Hamski v. Jones

1

SEAN J. HAMSKI v. ASHLEY M. JONES

MAUREEN M. WHITE v. ASHLEY M. JONES AND SEAN J. HAMSKI

APPEAL OF: ASHLEY M. JONES

No. 436 EDA 2023

J-S30001-23

Superior Court of Pennsylvania

November 8, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered January 25, 2023 In the Court of Common Pleas of Philadelphia County Family Court Division at No(s): 0C0700119, XC0700119

BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM

BENDER, P.J.E.

Ashley M. Jones ("Mother") appeals, pro se, from the order dated and entered January 25, 2023, awarding sole legal and primary physical custody of her sons, Ni.M.H, born in December 2006, and Na.M.H., born in November 2009 (collectively, "Children"), to Maureen M. White ("Paternal Grandmother"). The order awarded Mother partial physical custody as agreed and arranged with Paternal Grandmother and at the Children's discretion.^[1] In so awarding, the order overruled Mother's preliminary objections and found that Paternal Grandmother has standing as a party in loco parentis to the Children pursuant to 23 Pa.C.S. § 5324(2). After review, we affirm.

The trial court aptly recounted the factual and procedural history in its order as follows:

This case has a long docket history and these [C]hildren have spent most of their childhoods in court proceedings in both Dependency and Domestic Relations Court. Between 2007 and 2016, there were multiple court filings each year and each of the parents had periods of supervised custody over the years as they each struggled with domestic violence, abuse and neglect allegations, and substance use disorders. The Children were previously adjudicated dependent on June 22 2016, and placed in the care of Paternal Grandmother as neither parent was determined to be fit to care for them at that time. The Children were then placed into the primary custody of Father by order of March 15, 2017, and the dependency case was closed.

On February 5, 2019, Father was awarded primary physical custody and Mother was awarded partial physical custody, and Mother and Father shared physical custody during the summer. However, less than two months later, on March 27, 2019, Mother's partial physical custody was again ordered to be supervised. Mother filed [a] petition to modify custody shortly thereafter on July 18, 2019.^[2]

In 2019, Father had been living with the Children at [Paternal Grandmother's residence]. Father moved out of the residence at some point in 2019[,] and left the Children in the care of Paternal Grandmother, as he once again struggled with a substance use disorder. Paternal Grandmother then filed for custody on September 2, 2020,^[3] after the Children had been living with her for over a year without Father or Mother present. During that time, Paternal Grandmother was the sole caregiver for the Children, performing all parental duties.

Judge Twardy issued a temporary order on November 22, 2021, awarding Paternal Grandmother sole legal and primary physical custody of [Ni.M.H.], and Mother primary custody of [Na.M.H], separating the two brothers, but without making a determination on standing or ruling on the preliminary objections. This was after he interviewed the Children where [Na.M.H.] expressed he wanted to try to live with his [M]other. The case was not concluded and was continued to another date. Judge Twardy then ended his term in Family Court without the trial being completed.

. . .

On September 6, 2022, parties and counsel appeared for a hearing on Mother's petition to modify custody filed on July 18, 2019, Paternal Grandmother's complaint for custody filed on September 2, 2020, Mother's petition for contempt filed on April 9, 2021,^[4] and preliminary objections filed by Mother on April 28, 2021, on the issue of standing for Paternal Grandmother. The time slot was not sufficient for a full trial. This court interviewed both [C]hildren and provided detailed feedback to the parties and counsel in the hope of providing a resolution in light of the Children's ages and preferences.

Mother initially tried to keep [Na.M.H.] from testifying and did not bring him to court on that date, in violation of the order for him to appear. Mother claimed the child had a mental health crisis and should not be permitted to testify. This court contacted the child by telephone, and he informed the court he did wish to testify. He was then brought to court by another relative and [] informed this judge he wished to be reunited with his brother and Paternal Grandmother as a result of treatment he received by [] Mother's partner and that he did not feel safe or welcomed in that residence.^[5]

Despite the detailed feedback from the interviews of the Children, where both [C]hildren expressed well-reasoned preferences to be in the custody of their [P]aternal [G]randmother, the parties were not able to resolve any issues and this matter was then scheduled for a semi-protracted trial on January 5, 2023, and this court issued a temporary order on the basis of the testimony of the Children.

