfied that the
     [C]hildren have pretty typical sibling relationships. I’m sure that
     they bicker and fight amongst themselves, but at the end of the
     day they spend a lot of time with each other and have formed
     typical sibling relationships, which are pretty close and the court
     believes pretty important.

           We will say that they do have a half[-]sibling, and that is
     the child of [F]ather and his current wife, and I believe that in

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J-S30009-17


     the time [the] [C]hildren spend with [F]ather they are
     developing an affection for their little brother, or little half-
     brother, I should say, and that’s an important consideration.

           So given all of that, I don’t believe that this factor favors
     either [M]other or [F]ather in any substantial way, with the
     understanding that if the father had majority physical custody of
     [Mother’s] three children, they would have more time to spend
     with their young half-sibling.

           So[,] to that extent, the factor may favor [F]ather, but
     only marginally.

           The well-reasoned preferences of the child, of the
     [C]hildren based upon the [C]hildren’s maturity and judgment.

           Well, I spoke with the four children, [E.S.H.] being the
     oldest. His preference was clear, that he wanted to remain with
     [M]other primarily. He expressed his equivocal feelings about
     spending time with his father.

           [S.S.H.] clearly expressed a strong preference to remain
     with her mother and, in fact, went out of her way to make it
     known to the court that she wanted nothing to do with [F]ather.

           [B.C.H.], on the other hand, expressed an interest in living
     primarily with [F]ather. She did not indicate that that was
     because of any problems that she had with [M]other, and in fact
     she told the court that she was in a sense torn because she
     misses [F]ather when she is not with him and she misses
     [M]other when she is not with her. [W]ell, that’s a reality of life
     for children of parents who have separated and divorced.

           I will note that I believe that on the whole [B.C.H.] would
     opt to live with her father if she could, and I will also note that
     [M]other has indicated that that’s okay with her if that’s what
     [B.C.H.] wants to do.

            [A.A.H.], the fourth child, indicated a preference for
     staying primarily with his mother and indicated that he did not
     like spending time at [Father’s] house. He’s the youngest of the
     four. So[,] I give less weight given his maturity and the manner
     in which he talked to the court than I do to his older siblings.


                                   - 19 -
J-S30009-17


     But I am not discounting it completely.    So[,] this is sort of a
     mixed bag.

           [W]ith regard to at least -- well, with regard to all of the
     [C]hildren but [B.C.H.], clearly they prefer staying with their
     mother most of the time. [B.C.H.] does not.

           The court is concerned about having [B.C.H.] live with her
     father most of the time while the other children are living with
     their mother, but it strikes the court that whatever custody
     arrangements are ordered, it could be tailored so that [B.C.H.]
     could spend significant time with her siblings, sometimes when
     they’re at [Father’s], sometimes when they’re at [M]other’s.

          That being said, for the most part the factor favors
     [M]other, with the exception of [B.C.H.], when it favors [F]ather.

           The next factor is the attempts of a parent to turn the
     [C]hildren against the other parent, except in cases with
     domestic violence where reasonable measures are necessary to
     protect the child from harm.

           [W]ell, the evidence I believe indicates that there have
     certainly been occasions when [M]other has spoken unkindly
     about [F]ather to the [C]hildren, but we also believe that is true
     of [F]ather and, frankly, we believe it is [F]ather to a greater
     extent.   That’s just one of the primary complaints of the
     [C]hildren. So[,] that factor favors [M]other.

            Next factor is which party is more likely to maintain a
     loving, stable, consistent, and nurturing relationship with the
     child adequate for the child’s emotional needs.

            I am concerned about the [C]hildren’s reaction to staying
     with their father, with the exception of [B.C.H.]. I sense from
     the [C]hildren and from the other testimony I believe that there
     is a certain amount of estrangement that these three children,
     other than [B.C.H.], feel with regard to their father. I do not
     sense that with regard to their mother, and I don’t sense that
     with regard to any of the four children and their mother, and
     that includes [B.C.H.].

