J-S46028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.R.                                            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                    v.

C.H.

APPEAL OF: C.H.

                                                     No. 406 MDA 2017


              Appeal from the Order Entered February 13, 2017
            In the Court of Common Pleas of Lackawanna County
                     Civil Division at No(s): 2016-40189

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 14, 2017

       C.H. (“Mother”) appeals from the February 13, 2017 order awarding

primary physical custody of K.C. (born in 2007) and K.C. (born in 2009)

(together “Children”) to T.R. (“Paternal Grandmother”).1 We affirm.

       The relevant factual background and procedural history of this case

are as follows.   From February to October 2016, Paternal Grandmother

had primary physical custody of the Children.       N.T., 2/10/17, at 58-59;

N.T., 12/14/17, at 3. From October 2016 until December 9, 2016, Mother

had primary physical custody of the Children subject to partial physical

custody by Paternal Grandmother. N.T., 12/14/16, at 3. Mother’s custody

was conditioned on her obtaining a protection from abuse order (“PFA”)



1
 We are using the parties’ initials so as to protect the Children’s identities.
We have amended the caption accordingly.


* Former Justice specially assigned to the Superior Court
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against her paramour, J.S., and the Children having no contact with him.2

Id.     During the period of Mother’s primary custody, the Children had to

change school districts and were to attend therapy at the Aaron Center.

N.T., 2/6/17, at 55-57. The record shows that the Children, under Mother’s

care, had unexcused absences from school, were discharged from the Aaron

Center for failure to make appointments, and were infected with head lice.

N.T., 2/6/17, at 13, 15, and 37.

        On December 9, 2016, Mother and the Children were staying in J.D.’s

trailer home.3     N.T., 12/14/16, at 10-11.   Around 12:30 a.m., the police

were called regarding the welfare of other children in the home.          N.T.,

1/5/17, at 5.      Officer Anthony Mercado testified that he and his partner

entered the living room of the trailer home and the Children were watching a

movie with two young boys. Id. The officers left and roughly 30 minutes

later, Officer Mercado received a message from dispatch that J.D. requested

that he and his partner return to the trailer home to take custody of the two

young boys, whose mother J.D. was unable to locate.         Id. at 7.    Officer

Mercado testified that he received information that J.S. had been present at

the trailer and the officer questioned Mother and J.D. regarding his

presence. N.T., 1/5/17, at 11-12. Mother indicated that J.S. had left. Id.

J.D. testified that he saw J.S. in the trailer park that day, but J.S. had never

2
 The Children feared J.S. and had witnessed drug activity in his presence.
N.T., 2/10/17, at 78; N.T., 2/6/17, at 13.
3
    J.D. is Mother’s friend.


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been inside the trailer. N.T., 2/10/17, at 18, 20. One of the Children stated

that J.S. lived in the trailer. N.T., 2/6/17, at 6.

      It was determined that both J.D. and Mother had outstanding warrants

for their arrest. N.T., 1/5/17, at 9. The officers took both into custody and

arrangements were made for the Children.         N.T., 2/10/17, at 37.   Mother

wanted the Children to stay with her mother (“Maternal Grandmother”) in a

nearby trailer until she was released from incarceration. N.T. 12/14/16, at

6.   Maternal Grandmother was determined to be an unfit custodian, so

Mother requested the Office of Youth and Family Services (“OYFS”) contact

Paternal Grandmother. Id.

      Later that day, Paternal Grandmother filed a petition for emergency

special relief to take custody of the Children. After hearings on December

14, 2016, January 5, 2017, February 6, 2017, and February 10, 2017, the

trial court awarded shared legal custody of the Children to Paternal

Grandmother and Mother, and awarded primary physical custody to Paternal

Grandmother. The order allowed Mother partial physical custody at times to

be agreed upon by the parties. The order further directed that the Children

should have no contact with J.S. This timely appeal followed.4

      Mother presents two issues for our review:



4
  Mother filed her concise statement of errors complained of on appeal
contemporaneously with her notice of appeal. See Pa.R.A.P. 1925(a)(2)(i),
(b). On April 4, 2017, the trial court issued its Rule 1925(a) opinion. Both
of Mother’s issues were included in her concise statement.


