L.B. v. J.W.

J. S12038/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

L.B., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

: No. 1495 MDA 2017

J.W. :

Appeal from the Order Entered September 1, 2017,

in the Court of Common Pleas of Union County

Civil Division at No. CV-17-0268

BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 20, 2018

L.B. (“Father”) appeals pro se from the September 1, 2017 order

entered in the Court of Common Pleas of Union County that awarded sole

legal and physical custody of T.A.B. (“Child”) to J.W. (“Mother”). After

careful review, we affirm.

The trial court summarized the factual history of this case, which it

gleaned from the custody hearing, as follows:

The parties met online while Father[1]was living in

Florida and Mother was living in Middleburg,

Pennsylvania. Father moved from Florida to

Middleburg, Pennsylvania and began residing with

Mother. Mother became pregnant shortly after

Father moved to Pennsylvania and [Child] was born

January [] 2012. The parties continued to reside

1The trial court referred to the parties as “the Father” and “the Mother.” We

have omitted the article preceding these party designations. We have also

omitted the article where the trial court referred to Child as “the Child.”

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together until May of 2015. From here the record is

confusing as to exactly what the circumstances were

regarding their separation. However, it would

appear to the Court that the parties separated in

May of 2015. Until June of 2015 [F]ather had

supervised visits with [C]hild. [C]hild never spent an

overnight with Father. In June of 2015 Mother

moved to West Virginia and Father had no contact

with [C]hild until September 8, 2015. On

September 8, 2015, Father located Mother, her now

husband and [C]hild at a convenience store in

Middleburg. Father was extremely intoxicated,

approached Mother and assaulted her. Apparently

Father attempted to take [C]hild in an intoxicated

state. Father was driving an automobile and was

subsequently arrested for this incident. Father was

then incarcerated and remained incarcerated for a

period of time. He was then admitted to the

17th Judicial District DUI Treatment Court.

In addition, a Protection from Abuse Order was

entered following the September 8, 2015 incident.

The Protection from Abuse Order granted Mother

custody of [Child].

Prior to the party’s separation in May of 2015,

Snyder County Children and Youth Services had been

involved with the family. In part, it was due to

sexual acting out of one of Mother’s children that

were not fathered by Father of [Child] but resided

with the parties. The other reason was due to

Father’s inappropriate discipline of the one child. In

addition, Mother testified that Father’s drinking,

discipline and anger were problems while they

resided together.

It is significant to note that Father failed to disclose

his involvement with Snyder County Children and

Youth Services on his Criminal Record/Abuse History

Verification.

In addition, it became evident that Father was

involved with the Florida equivalent of Children and

Youth Services and had three (3) children removed

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from his custody while he was in Florida and his

parental rights were involuntarily terminated to

those three children. Again, Father failed to disclose

this contact with Children Services on his Criminal

Record/Abuse History Verification.

Father has had absolutely no contact with [C]hild

since the September 8, 2015 incident. In addition,

he has not provided any child support, he has not

provided [C]hild with any gifts, cards or anything to

acknowledge his paternity or interest in [C]hild until

he filed for custody on May 2, 2017. Father testified

that he did not want to become involved in his

[C]hild’s life until he had his own issues addressed.

Father testified that he had been in the 17th Judicial

District DUI Treatment Court Program and graduated

on May 31, 2017. An issue was raised as to whether

Father filed for custody after he learned that a

Petition to terminate his parental rights was being

filed by Mother (Union County Docket No. OC-17-

8033). Father testified that that was not his

motivation for filing for custody, however the

Guardian ad Litem questioned his reasoning given

that he had not completed his Treatment Court

Program and therefore his statement that he was

waiting until he had completed all of his issues until

filing for custody was subject to question. Father

attempted to explain that he wanted to wait until he

was sober, however, the Guardian ad Litem observed

that he had been sober since September of 2015 and

still had not filed. Father was extremely evasive of

the Guardian ad Litem’s questions and his actual

motivation for filing for custody when he did is a

question that is unresolved. In his current situation

Father testified that he has been living with his

current fiancé, [E.E.] since 2015. It is interesting

that [E.E.] has three (3) sons, one (1) is

incarcerated in a State Correctional Facility and has

been for the last three (3) years and she visits him

one (1) time a year. In addition, her other two (2)

sons have no contact with her at their request and

have not done so since they were in their late teens.

