T.A.D. v. T.O.

• Court: Superior Court of Pennsylvania
• Decided: February 24, 2020
• Docket: 2129 EDA 2019
• Status: Unpublished

Opinion

J-S71031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.A.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : T.O. : : Appellant : : : No. 2129 EDA 2019

Appeal from the Order Entered June 27, 2019 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): Case ID. OC1308438

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 24, 2020

T.O. (“Mother”) appeals from the order modifying custody of M.D.

(“Child”). She argues the court erred when it ordered that T.A.D. (“Caretaker”)

would have partial custody of Child, without placing adequate safeguards, and

when it denied Mother’s petition to modify, which requested sole physical and

legal custody of Child. We affirm.

The trial court set forth the factual and procedural history of this case,

which we adopt and incorporate herein. Trial Court Opinion, filed Sept. 12,

2019, at 2-5. We will provide a brief summary.

Caretaker filed a petition for custody in March 2016. The parties reached

a custody agreement, whereby Mother had primary physical and legal custody

of Child and Caretaker had partial physical custody every other weekend. The

parties agreed to share holidays. In July 2018, Mother filed a petition to modify

custody, seeking sole custody of Child. Mother claimed Caretaker’s nephew J-S71031-19

inappropriately touched Child. Around this time, Mother also moved to

Delaware. In September 2018, Caretaker filed a Petition for Contempt,

claiming Mother refused to comply with the custody order.

In June 2019, following a hearing, the trial court found Mother in

contempt and ordered that Mother would continue to have primary physical

custody of Child and that Caretaker would have partial physical custody every

weekend. The court further ordered Caretaker not to leave Child alone with

her nephew and referred her nephew for evaluation and counseling.

Mother filed a timely notice of appeal, and raises the following issues:

1. Did the trial court err by stating in the June 27, 2019 order that it issued a temporary order?

2. Did the trial court err by ordering partial physical custody for T.A.D. without placing adequate safeguards in place to protect [C]hild?

3. Did the court err by not granting the petition to modify the custody order?

Mother’s Br. at 3.1

Because the June 2019 order addressing both the motion for contempt

and the petition for modification stated it was a “temporary order,” we issued

an order directing Mother to show cause why we should not quash her appeal

as interlocutory. Mother responded that although the order stated it was

“temporary,” there were no further custody hearings scheduled and the order

was final as to custody. The trial court agreed, stating in its Pa.R.A.P. 1925(a)

____________________________________________

1 Caretaker did not file an appellate brief.

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opinion that the order was temporary as to “Caretaker’s petition for contempt

only.” 1925(a) Op. at 6.

We conclude that the order was final and appealable as to custody.

Mother’s substantive issues on appeal relate to the custody aspect of the

order, and by the time the court entered the order, it had completed its

hearings on the custody matter. See G.B. v. M.M.B., 670 A.2d 714, 720

(Pa.Super. 1996) (en banc) (concluding custody order is final if “1) entered

after the court has completed its hearings on the merits; and 2) intended by

the court to constitute a complete resolution of the custody claims pending

between the parties”). We therefore have jurisdiction to address Mother’s

issues.

Mother’s next two issues challenge the custody order entered by the

trial court. When reviewing a custody order, our scope of review is broad and

our standard of review is an abuse of discretion. P.J.P. v. M.M., 185 A.3d

413, 417 (Pa.Super. 2018) (citing V.B. v. J.E.B., 55 A.3d 1193, 1197

(Pa.Super. 2012)). We must accept the trial court’s factual findings and

credibility determinations, so long as the evidence of record supports them.

However, we are not bound by the trial court's deductions or inferences from

that evidence. Id. We will reverse a trial court’s custody order only if, after

giving due deference to a trial court’s credibility determinations, we conclude

that the court committed an error of law or an abuse of discretion. Hanson

v. Hanson, 878 A.2d 127, 129 (Pa.Super. 2005).

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“When a trial court orders a form of custody, the best interest of the

child is paramount.” P.J.P., 185 A.3d at 417 (quoting S.W.D. v. S.A.R., 96

A.3d 396, 400 (Pa.Super. 2014)). A non-exclusive list of factors a court should

consider when awarding custody are set forth at 23 Pa.C.S.A. § 5328(a):

(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.

