K.B. v. M.F.

247 A.3d 1146

K.B.

v.M.F., Appellant

No. 1799 EDA 2020

Superior Court of Pennsylvania.

Submitted: March 10, 2021

Filed: March 11, 2021

Shannon Lee Muir, Milford, for appellant.

Gene Matthew Molino, Pittston, for appellee.

BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

M.F. ("Mother") appeals the order entered by the Court of Common Pleas of Pike County adopting the hearing officer's report and recommendation that K.B. ("Grandmother") be granted visitation rights to her minor twin grandchildren. After careful review, we vacate and remand.

On July 8, 2019, Grandmother filed a complaint for visitation rights to her two minor twin grandchildren, A.B. and H.B. (collectively, "the Children"), who were twelve years old at that time. The Children were born to Mother and P.B. ("Father"), Grandmother's son, who passed away in August 2011. Grandmother, who lives in Staten Island, New York, was eighty-seven years old when she filed her complaint in 2019. The Children live with Mother in Dingmans Ferry, Pennsylvania.

On September 10, 2019, the trial court entered an order finding that Grandmother had standing under 23 Pa.C.S.A. § 5325(1) to seek visitation or partial physical custody of the Children.¹ Thereafter, the trial court directed the parties to appear at a custody conference before a hearing officer on November 1, 2019.

Near the conclusion of the hearing, Mother requested that the case be held open to allow the Children to testify in camera . Mother's counsel asserted that the hearing officer was required by 23 Pa.C.S.A. § 5328 to consider the "well-reasoned preferences" of the Children, who were nearly thirteen years old at that time. Notes of Testimony (N.T.), 11/1/19, at 102. The hearing officer denied Mother's request.

On March 24, 2020, the hearing officer filed a report and recommendation that Grandmother be granted a two-hour visitation period once a month in a mutually convenient location in Pennsylvania. In reaching this decision, the hearing officer indicated that she considered "the elements of 23 Pa.C.S.A. § 5303," all of the "factors," and the best interest of the Children.² Report and Recommendation, 3/24/20, at 3.

On May 1, 2020, Mother filed exceptions to the hearing officer's report and recommendation, asserting that the "Hearing Officer erred or abused her discretion by failing to take into consideration the well-reasoned preferences of the subject minor children as set forth in 23 Pa.C.S.A. § 5303." Mother's Exceptions, 5/1/20, at 1.

On August 27, 2020, the trial court entered an order denying Mother's exceptions to the hearing officer's report and recommendation. After noting that neither child testified at the custody hearing, the trial court concluded that the hearing officer reviewed "all factors which may affect the well-being and best interests of the children in this specific case based on what was presented." Order, 8/27/20, at 1.

On September 15, 2020, the trial court entered an order adopting the report and recommendation of the hearing officer. The trial court's order also stated that it "hereby corrects the Hearing Officer's citation to 23 Pa.C.S.A. § 5303 to the proper citation of 23 Pa.C.S.A. § 5328." Order, 9/15/20, at 1.

On September 23, 2020, Mother filed a 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).³ On appeal, Mother raises the following issues for our review:

1. Whether the trial court erred in its original Order filed of record on August 27, 2020 denying [Mother's] Exceptions to the Hearing Officer's Report and Recommendation in that the Hearing Officer failed to analyze the proper factors under 23 Pa.C.S.A. Section 5328 and the trial court failed to remand the matter back to the Hearing Officer for consideration of these factors.

2. Whether the trial court erred by issuing a sua sponte Order entered of record on September 15, 2020 correcting the Hearing Officer's citation from 23 Pa.C.S.A. [§] 5303 to the proper citation of 23 Pa.C.S.A. [§] 5328 whereby the Hearing Officer's reference to Section 5303 was not merely a typographical error and the Hearing Officer had actually analyzed the matter using an outdated statute.