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It is also interesting to note that in spite of Father’s

drug and alcohol issues, [E.E.], his fiancé, has

posted alcohol related pictures on Facebook. The

Court questions the judgment of [E.E.] given her

fiancé’s involvement with the Criminal Justice

System related to drugs and alcohol.

Father also has four (4) other children. The one at

issue in this case, the three (3) referenced earlier

where his parental rights were terminated in Florida

and one (1) other child that lives in Middleburg,

five (5) miles from Father’s residence and the child

resides with the paternal grandmother. Father has

had no contact with this child for twenty-one (21)

years. He attempted to reach out to his [m]other

apparently, but she has refused to return the

contacts. Father did not present any evidence to

show that he has done anything in an attempt to

support this child or to establish a parental

relationship.

In fact, none of Father’s family has been involved

with [Child]. To the contrary, Mother has developed

an extensive support system with her current

husband, her mother, pastor and friends. She

maintains full time employment and a home that has

a stable family situation. It is also significant that

Father acknowledged having outstanding arrest

warrants from the State of Florida for probation

violations in that state. Father has failed to exercise

the responsibility in addressing these outstanding

warrants and is subject to arrest at any time based

on Florida’s decisions.

The facts presented to the Court indicate Father has

significant drug and alcohol issues, domestic violence

issues, violence that may involve [C]hild through

discipline at home or assaults in the presence of

[C]hild, Father’s deceit in failing to disclose his

substantial involvement with Children and Youth

Services in two (2) states, mental health issues and

the fact that he never pursued custody nor

shown [sic] any interest in being a father from

September 8, 2015 until the filing of this action on

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May 4, 2017. In fact, Father had one (1) contact

with [C]hild between June of 2015 and the present

and that was at a time he was intoxicated and

subsequently arrested and incarcerated. Father’s

testimony was that he doesn’t even remember most

of that incident.

When queried about why he wants custody he

initially stated he “has been a good father[.”] When

the Court expressed shock at this statement, Father

recanted and admitted he has not been a good

father to any of his children. The Court would refer

the Pennsylvania Superior Court to the transcript of

the custody hearing of September 1, 2017, Pages

97-104 for the Court’s analysis of the custody factors

set forth in 23 Pa.C.S.A. § 5328.

Trial court opinion, 10/25/17 at 3-7 (citations to notes of testimony

omitted).

The trial court set forth the following procedural history:

On May 2, 2017, [Father] filed a Complaint for

Custody against [Mother] seeking custody of [Child].

Father filed his Criminal Record/Abuse History

Verifications for himself and his fiancé with whom he

resides contemporaneously with the filing of the

Complaint. The Court initially referred the matter to

mediation consistent with local rules however the

Court was informed that there was in existence a

Protection from Abuse Order entered against Father

naming Mother as a protected party and that the

matter was not appropriate for mediation. On

May 8, 2017, the Court scheduled the matter for a

custody conference on June 9, 2017. Mother

requested a continuance and the matter was

continued until July 7, 2017 for a hearing before the

Custody Hearing Officer.

On July 7, 2017, the Court was available and the

matter was heard before the undersigned. Based on

a review of Father’s Criminal Record/Abuse History

Verification, it appeared that Father had been

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convicted of multiple enumerated offenses under

23 Pa.C.S.A. § [53]29, specifically aggravated

assault, terroristic threats, driving under the

influence of drugs or alcohol and manufacture, sale,

delivery, holding, offering for sale or possession of

any controlled substance or other drug or device.

The Court conducted the initial evaluation as

required pursuant to 23 Pa.C.S.A. § 5329(c) and

determined that Father did pose a threat to [C]hild.