(2.1) The information set forth in section 5329.1(a) (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.

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(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party's household.

(15) The mental and physical condition of a party or member of a party's household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

Mother contends the court erred in granting Caretaker overnight visits

because Caretaker denied Child was sexually abused. The trial court rejected

this claim, noting that the “order clearly states Child is not to be left alone at

any time with [Caretaker’s nephew] [and] [Caretaker’s nephew] was referred

for evaluation and counseling, if needed.” 1925(a) Op. at 7. The court further

pointed out that “Caretaker and Child have had a relationship since Child’s

birth, and a prior agreed order gave Caretaker partial physical custody.” Id.

at 8. The court thus concluded that Mother had failed to prove that giving

Mother sole legal and sole physical custody was in Child’s best interest. Id.

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Mother’s argument fails. The court considered the alleged sexual abuse,

and put in place safeguards to ensure Child was not left alone with Caretaker’s

nephew.

Mother next contends the court erred in not granting her sole custody

of Child. She claims that the trial court “misplaced its focus,” because it was

not “that Mother is unwilling to foster a relationship between the Child and

Caretaker,” but “[r]ather, it is because the Caretaker is in denial about the

sexual abuse that happened.” Mother’s Br. at 11. She argues that the court

ignored that Caretaker denied the abuse happened and claims the court erred

relying on the lack of criminal prosecution. She further argues that the court

failed to give any weight to Child’s statement that she did not want to see

Caretaker. Mother states that the court abused its discretion in finding Mother

previously lived in Philadelphia, claiming “[i]t is quite common that a litigant

uses an address for court purposes that is not the actual residence.” Id. at

16.

The trial court addressed the custody factors and made factual findings,

which were supported by the record. These findings include:

 “Mother is unwilling, while Caretaker is willing, to foster a relationship

between Child and the other party”;

 Caretaker’s nephew touched Child at the nephew’s home and the

court referred the nephew for evaluation;

 Mother was the primary parent after the June 2017 order, but the

parties both had taken care of Child prior to the termination of their

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relationship in 2013 and Caretaker had primary custody from 2013

to 2014;

 both Mother and Caretaker provide stability and continuity, but

Mother moved to Delaware and ceased contact with Caretaker

without following the appropriate relocation procedure;

 Child expressed a preference not to see Caretaker, but could not

express a reason other than bullying by children and inappropriate

touching by H.D.;

 Mother withheld Child from Caretaker even after the investigation of

the abuse had concluded;

 both parties maintain a loving, stable, consistent, and nurturing

relationship with Child;

 both parties are capable of attending to Child’s needs;

 the parties live one to one and a half hours apart due to Mother’s

unilateral move;

 both parties are available to care for Child; and

 Mother has been unwilling to cooperate with Caretaker since June

2018. 1925(a) Op. at 9-14.

The court concluded that, on balance, “continued contact between Child

and Caretaker was in the best interest of [C]hild on a regular, consistent

bases.” Id. at 15.

After review of Mother’s brief, the trial court record, the relevant case

law, and the opinion by the Honorable Holly J. Ford, we perceive no abuse of

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discretion. We therefore affirm on the basis of the trial court opinion, which

we adopt and incorporate herein. 1925(a) Op. at 10-15.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/24/20

-8- Circulated 02/04/2020 10:29 AM

IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA DOMESTIC RELATIONS DIVISION � - �:.!:::.'l v.::-

T.A.D .. COURT OF COMMON PLEAS. APPELL EE PHILADELPHIA COUNTY. PA

v. IN CUSTODY: OCI308438 .. ,.. .. ,; T.O .. APPELLANT NO. 2129 EDA 2019

OPI�ION

Appellant. T.O. (hereinafter "Mother"), appeals from an order dated June 27.2019 entered

by the Honorable I Iolly J. Ford. After a hearing on June 14, 2019; an interview with the minor

child M.D. (hereinafter "Child") on June 20, 2019, and further communication with Philadelphia

Children's Alliance (hereinafter .. PCA'") and the detective from the Philadelphia Police

Department. Special Victims· Unit (hereinafter "Detective") the trial court entered an order. On

Appellee's, T.A.D. (hereinafter "Caretaker"), petition for contempt Mother was found in willful

contempt of the trial .court order dated June 13, 2017. On Mother's petition to modify custody a prior custody order granting Mother primary physical custody and Caretaker partial physical

custody was maintained with adjustments made to Caretaker's partial physical custody. Instead

of an alternating biweekly custodial arrangement, a shortened weekly custodial arrangement was

put in place to give the child continuity with Caretaker, Instead of alternating between two

overnights and one overnight biweekly. Child will spend one overnight weekly with Caretaker.