3. Whether the trial court erred in its original Order filed of record on August 27, 2020 denying [Mother's] Exceptions to the Hearing Officer's Report and Recommendation in that the Hearing Officer failed to consider the well-reasoned preferences of the children in her recommendation and the Court failed to remand the matter back to the Hearing Officer for this consideration.

4. Whether the trial court erred in its original Order filed of record on August 27, 2020 denying [Mother's] Exceptions to the Hearing Officer's Report and Recommendation in that the Hearing Officer failed to grant Mother's request to hold the matter open to allow the children to be heard, where there was no justification for denying this request as the Hearing Officer had not determined that time was of the essence, and no prejudice would be caused by the delay in scheduling a date and time for the children's testimony.

Mother's Brief at 9 (reordered for ease of review).

Our standard of review is well-established:

In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court's deductions or inferences from its factual findings. 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.

C.R.F. v. S.E.F. , 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted).

In this case, the parties appeared at a custody conference before a hearing officer, and the trial court adopted the report and recommendation of the hearing officer. This Court has discussed a trial court's responsibilities with respect to custody actions that proceed before a hearing officer:

Where ... the parties proceed by agreement before a hearing officer on the issues of standing and partial custody for purposes of visitation, the trial court is required to make an independent review of the record to determine whether the hearing officer's findings and recommendations are appropriate. See generally Pa.R.C.P. 1915.4-1, 1915.4-2. Although advisory, the hearing officer's report and recommendations are given the fullest consideration particularly on the issue of credibility of witnesses, which the trial court is not empowered to second-guess. See generally Neil v. Neil , 731 A.2d 156 (Pa. Super. 1999) (holding that reviewing court may not second-guess hearing officer's credibility determinations).

T.B. v. L.R.M. , 753 A.2d 873, 881-882 (Pa.Super. 2000) (en banc ).⁴

Specifically, Mother claims the trial court abused its discretion in adopting the hearing officer's report and recommendation which did not assess the sixteen custody factors set forth in Section 5328 of the Custody Act. Mother argues that the hearing officer's citation of the previously repealed version of Chapter 53 shows that the hearing officer did not complete the required analysis of the custody factors in Section 5328. As such, Mother claims the trial court had no justification for correcting the hearing officer's citation, which Mother claims was not a clerical error, but reliance on a repealed statute.

More specifically, Mother argues that both the trial court and hearing officer abused their discretion in failing to consider one of the custody factors in particular: the "well-reasoned preference of the [Children], based on the child's maturity and judgment." Mother's Brief, at 20; 23 Pa.C.S.A. § 5328(a)(7). Mother argues that the hearing officer improperly denied her request to delay resolution of Grandmother's petition until the Children could be present to testify in camera . As such, Mother asserts that the trial court should have remanded the case for additional proceedings to allow the children to testify as to their wishes with respect to Grandmother's petition.

Our review is guided by the following principles:

The Child Custody Act provides that grandparents may file an action for partial physical custody or supervised physical custody in certain situations, including where the parent of the child is deceased. 23 Pa.C.S.A. § 5325(1). We have emphasized that the burden is on the grandparents "to demonstrate that partial custody or visitation in their favor is in the child's best interest and will not interfere with the parent-child relationship." Douglas v. Wright , 801 A.2d 586, 590-91 (Pa.Super. 2002). The paramount concern in custody cases, "including those in which grandparents are seeking rights, is the best interests of the child." Id. at 591. "A determination of the best interests of the child is based on consideration of all factors which legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well-being." L.F.F. v. P.R.F. , 828 A.2d 1148, 1152 (Pa.Super. 2003).

D.R.L. v. K.L.C . , 216 A.3d 276, 279 (Pa.Super. 2019).⁵

The Custody Act requires trial courts to consider all of the sixteen best interest factors set forth in Section 5328 in "ordering any form of custody ." 23 Pa.C.S.A. § 5328(a) (emphasis added). Specifically, Section 5328(a) of the Act provides as follows:

§ 5328. Factors to consider when awarding custody

(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

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