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HomeMy WebLinkAbout2006-1743 & 2004-191 Civil LINDA I. PEIFER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW TIMOTHY PEIFER and TARA FINKBONER, Defendants NO. 06-1743 CIVIL TERM * * * * TARA PEIFER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW TIMOTHY PEIFER, Defendant NO. 04-191 CIVIL TERM IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 OLER, 1., September 14, 2005. In this custody case, a mother has appealed to the Superior Court from an order which granted partial physical custody of a four-year-old child to the child's paternal grandmother for nine hours every two weeks. 1 The child's parents separated in February of 2004,2 and in October of 2005 the mother terminated all contact between the child and the father and his family.3 The child's paternal grandmother filed a Petition for Partial Custody and Visitation with respect to her grandchild.4 Following an interesting hearing at which the 1 Notice of Appeal, filed August 8, 2006. 2 NT. 50, Hearing, July 21,2006 (hereinafter NT. ~. 3 NT. 6. 4 Petition for Partial Custody and Visitation, filed March 24,2006. grandmother, father, and mother all appeared pro se, the court entered the following order: AND NOW, this 24th day of July, 2006, upon consideration of the Petition for Partial Custody and Visitation filed by Linda I. Peifer with respect to her granddaughter, Lillian Peifer (d.o.b. April 2, 2002), and following a hearing on July 21, 2006, at which Petitioner, the child's mother, Tara Finkboner, and the child's father, Timothy Peifer, represented themselves, it is ordered and directed as follows: I. The mother shall have legal custody and primary physical custody of the child; 2. The father shall have such periods of temporary or partial physical custody of the child as the parties agree; and 3. Petitioner shall have temporary or partial physical custody of the child on alternating Sundays from 10:00 a.m. until 7:00 p.m. 4. Nothing herein is intended to preclude the parties from deviating from the custodial terms of this order by mutual agreement. 5 From this order, the child's mother filed a counseled appeal to the Pennsylvania Superior Court on August 8, 2006.6 The issues raised on appeal have been expressed in a statement of matters complained of on appeal as follows: I. Whether the trial court abused its discretion in granting partial physical custody to Plaintiff as such right is not in the best interest of the Child. II. Whether the conclusions of the Trial Court were unreasonable in light of the sustainable findings at trial, and the lack of proffered evidence on behalf of the Plaintiff relating to the best interest of the child. III. Whether the Custody Order is manifestly unreasonable as shown by the evidence of record since it grants Plaintiff partial custody without establishing the best interest of the child. IV. Whether each finding of fact is supported by competent evidence. V. The provisions of 23 P A.C.S.A. ~5312 are unconstitutional in that they violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by creating a legislative classification regarding a fundamental 5 Order of Court, July 24, 2006. 6 Notice of Appeal, filed August 8, 2006. 2 right without a compelling governmental interest that justifies this intervention and classification.7 This opinion in support of the order appealed from is written pursuant to Pennsylvania Rule of Civil Procedure 1925( a). STATEMENT OF FACTS Plaintiff IS Linda I. Peifer, a resident of Lemoyne, Cumberland County, Pennsylvania. 8 Defendants are Timothy Peifer, who resides in Harrisburg, Dauphin County, Pennsylvania,9 and Tara Finkboner, who resides in Camp Hill, Cumberland County, Pennsylvania.10 Plaintiff is the paternal grandmother of the subject of this custody proceeding, Lillian Peifer (d.o.b. April I, 2002),11 and Defendants are the parents of the child. 12 In February, 2004, when the child was about two years old, the parents separated. 13 A custody order was entered in that month providing for shared legal custody between the parents, primary physical custody in the mother and partial physical custody in the father on a regular basis at specified times.14 Initially the father and the paternal grandmother were able to maintain contact with the child,15 and the relationship between the paternal grandmother and the child was beneficial to both.16 7 Defendant Tara Finkboner's Concise Statement of Matters Complained of on the Appeal, filed August 24, 2006. 