Mother and Caretaker were granted shared legal custody.

---------------- ..------------··-·-·--·-··------..·-·---- L Proccdunil Histoi·y (See doclwl)

Mother filed a petition to modify custody on July 26.2018 (This petition is listed incorrectly

on the docket as befog filed by Caretaker), Caretaker filed a petition for contempt on September

5, 2018. The petitions were consolidated and a hearing was held on June 14, 2019. The matter

was held in abeyance for an interview with Child and for the trial court to receive further

information from the PCA and Detective. An order was entered June 27, 2019. This appeal

followed on July 26, 2019.

ll. Facts

By agreement of the patties an order was entered on June ] 3, 20 l7. Mother was to have

primary physical and primary legal custody of Child and Caretaker was to have partial physical

custody of Child every other weekend. Parties were to share certain named 'holidays. (Sec order

dated June 13, 2017). 011 July 26� 2018 Mother filed a petition to modify custody requesting sole

physical and sole legal custody of Child stating it would be in the best interests and safety of

Child. (See Petition to Modify dated July 26, 2018). On September 5, 2018 Caretaker filed a

petition for contempt stating Mother was denying Caretaker· her partial physical custody of

Child. (S�e Petition for Contempt dated September 5, 2018). On ,I une 23, 201 l5 a police Complaint or Incident Rep.on (hereinafter -·Rep.orC) tc.w alleged

indecent assault was made listing complainant as Child and alleged offender as Caretaker's

approximately teuI l O) year-old nephew H.D. The Report stated that Child disclosed to Mother

that H.D. had touched Child's genitals. (See Report dated 6-23-18). No further information wus

provided at the hearing.

The trial court Judge 'contacted Detective to gather further information to determine the best

interests of Child regarding physical custody. Detective elaborated that there had been an ·� !

interview with Child through .PCA, but no charges would be filed because of the respective ages

of the children involved in the alleged 1hcident(H.D.1 the alleged offender, was either nine (9) or

ten (l O) years old and Child (Complainant) was five {5) years old at the time of.the .alleged

incident.), (Per telephone conversation between the trialjudgeand the detective). Mother had

been in contact with PCA and the detective.

The trial court Judge also contactedPCA for further information. The actual PCAvictim"s

services family advocate was not available due to. illness. The advocate' s supervisor indicated

that Child clearly stated that H.D. had touchedher "privates" while Child rs cloths were on and H.D.'s cloths were. off, and that the incident occurred at H.D.'s house in the living room. A Child

Linc report was made for H.D., Child (M.D.) w�s referred to the Children's Advocacy Center of Delaware for follow tip. with the family. (See PCA documents). When the trial court was informed that ELD. had apparently not received a referral for any services, the trial court ordered

that H.D. be referred for evaluation and counseling, if needed, at JJPL Proof of evaluation and

treatment was lo be provided at the next listing. (See order dated June 27� 20 l 9).

Caretaker testified that the allegations were false and the. case was closed, but did notprovide

documentation. (N.T. June 14, 2019; p. 4). Mother stated no one talked to her about the

auegations, and she had nothing "In writing'.' [quot�tions added] that the ailegatio11s vve ro false or

that the case was closed. id. at.p, 5�7. Anadministrative order dated September 4,2018 required

the Department of Human Services (hereinafter nDHS''). to provide the court with any. and all

records regarding the family. (See order dated September 4, 2018). In response to that order the

trial court Judge received a letter dated June 6, 2019 stating that DMS was unable to locate any

records regarding the family. (See letter from City of Philadelphia Law Department dated June 6,

2019).

3 Despite the existenceof an agreed upon court order Mother moved to Delaware.in June M

2018 without complying with any of the applicableprovisions of 23 Pa. C.S. ·§533 7 and

Pa.R.. C.P No. 1915 .17 regarding. relocation as required by the custody order in place at the time

of the ruove. (N.T. June 14, 2019; p. 11). At the time of the trial Child had not seen Caretaker

since June o f2018. id. p, 3-5.

