J-A07044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 R. & L.E.                               :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 S.B. AND J.W.                           :
                                         :
                                         :   No. 1693 MDA 2019
 APPEAL OF: S.B.                         :

              Appeal from the Order Entered October 2, 2019
  In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                            2013-CV-4024-CU


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED MAY 07, 2020

     S.B. (“Mother”) appeals from a custody order granting R.E. and L.E.

(“Great Grandparents”) primary physical custody and Mother and J.W.

(“Father”) partial physical custody. Mother argues the court erred in making

her custody contingent on the payment of Great-Grandparents’ counsel fees,

in making her custody contingent on Father’s completion of directives, and in

failing to apply the presumption in favor of parents in this custody action

between parents and third parties. We affirm the award of custody but remand

for the trial court to allow Mother’s custody periods to resume before Mother

pays Great-Grandparents’ counsel fees.

     Mother and Father have one child, A.W. (“Child”), born in July 2012.

After Child’s birth Mother, Father, and Child moved to the home of Great-

Grandparents, who reside in Dauphin County. In 2013, Mother stated she
J-A07044-20



intended to move herself and Child from the home. Great-Grandparents filed

a custody action, as they were concerned for Child’s safety. In July 2013, the

trial court granted the parties shared legal custody, but granted primary

physical custody to Great-Grandparents and Father, who still resided with

Great-Grandparents. Great-Grandparents were to supervise Father’s custody

time. Mother, who had moved to Blair County, had partial custody every

weekend.

      The custody terms were modified a few times, with minor changes. In

August 2016, the parties entered into an agreed custody order, granting

Great-Grandparents primary physical custody and Mother and Father each

periods of partial physical custody. Legal custody was shared. In January

2017, following a custody hearing, the court entered a final custody order that

provided that the parties had shared legal custody. Great-Grandparents had

primary physical custody, and Mother and Father had partial physical custody

every other weekend during the school year and a two-week vacation period

for each parent in the summer.

      Mother was directed to comply with a number of provisions including

that she subscribe to and use Our Family Wizard, an information-sharing

website for separated parties. Mother also had to maintain drug rehabilitation,

attend group and individual counseling, undergo periodic drug tests and

provide   quarterly   updates   about    test   results   to   Father   and   Great-

Grandparents, obtain counseling for anger, and enroll in a 12-week parenting

program. The order had similar requirements for Father.

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      On August 21, 2019, Great-Grandparents filed an emergency petition

for special relief asserting, among other things, that Mother had failed to

return Child on Sunday, August 18. Great-Grandparents also filed a petition

for contempt asserting Mother violated the prior court order by failing to return

Child and in failing to comply with terms of the January 2017 order, including

failing to use Our Family Wizard, undergo drug tests and provide quarterly

updates, enroll in counseling for anger, and enroll in a 12-week parenting

program.

      The trial court granted Great-Grandparents’ petition for emergency

relief, directing Mother to return Child. It scheduled a hearing on the petition

for contempt.

      On August 26, 2019, Great-Grandparents filed a second emergency

petition for special relief seeking immediate return of Child. Mother had failed

to transfer custody as directed in the prior order. The court granted the

petition and again directed Mother to return Child to Great-Grandparents. The

court also suspended Mother’s custody rights.

      In September 2019, Mother filed an emergency petition for special relief

and a petition for modification of custody, seeking primary physical custody.

The Court denied the petition for special relief and scheduled a hearing for the

petition for modification.

      The court held a hearing on the petition for contempt and the petition

for modification. The court summarized the testimony from the hearing:




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       I first heard testimony from Mother and Father regarding
       issues raised in Great-Grandparents’ contempt petition filed
       on August 21, 2019. Mother testified that she initially signed
       up for Our Family Wizard but did not continue to stay signed
       up for Our Family Wizard for communication with Great-
       Grandparents because she believed that she and Great-
       Grandparents were getting along and communicating better
       without utilizing the program. Great-Grandparents alleged
       that they sent seventeen messages to Mother via Our Family
       Wizard, and Mother testified that she did not receive or
       respond to any of those messages. . . .

       Mother testified that she has undergone drug rehabilitation,
       that she continues to go to drug rehabilitation once a month,
       and that she has been sober for a bit more than six and a
       half years. However, Mother had not provided Great-
       Grandparents with quarterly reports as required as to the
       progress on her drug rehabilitation.

       Although Mother testified that she enrolled in counseling to
       address unspecified issues that she has, she admitted that
       she did not enroll in counseling to specifically address issues
       concerning anger and ongoing arguments between her and
       the Father. . . .