8 NT. 26. 9 NT. 16. 10 NT. 43-44. 11 See Custody Conciliation Summary Report, filed May 19,2006; NT. 3. 12 Decree of Divorce, October 5, 2004, No. 01-191 Civil Term (Cumberland County); see Custody Conciliation Summary Report, filed May 19,2006. 13 NT. 50. 14 Order of Court, February 18, 2004, No. 01-191 Civil Term (Cumberland County). The divorce case in which this order was entered has been consolidated with the more recent custody case at No. 06-1743 Civil Term (Cumberland County). See Order of Court, July 21,2006. 15 NT. 26. 16 NT. 32. 3 The father was less than diligent in exercIsmg his custodial rights,17 and on September 23, 2004, the mother succeeded in obtaining an order by default18 giving her "sole legal and sole physical custody" of the child, with the father to "have periods of partial physical custody as the parties agree.,,19 The following month the parties were divorced,20 and within two months of the divorce, the mother had remarried.21 In October of 2005, the mother abruptly terminated all contact between the child and the father and h. -c .1 22 IS ~amI y. Attempts by Plaintiff, the paternal grandmother, to have contact with the child were ignored or rebuffed by the mother.23 The mother's motivation in this regard was her desire to have the child adopted by her new husband. 24 The mother's attitude and conduct are described in this excerpt from Plaintiff s testimony: THIS WITNESS: I'm here on behalf of my granddaughter, Lillian. I miss her very much. The last time I saw [the child] was the end of October of 2005, and for whatever reasons, her mom has decided that I-or anybody in my family, for that matter-when up to that point we've all had a very loving, happy relationship.25 * * * * . . . I just was told after I tried calling [the mother]-well, the last time I brought Lilly home I even said to her, you know, everything's good. I was going for surgery. I said, I'll get in touch with you, and I tried and tried repeatedly afterwards, and she wouldn't answer the phone. Nobody would answer. Finally I got in touch with-I think it was [the mother's] grandmother that answered the phone because we had missed Christmas. We had Christmas presents. And I was told by her grandmother, don't bother them during the 17NT. 16-17, 19. 18 The father did not attend a custody conciliation conference on the mother's petition to modify the custody order. NT. 21; Order of Court, September 23, 2004, No. 01-191 Civil Term (Cumberland County). 19 Order of Court, September 23,2004, No. 01-191 Civil Term (Cumberland County). 20 Decree of Divorce, October 5,2004, No. 01-191 Civil Term (Cumberland County). 21 NT. 6, 10,20,26. 22 NT. 17. 23 NT. 27. 24 NT. 28, 29. 25 NT. 26. 4 holidays, just leave them alone, and I didn't understand that, but I thought, okay, I'll give that a chance. So I waited, and still didn't get any response until I used a different telephone, and I guess they were caller ID'ing my number, and I spoke with Tara's [the mother's] husband [in January, 2006].26 . . . And I spoke with Brett, Tara's husband, and he said, you've been calling for weeks, and I said, Brett, I've been calling for months. I don't understand what's-what's wrong, you know. And he said, Lilly has a new family now. This is almost word for word because I can recall because I was shocked. Lilly has a new family now. You're not a part of it anymore. You can't see her or talk to her anymore. Get on with your life. And he hung up on me.27 Ultimately, Plaintiff filed the petition for partial custody of her granddaughter which is the subject of this opinion?8 The father of the child is supportive of Plaintiff s attempt regain contact with the child?9 At the hearing on Plaintiff s petition, the mother explained her opposition to it as follows: [In anticipation of a voluntary termination of the father's parental rights,30] we made a decision that it would be much less confusing for her to separate [from the father and his family] . . . ?1 * * * * . . . My husband is the only father that she knows. . . ?2 * * * * . . . I think it's a bad situation for her to be in, to start going to all of these holiday things, to be put around a person that she doesn't even know.33 26 NT. 27. 27 NT. 27-28. 