Mother's credibility is also at.issue in this matter. Mother moved to Delaware.around J une of

1.(H 8 with no notice to the court orCaretaker. (N.T. June 14, 20 l 9; p 11). The complaint to the

police was made June 23, 2018 and the Child.interview with PCA was July 5, zo 18. (See Report and PCA documents), Essentially Child stopped seeing Caretaker on a date which coincided with

the time that Mother moved to Delaware. Id at p. 11-14. Additionally, Mother denied ever living

in Philadelphia, yet she filed a complaint for custody in Philadelphia listing three Philadelphia

addresses. id. at p. 12 (See Mother's Complaint filed April 13_, 2016 listing Caretaker as

Mother's partner and Motherand Child Jiving at xxxx West.Berks Street; xxxx Mulberry Street,

and xxxx Ormond Street} In addition, Mother asserted that no one talked to her about the

findings of the investigation concerning the reported indecent assault. (N.T. June l t 2019.; p, 5 ).

Mother asserted no one reached outto her and she felt Caretaker's home was unsafe, Id. at p, 6,

tvtomer tnststen mat no one tauceu to cnnu or rvtotner concerntng tile ttncnng or sarety. ta.

However, when the trial court asked Mother why she did not follow up on the investigation into

the indecent assau It she stated she had nothing in writing. Id: at p. 6-7. Mother confirmed that the

sexual assault unit came out and that. Child had an interview at Children's Crisis Center. id. alp.

8. PCA referred Mother to services for Child. The trial court found it incredible that Mother did

not know the outcome ofthe investigation. Furthermore, the discrepancy in Child's name was

neveraddressed on the record, but a child support case was initiated in 2013 with Father listed as

.........._,, ,, , ... - . ..... ·-·---- --�-.... · �-----�-·----�····�·..- , , . _.. . . . _ . · _ ·-----'-- ----------· --·-·--....---··· ... , __.. , .

"'CII rtl' and child listed as M.D. (See ''CMEM" printout dated 06/03/2013 12:09). The case has always listed Child as I\-1.D. as opposed to M.O until the order by agreement dated June

13, 2017 between the parties. Child's birth certificate was not.provided to the court by either

party. Mother's credibility as to facts and hex credibility in general were seriously at issue at.the

time of the hearing.

Ill. Statement of Errors Complained ?f on Appeal

L The trial court erred by stating in the June 27, 2019 Order that it was issued aTemporary Order. The court made a (hiding of civil contempt against 1111J ollll· The court made decisions regarding.primary and partial physical custody and shared legal custody. There is no next listing. The court ordered that there be a status listing for contempt only.

2. The court erred by ordering _partial physical custody for T.A.D. without placing adequate safeguMds in place to protect child. This fails to protect child.

3. The Court erred by not granting the Petition to Modify the Custody Order of T.0.. ·

4. The Court erred by finding T.O. in willful civil contempt of the court Order dated June B, 2017. T:O's actions were done to protect her child.

5. The Court erred by stating the incorrect last name of the child as Davis. 'f"he -Birth. c.·crtt·tic:..1.tc st_(.1.les the· i"1Ut"t"'-0 {.,�t· the l.!h.ild is "N1 . ..'.''-.0_, .bo_rn 10/29/12.

6. The Court erred by not keeping the address ofT.O. as confidential.

7. this statement may be. supplemented upon receipt of the notes of testimony.

Standard of Review

The standard of review in a child custody matter is abuse of discretion. C.R.F. v. S.E.F.. 45

A.3d 441, 443 (Pa. Super 2012). Findings of the trial court, which are supported by the record,

issues of witness credibility, and weight of the evidence should he deferred to the trial judge, Id.

H_.; •. �............. __,.-,-o•o ,-·-----��,• ,·.--- .......... ---- • .. _,_ ...._," ---------- • • ----·.. -·"·--HrO • • ,•·' • •.. ,•.• ····�·- 0.0 .•• .,,.. ¥ .. ,,.. ._ ,-.-....--�. 0, • - • ' ···-··-·-··----- • •

·-· ---·--------- · ·�

The-conclusions of the trial judge may be rejected if they involve an error oflaw, or are "l �. .,

unreasonable. id. '" ... the discretion that a trial court employs in custody matters should be

accorded the utmost respect, given the. special nature of the proceedingand the lasting impact the

result willhave on the lives of the parties concerned." Jackson v, Beck. 858 A.2d 1250, 1254 (Pa.

