J-A31026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


C.B.                                        :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
                    v.                      :    No. 854 MDA 2015
                                            :
L.B., B.B.                                  :
      Appellants                            :
J.G.                                        :

                  Appeal from the Order Entered April 20, 2015
                  In the Court of Common Pleas of York County
                      Civil Division, at No. 2014-FC-512-03

BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 05, 2016

        L.B. (Mother) and B.B. (Stepfather) (collectively, Appellants) appeal

the order of the Court of Common Pleas of York County, entered April 20,

2015, that awarded partial physical custody of G.G. (Child) to Mother’s

former partner, C.B. The order granted C.B. one weekend per month from

Friday to Sunday and reduced her partial physical custody to one Saturday

per month beginning in November 2015. We affirm.

        The record supports the following recitation of the facts of this case.

Child was born to Mother and Father in May 2007. Mother and Father

separated shortly after Child’s birth. Upon separating, Mother and Father

entered into a stipulated order of custody by which Mother exercised primary

physical custody and Father, as he was in the military at the time and



    Retired Senior Judge assigned to the Superior Court.
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stationed out of state, enjoyed partial physical custody as the parties might

agree.

      Mother met C.B. in October 2007; they began living together as a

family in February 2008, when Child was just eight months old. C.B.

participated in Child’s medical appointments, helped select Child’s schools

and autism treatment, and communicated with Child’s teachers and mental

health professionals. Mother included C.B. in communications to and from

teachers and in meetings with teachers, even following separation.

      C.B. was with Mother when Child’s pediatrician referred Child for an

autism evaluation. C.B. contacted the specialists to set up that evaluation

and participated in the evaluation. When Child was diagnosed as autistic,

C.B. set up further services and arranged for therapy.

      Child has a relationship with C.B.’s extended family. He refers to C.B.’s

mother as “Nina,” her father as “Pappy” or “Pap,” and her sisters and

brothers as “aunt” and “uncle.” R. 66a-67a; S.R. 6. Mother, C.B. and Child

vacationed with each other’s extended families. C.B. cared for Child when

Mother worked evenings and, if both parties were working, family members

would babysit Child if Child were not at daycare. C.B.’s mother’s family acted

as emergency contacts for Child. C.B. helped with such tasks as changing

diapers and transporting Child to and from daycare and school.




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     C.B. testified that she accompanied Mother and Child on doctor visits

and took Child to the doctor by herself, at Mother’s request. Both Mother

and C.B. worked and contributed financially to the household.

     C.B. received Mother’s Day cards from Child and Mother. For

Christmas 2011, Mother gave C.B. a book with pictures of C.B. and Child

“Dedicated to my mommy who is always there for me. I love you forever,

Booey. Love, your baby, [G.G.].” N.T. 3/24/15 at 27.

     C.B. and Mother lived together with Child for four and one half years.

After they separated in August 2012, C.B. remained involved in Child’s life,

picking him up from school every Wednesday and keeping him until 8:00

p.m. or so, and every other weekend from Friday evening to Sunday

evening. C.B. and Mother also shared holidays. Following separation, Mother

gave C.B. a Christmas card from a child to his mother on behalf of Child.

C.B. and Mother continued regular communication regarding Child until

January 2014, when Mother abruptly discontinued C.B.’s periods of custody.

     B.B. (Stepfather) moved in with Mother and Child in September or

October 2012. Mother married Stepfather in June 2013. C.B. entered into a

relationship with her current fiancée in August 2013; they began residing

together in May 2014.

     C.B. filed her custody action on March 20, 2014.           Mother and

Stepfather filed preliminary objections to C.B.’s standing. A conciliation

conference resulted in an interim custody order pending trial, by which C.B.

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exercised partial physical custody one weekend per month at Mother’s

discretion. Following a hearing on Mother’s preliminary objections, the trial

court entered an order overruling those objections and consolidating C.B.’s

action with one filed by Father. The trial court entered the order that is the

subject of this appeal following a trial held on March 24 and 27, 2015.

According to that order, C.B. initially exercised custody of Child one weekend

per month, from Friday to Sunday. Beginning in November 2015, the order

reduced C.B.’s custodial time to one Saturday per month. This timely joint

appeal followed.