28 Plaintiffs Petition for Partial Custody and Visitation, filed March 24, 2006. The court sua sponte consolidated this action, at No. 06-1743 Civil Term (Cumberland County), with the prior action between the mother and father, at No. 2004-191 Civil Term (Cumberland County). See Order of Court, July 21, 2006. 29 NT. 58. 30 It appears that at one point the father had indicated his intent to acquiesce in the mother's request that he give up his parental rights with respect to the child. NT. 46. However, he changed his mind. NT.18- 19. 31 NT. 46. 32 NT. 47. 33 NT. 47. 5 The mother also indicated that she felt that the father had a drinking problem and that an environment in which he might be present and intoxicated would not be conducive to the child's well-being.34 Plaintiff did not accept the mother's contention that the child did not know the father, pointing out that she had known him when they spoke on the child's birthday in 2005.35 While conceding that the father had "made mistakes,,,36 Plaintiff said that "he has changed, and I admire him for what he's doing. ,,37 The evidence at the hearing indicated that Plaintiff was 63 years old, worked part- time, had graduated from high school, and had completed one year of nursing school. 38 She owned and lived in a four-bedroom house, with her husband, one of their sons, and the son's fiance.39 The father testified that he strongly supported his mother's desire to maintain her relationship with the child.40 By the conclusion of the hearing, the court was satisfied that the child's well-being in an emotional, physical and spiritual sense was not only not being enhanced by the mother's refusal to permit any contact between the child and the paternal side of her family, but was in particular being deleteriously affected by the deprivation of available love and affection from her grandmother. It also appeared clear that modest periods of partial custody in the grandmother would in no way adversely affect the parent-child relationship of either parent. In these proceedings, no issue was raised by any party as to the constitutionality of Section 5312 of the Domestic Relations Code, relating to certain rights of grandparents to 34 NT. 42. 35 NT. 53. 36 NT. 53. 37 NT. 53. 38 NT. 54. 39 NT. 55. 40 NT. 18. 6 partial custody and visitation.41 Nor does the record contain any indication that the Pennsylvania Attorney General was notified of such a challenge as required by Pennsylvania Rule of Civil Procedure 235.42 Following the hearing on Plaintiffs petition for partial custody, the court took the matter under advisement,43 for the purpose of reviewing the state of the law with respect to the rights of grandparents in the area of custody. The order from which the mother has appealed, permitting Plaintiff to have physical custody of her granddaughter for a period of nine hours on Sunday every two weeks, was issued on July 24,2006.44 Petitions for a supersedeas pending disposition of the appeal were filed by the mother in this court45 and in the Superior Court.46 Both were denied.47 Notwithstanding the foregoing, the mother refused to comply with the order, and she has already been adjudicated in contempt of it.48 DISCUSSION Statement of law. Under Section 5312 of the Domestic Relations Code, it IS provided as follows: In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The 41 See Act of October 30, 1985, P.L. 264, 23 Pa. C.S. ~5312. 42 "In any proceeding in a court subject to these rules in which an Act of Assembly is alleged to be unconstitutional. . . and the Commonwealth is not a party, the party raising the question of constitutionality. . . shall promptly give notice thereof by registered mail to the Attorney General of Pennsylvania together with a copy ofthe pleading or other portion ofthe record raising the issue and shall file proof of the giving of the notice." Pa. RC.P. 235 (emphasis added). 43 Order of Court, July 21,2006. 44 Order of Court, July 24, 2006. 45 Application for Supersedeas, filed August 3, 2006. 46 See Order of Court, Superior Court, at No. 1319 MDA 2006, dated August 15,2006. 47 Order of Court, August 8, 2006, No. 06-1743 Civil Term (Cumberland County); Order of Court, Superior Court, at No. 1319 MDA 2006, dated August 15,2006. 48 Order of Court, September 13,2006 (consent order). 