Super. 2004}.

IV. A1rnlvsis

L The trial court erred by stating in the June 27, 2019 Order that is was issued a Temporary. Order. The court made a finding of civil. contempt. ·�

against Tyra O'Neil. ·The court made decisions rcgrtrding primary and .

partial physical custodyand shared legal custody. There is no nextlisting, The court ordered that there be a status Us ting for contern pt only.

As a generalrule a temporary order will state the date for the next hearing, or state under what circurnstance/s the petition can be relisted for a hearing, The order was entered as a

temporary order t1W Caretaker's petition for contempt only, and stated that the court would. rclist

the matter for status of contempt only, (See order dated June rt, 2019). Due to issues beyond the

trial court's control. no matter could be relisted at the time of the hearing. (The FirstJudicial

District was dealing with computer program failures. and was unable to schedule new listingsat

the time pf the. hcaring.), Nonetheless the petitions were docketed us resolved by temporary order dated June 2'7, 2019 and no new date was scheduled at that time. The trial court became aware of this error for the first time when it was raised on appeal, and therefore was not able to modify the

order. {42 Pa. C.S. §5505J. Caretaker's petition for contempt filed September 5, 2018 is now

listed for status only on October 24, 2019. Mother was not prejudiced by the language i11 the

order because all of Mother's issues raised on appeal that were not interlocutory have been

addressed by the trial court,

·----------- ··-· --·-- -..-·-· --· -·--· .. ..... -...-·----··----·----------------------------- ____ ,, _, __ - . . .

2; The court erred by ordering partial. physical custody forT.A.D. without placing' adequate safeguards in place to protect child. This fails to protect child.

See number 3 listed below. The trial court order clearly states Child is. notto be left alone at

�11y time with H.D. In addition, H.D. was referred forevaluation arid counseling, if needed; ·at

.JJPL Proof of evaluation and treatment, ifany, was to. be. provided at the next Hstin�. (See order

dated June 27, 20.19).

3. The Court erred by not granting the Petition to Modify the Custody Order err.o. 'The paramouut concern in child custody matters is the best-interest of the child. McMilleirv. McJ\.lilten, 529 Pa. 198-. 202;_ 602 A.2d .845.846 (1992). A custody order maybe modified

without proof of a substantial change in circumstance if the modification is in the best interest of

the child. id, at 202. "A modification of custody in not warranted merely because one parent is

tin happy With the existing arrangement. Th us, we repeatedly have'. emphasized-that a party requesting modification must prove that the alteration of ail existing custody arrangement is 111

the child's best Interest." Jackson v. Beck, 858 A.2d 1250, 1252 (Pa Super. 2004).\Vhen

considering the best interest. of the child the trial court must consider all the relevant factors. Id.

at 1253. ivfothcr Jil�d a petition to modify custody and bore the burden to demonstrate to the trial

court how her requested modification of the current custodial arrangement would be in thebest

interest of the child. Mother . stated she. did not . feel . . Caretaker's . . . . home was safe for Child, (N.T.

June 14, 2019; p. 6; 8). Mother provided the trial court With a Coin plaint or Incident Report from

the. Philadelphia Police Department Id. at p, 9, Mother testified that Child told Mother that H.D. had touched Child inappropriately. Id at p. 8. When the· trial court elaborated, "Okay, if that's

the case then DRS comes out, the sexual assault unit usually comes out and you do Children

: . . . --------.,-.------.,.----- -- ··-------··-·-·-· �----'......... .. .. -----· ... .--·--·-·-·-·------------------------- . ............... Crisis Center-with an interview." Id. at p. 8. Mother confirmed! "Yeah, and all that happened."

Id Mother had no further information about the alleged assault. Caretaker testified that the case

was closed. Id. at p. 4. DHS sent a letter in response to the September 4, 20 ts administrative

order requesting DHS records regarding Child stating D.HS was unable to locate any records

regarding the family.

