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HomeMy WebLinkAbout2006-3161 Civil SELINA COOPER, : IN THE COURT OF COMMON PLEAS OF Plaintiff/Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CIVIL ACTION - LAW : LUZ MARTIR and JASON : HEISEY, : Defendants/Appellees : 06-3161 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Appellant Selina Cooper has filed an appeal to the Superior Court of Pennsylvania 1 following an order denying her petition for partial custody of Lucian Orion Martir. Appellant’s 2 bases of appeal are as follows: 1.)On July 13, 2007, the Trial Court entered an order in the above-captioned matter, holding that Plaintiff stood in loco parentis to Lucian Orion Martir, but denying Plaintiff’s petition for partial custody of the child. 2.)The Trial Court erred as a matter of law by applying the “clear and convincing” evidence standard appropriate to determinations of in loco parentis status and transfer of primary custody to assess whether granting Plaintiff’s request for limited partial custody was in the child’s best interest. 3.)The Trial Court erred as a matter of law by not sufficiently considering a lesser partial custody or visitation schedule than requested by the Plaintiff, despite the Court’s determination that Plaintiff had in loco parentis standing and, therefore, rights and liabilities exactly the same as between parent and child. 4.)The Trial Court erred as a matter of law by considering Plaintiff’s financial situation a significant factor in the Trial Court’s analysis of the child’s best interests when Plaintiff was seeking only partial custody of the child. 5.)The Trial Court erred as a matter of law by admitting into evidence information from Plaintiff’s MySpace web page, which was unreliable hearsay. 1 See Order of Court, June 13, 2007, denying Cooper’s petition for partial custody and awarding full custody to the child’s biological mother, Appellee Luz Martir. 2 See Concise Statement of Matter’s Complained of Pursuant to Pa. R.A.P. 1925(b), filed July 30, 2007. 6.)The Trial Court abused its discretion by basing its deductions and inferences on facts not supported by competent evidence in the record including, but not limited to, the Court’s conclusions regarding biker organizations and conflicts between rival biker groups when there was insufficient information in the record to support those conclusions. 7.)The Trial Court abused its discretion by taking Judicial Notice sua sponte of Plaintiff’s criminal record which included a crime that occurred over ten years prior to the commencement of these proceedings. This Court previously filed a 15 page opinion on June 13, 2007, which deals with the legal issues presented in this case at length. This opinion is filed pursuant to Pa.R.A.P. 1925 (a) to supplement the prior opinion and more specifically address those issues raised in the Plaintiff’s Concise Statement of Matters Complained of on Appeal. STATEMENT OF FACTS A detailed explanation of the facts of this case can be found in the primary opinion filed of record on June 13, 2007, and published in the Cumberland Law Journal on July 13, 2007. DISCUSSION I.This Court Did Not Err in Employing a “Clear and Convincing Evidence” Standard nor Did It Fail to Consider a Lesser Partial Custody Schedule than Suggested As was clear in our primary opinion of this case, Pennsylvania case law dictates that a biological parent possesses a prima facie right to the custody of his or her child. That right cannot be forfeited absent clear and convincing evidence that the transfer of custody is in the best interest of the child. See Jones v. Jones, 884 A.2d 915, 917 (Pa. Super. 2005)(“Once it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person.”)(emphasis added in original); See also Ellerbe v. Hooks, 416 A.2d 512, 514 (Pa. 1980)(“The parties do not start out even; the parents have a ‘prima facie right to custody,’ 2 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 parents' side. 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…Clearly 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.”) Appellant suggests that we erred in applying a high standard to the best interest analysis in light of the request for mere partial custody. However, we are convinced, and the law supports our decision, that the best interest of the child is of primary importance in the determination of any form of custody. See Lawrence v. Bordner, 907 A.2d 1109, 1113 (Pa. Super. 2006)(“Nevertheless, it is well settled, that in any instance in which child custody is determined, the overriding concern of the court must be the best interest and welfare of the child, including the child's physical, intellectual, emotional and spiritual well-being.”) We have found no case law which supports the assertion that the “best interests” evaluation should be held to a lower standard when the petitioner is only requesting partial custody. In fact, we find such an assertion to be counter-intuitive, as it suggests that the best interests of the child are of lesser value merely because the child will be with the petitioner for a lesser period of time. Regardless of this point, after having considered the evidence, we are of the persuasion that we would reach the same conclusion even if the standard were a mere preponderance of the evidence. We therefore remain of the opinion that it is not in the best interest of the child to be in the custody – whether partial or full – of Appellant. 3 Accordingly, because we are convinced that it is harmful to the child’s well-being to be in Appellant’s custody, and because the best interest standard is of paramount importance in our evaluation, we are unapologetic for our conclusion to completely reject Appellant’s request for partial custody in lieu of considering a lesser partial custody or visitation schedule than that requested by Appellant. II.This Court Did Not Err in Its Consideration of Plaintiff’s Financial Situation and Biker Lifestyle After a third party has been deemed to hold in loco parentis status, the presiding judge must hear all evidence relevant to the child's best interest and decide whether the evidence on behalf of the third party is sufficient to award custody. Jacob v. Shultz-Jacob,923 A.2d 473, 477-78 (Pa. Super. 