At the July 7, 2017 proceeding, the Court received

additional information indicating domestic violence

and a protection from abuse order were issues in this

matter although not disclosed by Father.

The Court ordered Father to have an assessment

completed in writing and submitted to counsel for

Mother and the Guardian ad Litem prior to the

hearing. The Court further directed Father that

“unless the parties stipulate to the admission of the

assessment, the individual conducting the

assessment shall be present to testify. Without the

assessment the Court shall not award any type of

custody to [Father] based on the Court’s concerns

regarding the safety of [C]hild.”

At the July 7, 2017 proceeding the Court appointed a

Guardian ad Litem for [C]hild.

On July 26, 2017, the Court ordered a full day

custody trial for September 1, 2017. The parties

filed the necessary pretrial statements and the

Guardian ad Litem filed her Report of the Guardian

ad Litem on August 25, 2017. Recommendation 4 of

the Guardian ad Litem’s Report, stated “Father, prior

to any contact with [C]hild, submit an Anger

Management Certification as the Guardian ad Litem

has some concerns about his ability to control

himself, specifically his anger[.”]

A hearing was held on September 1, 2017 after

which the Court awarded sole legal and physical

custody of the minor [C]hild to Mother.

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On September 29, 2017, Father filed his Notice of

Appeal and on October 16, 2017 Father filed his

Concise Statement of Errors complained of.

Id. at 1-3.

The record reflects that the trial court filed its Rule 1925(a) opinion on

October 25, 2017. The record further reflects that on November 1, 2017,

this court entered an order setting forth the briefing schedule in this case.

(Order of court, 11/1/17.) In that order, we directed that Father file his

brief on or before December 1, 2017. Father failed to comply. (Id. at 1.)

As a result of Father’s failure to file a timely brief as ordered by this court,

this court entered an order on December 28, 2017, directing Father to file a

brief no later than 14 days from the date of the order and informing Father

that his failure to do so would result in dismissal of his appeal. (Order of

court, 12/28/17.) The record reflects that Father filed his brief on

January 11, 2017.

Father raises the following issues for our review:

1. Did error occur when the Court did not

properly consider the impact of the [protection

from abuse order (“PFA”)] on Father’s contact

with the [C]hild?

2. Did error occur when the Court rejected an

evaluation by a qualified therapist?

3. Did error occur when the Court ignored a

request for a bonding evaluation?

Father’s brief at 4.

With respect to our standard of review, it is well settled that:

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[t]he appellate court’s scope of review in custody

cases is of the broadest type. This broad power is

limited to the extent that an appellate court may not

nullify the fact finding function of the hearing judge.

We are empowered to form our own independent

deductions and inferences from the facts found by

the hearing judge, but may only interfere with the

decisions of the hearing court where there has been

a gross abuse of discretion. We must determine

whether the trial court’s factual findings support the

trial court’s factual conclusions, but we may not

disturb these conclusions unless they are

unreasonable in light of the court’s factual findings.

Our appellate function is to make an independent

judgment, based on the testimony and evidence

before us, that is in the best interest of the child.

We must make an independent examination of the

record and make an order on the merits of the case

which is right, just and will serve the best interest of

the child. After we take full account of the hearing

judge’s reasoning, still, we must be easy in our own

conscience that the judge’s award will serve the best

interest of the child, or children, in question.

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.

M.A.T. v. G.S.T., 989 A.2d 11, 19-20 (Pa.Super. 2010) (citations omitted).

In custody disputes, trial courts are statutorily required to consider the

16 factors set forth in the best-interest test when determining the child’s

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best interest.2 See 23 Pa.C.S.A. § 5328(a) (“[i]n ordering any form of

custody, the court shall determine the best interests of the child by

2 Section 5328 of the Child Custody Act sets forth the 16-factor best-interest

test, 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.

(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.

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(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.