Mother's petition to modify custody was based solely on the alleged indecent assault. DHS

was unable to locate any records regarding the Child. (See letter from City of Philadelphia Law

Department dated June 6, 2019). Detective stated no charges were filed due to the age of the

alleged offender and the complainant. (Per telephone conversation.between the trial court judge

and the detective). PCA made a.Child.Line report for H.D. and referred Child's family to

Children's Advocacy Center ofDelaware for.follow up with the family. (Per PCA report), The

trial court referred H.D. for evaluation and treatment ifnecessary, and ordered that Child was not

tobe left alone with H'D. at any time.Caretaker and Child.have.had a relationship since Child's

birth, find a prior agreed order gave Caretaker partial physical custody ..Mother failed to prove

that modifying the existingcustody orderto give Mother sole legal and sole physical custody

was in. the best interest of the child. 4. Tile C:oua·t erred by .fin.ulng ·�-.0. In wurnu civil cu1Hcmpt or the <.?ou.rt Order dated June 13, 2017. T.O's actions were clone to protect her child.

The trial court found Mother in contempt of the court order dated June 13. 2017, but did not

impose sanctions. An order of contempt that does not impose sanctions is considered

interlocutory. Genovese v. Genovese, 550 A.2d 1021: l 022 (Pa. Super. 1988). This issue is not

ripe fbr appeal.

--�-...-.· · ·-- '""--� . --·------·------ . -----------·-�----····-.. - , ,·--· . 5. The Court erred by stating the incorrect lasr name of the child as I9I The Birth Certificate states the name of the child is M.A,.0, born 10/29/l:Z.

Child's name is listed in thetrial court record as M.D. (See docket). Two previous orders list

Child's name as M.D., and one previous order list Child's name as Ivl.A.O. (See orders dated

December 1. 2016: September 4� 2018; .Tune 13, 2017). Child was identified as M,D at the

opening of the hearing with no objcctiou from Mother. (N.T . June 14, 2019; p. 2). Mother did

not raise the issue of Child's name at the hearing, and cannot raise the issue for the first time on

appeal. 210 Pa. Code 302. No birth certificate was ever provided to the trial court by either party. 6. The Court erred by riot keeping the address of T.O. as confidcn tial,

The general rule for access to records and information states a party granted sole, or shared

legal custody shall be provided access to the address of the child and any other party. 23 Pa. C.S.

§5336(a)(1 )(Ii). The court shall not order the disclosure of the address of a victim· of abuse. 23

Pa, CS. §5336(b)(1 }. Parties were granted shared legal custody. There was no evidence of

domestic violence presented at the· hearing, andno record of either partyhaving a civil protection

from abuse order against the otherpartyin Pennsylvania. Mother was notentitled to keep her

address confidential.

7. This statement may be supplemented upon receipt of the notes of tcsrtmo ny.

No other errors were submitted to the trial court, In addition, "Issues notincluded in the

Statement and/or not raised in. accordance with the provisions of this paragraph (b)(4) are

waived. 210Pa. Code·*l925(b)(4)(vii).

.-----. •. -·---- _ _..-.

·---·-·-·----·--·-···" A� to the custody portion of the order, a change was made so that Caretaker woukl: see

Child every weekend from Saturday at 10:00 amto Sunday at 5:00pm. The prior order was by

agreement of the patties and gave 'primary physical and legal custody of Child to Mother.

Caretaker had partial physical custody every other weekend from Friday at 7 :30 pm to Sunday al

5:00 pm. and alternating biweekly Saturday at 10:00am to Sunday at 5:00pm. Holidays were to

be shared, and the remainder of the December 16, 2016 order was to remainin effect (See order

.dated June 13, 2017). Child and Caretaker havehad a bend.since birth. The trial court

maintained Caretaker's partialphysical custody, but reconfigured the time to give Caregiver one

consistent night of overnight custody per week. The additional time given to Caregiver will be

addressed at the status listing.

Custody factors are addressed below:

J. Whicl1pc1rly is more likely to encourage and permit frequen! and continuing contac; between the children andanother party.