       Mother completed Children First in Allegheny County, but
       the certificate of completion provided by Mother established
       that the course she completed was 4-hour separated
       parents course, rather than a 12-week parenting class. . . .

       Mother and Father conceded that they did not return Child
       to Great-Grandparents on Sunday, August 18, 2019.

       Based on the facts elicited from Mother and Father’s
       testimony, I found both to be in contempt of various
       provisions of the January 30, 2017 custody order and
       parenting plan, and I relayed this finding to the parties on
       the record.

       I then received testimony regarding Mother’s petition for
       modification of custody filed on September 5, 2019.

       Mother, who has had problems with drug addiction, testified
       that she has been seeking counseling and has been clean
       for nearly seven years. She is employed at a DirecTV call
       center and lives in a two-bedroom apartment in Altoona with

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       her other child, a 1-year old daughter. Mother testified that
       Child gets along well with the 1-year-old. Mother’s mom,
       stepfather, and brother live nearby in Altoona, and Father’s
       family lives in the Altoona area as well. Mother testified that
       she gets along pretty well with Father’s family and believes
       that as Mother, she should have more time with Child,
       especially in the summer when Child is not in school.

       Mother’s primary means of communicating with Great-
       Grandparents is via text messaging. Mother testified that
       this had been a fairly effective method of communication,
       but in the last six months, this communication “hasn’t been
       working out very well.” Mother claims that the last several
       times she has called Great-Grandparents to speak with Child
       (when Child was in Great-Grandparents’ custody), Great-
       Grandparents have denied her the opportunity to speak with
       Child. Mother also testified that Great-Grandparents have
       accused her of coaching Child to say certain things to a
       judge.

                                    ...

       Almost all of Father’s family lives in Altoona. Father has no
       family in Elizabethtown, Dauphin County other than his
       grandmother (who is Child’s Great-Grandmother). . . .

       Child’s maternal grandmother (Mother’s mom) testified that
       she has limited interaction with Great-Grandparents. The
       only interaction she has with Great-Grandparents is when
       she meets them at a Sheetz in Lewistown to exchange Child
       when Mother or Father are unavailable to do so. She
       testified that during the exchanges at Sheetz, Great-
       Grandparents do not talk to her at all. She has observed
       that when Great-Grandfather is present at Sheetz for the
       exchanges, Child will sit on his lap. Maternal grandmother
       finds this to be odd since Child is 7 years old and somewhat
       heavy. She also believes it to be odd that when she is
       watching Child in Altoona, Child will take off her shirt before
       running around and playing in the house.

       Maternal grandmother believes that Mother is capable of
       raising Child since Mother raises a 1-year-old on her own,
       has her own apartment and vehicle, and has held the same
       job for two years. She also believes that Child would be
       better off living with Mother in Altoona because most of
       Mother and Father’s relatives live in Altoona, whereas the

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       only relatives of Child that live in the Dauphin County-area
       are Great-Grandparents. She further testified that Child is
       happy and content when she spends time with Mother.

       When asked on cross-examination about her criminal
       record, maternal grandmother admitted to having a DUI last
       April, for which she completed an ARD program. She
       testified that she also went to drug and alcohol counseling
       and continues to attend group meetings. She also admitted
       that twelve years ago, she was charged with filling a pain
       pill prescription that was in someone else’s name.

       Maternal grandmother acknowledged that at an August
       2019 custody conciliation hearing, she was involved in a
       confrontation in which she approached Great-Grandparents,
       accused them of engaging in cruel behavior towards Child,
       and vowed to pursue avenues to end such behavior. She
       also recalled that on August 23, 2019, after I issued an
       Order directing Mother to immediately return Child to Great-
       Grandparents, the Great-Grandparents sat in their car for
       hours across the street from her (maternal grandmother’s)
       house, allegedly looking into her window. She eventually
       approached Great-Grandparents’ car and asked what they
       were doing.

       Cross-examination of maternal grandmother also revealed
       that she recently accused Great-Grandfather of sexually
       assaulting Child, and that prior to that, she had accused
       Child’s paternal grandfather of sexually assaulting Child.
       She acknowledged that both accusations were investigated
       by authorities and were both determined to be unfounded.