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considering all relevant factors . . . .”); see also A.V. v. S.T., 87 A.3d 818,

821 (Pa.Super. 2014) (reiterating that “Section 5328 provides an

enumerated list of sixteen factors a trial court must consider in determining

the best interests of the child or children when awarding any form of

custody.”).

Here, the trial court determined the best interest of Child by properly

considering all relevant factors set forth in Section 5328 and, in so doing,

determined that every relevant factor weighed in favor of awarding custody

to Mother. (See notes of testimony, 9/1/17 at 97-104.) As such, the trial

court awarded sole physical and legal custody of Child to Mother.

(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

condition of a party or

member of a party’s

household.

(16) Any other relevant factor.

42 Pa.C.S.A. § 5328(a).

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In this appeal, Father first complains that the trial court erred when it

“did not properly consider the impact of a PFA on Father’s contact with the

[C]hild.” (Father’s brief at 7.) With respect to this issue, Father advances

the following six-sentence argument:

The [t]rial [c]ourt, on page 7 of its opinion, which is

included as Appendix A, states that Father has no

one to blame for not pursuing this action since 2015.

However, the PFA Order was clear. No contact was

allowed with [Mother] or Child. The PFA Order did

say a custody action could be initiated, but doing so

could have involved contact that might be considered

a PFA violation. Father should not have the fact that

he followed a Court Order held against him. It was

an abuse of discretion.

Father’s brief at 7-8.

In this argument, Father concedes that the PFA did not preclude him

from seeking custody of Child, but he argues that “doing so could have

involved contact that might be considered a PFA violation.” (Id. at 8.) This

argument is at odds with Father’s testimony at the custody hearing. When

first asked at that proceeding why he waited two years to file a custody

action, Father answered, “Because I wanted to be sober and -- I wanted to

be sober when I did -- I wanted to be sober to see my daughter.” (Notes of

testimony, 9/1/17 at 31.) Later in his testimony, however, Father claimed

that he had been sober for “almost two years.” (Id. at 66.) When asked

again at the custody hearing why he waited two years to file a custody

action, Father answered:

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Why didn’t I? I had a lot of things going on at that

point in time, ma’am. I had DUI court to attend to

every week, I had many -- five AA meetings to do

every week, I had two meetings with my probation

officer every week. After my DUI is when I figured I

was going to go on with and do my -- when I wanted

to see my daughter.

Id. at 61.

Clearly, the record belies Father’s first claim that the PFA somehow

precluded him from seeking custody of Child. Consequently, this claim lacks

merit. That being said, however, it is significant that Father fails to advance

any argument in his brief regarding Child’s best interest. With respect to

Child’s best interest, Father testified at the custody hearing as follows:

Q. [Father], why is it in the best interest of your

daughter that she reestablishes a relationship

with you?

A. Why not? I’m sober. I’m clean. I haven’t

drank in almost two years. Why wouldn’t she

-- why wouldn’t I want to establish a

relationship with my daughter?

Q. I am not asking why you wouldn’t. I

understand completely why you would want to

reestablish a relationship with your daughter.

I want to know why that’s in your daughter’s

best interest.

A. Why wouldn’t it be? I’m a good father. I

never abused my daughter. I never laid a

hand on my daughter.

THE COURT: How do you justify that you have been

a good father? How do you justify that statement?

What have you done that shows that you’ve been a

good father to any of your four children?

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[FATHER]: That’s true.

Id. at 66-67. By his own testimony, Father admitted that he has done

nothing to demonstrate that he has been a good father to Child or any of his

other children. Because the record belies Father’s first claim, it necessarily

fails.

Father next complains that the trial court erred when it “rejected an

evaluation by a qualified expert.” (Appellant’s brief at 8.) In this

five-sentence argument, Father contends that:

The [t]rial [c]ourt on page 8 of its opinion at

Appendix A, mentions that the [guardian ad litem]

attempted to introduce an evaluation. Mother

objected but did not say why. Her objection should

have been overruled under Pa.R.E. 103(a)(1). And

while the [t]rial [c]ourt might not have given the

evaluation a lot of weight, it should at least have

considered the evaluation under Pa.R.E. 402. The

[t]rial [c]ourt again abused its discretion.