          Given that current situation, this factor, I believe, favors
     [M]other.

                                   - 20 -
J-S30009-17


           Which party is more likely to attend to the daily physical,
     emotional, developmental, educational, and special needs of the
     [C]hildren.  I don’t have any doubt that both parents can
     adequately attend to the daily physical, developmental, and
     educational -- well, to the physical and educational and
     development of the [C]hildren.

            I didn’t hear any evidence that any of the [C]hildren had
     special needs with the possible exception of [S.S.H.], regarding
     the traumatic incident involving her stepbrother. I am satisfied
     that [M]other has taken appropriate steps to have [S.S.H.]
     engage in a course of counseling and therapy regarding that
     situation that is ongoing.

            So[,] when it came to the prior factor, I am concerned
     about the ability of [F]ather[,] at this present time[,] to be able
     to proactively attend to the [C]hildren’s emotional needs, and I
     am not saying that he cannot do that or would not try to do that,
     but at least at the present time I think that [M]other is more
     likely to be able to do that and, therefore, this factor favors
     [M]other, with the exception of [B.C.H.], in which case I think
     that both parents are equally capable of attending to those
     needs given the lack of estrangement of [B.C.H.] from her
     father.

           The proximity of the residences of the parties. It’s about a
     45-minute drive, basically suburban Harrisburg to the [C]ity of
     York. I don’t think that really favors either party. It might not
     be a pleasant drive, but it is certainly not a drive that cannot be
     undertaken on a regular basis by both parents. So I don’t think
     that favors either party.

           Each party’s availability to care for the [Children] or ability
     to make appropriate childcare arrangements. I don’t think that
     factor favors either party. I am satisfied based upon what the
     parties told me and the other evidence that I believe that when
     the [C]hildren are in their care, if they can’t care for them
     personally, they have appropriate arrangements to see that they
     are properly cared for. And at least the oldest two of them are
     pretty much getting to the age where they really don’t need
     intensive, if any, childcare services.

          The next factor is the level of conflict between the parties
     and the willingness and ability of the parties to cooperate with

                                    - 21 -
J-S30009-17


     each other. I have already alluded to this. There’s a high level
     of conflict between these parents. While each one of them has
     expressed some willingness and ability to cooperate with one
     another, it’s clear to me that to the extent they do that, it’s the
     exception rather than the rule.

           Frankly, I’m not sure they even bother listening to each
     other anymore. And I don’t see from the evidence I believed
     that there’s any light at the end of that particular tunnel.

           So I, frankly, don’t think that factor favors either parent.

           The next factor is the history of drug or alcohol abuse by
     either party or member of the party’s household.

            I don’t think that favors or disfavors either party. I am
     satisfied that by their testimony and the other evidence I
     believed that neither one of them has problems in those areas.
     So[,] that doesn’t favor or disfavor either party. The mental and
     physical condition of a party or a member of a party’s household.
     There is no evidence I found credible that indicates that this
     factor should favor one parent over the other.

            CYF involvement. There certainly has been a lot of that.
     But for the incident involving [S.S.H.] and her stepbrother, it
     appears to the court that the other CYF involvement is more
     reflective of the parents’ attitudes towards each other than
     anything else. Having said that, I don’t think the evidence
     regarding CYF involvement favors or disfavors either party.

           Any other relevant factor. I’m not sure there are any
     other relevant factors. I will comment on [F]ather’s insistence
     that these children need a father in their life and that, in fact, his
     role as a father is somehow being put on the back burner.

           I disagree with that. I am a father. I had a father.
     Neither I nor the law of Pennsylvania discounts the importance
     of a father to his children or the importance of a mother to her
     children. But when the parties have separated and, in the case
     of these parties, divorced and no longer make up a single
     household, unfortunately compromises have to be made. That’s
     the nature of these cases.




                                    - 22 -
J-S30009-17


           I don’t believe it would be in the best interests of these
     children at this point to remove them from the primary custody
     of their mother to [F]ather for a number of reasons, not only for
     educational stability, but also because of estrangement of three
     of the children from their father.