       Dr. Jaeme Schwartz-Bogrette (“Counselor”), who owns
       Cocoa Counseling Center in Hershey and is Child’s current
       counselor, testified that Child has been a client of Cocoa
       Counseling since February 2017. Child currently attends
       counseling once a week and is transported to the sessions
       by Great-Grandparents, who also pay for the sessions and
       are “extremely” involved in Child’s counseling. She testified
       that Child is bright, kind, gentle, and energetic. She has
       been working with Child on issues of self-regulation and self-
       disclosure and plans to also work on issues of self-esteem,
       self-identity, and empathy. Dr. Schwartz-Bogrette has
       diagnosed Child with oppositional defiant disorder,
       generalized anxiety disorder, and post-traumatic stress


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       disorder. [On cross-examination, Counselor testified that
       the PTSD stemmed from “the trauma from being removed
       from parentals,” and clarified that it was not from losing her
       parents, but from “[b]eing taken from a parental unit.” N.T.,
       9/27/19, at 61.]

       Counselor testified that Child behaves differently
       immediately after she spends time with Mother and Father
       Specifically, she has noticed that after having contact with
       Mother and Father, Child displays an increase in self-
       negativity, swearing, and aggression. Counselor observes,
       for example, that when Child is drawing, she will harshly
       break down on the pencil, break the pencil, and draw on
       herself. According to Counselor, this type of behavior is
       often [a] mark[] of a child experiencing trauma and raises
       concerns about future self-harm. She believes that changes
       in the dynamics of Child’s visitations with Mother and Father
       are necessary to avoid continuation of this behavior.

       Counselor recalled that Child recently told her about a visit
       at Father’s house which seemed to be uncomfortable for
       Child. Child relayed to Counselor that she (Child) was
       visiting Father’s house on September 17, 2019 when Mother
       stopped by with her 1-year-old daughter. According to
       Counselor, Child seemed surprised to see Mother at Father’s
       house and seemed to believe that Mother was not supposed
       to be there.

       When asked about the maternal grandmother’s sexual
       assault allegations against Great-Grandfather, Counselor
       testified that she has seen nothing that would lead her to
       believe that Child was sexually or physically abused by
       Great-Grandfather. Moreover, she testified that she believes
       Child is 100 percent safe in Great-Grandparents’ home. She
       has observed that Great-Grandparents are loving, caring,
       and protective with Child and that there is a “bond of
       connection” between them. Counselor believes that it would
       “not at all” be in Child's best interest to grant primary
       custody to Mother and prevent Great-Grandparents from
       having contact with Child.

       Child’s former kindergarten teacher (“Teacher”) testified
       that Child was very respectful and that Great-Grandparents
       always insisted that Child have good manners. She observed
       that Child was very happy when she was with Great-


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          Grandparents, but she also recalled that Child would
          sometimes exhibit an anxiousness on Mondays that would
          dissipate by midweek. She recalled that on a number of
          occasions, she asked Child whether she was going to
          Mother’s house for the upcoming weekend, and Child’s
          response would be a “very strong no.”

          Teacher testified that Child was far above average
          academically, especially in the areas of grammar and
          writing, and she believed that this was largely because
          Great-Grandparents always ensure that Child completed her
          schoolwork. She recalled that Great-Grandparents were
          heavily involved in Child’s education and that they would
          often bring items (such as snacks and coats) to the school
          for less fortunate children who could not afford these items.
          She testified that Great-Grandparents always attended
          parent-teacher conferences, asked questions, and were
          willing to work with Child on areas that needed
          improvement. Mother and Father did not communicate with
          Teacher about Child’s progress in school, nor did they attend
          parent-teacher conferences. According to teacher, Child’s
          homework was always completed when she was in the
          custody of Great-Grandparents, but sometimes when Child
          was in Mother or Father’s custody, Child’s homework was
          not completed.

          Teacher testified that although Child was quiet, she had a
          lot of friends. Teacher also recalled that Great-Grandparents
          often took a less fortunate child with them when they went
          to events with Child and that this helped Child develop
          friendships with many children.

          Great-Grandparents (Great-Grandmother, who is 71 years
          old; and Great-Grandfather, who is 74 years old) live in
          Elizabethtown with their 50-year-old son (Child’s paternal
          grandfather).[1] Great-Grandparents’ home contains three
          bedrooms, two bathrooms, a kitchen, a living room, a
          computer room, and a toy room. Great-Grandmother
          testified that Child sleeps in Great-Grandmother’s room, but
          Child has her own bed in that room. She noted that if Child
          slept in her own room, the room would be on the far side of
____________________________________________


1Child’s paternal grandfather only “partially” lives with Great-Grandparents.
N.T., 9/27/149, at 75.

