J-A05030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.S., N/B/M C.Y.                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            APPELLANT

                       v.

J.B.

                       v.


C.J.B. and R.A.B.                              No. 1534 WDA 2016


              Appeal from the Order Entered September 7, 2016,
               in the Court of Common Pleas of Crawford County
                    Civil Division at No(s): A.D. 2009-313-S


BEFORE:      BENDER, P.J.E., SHOGAN, J. and MOULTON, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED APRIL 11, 2017

       C.S., n/b/m C.Y. (“Mother”), appeals from the order entered on

September 7, 2016, that awarded shared legal and physical custody of

K.M.B. (“Child”), born in October of 2008, to Mother and C.J.B. (“Paternal

Grandmother”).1 We affirm.




____________________________________________


1
  Although both Paternal Grandmother and R.A.B. (Paternal Grandfather)
were parties in this matter, the trial court’s order only named Grandmother
and Mother as the parties who would share both legal and physical custody
of the Child.
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     The relevant factual and procedural history was set forth in the trial

court’s memorandum and order issued subsequent to the custody hearing

held on August 23, 2016, and on August 31, 2016. The court stated:

     Plaintiff, [C.S.], now by marriage C.Y. … requested a de novo
     custody trial, contending that the minor child, [K.M.B.,] … should
     be in her primary care and custody. The Defendant, [J.B.
     (“Father”)] did not participate in the trial. The Intervenors,
     [C.J.B. and R.A.B. (“Paternal Grandparents”)] are currently
     sharing physical custody of the Child with Mother. The [c]ourt
     previously allowed the maternal grandparents, [R.H. and M.S.],
     to withdraw from any further involvement in the case.

     Mother and her husband, [C.Y.], testified in support of Mother’s
     petition.   Paternal Grandmother testified in support of her
     assertion that the current order dated December 22, 2015
     should remain materially unchanged. The December 22 Order
     provides that the Child is to be in the shared physical custody of
     Mother and Paternal Grandparents, alternating physical custody
     of the Child on a weekly basis beginning on Sundays at 6:00
     p.m. Mother’s initial position was that she alone should be given
     primary physical custody of the Child, possibly with weekend
     periods of partial custody with Father and then such partial
     custody with Paternal Grandparents as the parents believe would
     be appropriate. Mother later changed course and suggested that
     she would be willing to concede that the Paternal Grandparents
     should have the Child on weekends rather than Father, after
     learning that Father is currently either homeless at the present
     time, residing at a shelter known as the Saint James Haven or,
     alternatively, residing at some temporary residence pending
     further approval by his parole officer.

     The Child was born [in October of 2008]. She was a twin child.
     Her twin brother, [A.B.,] died on March 5, 2009 when he was
     approximately 4 months old. Mother was charged with criminal
     homicide. The criminal information alleged that Mother placed
     the child down on a pillow on a bed and “then placed another
     pillow on top of” [A.B.] and then left [A.B.] unattended, during
     which time he suffocated and died. At the custody trial, Mother
     said nothing about placing a pillow on top of [A.B.], but did
     admit that she left the child unattended to take a shower and
     discovered him nonresponsive when she returned from her

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     shower. During the custody trial, she offered no explanation as
     to how [A.B.] could have suffocated, other than to suggest that
     the child rolled over. No testimony was provided as to where
     [K.M.B.], the Child of these proceedings, was at the time.
     Mother [pled] guilty to involuntary manslaughter and was
     sentenced on February 24, 2010 to a term of imprisonment of 25
     months to 120 months.

     Mother has given birth to a total of four children. The oldest,
     [L.], is believed to be around 8 years of age. His father is not in
     his life to any measurable degree. It is unclear who had custody
     of [L.] while Mother was incarcerated. The next two children
     were [Child] and [A.B.]. Mother gave birth to a fourth child,
     [K.], who she made available for adoption. He is residing in
     Philadelphia with his adoptive parents.        Mother sees [K.]
     approximately six to eight hours annually under what is believed
     to be a Post Adoption Contact Agreement.