2007). It should be remembered that the evidentiary scale is clearly tipped in the favor of the biological parent. See Ellerbe supra. Clearly, a person’s financial abilities are relevant in a custody determination. Cooper has a history of poor financial management which has previously resulted in evictions and termination of utilities. Appellant essentially argues that these facts are of minor importance as to whether the child’s physical and emotional well-being will be benefited by awarding her partial custody. We do not hesitate in rejecting this argument. Children are expensive commodities; anyone who has the privilege of a having a child will attest to this fact. The care of their person for any period of time requires financial backing. Cooper has not demonstrated that she is capable of providing a safe, functional living environment for the child and accordingly we see no lack of judgment in considering her poor financial history. Beyond Cooper’s financial status, this Court considered in its determination of custody the rough lifestyle and company with whom she chooses to associate. Appellant argues now that we made wrongful assumptions and unfounded deductions on facts not entered into the record – 4 mainly those regarding biker organizations and conflicts associated with rival biker groups. Such an argument is without merit as there is a plethora of evidence on the record which attests to the dangerousness of Cooper’s associations, including, but not limited to, Luz Martir’s testimony and Cooper’s personal and business websites. See Statement of Facts in Original Opinion. While we do not mean to stereotype biker organizations, it was Appellant’s own website that reveled in promoting her own notorious reputation for hard living. Considering the corresponding evidence, we find no abuse of discretion in concluding that the groups with which Cooper associated preferred a dangerous, rough lifestyle. III.This Court Did Not Err by Admitting into Evidence Information from Appellant’s MySpace Web Page Appellant contends that this Court erred in its admittance into evidence of Appellant’s personal MySpace page, as it was unreliable hearsay. We disagree. As is well known, “hearsay” is defined in Pennsylvania as, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Pa. R. E. 801(c). Generally, hearsay is inadmissible into evidence due to its inherent unreliability. Pa. R. E. 802. On the basis of this definition alone, we concede that the documentation may be inadmissible hearsay; however, the rules also provide multiple exceptions to the general rule of inadmissibility and one applies to this case with perfect clarity. We find that Appellant’s personal MySpace page constitutes a party-opponent admission within the definition provided by Pa. R. E. 803. Rule 803(25) permits admission of hearsay into evidence if, “[t]he statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth.” Pa. R. E. 803(25). Selina Cooper has held herself out on her own websites as a rough woman who enjoys living a hard lifestyle. She was clear 5 during testimony that she was in control of the website and that most of the remarks made on it were her own. While she did state that the website was heavily played-up, corresponding testimony and photographic evidence suggest that the images and statements made on the website are exemplary of Appellant’s preferred manner of living. Even if the statements were exaggerated, we reject the argument that the website is inadmissible as the statements made on it (and in the business website) were clearly those created by Appellant herself and she must be held responsible in a custody determination for what she herself has said and how she represents herself to those around her. IV.This Court Did Not Err by Taking Judicial Notice of Appellant’s Prior Criminal Record The Pennsylvania Rules of Evidence permit the finding of judicial notice of adjudicative facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Pa. R. E. 201(a)-(b). In this particular case, we chose to take judicial notice sua sponte of Cooper’s criminal record after finding evidence of her prior history within the pages of Cooper’s websites. Our decision to take judicial notice arose from our concern that Appellant was apparently proud of her past criminal record. Our interest was peaked after seeing a photograph on one of Cooper’s websites of her with newspaper captions superimposed over her face relating to a criminal shooting incident in Cumberland County for which she was convicted. In this community, this crime was considered very serious and caused great public concern. Her very relationship with the natural mother began in a State Correctional Institution while serving her sentence for this crime. We found her flagrant indifference and apparent pride over the incident 6 particularly troublesome. Certainly in a determination of a child’s best interest, we should take into consideration that the third-party seeking partial custody is bragging about her involvement in a drive-by shooting at a high school and posting it proudly for all to see. As Cooper herself boasted publicly about her prior record from this very county, we see no abuse of discretion in considering its reliable, factual significance. CONCLUSION This Court did not abuse its discretion in its consideration of the evidence presented in this case, in its deductions and inferences based upon that evidence, nor in its application of the law to the facts. In light of all the evidence, Selina Cooper has not persuaded this Court that it is in the best interest of the child to be within her partial custody. Accordingly, we denied her petition for partial custody of Lucian Orion Martir and awarded full custody to the biological mother, Luz Martir. By the Court, _____________________ M.L. Ebert Jr., J. Family Law Clinic Counsels for Appellant 45 North Pitt Street Carlisle, PA 17013 Jessica Holst, Esquire Counsel for Appellee MidPenn Legal Services 401 East Louther Street Carlisle, PA 17013 Filed in the Prothonotary’s office 8/16/07. 7