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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M.S.                                               IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           v.

A.M.

                           v.

K.C. & L.C., INTERVENORS

APPEAL OF: K.C. & L.C.                               1637 MDA 2014


               Appeal from the Order entered September 10, 2014
                in the Court of Common Pleas of Wyoming County
                       Civil Division, at No(s): 2008-CV-807

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                                FILED MARCH 02, 2015

       K.C. and L.C., (“Intervenors/Parental Grandparents”), appeal from the

order entered on September 10, 2014, awarding A.M. (“Mother”) sole legal

custody and primary physical custody of the minor child, C.M.S. (“Child”)

born     in   August   2007,    and,   following   counseling,   granting   Paternal

Grandparents periods of partial custody on the third weekend of every

month from Friday after school or 4:00 p.m. until Sunday at 4:00 p.m. and

two non-consecutive weeks in the summer. We affirm.

       Mother and J.M.S. (“Father”) are natural parents of Child. See N.T.,

8/17/13, at 34.        Mother resides in Springville, Susquehanna County, with

her fiancé, J.B. See id. at 33, 138. Mother and Father had one other child

together, who was given up for adoption approximately three years ago.
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See id. at 34. The record reveals that Father was not present for any of the

custody hearings or conferences, and has not been allowed any visitation of

Child since September 28, 2012. See id. at 35.

      During Child’s early years, Mother and Father both had a persistent

history of drug and alcohol abuse. As a result, Child primarily resided with

Paternal Grandparents from approximately November 2010 until the trial

court order entered October 8, 2013.

      Specifically, Mother was a heroin addict who began utilizing drugs at

the age of thirteen.     See id. at 48.    Mother was also charged with theft

related offenses in April 2011, and was placed in the Wyoming County Drug

Treatment Court program on April 13, 2011.            See id. at 45-47. She

successfully graduated from the program on May 23, 2013. See id. at 48.

Mother has been sober since February 18, 2012. See id. at 49.

      Mother has attempted to get physical custody of Child since the time

that she entered the Treatment Court program.         See id. at 50.   At first,

Mother was permitted phone contact with Child. Later, Mother’s contact with

Child was expanded to periods of supervised visitation.        See id. at 52.

Following Mother’s relapse in February 2012, Mother’s visits with Child were

suspended.    See id. Shortly thereafter, Mother was once again granted

supervised visitation of Child, and eventually was granted unsupervised,

over-night visitation.    See id. at 52.     At the time of the first hearing,

Paternal Grandparents had primary physical custody of Child, and Mother

had periods of partial physical custody.

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          On October 8, 2013, the trial court awarded Mother sole legal custody

and primary physical custody of Child, and awarded Paternal Grandparents

periods of partial physical custody. Paternal Grandparents timely appealed

the order to this Court, which vacated the matter and remanded the case to

the trial court on May 28, 2014. Mother then filed two Petitions for Special

Relief.

      Mother’s first petition requested that the order entered October 8,

2013, remain status quo following the decision of the Pennsylvania Superior

Court.      The petition was granted on May 28, 2014.           Mother’s second

petitionrequested that Child’s period of partial custody with Paternal

Grandparents be suspended. That petition was also granted. Thereafter, on

August 18, 2014, Paternal Grandparents also filed a Petition for Special

Relief seeking to reinstate their periods of partial custody.

      A hearing was held on the Petitions. On September 10, 2014, the trial

court ordered that the best interests of Child would be served with Mother

having primary physical custody and sole legal custody of Child, and the

Paternal Grandparents having periods of partial custody. This timely appeal

followed.

      Paternal Grandparents raise the following issue for review:

      1. Whether the [l]ower [c]ourt’s ruling in awarding custody to
         the Defendant, [A.M.], was an abuse of discretion, contrary to
         the weight and sufficiency of the evidence, a failure to
         properly and adequately consider the sixteen (16) best
         interest factors and a failure to consider the best interest of
         the minor child at issue?


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Paternal Grandparents’ Brief at 5.

      Initially, we observe that, as the hearing in this matter was held in

August 2014, the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321 to 5340,

is applicable.   See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012)

(holding that, if the custody evidentiary proceeding commences on or after

the effective date of the Act, i.e., January 24, 2011, the provisions of the Act

apply).

      In custody cases, our standard of review is as follows.

      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.

Id. at 443 (citation omitted).

      We have stated:

      [t]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge
      gained by a trial court in observing witnesses in a custody
      proceeding cannot adequately be imparted to an appellate court
      by a printed record.



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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

     In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard.

     Although we are given a broad power of review, we are
     constrained by an abuse of discretion standard when evaluating
     the court’s order. An abuse of discretion is not merely an error
     of judgment, but if the court’s judgment is manifestly
     unreasonable as shown by the evidence of record, discretion is
     abused. An abuse of discretion is also made out where it
     appears from a review of the record that there is no evidence to
     support the court’s findings or that there is a capricious disbelief
     of evidence.