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       the house, and Great-Grandmother would be unable to hear
       if Child got up in the middle of the night. Great-Grandfather
       sleeps in a different room than Great-Grandmother and
       Child. Great-Grandmother testified that Child enjoys staying
       at Great-Grandparents’ house where Child has a hermit
       crab, a fish, a dog, a cat, and is surrounded by various farm
       animals. Child also has her own pool, swing set, trampoline,
       two toy houses, a princess carriage, and two bicycles.

       Great-Grandmother testified that she is retired, in good
       health, and is able to take care of Child’s physical, mental,
       and emotional needs. She bathes child, takes Child to all
       appointments, and partakes in other recreational activities
       with child, including swimming, cooking, shopping, and trips
       to parks and amusement parks.

       When in the custody of Great-Grandparents, Child attends
       school Monday through Friday and sometimes attends
       counseling right after school. Great-Grandmother testified
       that she and her husband attend all of Child’s parent-
       teacher conferences and that neither Mother nor Father
       have attended any of Child’s parent-teacher conferences
       from preschool through first grade. She further stated that
       Child does well in all school subjects except for math, for
       which Great-Grandparents have hired a tutor for Child. Child
       has several friends in the Elizabethtown area, and she has
       an aunt that lives in the Elizabethtown area, whom she sees
       five to six times a week.

       Great-Grandmother testified that subsequent to the August
       weekend on which Mother did not return child to Great-
       Grandparents, Child missed the Monday and Tuesday of the
       following school week, which happened to be the first two
       days of second grade. Child currently attends Conewago
       Elementary School, but Great-Grandmother testified that
       Mother had previously attempted to enroll Child in school in
       Altoona without having permission to do so. According to
       Great-Grandmother, Mother’s failure to return child on the
       one weekend in August arises out of an August conciliation
       conference that was held pursuant to a previous contempt
       petition filed by Mother. Great-Grandmother stated that all
       the charges in Mother’s contempt petition were dropped
       following the conciliation conference, and she believes that
       this is the point at which Mother and Father decided not to
       return Child to Great-Grandparents.

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          2In that petition, Mother alleged that on one Friday in
          January 2019, Great-Grandmother refused to bring
          Child to the Lewistown Sheetz for a weekend custody
          exchange. Great-Grandmother testified that she did
          not bring the Child to the Sheetz on the date in
          question because there was a snowstorm that day.

       Great-Grandmother communicates with Mother and Father
       through text messaging, and she will also speak with them
       at the weekly custody exchanges at Sheetz, at which point
       they usually discuss Child’s homework and other school-
       related matters. She testified that she signed up for Our
       Family Wizard in February 2017 and has maintained her
       subscription to said program, but neither Mother nor Father
       have responded to any of the messages she has posted on
       the program over the last two years.

       Great-Grandmother testified that she notifies Mother and
       Father of Child’s medical appointments, but neither Mother
       nor Father come to Child’s appointments, nor does she
       believe that they have accessed Child’s medical records. She
       recounted two notable medical events involving Child, both
       which occurred when Child was in Father’s custody. In one
       event, Child’s fingers were smashed in a house door, and
       Child needed a splint for a broken finger. In the second
       event, Child was in Father’s car when it rolled down a hill.
       According to Great-Grandmother, Father refused to seek
       medical treatment for Child following the car incident, so
       Great-Grandparents took Child to the hospital by
       ambulance. Great-Grandmother testified that she and her
       husband recently secured medical insurance for Child
       because Mother and Father never did so.

                                    ...

       Great-Grandmother also discussed her concerns about
       Mother having custody of Child. She testified that Mother is
       irresponsible, and first-grade journal entries written by Child
       (provided by Great-Grandmother's counsel) recounted
       occasions on which Child had been left to feed and care for
       Mother’s 1-year-old or on which Child had been left home
       alone with the 1-year-old. She also expressed unease over
       the fact that Mother’s boyfriend and stepfather recently
       attempted to show Child how to shoot a B.B. gun.



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       Great-Grandmother is also concerned that if Mother is
       granted primary custody of Child, maternal grandmother
       would have to watch the child when Mother is at work. She
       testified that when Child is in the care of maternal
       grandmother, Child has to sleep in the same bed with
       maternal grandmother. She also relayed apprehension
       about maternal grandmother’s volatile behavior, recounting
       several recent incidents. She recalled that at a recent
       custody conciliation conference, maternal grandmother
       came up to her outside of the conciliation room and
       repeatedly threatened her verbally by telling her (Great-
       Grandmother) that she was “going down.” She also recalled
       that on the same occasion, maternal grandmother looked in
       Great-Grandfather’s face and referred to him as the devil.
       Great-Grandfather told maternal grandmother to stop
       talking to him, but she continued to talk. According to Great-
       Grandmother, a sheriff was summoned to stand outside the
       custody conciliation room until the conference was over.

