Worner v. Stone

1

THEODORE WORNER AND ADELINA WORNER v. LAUREN N. STONE Appellant

No. 2260 EDA 2023

No. J-A01019-24

Superior Court of Pennsylvania

February 2, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered August 23, 2023 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s) XC2200813

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and COLINS J.^[*]

MEMORANDUM

PANELLA, P.J.E.

Lauren N. Stone ("Mother") appeals from the order filed in the Philadelphia County Court of Common Pleas that denied her exceptions and granted Theodore Worner and Adelina Worner ("Paternal Grandparents"), partial physical custody of their granddaughter, G.W. (d.o.b. 11/2018). We affirm.

Mother and G.W.'s father, Joey Worner ("Father"), separated in 2021, and Father subsequently died in March 2022. On November 28, 2022, Paternal Grandparents filed a Complaint for partial custody of G.W. pursuant to section 5325(1) of the Grandparents' Custody Act, which provides, in pertinent part, that "grandparents and great-grandparents may file an action … for partial physical custody or supervised physical custody … where the parent of the child is deceased[.]" 23 Pa.C.S.A. § 5325(1). The Custody Hearing Officer held a two-day hearing on the Complaint on February 1, 2023 and March 6, 2023, at which the following relevant facts were adduced.

Prior to June 2021, G.W. shared a close relationship with Paternal Grandparents and spent a significant amount of time with them. In 2019, Paternal Grandparents shared childcare responsibilities with Lisa Stone ("Maternal Grandmother") when Mother returned to work. See N.T. Hearing, 2/01/23, at 20. In September 2020, Paternal Grandparents assumed full-time care of G.W. on Tuesdays through Fridays. See id. at 18-21, 61-62; N.T. Hearing, 3/06/23, at 56. Paternal Grandparents introduced videos into evidence that showed how happy G.W. was in their care. See N.T. Hearing, 2/01/23, at 22-26.

In June 2021, G.W. suffered an elbow dislocation while at Paternal Grandparents' home. Paternal Grandmother explained that G.W. forcefully pulled away while she was changing her, almost falling off the table. See id. at 49-50. In an effort to avoid the fall, Paternal Grandmother caught G.W.'s elbow, causing it to come out of its socket, a condition called, "nursemaid's elbow." Id. at 50; see id. at 51-52, 100. Paternal Grandfather contacted Mother, who immediately took G.W. to the hospital, where staff easily put her elbow back in its socket. G.W. did not require x-rays or follow-up care, has no long-term injury, and neither hospital staff nor Mother or Father contacted DHS about the incident. See id. at 108.

Soon after the incident, Paternal Grandfather texted Mother to check on G.W., and Mother said that G.W. was "feeling fine Just a little sore." N.T. Hearing, 3/06/23, at 81-82, 84. Mother admitted she had experienced nursemaid's elbow as a child herself and it "wasn't a big deal." N.T. Hearing, 2/01/23, at 57, 68. However, Mother testified that, after the June 2021 incident, Mother and Father decided to no longer have Paternal Grandparents take care of G.W. Id. at 1, 106. This conflicted with text message evidence introduced by Paternal Grandparents that reflected Mother and Father told them that they no longer needed to care for G.W. because she had been on a waiting list to attend a particular daycare and finally had been approved around that time. Mother claimed that they only told Paternal Grandparents this story so as not to hurt their feelings.

Over the years, Father had been in and out of drug rehabilitation facilities for his substance abuse issues. See id. at 77; N.T. Hearing, 3/06/23, at 36. After Mother and Father separated in October 2021, Father lived with Paternal Grandparents who saw G.W. during his periods of custody, which Mother conceded G.W. enjoyed. See N.T. Hearing, 2/01/23, at 59, 65-67. In October 2021, Father even left G.W. alone with Paternal Grandparents for a couple of hours. Id. at 67. In January 2022, Father entered an in-patient rehabilitation program. He was discharged in February 2022, but subsequently died on March 27, 2022. Id. at 63.

After Father's funeral, Mother brought G.W. to Paternal Grandparents' home to pick up a check, which contained donations Paternal Grandmother had requested for G.W. and Mother in lieu of flowers. See id. at 29. Mother also brought G.W. to the home one other time to pick up Father's death certificate so she could apply for social security benefits. See id. at 14-15, 71. After that, Mother "ghosted" Paternal Grandmother and would not let Paternal Grandparents see G.W., including preventing them from having any contact when they dropped off Easter and Halloween gift baskets for her. Id. at 79; see id. at 15, 27-28.

Although Mother and Paternal Grandmother have no relationship anymore and Mother does not communicate with any other members of G.W.'s paternal family, Mother testified that she and Paternal Grandfather text regularly, have a good relationship and that she trusted him to care for G.W. See id. at 84; N.T. Hearing, 3/06/23, at 71. In fact, in July 2021, Mother texted Paternal Grandfather to wish him a happy birthday. See N.T. Hearing, 3/06/23, at 88.

Because the parties did not conclude testimony on February 1^st, the Hearing Officer scheduled a second day to continue the hearing, March 6^th. At the commencement of the March 6^th hearing, Mother mentioned her intent to present the testimony of Maternal Grandmother for the first time. See id. at 7. When asked for a proffer, Mother's counsel explained that Maternal Grandmother would testify about her interactions with Paternal Grandparents, what she witnessed of them and how they treated G.W. and Mother. See id. at 8. Paternal Grandparents' counsel stipulated that Maternal Grandmother's testimony would be negative toward his clients. The Hearing Officer precluded Maternal Grandmother from testifying due to the unfair surprise and the fact that her testimony would be cumulative.

On March 10, 2023, the Hearing Officer entered the Proposed Order and Findings of Custody Hearing Officer. She recommended that Paternal Grandparents have partial physical custody of G.W. for at least four hours, once a month, at a time agreed to by Mother, but if the parties could not agree, custody would be on the third Saturday of each month. The Officer found that G.W. and Paternal Grandparents "enjoyed a significant [and] loving relationship[,] [and that] limited partial custody, overseen by Paternal Grandfather," was not only in the best interest of G.W. but it also addressed any safety concerns of Mother. Proposed Order and Findings of Custody Hearing Officer, 3/10/23, at 4.

Mother timely filed fifteen exceptions to the recommendation, and the trial court held a hearing on them on August 23, 2023. It denied the exceptions and adopted the Proposed Order and Findings. Mother timely appealed and contemporaneously filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). She also filed a motion for stay pending appeal that the court denied.

On appeal, Mother raises one claim for our review in which she argues that the trial court abused its discretion in adopting the Proposed Order and Findings of the Hearing Officer and granting partial physical custody of G.W. to Paternal Grandparents over her objection. See Mother's Brief, at 1. She maintains the court did not apply either the "special weight" to her decision about G.W. that federal law requires under Troxel v. Granville, 530 U.S. 57 (2000), or the "clear and convincing evidence" standard required by Pennsylvania law. See id. In the argument section of her brief, Mother also complains that the Hearing Officer erred when she precluded maternal grandmother from testifying.^[1] See id. at 31.

Our standard of review of these claims is deferential:

Our standard of review over a custody order is for a gross abuse of discretion. Such an abuse of discretion will only be found if the trial court, in reaching its conclusion, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias, or ill-will as shown by the evidence of record.

In reviewing a custody order, 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 trial court 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.

Rogowski v. Kirven, 291 A.3d 50, 60-61 (Pa. Super. 2023) (internal citations, brackets, and quotation marks omitted).

Here, the trial court adopted the Proposed Order and Findings of the Custody Hearing Officer after the parties appeared at a custody conference before her. In such a situation we have explained:

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

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