M.G. v. L.D., Appeal of: C.B.D.

• Court: Superior Court of Pennsylvania
• Decided: February 8, 2017
• Docket: 2845 EDA 2015
• Status: Published

Opinion

J-A08005-16 J-A08006-16 2017 PA Super 29

M.G., : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : L.D., : : : : No. 2845 EDA 2015 APPEAL OF : B.D., INTERVENOR :

Appeal from the Order August 19, 2015 In the Court of Common Pleas of Montgomery County Civil Division at No.: 11-31295

M.G., : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : L.D., : : APPEAL OF: L.D., : : : : No. 3215 EDA 2015

Appeal from the Order August 19, 2015 In the Court of Common Pleas of Montgomery County Civil Division at No.: 11-31295

BEFORE: BOWES, J., OLSON, J., and STRASSBURGER, J.*

DISSENTING OPINION BY STRASSBURGER, J.: FILED FEBRUARY 08, 2017

The learned Majority has thoroughly and thoughtfully addressed the

issues in this very difficult and complex case. However, because I would

affirm the order of the trial court, I dissent and offer the following analysis.

*Retired Senior Judge assigned to the Superior Court. J-A08005-16 J-A08006-16

I. Mother’s Appeal

A. Communication With Children

With respect to Mother, the trial court determined that she would be

permitted to write Children one letter each week, and that letter would be

reviewed by Attorney Kane Brown before being forwarded to Children.

Furthermore, the trial court denied Mother the ability to have weekly phone

contact with Children. The Majority, in disagreeing with the trial court,

concludes that Mother’s argument that she has a constitutional right to visit

her daughter (see Mother’s Brief at 14-17) is actually an argument

challenging the trial court’s consideration of the custody factors as related to

her. The Majority goes on to conclude that the trial court analyzed these

factors incorrectly.

At the outset, the issues addressed by the Majority are not presented

either in Mother’s concise statement or her brief on appeal. 1 It is well-

settled that “[i]ssues not included in the Statement and/or not raised in

accordance with the provisions of [Pa.R.A.P. 1925](b)(4) are waived.”

Pa.R.A.P. 1925(b)(4)(vii). Moreover, “[i]ssues not properly developed or

argued in the argument section of an appellate brief are waived.” Kituskie

1 See Majority at 16 (“While Mother’s argument is artless, it highlights a significant flaw in the trial court’s decision to deny her request for visitation….”); Majority at 21 (“[O]ur resolution of Mother’s remaining complaint, which is a tangent of her request for visitation, will assist the trial court’s visitation determination.”).

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v. Corbman, 682 A.2d 378, 383 (Pa. Super. 1996). Accordingly, the

Majority erred in conducting such a sua sponte analysis, and I would affirm

the trial court’s order as to Mother on the basis that she has not raised any

issue on appeal that warrants relief.

B. Role of Attorney Kane Brown

I also disagree with some of the Majority’s comments concerning to

the role of Attorney Kane Brown. See Majority at 25-28. I find that neither

Mother nor Grandfather raised any issue regarding Attorney Kane Brown

within his or her Concise Statement of Matters Complained Of. Thus, such

issues are waived.

II. Grandfather’s Appeal

A. Preservation of Issues

I disagree with the Majority’s decision to address sua sponte issues

raised on appeal that were not included in Grandfather’s concise statement.

In his concise statement, Grandfather’s issues A and D relate only to relief

requested by Mother. Grandfather does not have standing to seek relief

from the trial court on these issues; therefore the trial court and this Court

need not address those. With respect to Grandfather’s other two issues, B

alleges the trial court applied a “fact not in evidence” but does not state

what that fact was. Concise Statement, 9/17/2015, at ¶ 2. Issue C is

Grandfather’s argument that the trial court erred in finding the contentious

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relationship between M.G. and Grandfather was due to M.G.’s behavior, not

Grandfather’s. Id.

Compare the abovementioned issues with the four set forth in

Grandfather’s brief: 1) whether the evidence was sufficient to terminate

Grandfather’s partial custody; 2) whether the trial court erred in considering

the child advocate’s opinions in reaching its conclusions; 3) whether the trial

court erred by being concerned about future harm to M.G.D.; and 4)

whether the trial court erred in removing Grandfather from M.G.D.’s life.

The Majority concludes that Grandfather’s second and third issues on

appeal are included in his concise statement. Majority at 30.2 My review of

the concise statement and Grandfather’s issues on appeal reveals that

Grandfather has not presented any issue in his concise statement that he

included in his brief.

“This Court explained in Riley v. Foley, 783 A.2d 807, 813 (Pa.

Super. 2001), that Rule 1925 is a crucial component of the appellate process

because it allows the trial court to identify and focus on those issues the

parties plan to raise on appeal.” Kanter v. Epstein, 866 A.2d 394, 400 (Pa.

Super. 2004). Here, the Majority reaches a number of conclusions, and

reverses the trial court order, based on arguments the trial court never had

2 M.G. argues that these issues are not included in his concise statement. M.G.’s Brief at 5 n.2.

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the chance to consider. Accordingly, because Grandfather has not preserved

any issue presented on appeal, I would affirm the order of the trial court.

B. Majority’s Conclusions

Instantly, the Majority offers numerous reasons for reversing the trial

court’s order and its reasoning for doing so ignores the proper scope of

review. The reasons cited by the Majority include: 1) the Majority disagrees

with the trial court’s finding of fact that Grandfather tried to “pump M.G.D.

for information” to influence M.G.D.’s testimony in the criminal case.

Majority at 36. The Majority also disagrees with the trial court’s finding of

fact about Grandfather’s discussing of the shooting with M.G.D. and

permitting Mother to talk to M.G.D. via telephone. Id. at 37. In addition,

the Majority concludes that “E.G.D. posed a risk to M.G.D.’s safety and that

Grandfather’s concerns were warranted” (Majority at 40) in direct

contravention to the trial court’s finding that Children “have a typical,

healthy sibling relationship.” Trial Court Order, 8/19/2015, at 4. We

consider these issues mindful of the following.

“While it is our duty to examine the evidence in custody cases, we are

not free to nullify the fact-finding function of the hearing judge, who can

best determine the credibility and the weight to be given to the testimony of

the witnesses who appear before him[.]” Commonwealth ex rel.

Swanson v. Barry, 184 A.2d 370, 373 (Pa. Super. 1962); see also, Johns

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v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004) (“[W]ith regard to issues of

credibility and weight of the evidence, this Court must defer to the trial

judge who presided over the proceedings and thus viewed the witnesses first

hand.”). In addition, “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.” Jackson v. Beck, 858 A.2d 1250, 1254

(Pa. Super. 2004).

For example, with respect to the relationship between M.G.D. and

E.G.D., the trial court heard from two experts: Dr. Norford, who has treated

E.G.D., and Dr. Schwarz, who has treated M.G.D. After hearing the

testimony from both doctors, the trial court found that Children “have a

typical, healthy sibling relationship.” Trial Court Order, 8/19/2015, at 4. In

doing so, it is evident that the trial court credited the testimony of E.G.D’s

doctor, Dr. Norford. However, the Majority re-weighs the testimony of the

two doctors and reaches the opposite conclusion. Such conduct is beyond

this Court’s scope of review.

For the foregoing reasons, I would affirm the trial court’s orders.

Accordingly, I dissent.

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