       Great-Grandmother additionally recalled the occasion on
       which she and her husband went to Altoona to retrieve Child
       after the issuance of the court's August 23, 2019 Order
       directing Mother to immediately return Child to Great-
       Grandparents. She recalled that while she and her husband
       were waiting in a parking lot for the Sheriff’s office to arrive
       for a wellness check, maternal grandmother drove child
       around the block, came back, and then approached Great-
       Grandparents’ vehicle. Maternal grandmother then
       proceeded to scream and curse at Great-Grandparents,
       accusing Great-Grandfather of sexually assaulting child,
       taking pictures of their vehicle and license plate. Great-
       Grandmother testified that she is concerned for Child’s
       safety around maternal grandmother.

       Great-Grandmother also recounted four sexual assault
       allegations made by the maternal grandmother, all which
       were ultimately determined to be baseless. Of the
       allegations recounted were the allegations against Great-
       Grandfather and Child’s paternal grandfather discussed
       above. A third allegation was lodged against Great-
       Grandmother’s grandson (Father’s brother), but an
       investigation revealed that the accused was in prison at the
       time of the alleged assault, and, therefore, the allegation
       could not have been truthful. The fourth allegation was
       raised against another one of Great-Grandmother’s

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         grandsons; however, this allegation crumbled when an
         investigation revealed that the accused grandson was in fact
         living in Tennessee.

         Great-Grandmother believes that she and her husband
         should be making all decisions for Child because it can be
         difficult to get in contact with Mother and Father when
         certain decisions need to be made and because Mother and
         Father typically have not been involved with Child’s
         schooling and medical appointments. Regarding a physical
         custody schedule, Great-Grandmother believes that it would
         be in the best interest for Mother and Father to drive down
         to the Dauphin-County area to see Child and possibly take
         her to the Elizabethtown Library to help Child with
         schoolwork. Great-Grandmother believes that Child could go
         back to spending alternating weekends in Altoona with
         Mother and Father once Mother and Father “improve
         themselves.”

Trial Court Opinion, filed Nov. 13, 2019, at 4-13 (“1925(a) Op.”) (citations to

record omitted).

      Following the hearing, the court applied the custody factors and awarded

primary custody to Great-Grandparents, with partial physical custody to

parents every other weekend and two weeks for each parent in the summer.

The court also ordered that, for one evening each week, Mother and Father

could take Child to the library and dinner. The order provided that Mother’s

and Father’s custody periods would begin after Great-Grandparents’ counsel

fees were paid and upon “proof of abiding by” the directives of the prior order:

         The weekend following completion of payment to [Great-
         Grandparents’] counsel under the Contempt Order issued
         September 27, 2019, and proof of abiding by Paragraphs
         61, 83, 85, 86, 87 and 88, Mother and Father shall have
         partial physical custodial responsibilities of the child.

Order, dated Oct. 2, 2019, at ¶ 11.



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      Mother filed a timely Notice of Appeal. She raises the following issues

for our review:

         1. Did the Court abuse its discretion in the conditions that
         the Appellant had to pay the opposing parties [counsel] fees
         as a condition of the restoration of her custody rights?

         2. Whether trial court abused its discretion in placing
         conditions on the restoration of Mother’s custody rights on
         the actions of individuals, mainly those of the Father over
         whom she has no control.

         3. The Trial Court abused its discretion in not following 23
         [Pa.C.S.A.] § 5327 when determining primary physical
         custody in this matter.

Mother’s Br. at 8 (proposed answers omitted).

      Mother first argues that the court erred in making the restoration of her

custody rights contingent on the payment of Great-Grandparents’ counsel

fees. The trial court agreed, acknowledging that “payment of [counsel] fees

to [G]reat-[G]randparents has no bearing on Child’s best interests.” 1925(a)

Op. at 17. We agree and remand so that the trial court can amend its order

to remove this provision. See 23 Pa.C.S.A. § 5328(a) (noting the court shall

award custody by “determin[ing] the best interest of the child by considering

all relevant factors”).