      Appellants present the following questions for our consideration.

      I. Whether the trial court erred in concluding that [C.B.] had
      standing as in loco parentis[?]

      II. Whether the [trial] court erred in continuing the contact of
      [Child] with [C.B.] even though there was expert testimony
      showing that it would be detrimental in the long run for
      [Child][?]

      III. Whether the trial court erred in following the advice of
      [C.B.’s] expert witness who never saw [Child][?]

Appellants’ Brief at 4.

      Our scope and 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

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     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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

     We have stated that

     the 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.

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

omitted).

     The primary concern in any custody case is the best interests of the

child. “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006) (citation omitted).

     We begin by noting that the trial court entered a comprehensive

opinion shortly after the entry of the order complained of here. In that

opinion, the trial court discussed each of the sixteen statutory custody

factors in 23 Pa.C.S.A. § 5328. The trial court also entered a supplemental

opinion in which it discussed Appellants’ issues complained of on appeal.



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      Appellants do not specifically challenge any of the trial court’s findings

relative to the sixteen custody factors. Rather, they claim that an analysis of

those issues “was not appropriate to settle the custody issues between

biological parents and an in loco parentis individual like [C.B.].” Appellants’

Brief, at 14. This argument presents a pure question of law. “As with all

questions of law, the appellate standard of review is de novo and the

appellate scope of review is plenary.” B.K.M. v. J.A.M., 50 A.3d 168, 172

(Pa. Super. 2012) (citation omitted).

      Our Supreme Court has explained that

      [t]he phrase ‘in loco parentis’ refers to a person who puts
      oneself [sic] in the situation of a lawful parent by assuming the
      obligations incident to the parental relationship without going
      through the formality of a legal adoption. The status of in loco
      parentis embodies two ideas; first, the assumption of a parental
      status, and, second, the discharge of parental duties. The rights
      and liabilities arising out of an in loco parentis relationship are,
      as the words imply, exactly the same as between parent and
      child.

Peters v. Costello, 891 A.2d 705, 710 (Pa. 2005) (citation omitted). The

Court added that

      [t]he in loco parentis basis for standing recognizes that the need
      to guard the family from intrusions by third parties and to
      protect the rights of the natural parent must be tempered by the
      paramount need to protect the child’s best interest. Thus, while
      it is presumed that a child’s best interest is served by
      maintaining the family’s privacy and autonomy, that
      presumption must give way where the child has established
      strong psychological bonds with a person who, although not a
      biological parent, has lived with the child and provided care,
      nurture, and affection, assuming in the child’s eye a stature like
      that of a parent. Where such a relationship is shown, our courts

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      recognize that the child’s best interest requires that the third
      party be granted standing so as to have the opportunity to
      litigate fully the issue of whether that relationship should be
      maintained even over a natural parent’s objections.

Id., at 711 (citation omitted).

      In support of their first claim, that C.B. did not stand in loco parentis

to Child, Appellants argue that

      [t]he trial court erred when it held that [C.B.] adequately held
      an in loco parentis status to [Child] in this case. Specifically,
      none of the factors relied upon by the trial court singly or in
      combination supported the [trial] court’s determination that
      [C.B.] stood in loco parentis to [Child].

      Instead, the evidence clearly shows that [C.B.] was Mother’s
      partner. She never discharged parental duties or assumed a
      stature like that of a parent. While Mother did not deny that
      [C.B.] accompanied her to [Child’s] doctor appointments and
      school appointments, she did deny that she attended such
      appointments as a parent. Rather she did so as Mother’s partner,
      not as [Child’s] parent.

Appellants’ Brief, at 9 (citation to the record omitted).

      Before we begin our analysis, we are constrained to point out that

Appellants set a high bar to permitting a person to assume the status of in

loco parentis. This is what they say about Stepfather’s status in Child’s life

today:

      [Stepfather] testified that he too accompanies Mother to
      parent/teacher conferences and for the most part, picks [Child]
      up every day from school. He further testified that [Child] calls
      him “Dad,” and that [Child] has established [a] relationship with
      his parents and calls them “Grandma[”] and [“]Grandpa.”
      Mother testified that Stepfather’s relationship with [Child] is now
      identical to that of [C.B.’s] relationship, and that Stepfather
      currently does everything [C.B.] testified to doing for and with

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      [Child]. Stepfather actually does more for [Child] than [C.B.] as
      he is helping to substantially supporting [sic] Mother and [Child]
      financially (Father does pay child support for [Child] to Mother),
      and he and Mother now have a family unit that includes Child’s
      half-brother.