           I believe [M]other when she indicates that the temporary
     living arrangements or the living arrangements she has are
     temporary and that, in fact, she will be securing residence in the
     Central York School District so the [C]hildren can continue their
     education in that school district without interruption.

            I will say that if the only decision I had to make is which
     living arrangement at the present time better serves the
     [C]hildren or is more appropriate, I believe [F]ather’s current
     situation is preferable to [M]other’s current situation.       But,
     again, I believed [M]other when she said that was temporary.
     And that, to me, is not a primary consideration because I’m also
     satisfied that although [M]other’s situation is not as favorable as
     [F]ather’s, it’s okay and the [C]hildren are okay and are being
     cared for properly.

            To [F]ather’s credit, it sounds as if he has a very stable
     environment, has lived in the same townhouse for a number of
     years, is a veteran, has had very responsible jobs, is furthering
     his education, and I think he is sincere in his desire for wanting
     what is best for his children. But having all of the [C]hildren
     uprooted from the only real family situation that they have
     known and placed in the primary physical custody of [F]ather at
     this time is not in their best interest.

            I believe that [F]ather, if he continues to have ongoing
     contact with his children, in the hopes that he will be able to
     start to bridge the gap that clearly exists between three of those
     children and him. Three of the four children are teenagers.
     Teenagers are tough under the best of circumstances. Frankly, I
     think these children have done fairly well given what I would say
     are less than the best of circumstances given the attitudes of
     their parents regarding each other.

           I would urge both parents to at least temporarily set aside
     the animosity they hold for the other and give their children a
     break. I can’t believe that either of these parents would not like
     to give these children an opportunity to enjoy their childhood

                                   - 23 -
J-S30009-17


     without all the drama that’s being engendered by the
     antagonistic relationship that these parents have with each
     other. I don’t think either parent has done a very good job of
     that.

           I remind the parents it is their job to be the grownups. It’s
     the [C]hildren’s job to be children.

           Now, look, I believe that with some changes the amended
     custody order of December 18, 2012[,] should remain in effect
     or should go back into effect.

            That gives [D]ad [alternating] weekends during the school
     year, but more importantly it gives him half the summer. It
     gives him time for the [C]hildren to be settled down, get to know
     their father, and he them, in a more relaxed basis, and I think
     that’s important, and I want that to continue.

            Differences would be, I believe -- I was impressed, I was
     impressed by all the [C]hildren, but particularly by [B.C.H.] and
     the manner in which she described to me what she would like. I
     thought it showed a fair amount of maturity for a young lady. It
     is clear to me that so far, of all of the four children, she is the
     best at trying to negotiate the tricky path that her parents have
     created regarding their relationship.

           Furthermore, I think, given the terms and conditions of the
     amended custody order, [B.C.H.] can still spend the entire
     summer with the other three children and spend every weekend
     with them, and I think that’s, given their ages, I think that will
     be fine for her.

           I’m going to go out on a limb here, and I’m not going to
     decide which parent ought to have sole legal custody. Generally
     speaking, the law is clear, if parents cannot cooperate at least to
     the extent to share in major decisions regarding their children,
     the court is to award sole legal custody regarding those decision-
     making prerogatives to one parent.

           I’m hesitant to do that because I do not want either parent
     to have difficulty accessing the [C]hildren’s medical or
     educational records or being able to participate in the
     [C]hildren’s activities, including medical appointments, school
     meetings. It won’t be too long before the 16-or 17-year-old

                                   - 24 -
J-S30009-17


      might want to be talking about college. So I’m going to continue
      it that way, fully knowing that I’m not sure it’s going to succeed,
      but I would rather give the parents a chance for it to succeed.

             [Mother] doesn’t do everything that’s best for these
      children; neither does [Father]. Maybe together, if only in a
      very limited and stilted way, they can at least communicate
      regarding major decisions, and their children they might come
      up with a better solution than either one of them might have on
      their own.