      Mother next argues that the court erred by directing that the restoration

of her custody rights were contingent on Father completing certain actions, as

she has no control over [Father’s] actions.

      The Order provided:

         The weekend following completion of payment to [Great-
         Grandparents’] counsel under the Contempt Order issued

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         September 27, 2019, and proof of abiding by Paragraphs
         61, 83, 85, 86, 87 and 88, Mother and Father shall have
         partial physical custodial responsibilities of the child.

Order, dated Oct. 2, 2019, at ¶ 11.

      The trial court stated that it did not intend to impose a condition which

made restoration of Mother’s custody rights dependent on Father’s compliance

with the order. 1925(a) Op. at 18. It stated that it “intended to set forth

specific actions that each parent must take in order to restore their own

respective custodial rights.” Id. It concluded Mother’s claim is “unfounded” as

“that was not [the court’s] intention in imposing the condition.” Id.

      In her brief, Mother states that “[g]iven that the court will only require

Mother’s compliance to the Order, the Appellant deems this issue resolved.”

Mother’s Br. at 29. She has therefore abandoned this issue.

      In her final issue, Mother argues that the court abused its discretion in

failing to determine custody based on the statutory presumption that as

between a parent and a nonparent, the parent is entitled to custody. Mother

argues that Great-Grandparents did not present the requisite clear and

convincing evidence to overcome the presumption. She argues that Child’s

therapist attributed Child’s PTSD and anxiety to the “trauma of being taken

from” her parents and provided no basis for her opinion that Mother should

not have primary custody. Mother’s Br. at 31-32 (quoting N.T., 9/27/19, at

61). She notes that Child’s tutor testified that Child did not complete her

homework when in Mother’s care, but also said that she never attempted to

contact Mother regarding this issue. Mother also notes that Great-


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Grandmother interpreted a drawing by Child to conclude Child was not being

properly cared for, but also stated that “it’s a little girls’ imagination. But

everything else is--.” Id. at 32.

      We review a custody order for an abuse of discretion. G.A. v. D.L., 72

A.3d 264, 268 (Pa.Super. 2013) (quoting Collins v. Collins, 897 A.2d 466,

471 (Pa.Super. 2006)). We must accept a trial court’s factual findings when

the record supports them, and we defer to the trial court’s credibility

determinations. Id. We must determine “whether the trial court’s conclusions

are unreasonable as shown by the evidence of record.” Id. (quoting Collins,

897 A.2d at 471). We will reject the trial court’s conclusions “only if they

involve an error of law, or are unreasonable in light of the sustainable findings

of the trial court.” Id. (quoting Collins, 897 A.2d at 471).

      The Custody Act requires a trial court to consider all of the Section

5328(a) best interests factors when “ordering any form of custody.” 23

Pa.C.S.A. § 5328(a). A trial court must “delineate the reasons for its decision

when making an award of custody either on the record or in a written opinion.”

R.L. v. M.A., 209 A.3d 391, 395 (Pa.Super. 2019) (quoting S.W.D. v. S.A.R.,

96 A.3d 396, 401 (Pa. Super. 2014)). A trial court does not need to explain

its decision in detail; rather “all that is required is that the enumerated factors

are   considered   and   that   the   custody   decision   is   based   on   those

considerations.” Id. (quoting M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.

2013)).




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      In child custody cases, the paramount concern “is the best interests of

the child.” Id. (quoting C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018)). “The

best-interests standard, decided on a case-by-case basis, considers all factors

which legitimately have an effect upon the child’s physical, intellectual, moral

and spiritual well-being.” Id. (quoting M.J.N. v. J.K., 169 A.3d 108, 112 (Pa.

Super. 2017). The custody factors to be considered include:

         (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:

         (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.

         (2.1) The information set forth in section 5329.1(a) (relating
         to consideration of child abuse and involvement with
         protective services).

         (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.




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         (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
         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(a)(1)-(16).

      Further, Section 5327 of the Custody Act provides, “[i]n any action

regarding the custody of the child between a parent of the child and a

nonparent, there shall be a presumption that custody shall be awarded to the

parent. The presumption in favor of the parent may be rebutted by clear and

convincing evidence.” 23 Pa.C.S.A. § 5327(b). Clear and convincing evidence

is “evidence that is so clear, direct, weighty, and convincing so as to enable

the trier of fact to come to a clear conviction, without hesitation, of the truth


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of the precise facts in issue.” R.L., 209 A.3d at 396 (quoting M.J.S. v. B.B.

v. B.B., 172 A.3d 651, 660 (Pa. Super. 2017)). Therefore, before the

proceedings begin, “the evidentiary scale is tipped, and tipped hard, to the

biological parents’ side.” Id. (quoting V.B. v. J.E.B., 55 A.3d 1193, 1199

(Pa.Super. 2012)). Further, before making a decision to award primary

physical custody to a nonparent, the trial court must “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.” Id. (quoting V.B., 55 A.3d at 1199).