Caretaker bad been following the agreed upon order dated June 13, 2017. Motherhad

been following the order until she unilaterally moved to Delaware in June of 2018. Shortly

thereafter, Mother made a report to the Philadelphia police that Caretaker's minor nephewl-l.D.

department did not pursue the matter because of the age of H'D, (alleged offender) and Child

(complainant), An interview with Child by PCA resulted in confirmation that H.D. had touched

Child inappropriately. (See PC.A Forensic InterviewSummary). At no time was Caretaker found

to be neglectful or abusive of Child. Id. Caretaker, when informed of the situation, offered to

keepIl.D. completely away from Child, but Mother continued to withhold Child "for the safety

of the child" (N:T. June 14, 2019; p. 6),

-,- � ·...,. ·.·-·-·· _., ,,..�_., -� � ........_ ,-�- ..-------·--�·-·--·-""---· ........,�-.-·-···-···. . When Child was interviewed she was initially confused as· to who the Caretaker was, and

thereafter identified Caretaker as an aunt. (N.T. June 14, 2.019; p. 4-6). Child expressed a desire.

notto see Caretaker, but could not express why. When contact with H:D. was removed from the

.equation, Child seemed to waffle on her desire to see Caretaker. Child testified that she now secs

Mother' s friend Myra 011- the weekends and has not seen Caretaker for a long period of time. ld. at p. 8. It is the trial court's strong impression that Child was hesitant and confused in her

testimony because her Mother had basically 'replaced Caretaker with Myra and had moved

{,vithout the permission ofthe court or following' the relocation statute) ·to Delaware.

When all concerns about }I.D. were lifted, Child'smother was not willing to have

Caretaker have any custody of Child. Mother would not accept any type ofsupervision offered

by the court so that the relationship between Child and Caretaker could continue. Caretaker was

willing to allow Mother to. continue to bave.primaryphysical custody of Chi Id as long as

Caretaker could have partial physical custody. Mother was adamantly opposed to any such

partia] physical custody to Caretaker and did.not follow the prior agreed. upon order or any other

arrangement for partial physical custody to Caretaker. Clearly, Motheris unwilling, while

Caretaker is willing, to foster a relationship. between Child and tlie other party.

2. The present andpast abuse committed. b..v a party ot: member of theparty \,; household; whether there is a continued risk ofharm lo the children or an abused party and which.party can better provide adequate physical safeguards and supervision of the children.

Accordingto thcPCA report H.0. touched Child at H.D/s heme and notat the home of

Caretaker. The allegations were not pursued because of the respective ages ofthe children.

Children were referred to the appropriate 'authorities. (See PCA report). In a plethora of caution.

··-····-········ ·- -----···-..._.. _... ....... _ .. .. ,..._. _._ , . ----. --· -------- .._.. . .. ·-----· �---.-- . ---·--·�------- ·------- _....... .: ...• � ...-- ... ----- and after speaking to PCA,.thc trial court referred H.D. for evaluation at an appropriate agency

(JJPl). No DHS report was created or available to the trial court, (See letter form DHS).

2.1. The irforination setforth in section 5329. lta) (retating to consideration q(child ob use and involvement with protective services).

See numberZ above.

3. Theparental duties performed by each partyon behalfofth« children.

Mother was obviously the primary parent of Child after the agreed upon order of the

panics in 2017. However, until the parties terminated their relationship in 20.13, both parties had

taken care ofChild. Fi-om2013 to 2014 Caretaker had primaryphysical custody of Child. From

2014 to 2016, the parties apparently cared for Chi Id on a week to week has is. (Prior undisputed

Pet] tion for Custody dated March 7� zoi 6}. 4. The need.for stability and continuity in the children 's education .fc,,nily life. and community life.

Both Mother and, Caretaker provide stability and continuity inChild's life. Mother

unilaterally decided to move to Delaware and. uproot Child from her previous life-and continuous

contact. with Caretaker without following the appropriate relocation procedure.

5. The availability of.extendedfamily: .No evidence was presented al trial that was relevant to this Iactor. 6; The children 's sibling relationships.

Mother had no other children. Caretakerhas two other biological children who 'were nm

mentioned by Mother, Caretaker or Child at the hearing ..

. _, ,_ ,, __ , , �_ ·- - -.- , ·------------ 7. Tin: well-reasoned p1:e.f�re11ce of r he children, based on the- children's maturity andjudgment.