            Now, I have made my decision. However, I will entertain
      comments either one of you has regarding whether in the
      context of the decision I have made the rest of the terms and
      conditions of the December 18, 2012 order are appropriate.

N.T., 10/26-27/16, at 255-272.

      This Court has stated:

      [t]he 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.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (quoting Robinson v.

Robinson, 645 A.2d 836, 838 (Pa. 1994)).

      After our careful review of the record, we find that the trial court’s

conclusions are not against the weight of the evidence or unreasonable in

light of the sustainable findings of the trial court, which are supported by the

evidence in the record. C.R.F., 45 A.3d at 443. The trial court thoroughly

considered, weighed, and explained its findings with respect to each of the

section 5228(a) factors.    Thus, we find Father is entitled to no relief on

issues one, three, and four.

                                     - 25 -
J-S30009-17


     Next, we conclude that Father has waived issues, two, five, and nine,

because those issues were not presented in his concise statement of errors

complained of on appeal filed pursuant to Pa.R.A.P. 1925(a)(i)(2) and (b).

See Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776,

797 (Pa. Super. 2006) (holding that an appellant waives issues that are not

raised in both his concise statement of errors complained of on appeal and

the Statement of Questions Involved in his brief on appeal); see also

Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,

88 A.3d 222, 224 (Pa. Super. 2014) (reiterating that the failure to comply

with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic

waiver of the issues raised) (citation omitted). However, even were we to

assume Father preserved issues two and nine, we would find no impropriety

in the trial court’s questioning of the witnesses and the Children.   As this

Court has explained:

     It is well settled that a trial court always has the right, and
     sometimes even the duty to interrogate witnesses, in order to
     clarify evidence, or to elicit new information that is necessary to
     ensure a fair trial. A new trial is required, therefore, only when
     the trial judge’s questioning amounts to an abuse of discretion.
     Because a charge of this nature is of the most serious type,
     however, the record must clearly show prejudice, bias,
     capricious disbelief or prejudgment before an abuse of discretion
     will be found.

Fleck v. Durawood Inc., 529 A.2d 3, 5 (Pa. Super. 1987) (quoting Pratt

v. Stein, 444 A.2d 674, 687 (Pa. Super. 1982)) (quotations and citations

omitted).


                                   - 26 -
J-S30009-17


      Here, were we to reach these issues, we would conclude that there

was no abuse of the trial court’s discretion in questioning the witnesses and

the Children, as the trial court was seeking to clarify the record concerning

whether it was in the Children’s best interests to modify custody. The trial

court did not exhibit partiality, prejudice, bias, or ill will toward Father in its

questioning.

      Similarly, if Father properly preserved issue five, we would conclude

that it lacks merit because the timing of Mother’s marriage to Stepfather was

of no significance to the trial court’s decision on the best-interest factors. It

is a challenge to the weight that the trial court afforded the evidence.

Because we have already concluded that the trial court’s decision was

supported by competent evidence in the record in our discussion of issues

one, three, and four, we discern no merit to this issue.

      In issues six, seven, and eight, Father asserts that the trial court erred

in failing to hold Mother in contempt for perjury, child endangerment, and

failing to comply with the trial court’s pretrial orders.     With regard to the

pretrial orders, the trial court stated that it did not find Mother in contempt,

noting that Father did not request the trial court to do so.           Trial Court

Opinion, 12/27/16, at 5. This Court has held that issues not raised in the

trial court are waived, and cannot be raised for the first time on appeal. In

re C.P., 901 A.2d 516, 522 (Pa. Super. 2006); Pa.R.A.P. 302.




                                      - 27 -
J-S30009-17


     More importantly however, the trial court’s order denying Father’s

petition for contempt is not on appeal. Thus, these issues are not properly

before this Court. See In the Interest of M.B., 514 A.2d 599, 600 (Pa.

Super. 1986) (stating that courts cannot rule on matters that are not

properly before them).

     For the reasons set forth above, Father is entitled to no relief.

Accordingly, we affirm the October 31, 2016 order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




                                  - 28 -