Id. at 18-19 (quotation and citations omitted).

     With any custody case decided under the Act, the paramount concern

is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section

5338 of the Act provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child. See 23 Pa.C.S.A.

§ 5338.   Section 5328(a) of the Act sets forth the sixteen best interest

factors that the trial court must consider. See E.D. v. M.P., 33 A.3d 73, 80-

81, n.2 (Pa. Super. 2011).

     Section 5328 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 consideration to those factors
     which affect the safety of the child, including the following:



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          (1) Which party is more likely to encourage and permit
          frequent and continuing contact between the child and
          another party.

          (2) The present and past abuse committed by a party or
          member of the party’s household, whether there is a
          continued risk of harm to the child or an abused party and
          which party can better provide adequate physical
          safeguards and supervision of the child.

          (3) The parental duties performed by each party on behalf
          of the child.

          (4) The need for stability and continuity in the child’s
          education, family life and community life.

          (5) The availability of extended family.

          (6) The child’s sibling relationships.

          (7) The well-reasoned preference of the child, based on
          the child’s maturity and judgment.

          (8) The attempts of a parent to turn the child against the
          other parent, except in cases of domestic violence where
          reasonable safety measures are necessary to protect the
          child from harm.

          (9) Which party is more likely to maintain a loving, stable,
          consistent and nurturing relationship with the child
          adequate for the child’s emotional needs.

          (10) Which party is more likely to attend to the daily
          physical, emotional, developmental, educational and
          special needs of the child.

          (11) The proximity of the residences of the parties.

          (12) Each party’s availability to care for the child or ability
          to make appropriate child-care arrangements.

          (13) The level of conflict between the parties and the
          willingness and ability of the parties to cooperate with one

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           another. A party’s effort to protect a child from abuse by
           another party is not evidence of unwillingness or inability
           to cooperate with that party.

           (14) The history of drug or alcohol abuse of a party or
           member of a party’s household.

           (15) The mental and physical condition of a party or
           member of a party’s household.

           (16) Any other relevant factor.

23 Pa.C.S.A. § 5328.1

     In applying the Section 5328(a) factors, the trial court found the

following, which we paraphrase, below.

     1. Which party is more likely to encourage and permit frequent
     and continuing contact between Child and the other party.
     Child’s birthday was on August 2, during the time when Paternal
     Grandparents’ periods of custody were suspended. At the time,
     Mother contacted Paternal Grandmother and offered to meet
     Paternal Grandparents at McDonald’s following Child’s soccer
     game so that Paternal Grandparents could see Child for his
     birthday.      Paternal Grandmother refused, and Paternal
     Grandparents did not call Child on his birthday.         Paternal
     Grandfather testified that he declined to visit Child on his
     birthday out of fear of violating trial court’s Order. Paternal
     Grandfather further testified that he contacted his attorney
     concerning visiting with Child on his birthday; however, Paternal
     Grandfather did not file a petition to see Child. Mother noted
     that she filed a Petition for Special Relief to end Paternal
     Grandparents’ periods of visitation because Child’s contact with
     Paternal Grandparents was not healthy. Mother noted that she
     would like to continue Paternal Grandparents’ periods of custody
     as long as Child’s visits with Paternal Grandparents are healthy,
     and if Paternal Grandparents engage in some sort of counseling.


1
   Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services), which is not
applicable to the facts of this case.
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     2. Abuse committed by a party or a member of a party’s
        household. The trial court found no allegations of abuse in
        either Mother’s or Paternal Grandparents’ homes.

     3. The parental duties performed by each party on behalf of
        Child. Evidence revealed that, since Child was a kindergarten
        student and did not have much homework, Mother
        maintained a schedule for Child which included books,
        journals, and reading every night. Mother participated in a
        library program with Child, and Mother has a discipline
        system in place in which, if Child gets fifteen stars, he gets a
        prize, and, if he loses stars, he loses privileges such as toys
        or electronics. The trial court also found that Mother takes
        Child    to    extracurricular   activities,   which    Paternal
        Grandparents refused to do. Mother has taken Child to
        counseling sessions and participated in the sessions. Paternal
        Grandparents have not participated in any counseling
        sessions with Child, but have not been asked to do so by the
        counselors.

     4. The need for stability and continuity in Child’s education,
        family life, and community life. Mother is scheduled to marry
        J.B. on September 13, 2014, and Child is very excited to be a
        part of the ceremony as the ring bearer. Mother has resided
        with J.B. since obtaining primary custody of Child, and Child
        and J.B. have become very close.

     5. The availability of extended family.    Since residing with
        Mother, Child has been able to spend time with his cousin and
        Mother’s fiancé’s family. The families have taken vacations
        together in Ocean City, Maryland.

     6. The Child’s sibling relationships.    The trial court did not
        consider this point since Child does not have any siblings.

     7. The well-reasoned preference of the Child, based on Child’s
        maturity and judgment. The trial court did not conduct an in
        camera interview with Child due to his young age.