Father’s brief at 9.

Father has failed to provide any record citations to support his claim.

On that basis alone, Father waives this claim on appeal. See

Pa.R.A.P. 2119(c); see also J.J. Deluca Co. v. Toll Naval Assocs., 56

A.3d 402, 413 (Pa.Super. 2012) (reiterating that a failure to present any

record citation to support a claim results in waiver). Nevertheless, we

further note, that Father has also failed to develop a legal argument capable

of meaningful appellate review. Specifically, Father fails to articulate why

Rule 103(a)(1) would apply when that rule concerns preservation of a claim

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of error in a ruling that admitted evidence. Pa.R.E. 103(a)(1) (requiring that

a party claiming error in a ruling that admits evidence must, on the record,

make a timely objection, motion to strike, or motion in limine and state the

specific ground for the objection, unless it was apparent from the context).

Father also fails to articulate why the evaluation was admissible under

Rule 402, which addresses the general admissibility of relevant evidence.

Therefore, even if Father provided record citations, Father would have

waived this issue on appeal for failure to develop a legal argument. See

In re Lokuta, 11 A.3d 427, 436 (Pa. 2011) (reiterating that a failure to

develop issues results in waiver).

Even if Father did not waive this issue, however, the record belies

Father’s claim. Our review of the record reflects that the trial court entered

an order on July 7, 2017, that directed Father, in relevant part,

to have his assessment completed in writing, and

submitted to counsel for [Mother] and the Guardian

Ad Litem prior to the hearing. Unless the parties

stipulate to the admission of the assessment, the

individual conducting the assessment shall be

present to testify. Without the assessment, the

Court shall not award any type of custody to [Father]

based on the Court’s concerns regarding the safety

of [C]hild.

Order of court, 7/7/17 at 2; docket no. 26.

The record reflects that the parties did not stipulate to the admission

of Father’s assessment by Laura Gargano. (Notes of testimony, 9/1/17 at

95.) Consequently, the July 7, 2017 court order required that Ms. Gargano

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be present at the custody hearing and testify. The record reflects that

Ms. Gargano was not present to testify because, according to Father, “she

couldn’t make it.” (Id. at 98.)

Father finally complains that the trial court erred when it ignored a

request for a bonding evaluation. In Father’s seven-sentence argument on

this issue, Father cites to notes of testimony from an alleged custody

conference that took place on July 7, 2017. (Appellant’s brief at 10-11.)

Although we note that the transcript of that conference is not part of the

certified record before us, Father claims that at this conference Mother

requested a bonding evaluation. On the basis of Mother’s alleged request,

Father now complains that he “should have been given the option to make

the request as well.” (Appellant’s brief at 11.) Nothing in the record before

us demonstrates that Father was prevented from requesting a bonding

evaluation. Therefore, this claim lacks merit.

Finally, we reiterate that the trial court determined the best interest of

Child by properly considering all relevant factors set forth in Section 5328

and determined that every factor weighed in favor of awarding custody to

Mother. In so doing, the trial court conducted the following analysis:

THE COURT: [T]his case is unique in the regard that

it is probably the only case that I have ever heard

where every single factor the Court is to consider

weighs towards one party.

The Court has to balance what I believe to be

the best interests of this [C]hild with the rights of a

parent to be involved in [C]hild’s life.

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[Father], I believe you have been deceitful. In

your abuse affidavit you failed to list two PFAs, one

that resulted in a Final Protection From Abuse. You

failed to list your involvement with Children & Youth

Services in Florida which resulted in the involuntary

termination of four -- three children. You failed to

disclose your involvement with Children & Youth

Services in Snyder County between 2012 and 2014.

And, quite frankly, the timing of your custody

petition, while it may raise suspicion, there has not

been sufficient proof to establish that your motive for

filing a custody action was that you got wind of the

termination proceedings which may in the long run

be a benefit to you.

