Jordan v. Jackson

• Decision Date: 02 June 2005
• Citation: 2005 PA Super 208,876 A.2d 443
• Parties: Janey JORDAN, v. Betty Jean and Carlton JACKSON, Appellants v. W.H.
• Court: Pennsylvania Superior Court

876 A.2d 443

2005 PA Super 208

Janey JORDAN, v. Betty Jean and Carlton JACKSON, Appellants v. W.H.

Superior Court of Pennsylvania.

Argued January 13, 2005.

Filed June 2, 2005.

Andrew D. Glasgow, Pittsburgh, for appellants.

Janey Jordan, appellee, Pro Se.

Before: FORD ELLIOTT, ORIE MELVIN and TAMILIA, JJ.

OPINION BY TAMILIA, J.:

¶ 1 Betty Jean and Carlton Jackson, paternal grandmother and step-grandfather, respectively,¹ of W.H., Jr., born January 1, 1998, appeal from the June 8, 2004 Order modifying the April 15, 2003 shared custody Order, and awarding mother Janey Jordan primary physical custody of the child, and "substantial partial custody" to grandparents. Record # 27, Trial Court Order, 6/8/04, Mulligan, J., at 1.

¶ 2 The record reveals the following factual and procedural history. Mother was never married to the now-deceased father of W.H., Jr. She has six children to three different fathers. N.T., 6/1/04, at 12. The four oldest children live with their father. Id., at 12-15. Mother's next oldest child, K.Y., born April 2, 1996, although not related to grandparents, lived with them from the time he was 19 months old, i.e., early 1998, until he was six and one-half years old, i.e., late 2002. Mother has since regained custody of K.Y. Id., at 63-64. At issue in the underlying action, is mother's petition in which she sought primary custody of W.H., Jr. the youngest of her six children.

¶ 3 According to grandfather, mother asked grandparents to take the child while she was still at the hospital just days after the child's birth in January 1998. N.T., 52-55. Grandparents say W.H., Jr. lived with them from the time he was four days old. Mother disputes this. Id. The court however, found that grandparents undoubtedly had cared for the child for some time before mother's incarceration. Trial Court Opinion, Mulligan, J., 8/17/04, at 3.

¶ 4 In March 1999, grandmother obtained a Protection from Abuse Order against the child's now-deceased father (grandmother's son). The court granted custody of W.H., Jr. to grandmother as part of that Order. Record # 2, Trial Court Order, Ridge, J., 3/5/99, para. 6.

¶ 5 Mother has an extensive criminal history which includes, inter alia, robbery, theft, assault, criminal conspiracy, prostitution, and possession with intent to deliver a controlled substance. N.T., at 16-17. She was arrested at some point in 2000 and was sentenced to ten years in prison for delivery of a controlled substance. She spent only approximately one year in jail and was released for parole on March 11, 2002. Id., at 21. At that time she was released to an intermediate program, and was ultimately released in June 2002. Id., at 25-26. It is undisputed that the child lived with grandparents while mother was in jail. Id., at 5, 20, 55. In fact, the record is clear that during this period of time both K.Y. and W.H., Jr. lived with appellants.

¶ 6 On March 7, 2002, a few days prior to mother's release from jail, grandparents filed a complaint for confirmation of custody. Record # 3. The court entered an Order that same day granting confirmation of primary custody of the child to grandparents. Record # 3, Trial Court Order, Kaplan, J., 3/7/02.

¶ 7 On August 22, 2002, mother filed a complaint for primary custody of the child. Record # 5. The complaint was denied because it was contested, but the court granted mother partial custody "as grandparents agree." Record # 5, Trial Court Order, 8/22/02, Eaton, J.

¶ 8 The parties completed the Generations program and were scheduled for conciliation, but the parties failed to reach an agreement. Record # 8, 9. A hearing, therefore, was scheduled on mother's petition. Record # 10. Ultimately, the court entered an April 15, 2003 Order granting shared custody of both W.H., Jr. and K.Y. Record # 13, Trial Court Order, Mulligan, J., 4/15/03.