     8. The attempts of a parent to turn the Child against the other
        parent, except in cases of domestic violence where the
        reasonable safety measures are necessary to protect the
        Child from harm. Mother testified that Child is aware of the
        custody action, and that she and Child’s therapist have been

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        working with Child to deal with visitation and other problems
        concerning Child’s relationship with Paternal Grandparents.

     9. Which party is more likely to maintain a loving, stable,
        consistent and nurturing relationship with the child adequate
        for the Child’s emotional needs. The trial court found that, at
        this time, Mother is better able to provide Child with a loving,
        stable, consistent and nurturing home.

     10. Which party is more likely to attend to the daily physical,
        emotional, developmental, educational and special needs of
        the child. The trial court found that, since the court’s October
        8, 2013 order, Child has resided primarily with Mother and
        has attended Elk Lake School District. Child has completed
        [k]indergarten and is currently enrolled in the first grade.
        The court found that Child successfully participated in
        extracurricular activities and will continue to do so during the
        current academic year, and that Child attends Sunday School
        with his cousin. Child has problems with bed wetting. Mother
        testified that there is a correlation between bed wetting and
        Child’s return from a weekend with Paternal Grandparents.
        Mother has attempted to discuss the issue with Paternal
        Grandmother, but she denies that bed wetting ever occurred
        during Child’s visits with Paternal Grandparents. Paternal
        Grandfather also testified that bed wetting never occurred
        during Child’s visits with Paternal Grandparents. In addition,
        although Paternal Grandparents did not have legal custody of
        Child, they took Child to Child’s former physician, Dr.
        Goodrich, without Mother’s consent. Paternal Grandparents
        noted that they were worried about Child health, but never
        spoke with Mother concerning the visit or the outcome of the
        visit with Mother.

     11. The proximity of the residences of the parties. The court
        found that the parties live approximately fifteen miles apart,
        despite Paternal Grandmother’s testimony that they live two
        hours from each other.

     12. Each party’s availability to care for Child or ability to make
     appropriate child care arrangements. The trial court determined
     that Mother is not working and was available to care for Child at
     all times. Paternal Grandparents are also available to care for
     Child.


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     13. The level of conflict between the parties and the willingness
     and ability of the parties to cooperate with one another. Mother
     testified that Maternal Grandmother gave Child tickets to a
     wrestling event. Child was excited to attend the event due to his
     involvement in wrestling as an extracurricular activity. As the
     event was scheduled on a weekend that Child was scheduled to
     be with Paternal Grandparents, Mother attempted to switch [the]
     weekend with Paternal Grandparents, who declined. Mother
     even offered the tickets to Paternal Grandparents to take the
     Child to the event, but the Paternal Grandparents also declined.
     Paternal Grandparents testified that they felt that the event was
     inappropriate, and Mother had to petition the trial court
     requesting permission to allow Child to attend, which was
     granted by the court. Since many of Child’s extracurricular
     activities fell on weekends that Paternal Grandparents had
     custody, they would forego their period of custody and have
     Mother pick up Child to take him to his activity. Paternal
     Grandparents also did not attend any tee ball practices or
     games. Paternal Grandmother testified that she felt the six
     hours for a wrestling match or baseball game “away from the
     farm” was an interruption since it was not a part of her
     visitation.

     14. The history of drug or alcohol abuse of a party or a member
     of a party’s household. The trial court addressed Mother’s past
     drug and history. Mother attends meetings approximately three
     times a week and is living a sober lifestyle.

     15. The mental and physical condition of a party or member of a
     party’s household.      The trial court found that Mother has
     relocated from a trailer to a four bedroom home that sits on
     approximately     thirty   acres    in  Susquehanna      County,
     Pennsylvania, two miles from where the trailer was located,
     which Mother is renting with her fiancé. Child has his own
     bedroom in the home. Mother testified that, in June of 2014,
     she was contacted by the Susquehanna County Children and
     Youth because allegations were made that Mother’s home was
     unsafe, and she was suspected of utilizing drugs.         Mother
     voluntarily presented herself to Children and Youth for a urine
     screen, which was negative, and a social worker inspected her
     home. The investigation was closed as “unfounded.” Although a
     representative of CYS testified that that the source of the
     allegation made against Mother was confidential, Paternal
     Grandfather testified that he was the one who called CYS.

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      16. Any other relevant factor.     The trial court found no other
      relevant factors.

Trial Court Opinion, 9/20/14, at 8-19.

      We have reviewed the trial court’s thorough analysis of the statutory

custody factors contained in its order and its opinion in light of the record,

and conclude that the record fully supports the trial court’s conclusions

regarding custody.      Therefore, we find that the trial court properly

determined that it is in Child’s best interests to award Mother primary

physical custody and primary legal custody of Child, and, following

counseling, to award periods of partial physical custody of Child to Paternal

Grandparents.

      Accordingly, we affirm the order of the Court of Common Pleas of

Wyoming County entered September 10, 2015.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/2/2015




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