      If we were to follow the trial court’s reasoning for granting [C.B.]
      standing, Stepfather would also stand in loco parentis to [Child]
      and would ultimately have standing to file for custody rights of
      [Child] if he and Mother were to separate or divorce.

Appellants’ Brief, at 11-12.

      According to the Appellants, Stepfather, who has been living with

Mother and Child for more than three years, is married to Mother, has been,

according to Mother, caring for Child with her, and is the father of Child’s

half-brother, does not stand in loco parentis to Child. We are left to wonder,

then, what would Appellants require of someone before they would permit

them that status. They do not say. They only say that C.B., and even

Stepfather, have not done enough.1

      Appellants do not tell us what they mean, above, by “the factors relied

upon by the trial court.” The only “factors” the trial court relies on are the

sixteen custody factors, and those are not relevant to the question of

establishing in loco parentis status. They apply only to persons who, on

whatever basis, have standing to seek custody of a child. The trial court did




1
 We caution the reader that we do not hold that C.B. and Stepfather have
done, by the conduct described above, enough to be considered in loco
parentis, we only seek to bring attention to Appellants’ standard.


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not address the question of C.B.’s standing in its opinion of April 20, 2015,

but it did address it in its supplemental opinion of May 28, 2015.

      In this matter, the [c]ourt found that the evidence established
      that [C.B.] had [a] parent-like relationship with [Child] and
      preformed parental duties on his behalf. Testimony established
      that [C.B.] shared in [Child’s] care during her relationship with
      Mother from approximately October of 2007 until August of
      2012. Testimony established that [C.B.] provided childcare when
      Mother was at work and attended [Child’s] doctor appointments
      and educational meetings. [C.B.] further testified that Mother
      encouraged her to have a mother-type bond with [Child].
      Evidence established that Mother made [C.B.] cards on Mother’s
      Day and referred to her as “Mommy.” Additionally, [C.B.]
      testified that, even following their separation, she continued to
      assist Mother in providing care for [Child] until January of 2014.
      In light of this testimony, the [c]ourt believes that [C.B.] has in
      loco parentis standing to pursue custody in this matter.

Trial Court Supplemental Opinion 5/28/15, at 2.

      Our examination of the record reveals that it supports the trial court’s

findings, and that those findings, examined in the light of our law, are

sufficient to support the trial court’s determination that C.B. stands in loco

parentis to Child. The trial court did not abuse its discretion in making that

determination. Appellants’ first claim of error is without merit.

      In their second issue, whether the trial court erred in permitting

continuing contact between Child and C.B., Appellants first complain that the

trial court erred when it considered C.B. as a party equal to Mother and

Father when it conducted its custody analysis.

      In its opinion, the trial court provided an analysis of the custody
      factors with respect to three different individuals, Mother,
      Father, and [C.B.]. Specifically, it engaged in an exercise where

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      it first listed the custody factors, then outlined relevant
      testimony as it related to that factor, and lastly concluded with a
      statement as to which individual that factor weighed in favor of,
      either Mother, Father, and/or [C.B.].

      That type of analysis was overbroad and not applicable to an in
      loco parentis individual such as [C.B.]. While this type of analysis
      was completely appropriate to address the custody issue
      between Mother and Father, it was not appropriate to settle the
      custody issues between biological parents and an in loco parentis
      individual like [C.B.]. In essence, the trial court elevated [C.B.]
      to the status of a natural parent in determining the merits of the
      custody dispute.

Appellants’ Brief, at 13-14.

      Appellants badly misread the law. Once the trial court determined that

C.B. stood in loco parentis to Child, her status as a third party disappeared,

and the trial court was bound to consider her relationship to Child, “exactly

the same as between parent and child.” Peters, 891 A.2d at 710 (citation

omitted). The trial court did not abuse its discretion when it considered C.B.

as on an equal footing with Mother and Father in its custody analysis.