     As noted above, Mother's husband is [C.Y.]. Her marriage to
     [C.Y.] took place on August 16, 2014. She was previously
     married to [C.Y.] in February of 2009, however, that marriage
     ended in divorce approximately five months later due to Mother’s
     admitted infidelity with two other persons, neither of whom are
     the father of [K.].

     While Mother was incarcerated, the Child was in the shared
     physical custody of the Paternal and Maternal Grandparents who
     alternated having the Child each week. This continued until
     Mother was released on parole in the Spring of 2012. Mother
     was paroled to live with her parents.

     To Mother’s credit, she applied herself toward the in-home
     parenting and homemaking programs afforded to her through
     Crawford County Children and Youth Services (“CYS”). These
     services were successfully discontinued in May of 2013. Mother
     is currently a full-time homemaker, caring for her son, [L.], and
     stepson, [Q.], who is 10 years of age. She relies on her
     husband for financial support. Her husband is employed with a
     pipeline company. He works at various job sites and is home on
     weekends, sometimes only on either Saturday or Sunday. The
     Maternal Grandparents are now divorced. They relinquished
     their shared custody [of the Child] to their daughter after her
     release from prison. Mother testified that her father is closer to
     the Child than her mother.

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     . . .

     When asked to summarize her reasons why she should have
     primary physical custody of the Child, Mother indicated the
     following:

             a) She is the Mother;
             b) The Child should be with her siblings;
             c) The Child should be raised by a parent, rather than a
             grandparent;
             d) There would be more stability for the Child who would
             not be required to move from one residence to another
             every week.

     Absent from Mother’s reasons is any mention of the child’s best
     interests.  Mother was apprised of the fact that the Child
     provided the [c]ourt with testimony of her sincere interest in
     maintaining the status quo and continuing to be in the shared
     physical custody of her Mother and her Paternal Grandparents.
     Mother coldly disregards the Child’s feelings, saying simply that
     the Child would adapt because the Child is so good at adapting
     to things.    Absent from Mother’s analysis is any concern
     whatsoever as to the [e]ffect on the Child if she was suddenly
     removed from the shared care of the only two people in her life
     who have always been there for her. Mother’s testimonial
     demeanor lacked empathy for the Child.

     Mother’s past speaks for itself. Her recent decision to allow the
     Child to be in the care of Father, without full appreciation for
     Father’s circumstances[,] is consistent with her pattern of
     behavior.

     The Child is delightful but, as the [c]ourt noted during the
     hearing, troubled by these proceedings. Paternal Grandparents,
     consistent with their high level of cooperation, have expressed
     their consent to the present Order. Mother, with little regard for
     the Child’s sensitivity and little appreciation for the care and
     comfort provided by Paternal Grandparents throughout the life of
     the Child, insists on eliminating the Paternal Grandparents from
     any meaningful role in the Child’s life.

     The success the Child has had in adapting to the death of her
     twin brother; the adopting-out of her youngest brother; the

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J-A05030-17


       incarceration of her Mother; the incarceration of her Father;
       witnessing her Father’s rage against Paternal Grandmother;
       knowledge of her Father’s drug use; the marriage, then divorce,
       then remarriage of Mother to [CY]; Mother’s several boyfriends;
       the appearance of CYS in-home parenting consultants weekly for
       a period of one year; and an absent Father who has probably
       stolen from her and her Grandmother, is all the consequence of
       the Paternal Grandparents’ guidance and not Mother’s. To place
       this Child in the primary care of Mother, given her past history,
       her occasional poor judgment and her insensitivity, is not
       warranted.

Trial Court Memorandum (TCM), 9/7/16, at 1-5.2        Based upon its findings

and conclusions, the court awarded joint legal custody of the Child to Mother

and Paternal Grandmother and determined that Mother and Paternal

Grandmother would share physical custody on a week-on/week-off basis.

The court’s order also provided that Mother and Paternal Grandmother could

arrange custodial time for all holidays; however, if the parties could not

agree, they were to abide by the court’s schedule included in its order.