¶ 9 On September 18, 2003, mother filed a petition for modification of the April 15, 2003 custody Order, seeking primary custody of W.H., Jr. Record # 16. Among her reasons for requesting the change were that alternating weekdays were difficult with the child in first grade; she wasn't receiving custody on alternating weekends as the court had ordered; and, the child was not developing appropriately. Id.

¶ 10 The court ordered that home evaluations be prepared for both parties, and scheduled a June 1, 2004 hearing on mother's petition. Record # 20, 23. Following the hearing, the court entered the June 8, 2004 Order from which appellants filed this appeal. In that Order, the court granted mother primary custody, but awarded "substantial partial custody" to grandparents. Record # 27, Trial Court Order, 6/8/04, Mulligan, J., at 1. The award of primary custody to mother was contingent upon mother authorizing New Foundations Supportive Housing Authority Program² and Wilkinsburg Family Support Center, two programs with which she is involved, to contact Children and Youth Services (CYS) of any indications of mother relapsing into criminal activity. Id., at 1-2. The court also ordered that grandparents could, at their own expense, obtain random blood tests of mother to ensure she is drug-free. Id., at 2.

¶ 11 In its Opinion filed pursuant to Pa.R.A.P.1925, the court explained its reasoning for its decision. It recognized that it must determine what is in the best interests of the child, and also recognized that as to third parties, parents have a "prima facie right to custody" which will be forfeited only if "convincing reasons" appear that the child's best interest will be served by an award of custody to the third party. Trial Court Opinion, at 5-6, citing Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255, 1258 (2000)

. The court found there was insufficient evidence to "tip the scales in the direction of grandparents." Trial Court Opinion, at 6. The court also recognized the preference of the law in this state of keeping siblings together where possible. Id., citing Albright v. Fetters, 491 Pa. 320, 421 A.2d 157 (1980).

¶ 12 Grandparents filed this timely appeal in which they raise the following questions:

I. Whether the Lower Court abused it discretion by granting primary custody of the child to Jordan/mother.

II. Whether Jordan/mother failed to meet her burden of proof as a moving party in a custody modification proceeding.

III. Whether the Lower Court was serving the role of the Court.

IV. Whether the Lower Court should have required Jordan/mother to provide medical or psychological evidence.

V. Whether the Lower Court gave adequate weight to the status quo.

VI. Whether the Lower Court should not have permitted two of Jordan's/mother's witnesses to testify.

Appellants' brief at 4.³ We address these issues seriatim. ¶ 13 We apply a well-settled standard to our review of child custody cases.

On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

"Further, on the issues of credibility and weight of the evidence, we defer to the findings of the trial judge." Additionally, "appellate interference is allowed only where it is found that the custody order is manifestly unreasonable as shown by the evidence of record."

Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super.2004) (citations omitted).

¶ 14 It is axiomatic that the paramount concern in a child custody case is the best interest of the child, based upon a consideration of all factors that legitimately affect the child's physical, intellectual, moral, and spiritual well-being. See id. In the case of a custody challenge by a third party,⁴ however, this analysis is "weighted." See K.B. v. C.B.F., 833 A.2d 767, 776 (Pa.Super.2003)

.⁵

In a custody contest between two biological parents, "the burden of proof is shared equally by the contestants...." Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, "the parents have a `prima facie right to custody,' which will be forfeited only if `convincing reasons' appear that the child's best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents' side."

Id., at 771, citing Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000)

.⁶ "What the judge must do, therefore, is first, hear all evidence relevant to the child's best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party's side." McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa.Super.2000),

appeal denied, 566 Pa. 665, 782 A.2d 547 (2001), citing, Ellerbe v. Hooks, 490 Pa. 363, 367-368, 416 A.2d 512, 513-514 (1980). These principles "do not preclude an award of custody to the non-parent. Rather, they simply instruct the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent's burden is heavy." McDonel, at 1107, citing, Ellerbe, at 368, 416 A.2d at 514.⁷

¶ 15 Appellants' first argument is that the court erred in that the child's best interests are served by continued shared custody between the parties and not by primary custody in mother. Cognizant of the applicable scope and standard of review, and the above principles of law, we have conducted a thorough review of the court's findings in this regard.

¶ 16 We initially express our disagreement with the...