      Here, the trial court stated that it applied the presumption in favor of

awarding custody to a parent, rather than a third-party, but that there was a

“plethora of clear and convincing evidence to rebut the presumption of

parental custody and to establish that it is Child’s best interest to remain in

primary physical custody of Great-Grandparents.” 1925(a) Op. at 19. The

court explained its application of the custody factors as follows:

         I’ll now go through the custody factors concerning custody.
         The grandparents will retain legal custody. They have to be
         sure that the doctors and nurses and school know that they
         can provide information to Mom and Dad, but the legal
         decisions, the decision making is only with them.

         As far as school schedules, they can get the school schedule
         on the website. You should post when the regular well visits
         are on Family Wizard.

         You have to start posting more.

         But you have to start reading it.

         Obviously, [Great-G]randparents . . . did permit the
         frequent and continuing contact up until the point when we

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J-A07044-20


       had to get the state police and the sheriffs involved to return
       the child.

       I understand it’s not Mom and Dad’s fault that these
       allegations -- false allegations keep getting filed, but you
       have to abide by the court order. And you didn’t, even
       though you received repeated directives from counsel and
       the Court that that was to be done.

       The next factor concerns the present and past abuse
       committed by either party or a member of the party’s
       household. . . .

       I’m also very concerned about the assaultive behavior of
       Mom’s mother, her aggressive behavior in the courthouse
       and elsewhere. So we will not allow any unsupervised visits
       with grandmother.

       In other words, you need to be in the child’s presence all
       the time. The child cannot be left alone with your mother.
       This behavior is unacceptable.

       Obviously, the parental duties performed by each party on
       behalf of the child, the child has been taken care of by
       [Great-G]randparents since birth. The child needs stability
       in her education and community life and continuity, of
       course, she shall remain with [Great-G]randparents. At prior
       times, we’d hoped things would’ve changed, but they
       haven’t.

       The ability of extended family. Obviously, there is extended
       family for everybody around to help. The child’s sibling
       relationship. There is a one-year-old baby in Mom’s house,
       and the child will see her sister at that time.

       The child is only seven and has been through a lot of
       trauma, so we’re not considering the factor of preference of
       the child based on the child’s maturity and judgment.

       The attempts of a parent to turn the child against the other
       parent, obviously, Mom and Dad are getting along as well
       as they can be. And I don’t see any efforts of the Mom or
       Dad to keep the child from each other, nor do I see [Great-
       G]randparents trying to turn the child against the things
       Mom and Dad have done. So that’s not an issue.



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J-A07044-20


       Which party is more likely to maintain a consistent,
       nurturing relationship adequate for the child’s emotional
       needs. . . .

       Mother, I think, would like to maintain a home adequate for
       the child’s needs. But at the current time, this certainly
       leans 99 percent in favor of the [Great-G]randparents. I
       would hope that things continue to get—continue to do well
       for Mother. I’m glad she has been clean and sober for seven
       years. I’m glad she's had a stable employment for a couple
       of years. I’m glad she's got a nice apartment that is good
       for the child and her additional child, but because of the
       proximity of the parties, two and a half hours apart, Altoona,
       during the week going to school is going to have to be with
       [Great-G]randparents.

       All of the parties are able to make arrangements to take
       care of the child, at least [Great-G]grandparents. . . .

       Mother has – she’s got [Father’s] family and her brother.
       Her mom is certainly not available. But she does have other
       people. But clearly, the retired [Great-G]randparents have
       the most, in addition to the assistance of Aunt Tina.

       The level of conflict between the parties is high.

       The history of drug and alcohol abuse. We have a substantial
       drug history of Mother, although we are very happy and
       proud of her that she's been substance free for seven years.
       . . . [Great-]Grandparents have no history of drug or alcohol
       abuse.

       The mental and physical condition of a party or a member
       of a party’s household. . . . Obviously, [Great-G]randparents
       are totally fine.

       The other relevant factors would be the fact that the child is
       stable, has been in this school, has a wonderful situation.
       Obviously, the goal is to have parents raise their children,
       not the [Great-G]randparents. And we had hoped that the
       last time, but things have fallen apart.