Order, 1/25/23, at 1-3 (cleaned up); see also Trial Court Opinion, 3/24/23, at 2-9.

The court then conducted a hearing on January 5, 2023. Mother and Paternal Grandmother were each present and represented by counsel, and testified on their own behalf.^[6] The court additionally spoke with both Children, in camera, without counsel present. Notably, the Children, then sixteen and thirteen years old, each acknowledged a tenuous relationship with Mother and indicated their desire to remain with Paternal Grandmother. See N.T., 1/5/23 (Children's sealed testimony), at 1-34.

By order dated and entered January 25, 2023, the trial court granted in part and denied in part Mother's petition to modify and granted Paternal Grandmother's complaint for custody. Specifically, the court awarded Paternal Grandmother sole legal and primary physical custody of the Children. The court further awarded Mother partial physical custody as agreed and arranged with Paternal Grandmother and at the Children's discretion. In so doing, the court overruled Mother's preliminary objections and found that Paternal Grandmother has standing as a party in loco parentis to the Children pursuant to Section 5324(2). Similarly, the court concluded that Paternal Grandmother rebutted the presumption in favor of biological parents under Section 5327(b). The order then proceeded to analyze each custody factor pursuant to Section 5328(a). See Order, 1/25/23, at 4-11.

On February 23, 2023, Mother, pro se, filed a timely notice of appeal, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The court filed its Rule 1925(a) opinion on March 24, 2023.

On appeal, Mother raises the following issues for our review:

1. Whether the trial court erred and/or abused its discretion when it overruled Mother's preliminary objections pursuant [to 23] Pa.C.S. § 5324 and § 5325 averring that Paternal Grandmother lack[ed] standing for any form of custody and its conclusion that Paternal Grandmother stands in loco parentis to [the] Children despite lacking consent of the natural mother.^[7]

2. Whether the trial court erred and/or abused its discretion by denying Mother's petition to modify custody for primary custody against the best interest of the Children, pursuant to 23 Pa.C.S. § 5328(a).

Mother's Brief at 6 (cleaned up; suggested answers omitted).^{[8], [9], [10]} We review custody orders for an abuse of discretion. See R.L. v. M.A., 209 A.3d 391, 395 (Pa. Super. 2019). We will not find such an abuse merely because we would have reached a different conclusion. See id. Rather, an abuse of discretion occurs only if the trial court overrode or misapplied the law in reaching its conclusion, or the record shows the trial court's judgment was manifestly unreasonable or the product of partiality, prejudice, bias, or ill will. See id.

Moreover, our scope of review is broad. See id. Because this Court does not make independent factual determinations, however, we must accept findings of the trial court that are supported by competent evidence of record. See S.C.B. v. J.S.B., 218 A.3d 905, 913 (Pa. Super. 2019). Importantly, we defer to the trial court on matters of credibility and weight of the evidence, as the trial court viewed and assessed witnesses firsthand. See id. We are not, however, bound by the trial court's deductions or inferences. See id.

"Ultimately, the test is whether the trial court's conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court." E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010)). As we stated in King v. King, 889 A.2d 630 (Pa. Super. 2005), "[i]t is not this Court's function to determine whether the trial court reached the 'right' decision; rather, we must consider whether, 'based on the evidence presented, given [sic] due deference to the trial court's weight and credibility determinations,' the trial court erred or abused its discretion…." Id. at 632 (quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)).

With her first issue, Mother contests the trial court's overruling her preliminary objections and finding Paternal Grandmother had standing as a party who stood in loco parentis pursuant to Section 5324(2). See Mother's Brief at 14-16. Mother vehemently denies that she consented to Paternal Grandmother's custody of the Children. She suggests that, in fact, Paternal Grandmother illegally usurped her custodial rights to the Children, and insinuates that Father and Paternal...