7 court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application. Act of October 30,1985, P.L. 264, Sl, 23 Pa. C.S. S5312. "[T]he paramount concern in both custody and visitation cases, including those in which grandparents are seeking rights, is the best interests of the child." Douglas v. Wright, 2002 PA Super. 181, ,-r7, 801 A.2d 586, 591 (citations omitted). Factors to consider in determining the best interests of the child include the child's physical, intellectual, emotional and spiritual well-being. Id A challenge to the constitutionality of Section 5312 of the Domestic Relations Code on the ground that the legislation constituted an umeasonable infringement upon parental rights was rejected by the Pennsylvania Superior Court in Malone v. Stone rook, 2004 P A Super. 48, ,-r7 n.2, 843 A.2d 1278, 1281 n.2: In Troxel [v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000),] the [United States] Supreme Court found the application of a Washington state statute permitting "any person" to petition for visitation impermissibly broad and found that, under the facts of that case, it unconstitutionally infringed on the fundamental right of the parent to make decisions concerning her child. However, the Troxel Court cited with approval statutes comparable to 23 Pa.C.S. ~ 5311 ("When parent deceased"), which do not contain the broad, sweeping language like that in the Washington statute. Moreover, the Troxel Court determined the trial court erred by placing the burden on the parent to disprove that the best interests of the child would be served by granting visitation with grandparents. Here, we emphasize it is the grandparents' burden to demonstrate partial custody or visitation is in the best interest of the children and will not interfere with the parent -child relationship. Id at ,-r7, n.2, 843 A.2d at 1281 n.2. Furthermore, a challenge to the constitutionality of a statute is waived when it is not presented in the first instance to the trial court. See, e.g., Commonwealth v. Warren, 475 Pa. 31, 379 A.2d 561 (1977). In addition, such a challenge is also waived where there has been a failure to notify the Attorney General of the challenge pursuant to Pennsylvania Rule of Civil Procedure 235. Butler v. Rolling Hill Hospital, 382 Pa. Super. 330, 555 A.2d 205 (1989). Application of law to facts. In the present case, the mother of the child in question has attempted, in a custody context, to effect an involuntary termination of parental rights without benefit of an adjudication to that effect. In the process, she has peremptorily 8 deprived the child of available love and affection from Plaintiff, her paternal grandmother, among others. Based upon the findings indicated above that modest periods of partial custody in the grandmother would be in the child's best interest and that these periods would not adversely affect the parent-child relationship of either parent, and pursuant to the authority provided in Section 5312 of the Domestic Relations Code for relief under the domestic circumstances of this case, it is believed that the order from which the mother has appealed to the Superior Court was warranted. The constitutional challenge raised by the mother on appeal to Section 5312 of the Domestic Relations Code was waived by virtue of the failure to raise it in this court and by the failure to notify the Pennsylvania Attorney General of an intent to raise it. On the merits, it is clear that the rights of parenthood are not constitutionally unlimited where a child's family is no longer intact and the statute in question is narrowly circumscribed in terms of standing and applicability. The rationality of the purportedly unconstitutional intervention and classification49 provided for in Section 5312 of the Domestic Relations Code is demonstrated, in the court's view, by the facts of the present case. BY THE COURT, 1. Wesley Oler, Jr., 1. 49 The objectionable "classification" being referred to in Plaintiffs statement of matters complained of on appeal would appear to be grandparents of children of parents who have been separated for at least six months. 9 Mark K. Emery, Esq. 410 North Second Street Harrisburg, P A 17101 Attorney for Plaintiff Linda I. Peifer Joseph D. Caraciolo, Esq. Foreman & Foreman, P. C. 112 Market Street 6th Floor Harrisburg, PA 17101-2015 Attorney for Defendant Tara Finkboner Timothy S. Peifer 335 Market Street Apartment 3A Harrisburg, P A 17101 Defendant, pro Se :rc 10