'The Child expressed a preference not to see Caretaker, but could not express a reason for

this otherthan the action of bullying byH.D. and other children .and inappropriate touching by

HJ). (N.T. Child's Interview; June 20,.2019; p. 10-13).

& The attempts cf a party to turn the children against the other parent, except in cases ofdomesticviolence where reasonable safetymeasures are necessary to protect the childfi·om hamt:

Motlier withheld Child from Caretaker and continued.to withhold Child regardless ofthe

outcome of PCA and the detective's investigation, The trial court does not believe that Mother

was unaware of the outcome of the investigation. {N.T, June 14, 2019; p, 5-9),

9. Which party is more likely to maintain a loving. stable. consistent outlmmuring relationship with the children culequat« /J:)1· lhe children 's emotional needs.

Both parties can maintain a loving, stable, consistent, and nurturing relationship with

Child adequately for Child's emotional needs. Mother, in withholding Child from Caretaker,

impeded the ability of Caretaker to have a, loving, stable and nurturing relationship with Child.

lO. Which party is more likely to attend lo the daily physical, emotional, developmental, educational. and special needs oft he child.

educational and special needs of Child. Mother has been recognized as the primary parent by the

parties themselves since 2017.

11. The proximity oft he residence of the parties.

The parties now live one (1} to one and one half(i Y:,) hours apart from 011e another

because of'Mother's unilateral decision to move to Delaware; (N.T. June 14, 2019; p. ll ), Both

parties previously lived in Philadelphia, Pennsylvania (despite Mother's assertion that she never

lived in Philadelphia, she listed three different Philadelphia address as places in which she had 13

••• •••• O, O o •O ., -,..,.,,•,.- ...... ,,,•.-.• -•·- ---.•-+H , . ,---· ..,.._ . ·--�····· ,·-·----···--- ·-------�· .-o+··,'"·••• •h ••• •••• •••-n·, < O··- ·• •· <•·"-" '° •••• • " resided). Mother testified that she lived in Glassboro New Jersey prior to the move to Delaware.

1d. nt p. 12. Court records indicate she lived at xxxx Mulberry Street, Philadelphia from August

'.W 17 to July 2018 when Mother moved to Delaware.

12. E.(rtfrparty 's availability to careJbr the children or ability lo make appropriate child-care arrangements.

Both parties are available to care for Child and to make appropriate child-care

arrangements when necessary.

13. The level ofconflict between the parties and the wlllingness and ability of the parties to cooperate with one another. A party 's efforts lo protect a child.fi'om abuse by another . party is no/ evidence ofunwllling11ess . 01· i11c1bil/1y to cooperate

with the party.

The parties cooperated with one another in formulating an agreed upon order in June of

2017. Mother kept Child from Caretaker when a.report of touching by Caretaker's nephew \Vas

investigated. Mother continued to withhold all contact between Child and Caretaker after the

matter W[lS finalized and appropriate safeguards were offered. Mother has been unwilling to

cooperate with Caretaker concerning custody since June2018.

14. The history ofdrug or alcoho! abuse of'a party or member <�f'a party's household.

'flii:,; factor was not relevant to the case at bar. 15. The mental and physical condition of a party or member of a party 's household.

There is no indication in the record that the mental or physical condition of any party or a

member of any party's household was at issue.

l 6, An_1, 01 herfactor.

Ali analysis of the fifteen ( 15) factors above were considered by the trial court. There are no

other relevant factors. The. touching of Child by H.D, was the only factor alleged in Mother's

withholding of Child from Caretaker.

.............................. _ ,.:�,.

After analysis of the factors. the trial court determined that continued contact between Child

and Caretaker was in the best i merest of the child on a regular. consistent bases. Caretaker \\i�ls to

be included in shared legal custody so that Caretaker would be included in decision making for

Child. Appropriate procedures were put in place to protect Child from H.D. and to secure

appropriate treatment for l-LD. (if necessary after evaluation).

V. Conclusion

Mother's petition to modify custody was arguably resolved with an Order. Caretaker's

petition for contempt was temporary and has been relisted. It is respectfully requested that the

trial court's Order dated June 27, 2019 be affirmed in light of the argument and analyses

presented within this Opinion.

Respectfully submittccl,

COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) SEP 1 2 2019

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