Quite frankly, it is commendable that you

completed treatment court, you graduated, you’re

getting your life straightened out. You should be

commended for that.

[FATHER]: I am.

THE COURT: The problem is our children don’t wait

for us to get our acts together. Your daughter is

growing, and now she has developed a relationship

with somebody else who has been a father to her.

[FATHER]: I know.

THE COURT: Quite frankly, you shocked me with

your statement that you are a good father. That just

shows you are so totally clueless as to what you

have done to your daughter to get to where you’re at

today, but her formative years are almost gone.

They develop quickly. They don’t wait for us.

Your statements showed that you made you

the priority to the sacrifice of your daughter. You

didn’t do anything with her while you were getting

your act together. There’s a lot of people in

treatment court that are single parents that are

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finding ways to deal with their issues but also deal

with their children. You chose not to.

[FATHER]: I had a PFA on me for three years.

THE COURT: You did not file your custody action

until a couple weeks before you graduated from

treatment court. You could have filed a custody

action at any time. You chose not to.

In any event, the Court finds that you have

other children. You’ve had no contact with one.

Three your rights were involuntarily terminated. One

of the other things that I found very significant is

[Mother’s] statement that the two boys seem to be

doing very well now that you are not around. I

found that very interesting.

As far as other children on Ms. -- well, I will

address her factors in a -- I will address the sixteen

factors in a minute.

You have no extended family. You have

alienated your family; and [your fiancé], while [your

fiancé] presented extremely well today and is

probably a good influence in your life, her one son is

incarcerated and her two other sons have nothing to

do with her. That’s not a good sign.

You have not had any contact with [Child]

since she was three years old, over two years, in key

developmental times. You don’t even know her.

She probably doesn’t even know you. And you have

taken no action, nothing until May of this year to see

her.

And you have an outstanding arrest warrant in

Florida for something that if they decide that it is

going to be changed to not an in-state, you’re gone.

I can’t believe Snyder County Probation allowed you

to go through their treatment court program with an

outstanding bench warrant. I would be curious to

hear from Ms. Kuhns, who I am going to call after

this, to see whether she is aware of it.

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You have multiple criminal convictions

involving drugs, alcohol; well, substances. You have

multiple issues regarding violence, PFAs.

I completely believe [Mother’s] testimony

regarding your last contact with [Child] and how that

whole thing went. And because of that, our statute

does not allow me to give you any type of physical

custody until that assessment is done, and I told you

what you had to do and you didn’t do it. I don’t

have a choice by law. Quite frankly, I was torn and

would have probably been inclined to at least some

version of supervised custody, not frequent; but you

didn’t follow the Order. I can’t give you custody by

law.

In any event, the Court considered the factors

in Section 5328.

“Which party is more likely to encourage and

permit frequent and continuing contact between the

child and another party?” I find that favors

[Mother]. She’s done that in the past in spite of

[Father’s] behaviors.

“The past and present abuse committed by a

party or member of a party’s household, whether

there is a continued risk of harm,” and “Which party

can better provide adequate safeguards and

supervision for the child?” Clearly we have a [PFA],

multiple convictions of violence, even though this

most recent one was dismissed, I assume as part of

a plea agreement. I find [Mother’s] testimony

regarding the incident credible.

“Child abuse and involvement with protective

services.” I don’t know the extent of that in Florida

other than his parental rights were terminated which

is an extreme measure, and the [PFAs] and finding

of abuse.

“Parental duties performed by each parent on

behalf of the child.” Since two thousand and what,

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fourteen, 2015, [Mother] has performed all of the

parental duties.

“The need for stability and continuity in the

child’s education, family life, and community life; the

availability of extended family; and the child’s sibling

relationships.” [Mother] testified as to her current

situation with her current husband. Her mother’s

here and involved. Her husband’s here and involved.