       I know Mom can’t control her mother, but after four
       unfounded, unbelievable allegations of sexual abuse when
       people aren't even around to do it -- like, they’re in prison
       or in Tennessee -- you have to understand creates trauma


                                   - 20 -
J-A07044-20


        for the child. And the behavior of your mother is just simply
        unacceptable.

        The swearing has to stop. Kids repeat things, and it just
        looks bad for you when they come back and start swearing
        and carrying on like that. It’s just bad for the child. As it is,
        the child is dealing with a lot of anxiety.

        I will say that once Mom gets into counseling, I think it will
        be very important for her counselor and the child’s counselor
        to communicate to see if they can come up with some things
        that might be helpful to fix things. . . . And maybe they can
        fix what they can fix there.

                                      ...

        And hopefully, they will attend the parent/teacher
        conferences, and hopefully they’ll attend the well visits, and
        hopefully they’ll start participating as best as they can in
        their child’s life a little better and maybe in another year or
        two or three things will continue to improve.

        Many people are very physically and mentally vital well into
        their 90s. My guess is you will too, hopefully. Nevertheless
        we need some more heavy lifting from the parents when we
        get this worked out a little better. But we’re very happy this
        Mom is doing so much better. But what just happened in
        August just sort of blew everything up.

N.T., 9/27/19, at 116-122.

     The trial court concluded that granting primary custody to Mother

“would place Child in an environment that would be detrimental to Child’s

overall well-being in a multitude of ways,” 1925(a) Op. at 19. It reasoned:

        Mother has a substantial history of drug and alcohol abuse,
        although she has commendably been substance free for
        seven years. Unfortunately, living with Mother would likely
        expose Child to a substantial amount of contact with
        Mother’s Mom (Child’s maternal grandmother), who has
        shown a pattern of extremely volatile and unacceptable
        behavior, ranging from significant vindictive altercations
        with Great-Grandparents to the repeated concoction of
        spurious sexual assault allegations against Great-

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J-A07044-20


         Grandparents and other members of their family. Moreover,
         Mother, like Father, has contemptuously ignored various
         provisions of this Court’s previous custody Order of January
         2017, including a failure to communicate with Great-
         Grandparents via Our Family Wizard, a failure to
         communicate with Great-Grandparents regarding the
         progress of her drug rehabilitation, a failure to complete a
         12-week parenting class, a failure to enroll in counseling for
         anger issues. Last, but not least, Mother failed to return
         Child to [Great-Grandparents] for a scheduled custody
         exchange,     ultimately    necessitating   the    substantial
         involvement of law-enforcement to assist in enforcing my
         Order to return the Child to Great-Grandparents.

Id. at 19-20.

      The court also concluded Child was thriving in Great-Grandparents’ care,

reasoning:

         Child has been well nurtured by her Great-Grandparents
         since she was born and has been thriving in their custody.
         Great-Grandparents are retired and in good health and have
         devoted themselves to caring for Child’s emotional,
         physical, and academic needs. Great -Grandparents provide
         Child with a safe, stable home environment, they expose
         her to various recreational activities, and they tend to all of
         her medical needs. Moreover, they are thoroughly involved
         in Child’s schooling, and Child is thriving academically and
         socially. Great-Grandparents ensure that her schoolwork is
         always completed and that she gets assistance with any
         areas in which she may be struggling. Child is very young
         and has become accustomed to the stable educational
         situation and community in which she has been living. It
         would be strongly inadvisable to remove Child from this
         stability which has helped her thrive to this point, especially
         when she would be removed to an environment in which she
         would likely be surrounded by more volatility and individuals
         whose behavior and irresponsibility would present a
         substantial threat to Child’s emotional, academic, and
         physical well-being.

Id. at 20.



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      We conclude that the record supports trial court’s factual findings and

credibility determinations and that the court did not abuse its discretion in

issuing its custody order. The court applied the presumption in favor of parents

but concluded that the Great-Grandparents had presented clear and

convincing evidence that it was in Child’s best interest to remain in Great-

Grandparents’ primary custody. We cannot conclude this was an abuse of

discretion. Child has resided with Great-Grandparents since birth and is doing

well in their care. Mother has made great strides but has not complied with

the court order and has not made an effort to be involved in Child’s school

and health decisions.

      Case remanded to remove provision requiring payment of counsel fees

prior to reinstating Mother’s right to exercise custody. Order affirmed in all

other respects. Jurisdiction relinquished.



 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2020




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