       Mother filed a timely appeal, and raises the following issue for our

review:     “Whether the [t]rial [c]ourt abused its discretion in failing to

presume that Mother is fit, and therefore, her parenting decisions are made

in her child’s best interest.” Mother’s brief at 4.

       When presented with child custody matters, we are guided by the

following scope and standard of review:
____________________________________________


2
  In addition to setting forth its factual and procedural discussion, the court
also listed the factors enumerated in 23 Pa.C.S. § 5328(a)(1)-(16) of the
Child Custody Act, 23 Pa.C.S. §§ 5321-5340 and discussed its findings and
its reasoning with regard to each factor.



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J-A05030-17


         [O]ur scope is of the broadest type and our standard is abuse of
         discretion. This Court 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, this Court must defer to the trial judge who presided
         over the proceedings and thus viewed 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.

E.D. v. M.P. 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989

A.2d 32, 35-36 (Pa. Super. 2010)). Furthermore, we note 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)
         (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super.
         2004)).

A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012).

         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 well-being. Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674,



                                        -6-
J-A05030-17


677 (Pa. Super. 2004)). Furthermore, we recognize that the Child Custody

Act governs all proceedings commenced after January 24, 2011.               The

specific factors that a court must consider are listed at 23 Pa.C.S. §

5328(a)(1)–(16). See E.D., 33 A.3d at 79-80 (holding that “best interests

of the child” analysis requires consideration of all section 5328(a) factors).

      Essentially, Mother claims that a presumption exists with regard to

custody matters between parents and third parties, as provided for in 23

Pa.C.S. § 5327(b), which states in pertinent part:

      (b)   Between a parent and third party.—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 the parent. The presumption in favor of the
      parent may be rebutted by clear and convincing evidence.

Also, as part of Mother’s argument, she contends that “the law presumes

parents are fit and, as such, that their parenting decisions are made in their

children’s best interests.” Mother’s brief at 16 (citing Parham v. J.R., 442

U.S. 584, 602-03 (1979)). Thus, Mother argues that it was improper for the

trial court to analyze the best interest factors listed in 23 Pa.C.S. § 5328

because this “simply allows the [t]rial [c]ourt to overturn Mother’s decisions

based on the [t]rial [c]ourt’s determination of what is in the best interest of

the subject minor child, in conflict with the presumption that fit parents act

in the best interests of the child, and hinder[s] Mother’s ability and

constitutionally protected right to make decisions concerning the care,

custody, and control of the subject minor child.” Mother’s brief at 18.


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J-A05030-17


      In response to Mother’s argument, the trial court recognized that the

thrust of Mother’s claim rested on the presumption as stated in 23 Pa.C.S. §

5327(b); however, the court explained its reasons for maintaining the

shared custody arrangement, stating:

      This [c]ourt finds no hesitation in concluding that clear and
      convincing evidence does not support allowing Mother to have
      primary physical care of the Child. If anything, it is the Paternal
      Grandparents, not Mother, who should have primary physical
      custody of the Child. The [c]ourt would be inclined to order such
      if it were not for the fact that this [c]ourt gives great weight to
      the Child's expression of preference. The Child enjoys her time
      with her Mother and Paternal Grandparents equally.             She
      perceives that each have much to offer her and that to select
      one over the other would deprive her of that variety. She may
      even grasp, at some level, that the presence of her Paternal
      Grandparents acts as a safety net. Her Paternal Grandparents
      have been the one constant in her life.

TCM at 5.

      Additionally, in the context of its discussion of the various factors, the

trial court gave more insight into its reasons for its decision to maintain the

equally shared custody arrangement. For example, the court mentioned the

death of the Child’s twin while in Mother’s care. The court also relied heavily

on Paternal Grandparents’ performing of parental duties throughout the

Child’s life and its determination that they, rather than Mother, are better

able to attend to the Child’s daily needs.      The court further found that

although Mother may not encourage frequent contact with Paternal




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Grandparents, the Grandparents would encourage such contact with Mother.

