C.B. v. J.B.

• Decision Date: 22 April 2013
• Citation: 65 A.3d 946,2013 PA Super 92
• Parties: C.B., Appellant v. J.B. and M.B. and T.B., Appellees.
• Court: Pennsylvania Superior Court

65 A.3d 946

2013 PA Super 92

C.B., Appellant

v.J.B. and M.B. and T.B., Appellees.

Superior Court of Pennsylvania.

Argued Aug. 21, 2012.

Filed April 22, 2013.

Bradley G. Olson, Jr., New Castle, for Appellant.

Shawn B. Olson, Hermitage, for J.B., Appellee.

BEFORE: MUSMANNO, J., BOWES, J., and WECHT, J.

OPINION BY WECHT, J.

In this appeal, we are called upon squarely to determine the point in time at which a trial court must specify the reasons for its decision in a child custody case. We address this question under the “new” Child Custody Act (“the Act”), which our General Assembly enacted in November 2010, and which took effect in January 2011.¹

In this case, C.B. (“Aunt”) appeals the custody order entered on October 24, 2011. That order awarded primary physical custody of G.B. (born December 2004) and K.B. (born November 2003) to their paternal uncle, J.B. (“Uncle”), from whom Aunt is separated. To decide this appeal, we must address the timing of the trial court's application of the sixteen custody factors delineated in the Act.

We hold today that the Act requires a trial court to address each of these factors prior to the deadline by which a litigant must file a notice of appeal, and preferably at the time the custody order is issued or shortly thereafter. We apply this holding prospectively, as the trial court here was not bound to anticipate this construction of the Act.

As we explain below, because Aunt was not prejudiced by the timing of the court's attempt to comply with the terms of the Act in this case, we affirm.

On May 15, 2007, following juvenile dependency proceedings, the trial court appointed Aunt and Uncle as permanent legal guardians of G.B. and K.B. The court's order provided the birth parents, M.B. and T.B. (“Birth Parents”), ² two hours of visitationper month, plus portions of certain holidays. The court expressed a goal of increasing Birth Parents' contact with G.B. and K.B., provided that the contact was in G.B.'s and K.B.'s best interests.

Aunt and Uncle separated in December 2010. Uncle departed the marital residence with G.B. and K.B. in order to reside with his paramour. Thereafter, on January 14, 2011, Aunt filed a complaint seeking primary physical custody of the children. Following several preliminary custody proceedings, including Uncle's petitions for special relief and for relocation with the children, Aunt's substance abuse evaluations, and court-ordered child custody evaluations, the trial judge held a two-day custody hearing on October 21 and 24, 2011. While only Aunt, Uncle, and Birth Parents testified during that hearing, the court incorporated testimony presented by other witnesses during the prior proceedings. At the close of the custody hearing, the trial court entered the above-referenced order, which awarded Uncle primary physical custody of G.B. and K.B., and granted Aunt periods of partial custody.

Prior to rendering its decision, the trial court articulated on the record two of the reasons for its decision, pursuant to 23 Pa.C.S. § 5323(d). The trial court further stated that it had considered all of the statutory factors enumerated in section 5328(a) in order to determine the children's best interests. The trial court did not address each of those factors on the record at that time.

Aunt filed a timely notice of appeal and a concomitant statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response, the trial court filed a Pa.R.A.P. 1925(a) opinion, along with extensive findings of fact and conclusions of law that expounded in detail upon the court's reasoning and analyzed at length the Act's sixteen statutory factors.

Aunt presents the following questions for our review:

1. Whether the trial court abused its discretion and committed reversible error in failing to consider all factors set forth in 23 Pa.C.S. § 5328 before entering the October 24, 2011, Custody Order?

2. Whether the trial court abused its discretion by providing [Uncle] with a preferred status for custody because of his biological relationship to the minor children?

3. Whether the trial court abused its discretion and committed reversible error by drawing improper and unfounded inferences from [Aunt's] nationality and perceived communication barriers and potential educational setbacks resulting therefrom?

Aunt's Brief, at ii.

At the outset, we observe that, although Aunt filed her custody complaint on January 14, 2011, the Act applies to this case, inasmuch as the ensuing custody proceedings occurred after January 24, 2011, the effective date of that new law. C.R.F., III v. S.E.F., 45 A.3d 441, 445 (Pa.Super.2012) ( “[I]t is the date of the commencement of the hearing that determines whether the Act applies, not the date the petition or complaint was filed.”).

In the Act, our General Assembly identified sixteen factors that trial courts must consider in determining the best interests of a child at the time that custody is awarded. Those factors are as follows:

(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.

(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.

(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.

The trial court addressed these statutory factors at two separate junctures in this case. First, the court made the following pronouncement on the record:

Two of the key factors for me is [ sic ] one is the blood relationship, and two is I don't believe Lawrence County would have been looking to the family absent that kinship relationship. But once it did, of course, that kicked in the right of [Aunt], because of her years of helping to take care of the kids, it kicked in custody rights in her. I also think that the language barrier has some play in it as a difficulty, as well as all the other factors and information that we have received over three or four days of hearings.

N.T., 10/24/11, at 23. The court continued: “So I have considered all of the factors that are listed in the new custody statute now, and I believe it is in the best interest that [Uncle] have primary.” Id. Ultimately, the trial court provided a comprehensive discussion and analysis of each of the factors in its Pa.R.A.P. 1925(a) opinion and in its findings of fact and conclusions of law.

In her first issue, Aunt essentially challenges what she perceives as the trial court's disjointed consideration of the sixteen statutory factors. Aunt maintains that the trial court must do more than merely state that it considered those factors. Aunt argues that, in order to afford litigants an adequate opportunity to challenge a trial court's rationale on appeal, a trial court must address each of the sixteen factors at some point before a notice of appeal must be filed. For the reasons that follow, we agree. However, we do not find that Aunt is entitled to relief in this case.

In cases involving statutory interpretation, our standard of review is well-settled:

[T]he interpretation and application of a statute is a question of law that compels plenary review to determine whether the court committed an error of law. As with all questions of law, the appellate standard of review is de novo and the appellate scope of review is plenary.

In re Adoption of J.A.S., 939 A.2d 403, 405 (Pa.Super.2007) (citations omitted).

In interpreting a statute:

[We] are constrained by the rules of statutory interpretation, particularly as found in the Statutory Construction Act. 1 Pa.C.S.A. §§ 1501–1991. The goal in interpreting any statute is to ascertain and effectuate the intention of the General Assembly. Our Supreme Court has stated that the plain language of a statute is in general the best indication of the legislative intent that gave rise to the statute. When the language is clear, explicit, and free from any ambiguity, we discern intent from the language alone, and not from the arguments based on legislative history or “spirit” of the statute. We must construe words and phrases in the statute according to their common and approved usage. We also must construe a statute in such a way as to give effect to all its provisions, if possible, thereby avoiding the need to label any provision as mere surplusage.

Under Section 1921(c), the court resorts to considerations of “purpose” and “object” of the legislature when the words of a statute are not...