      In the second part of their second issue, the Appellants complain, that

“had the trial court conducted the proper analysis, it would have found that

the evidentiary record does not support a finding of custody rights for

[C.B.].” Appellants’ Brief, at 14. In support of this claim, Appellants

maintain, “the trial court appears to completely ignore the testimony of Dr.

Peter Thomas, a clinical psychologist and a court-recognized expert in

custody evaluations.” Id. We will discuss this issue with Appellants’ third

issue, whether the trial court abused its discretion in relying on the expert

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testimony of clinical psychologist, Melinda Eash, who had never met Mother,

Father, or Child, as they are interrelated.

      “[T]he weight to be given to an expert’s testimony is for the

factfinder.” Rigler v. Treen, 660 A.2d 111, 116 (Pa. Super. 1995) (citation

omitted). Appellants argue that the trial court abused its discretion in the

way that it considered the testimony of Dr. Thomas and Ms. Eash by

reexamining their testimony in light of the evidence and asking us to reach a

different conclusion. This we may not do. The credibility of witnesses and the

weight to be given to expert testimony are for the trier of fact. See S.M. v.

J.M., 811 A.2d 621, 623 (Pa. Super. 2002); Rigler.

      We quote the trial court’s analysis of the testimony of Dr. Thomas and

Ms. Eash, with approval.

      After thorough review of the testimony and evidence in this
      matter, the [c]ourt concluded that [C.B.] played an important
      role in [Child’s] life and should continue to have a relationship
      with [Child] in a diminished capacity. Mother’s expert, Dr. Peter
      Thomas, performed a custody evaluation for this matter and
      testified that he believed it would be in the best interest of
      [Child] if [C.B.’s] time with [Child] was gradually reduced and
      eventually terminated. Dr. Thomas reasoned that [Child] has a
      difficult time transitioning, and that moving between three (3)
      residences was too overwhelming for [Child]. [C.B.’s] expert,
      Melinda Eash, spoke with [C.B.] and reviewed Dr. Thomas’
      evaluation and the home study completed on [C.B.] in order to
      render her professional opinion. Ms. Eash testified that she
      questions whether or not it is in the best interest of [Child] to
      completely remove [C.B.] from his life. Ms. Eash further
      explained that it would be very significant to [Child] to remove a
      main caregiver from his life. Ms. Eash stated that she believes
      that [C.B.’s] role will eventually need to be minimized but would
      not recommend complete termination of her time with [Child].

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      The [c]ourt agrees with this conclusion. In the Final Order of
      Custody, the [c]ourt slowly phased out [C.B.’s] time with [Child]
      from two (2) overnights per month to one (1) day per month.
      The [c]ourt believes that spending one (1) day per month with
      [C.B.] on a Saturday will not be unduly disruptive to [Child’s]
      school and will provide more stability in [Child’s] overnight
      schedule as he will only be sleeping at two (2) different
      residences rather than three (3) residences. As such, the [c]ourt
      believes that continuing contact between [Child] and [C.B.] will
      not be detrimental to [Child].

Trial Court Supplemental Opinion 5/28/15, at 3.

      We also quote, with approval, the trial court’s explanation of its

analysis of the testimony of Ms. Eash.

      The [c]ourt found the testimony of [C.B.’s] witness, Melinda
      Eash, to be compelling and believes her opinion[,] based
      primarily on the report of Dr. Thomas[,] to be satisfactory.
      Additionally, [C.B.’s] expert witness was not the only basis for
      the [c]ourt’s decision to maintain contact between [Child] and
      [C.B.]. The [c]ourt considered the testimony of all witnesses and
      evidence prior to concluding that [C.B.]’s relationship was
      important to [Child] and should be maintained.

Id., at 4.

      The record supports the trial court’s determination to reduce gradually

Child’s time with C.B. The trial court did not abuse its discretion by refusing

to follow fully the recommendation of Dr. Thomas, any more than it abused

its discretion by relying on the testimony of Ms. Eash.

      Our examination of the record in this matter reveals that the record

supports the trial court’s findings that C.B. stands in loco parentis to Child

and that a gradual reduction in C.B’s periods of physical custody of Child,

rather than a sudden termination, is in Child’s best interests.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2016




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