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   1. Whether the [t]rial [c]ourt erred [in concluding there was
      sufficient] evidence and testimony [to] support[] its
      determination that [Paternal] Grandmother is entitled to primary
      physical custody of the [C]hildren?

   2. Whether the decision of the [t]rial [c]ourt violates Mother’s
      substantive due process rights under the [Fourteenth]
      Amendment of the United States Constitution regarding her
      ability to care, control, raise and have custody of her children?

Mother’s Brief at 3.

      In her first issue, Mother argues that the trial court erred in awarding

custody to Paternal Grandmother. It is well-settled that,

      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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012), quoting, A.D. v.

M.A.B., 989 A.2d 32, 35–36 (Pa. Super. 2010) (internal citations omitted).

      It is axiomatic that the primary concern in any custody dispute is the

best interest of the child. M.G. v. L.D., 155 A.3d 1083, 1091 (Pa. Super.

2017), appeal denied, 2017 WL 2001313 (Pa. May 12, 2017). “In 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


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

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

      Thus, even before the proceedings start, the evidentiary scale is
      tipped, and tipped hard, to the [biological] parents’ side. What
      the judge must do, therefore, is first, hear all evidence relevant
      to the child’s best interest, and then, decide whether the
      evidence on behalf of the third party is weighty enough to bring
      the scale up to even, and down on the third party’s side.

Jordan v. Jackson, 876 A.2d 443, 449 (Pa. Super. 2005) (internal

quotations and citations omitted).

      “[T]he Custody Act provides an enumerated list of [16] factors a trial

court must consider in determining the best interests of the child when

awarding any form of custody[.]” C.A.J. v. D.S.M., 136 A.3d 504, 509 (Pa.

Super. 2016) (internal alteration, ellipsis, and citation omitted). 5      Those

factors are:

        (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.



5
  In her brief, Mother argues that requiring trial courts to consider the 16
best interest factors violates the Fourteenth Amendment. See Mother’s
Brief at 16. This argument is waived because Mother failed to notify the
Attorney General of Pennsylvania of her facial challenge to the
constitutionality of the statute. Pa.R.A.P. 521(a); Kepple v. Fairman
Drilling Co., 615 A.2d 1298, 1303 (Pa. 1992). As such, we proceed with
the analysis required by the statute and case law.


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       (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.

       (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.



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         (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).    Factors related to the safety of the Children (such

as factor two), are to receive weighted consideration. Id.

       Preliminarily, Mother argues that the trial court applied the incorrect

legal standard. She argues that the trial court failed to presume that Mother

should be awarded custody, as is required by section 5327(b).               This

argument is without merit.      The trial court quoted section 5327(b) and

recognized that Paternal Grandmother was required to overcome the

presumption by clear and convincing evidence.       See Trial Court Opinion,

4/4/17, at 8-9. Thus, the trial court applied the correct legal standard.

       Turning to the trial court’s weighing of the custody factors, it found

that factors one, three, eight, nine, eleven, thirteen, fourteen, and fifteen

were neutral.   Id. at 4-8.   However, it found factors two, four, five, six,

seven, ten, and twelve weighed in favor of Paternal Grandmother.        Id. at

4-8.

       Mother challenges the trial court’s factual finding with respect to the

second factor, i.e., whether J.S. provides a continued risk of harm towards

Children.    Mother relies upon this Court’s decision in Luminella v.

Marchocci, 814 A.2d 711 (Pa. Super. 2002), in arguing that the Children’s

fear of J.S. is insufficient to prove that he poses a continued risk of harm

towards them. Mother is correct that Luminella requires a judicial inquiry


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into the parties’ relationship to determine if a child’s fear is founded. Id. at

718.