Specifically, with regard to factor (7)3 the court stated:

       Considering what this Child has gone through in her short life,
       her reasoned preference must be afforded substantial weight by
       the [c]ourt. Her Paternal Grandparents have been the only two
       people in her life who have always been there and have always
       done the right thing by her. The Child understands this. The
       Child also understands that she is properly cared for by her
       Mother and enjoys her time with her siblings. The current
       arrangement is serving the Child's best interests. To disregard
       the Child's preference, as Mother requests, would be to introduce
       more uncertainty in the life of the Child. Such disregard may
       materially reduce her self-esteem. She expressed herself in
       unequivocal terms.      If the [c]ourt does not provide proper
       weight in consideration for her preference, it would not be
       surprising if the Child would be of the opinion that what she
       thinks and feels does not matter. This [c]ourt is not prepared to
       allow that to happen.

TCM at 7.

       To address Mother’s argument relating to the section 5327(b)

presumption in favor of a parent in a custody matter as opposed to a third

party, we note our Supreme Court’s explanation in Charles v. Stehlik, 744

A.2d 1255 (Pa. 2000), wherein the Court explained:

             It is axiomatic that in custody disputes, “the fundamental
       issue is the best interest of the child.” Ellerbe v. Hooks, 490
       Pa. 363, 416 A.2d 512, 513 (Pa. 1980). In a custody contest
       between two biological parents, “the burden of proof is shared
       equally by the contestants….” Id. Yet, where the custody
       dispute is between a biological parent and a third party, the
____________________________________________


3
  Factor (7), contained within the list of factors to be considered when
awarding custody, directs the court to address “[t]he well-reasoned
preference of the child, based on the child’s maturity and judgment.” 23
Pa.C.S. § 5328(a)(7).



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J-A05030-17


      burden of proof is not evenly balanced. In such instances, “the
      parents have a ‘prima facie right to custody,’ which will be
      forfeited only if ‘convincing reasons’ appear that the child’s best
      interest will be served by an award to the third party. Thus,
      even before the proceedings start, the evidentiary scale is
      tipped, and tipped hard, to the [biological] parents’ side.” 416
      A.2d at 514 (quoting In re Hernandez, 249 Pa. Super. 274,
      376 A.2d 648, 654 (1977)).

Id. at 1258.    See also D.P. v. G.J.P., 146 A.3d 204, 212 (Pa. 2016)

(reaffirming that the presumption in favor of parents as against third parties

remains good law). However, the Charles decision further recognizes that

the Commonwealth has not adopted a standard whereby custody is always

awarded to a parent as opposed to a third party except if there is a showing

that the parent is unfit. Rather, the Charles Court explains:

      [T]he biological parent’s prima facie right to custody

          is not to be construed as precluding a custody award to
          a non-parent, absent a demonstration of the parent’s
          dereliction.   We again emphasize that the standard
          seeks only to stress the importance of parenthood as a
          factor in determining the best interests of the child.
          However, other factors which have significant impact on
          the well[-]being of the child can justify a finding in favor
          of the non-parent, even though the parent has not been
          shown to have been unfit.

Charles, 744 A.2d at 1259 (quoting Albright v. Commonwealth ex rel.

Fetters, 421 A.2d 157, 161 (Pa. 1980)). In other words, the best interest

of the child trumps the biological parent’s right to custody. Id.

      Here, the trial court so found, determining that the “presumption[]

[was] … rebutted by a consideration of the custodial situation during the

[C]hild’s lifetime, including but not limited to the parents’ periods of

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J-A05030-17


incarceration, sporadic irresponsibility, and overall lack of stability.”   Trial

Court Pa.R.A.P. 1925(a) Opinion, 10/19/16, at 2. The court concluded that

Mother “ha[d] not consistently provided adequate care for her child….” Id.

Mother has not convinced us otherwise. We therefore conclude that the trial

court did not abuse its discretion in granting shared legal and physical

custody to Mother and Paternal Grandmother.        Accordingly, we affirm the

trial court’s custody order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




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