They have the pastor of the church here and

involved. That is what we in dependency court are

looking for for our safety net to build around our

children. Where the phrase -- and you don’t hear it

as much anymore -- is it takes a village to raise a

child. Clearly [Mother] has done that and built that

around not just [Child] but all of her children; and

the fact that her children are with her, well, except

one that’s of age, is no longer a child but an adult.

The other cousins with her husband’s family; the fact

that [Child] has playmates, siblings around her. On

[F]ather’s side there’s none. He has alienated them

all or lost his parental rights.

[Mother], the same thing with the extended

family and friends to take care of [Child], that clearly

favors [Mother]. In fact there doesn’t -- other than

the past year, there’s no stability on [Father’s] side

except for the past year. And he’s to be commended

for that. Hopefully he continues on this path of

sobriety.

“The well-reasoned preference of the child.”

My understanding from [the guardian ad litem’s]

position is [C]hild doesn’t really even know who her

biological father is.

“The attempts of a parent to turn the child

against the other parent, except in cases of domestic

violence or reasonable safety measures are

necessary to protect the child.” She got a [PFA] by

Judge Hudock saying that you were a danger to that

[C]hild.

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“Which party is more likely to maintain a

loving, stable, consistent, and nurturing relationship

with the child adequate for the child’s emotional

needs?” Clearly that’s mom. Mom’s been there for

[C]hild. [Father’s] been busy taking care of himself.

And it appears [Child] is doing well, hitting -- in

kingergarten, doing chores.

“The proximity of the residences.” Mifflinburg

to Middleburg is not that far apart. It’s not really a

factor in the Court’s decision.

“Each party’s availability to care for the child or

ability to make appropriate childcare arrangements.”

[Mother’s] husband is there and so are the extended

family members.

“The level of conflict.” While it may not exist

now, it’s only because of the [PFA], but the level of

conflict in the past was very violent to the fault of

[Father].

“History of drug and alcohol abuse.” I have

not heard of any drug and alcohol abuse by

[Mother]. It is rampant from [Father] for at least a

significant part of his life.

“The mental and physical condition of a party

or a member of the party’s household.” I heard

about [Father’s] recent diagnosis of I believe it was

bipolar. I didn’t hear anything more, although, he’s

on four medications that he doesn’t even know what

they are. He knows he takes four pills a day. That

is an issue that is frightening.

It’s clear that [Mother] should have legal and

primary physical custody. The question is, what

contact should [Father] have or what type of custody

rights should [Father] have. And the problem is

when someone is convicted of certain offenses, the

Court is to conduct an initial evaluation; and where

the Court determines that counseling is [a]

necessity, it shall appoint a qualified counselor.

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I allowed [Father] to obtain -- well, I actually

in Subsection C in Section 5329 I ordered that he

obtain further evaluation, and I told him what he had

to do; and he didn’t do it. . . . “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.”

I cannot make that determination because you

didn’t follow my order and have the evaluator

present, and even though -- I suppose if there had

not been the inconsistencies between the evaluator’s

report and the testimony today, I may have

overruled [Mother’s counsel’s] objection and still

considered it. But there’s serious question of the

validity of the evaluation or even the qualifications.

I don’t know this person. In fact I can’t even read

her name, and it is not written anywhere. So I don’t

have a curriculum vitae, a resume, anything to tell

me who this evaluator is. I suppose the initials of

her degree follow her -- well, no, her name’s not

even -- yeah, there aren’t -- nothing to even indicate

her degree and whether she’s even qualified to do

this.

....

And now, this 1st day of September, 2017, for

the reasons stated on the record, [Mother] is

awarded sole legal and physical custody of the minor

[C]hild . . . .

Notes of testimony, 9/1/17 at 97-104.

Our review of the record in this case demonstrates that the evidence

supports the factual findings made by the trial court when it applied the

16-factor best-interest test to award custody of Child to Mother because that

award was, and is, in Child’s best interest. Accordingly, we discern no abuse

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of discretion and affirm the order that awarded sole legal and physical

custody of Child to Mother.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/20/2018

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