       In this case, the trial court determined the Children’s fear was

founded.    The trial court interviewed the Children in chambers regarding

their relationship with J.S., at which time Mother agreed to keep him away

from the Children. N.T., 2/10/17, at 78. The Children reported witnessing

J.S. “smoking things out of pipes.” N.T., 2/6/17, at 13. Mother conceded in

her testimony that she needed a PFA from J.S., but hoped that he would

“get help” and she could give him a second chance. Id. at 44-46.

       The trial court also gave substantial weight to factors four, five, and

six.   These factors refer to stability and familial ties.   If Mother were to

receive primary physical custody, the Children would have to, once again,

change school districts. The record established that while in Mother’s care,

the Children had unexcused absences from school and were discharged from

therapy at the Aaron Center for failure to keep appointments. The Children’s

attendance at school and counseling is better while in the care of Paternal

Grandmother. N.T., 2/6/17, at 42-43. Moreover, the Children live with their

brother    and   paternal   great-grandmother   when   staying   with   Paternal

Grandmother, so they have strong family connections. Id. at 27.

       Factor ten considers which party is better able to tend to the daily

needs of the Children.      This weighs in favor of Paternal Grandmother.    As

stated above, the Children’s attendance at school and counseling is better



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when they are in the custody of Paternal Grandmother. Furthermore, while

in Mother’s custody, the children were infected with head lice.       Paternal

Grandmother has demonstrated that she is best able to tend to the needs of

the Children.

      Factor twelve refers to the ability of the guardians to care for and

make appropriate childcare arrangements for the Children.       Mother works

overnight and would leave the Children with her sister during that time.

N.T., 2/10/17, at 41.     However, Mother’s sister already cares for five

children, and may live with Maternal Grandmother, who is to have no

unsupervised contact with the Children. Id. at 57-58.

      Mother does not challenge the trial court’s factual findings with respect

to these seven factors. See Mother’s Brief at 20. Instead, she argues that

these factors are insufficient to overcome the presumption that Mother

should maintain custody of the Children by clear and convincing evidence.

We disagree. The trial court found Paternal Grandmother provided evidence

“weighty enough to bring the scale up to even, and down on [her] side.”

Jordan, 876 A.2d at 449.       We conclude that trial court did not err in

reaching this legal conclusion.   Mother is essentially asking us to reweigh

this evidence. As our Supreme Court has explained, “appellate court[s] may

not interfere with the trial court’s factual conclusions unless they are

unreasonable in view of the trial court’s factual findings and thus represent

an abuse of discretion.” T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001). As



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such, we conclude that the trial court did not err in finding that Paternal

Grandmother rebutted the section 5327(b) presumption by clear and

convincing evidence.

      In her second issue, Mother contends that the trial court’s decision

violates her Fourteenth Amendment due process rights to the care, custody,

and control of her children. In support of this position, Mother cites Troxel

v. Granville, 530 U.S. 57 (2000).     In Troxel, the Supreme Court of the

United States struck down a Washington statute that gave “any person”

standing to petition for visitation with a child and gave no deference to the

wishes of a fit parent regarding visitation with third parties. Id. at 62-63.

The Supreme Court explained the Washington court’s “order was not

founded on any special factors that might justify the State’s interference

with Granville’s fundamental right to make decisions concerning the rearing

of her two daughters.” Id. at 68.

      Section 5327(b) codifies a statutory presumption that, unless rebutted

by clear and convincing evidence, parents should be awarded custody over

third parties.   In other words, section 5327(b) requires special factors be

present in order to interfere with a parent’s fundamental right to make

decisions concerning his or her child(ren). As a committee of the Family Law

Section of the American Bar Association has stated, section 5327(b) serves

as a model for how state legislatures can address the requirements set forth

in Troxel. See Model Third-Party Child Custody and Visitation Act § 5 cmt



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(2012).   In this case, the trial court carefully considered this presumption

and determined that Paternal Grandmother rebutted it with clear and

convincing evidence.      Therefore, the trial court did not violate Mother’s

Fourteenth Amendment due process rights as interpreted by Troxel.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/14/2017




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