J-A30033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    C.S.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellant              :
                                               :
    v.                                         :
                                               :
                                               :
    K.Z.                                       :
                                               :   No. 909 MDA 2019

                      Appeal from the Order Entered May 3, 2019
         In the Court of Common Pleas of Cumberland County Civil Division at
                                 No(s): 2017-06066



BEFORE:        DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED JANUARY 28, 2020

          Appellant, C.S. (“Maternal Grandmother”), appeals from the order dated

May 3, 2019, granting Appellee, K.Z. (“Father”), primary physical custody and

sole legal custody of his biological child, K.L.Z. (“Child”), born 2016, and

granting partial physical custody of Child to Maternal Grandmother.        After

careful review, we affirm.

          Following Child’s birth, Child and her mother lived with Maternal

Grandmother; at that time, Father was struggling with opioid addiction. Trial

Court Opinion (“Tr. Ct. Op.”), filed July 3, 2019, at 1.      On May 25, 2017,

Child’s mother “died of an overdose attributable to fentanyl.” Id. at 3.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On May 31, 2017, Maternal Grandmother filed a complaint, seeking sole

legal and physical custody of Child.      “[I]n paragraph 6 of [Maternal]

Grandmother’s complaint, instead of filling in the blank with ‘Father,’ she

characterized ‘[t]he relationship of defendant to [C]hild is that of Sperm

Donor.’” Id. (underlining in original) (quoting Complaint, 5/31/2017, at 1).

On June 22, 2017, Father and Maternal Grandmother stipulated to an order

giving her shared legal custody and primary physical custody of Child.

However, the relationship between the parties deteriorated, and both filed

emergency petitions in August 2017.     Following a hearing on October 26,

2017, the trial court granted sole legal custody and primary physical custody

of Child to Maternal Grandmother and granted partial physical custody of Child

to Father.

      Child’s paternal grandmother, P.Z. (“Paternal Grandmother”), filed a

petition to intervene, and the trial court held a hearing on the petition on

May 31, 2018.    During the hearing, Paternal Grandmother testified that,

immediately after the death of Child’s mother, Maternal Grandmother did not

allow her to see Child. N.T., 5/31/2018, at 9. She continued:

      I never saw [Child] until we were here in [c]ourt and we had our
      first weekend visit with [Child’s maternal grandfather, who lives
      separately from Maternal Grandmother], and then [Child’s
      maternal grandfather] let us have her at our house on Sunday
      with me supervising. I asked [Maternal Grandmother] multiple
      times and was denied, and my son was denied as well.

Id.   At the conclusion of the hearing, the trial court granted Paternal

Grandmother’s petition to intervene, modified the custody order to allow


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Paternal Grandmother to pick up Child at exchanges, and ordered Father’s

family to have an additional day-and-a-half of custodial time beginning that

day to offset some of the time lost when Maternal Grandmother refused to

allow them to see Child. Id. at 54-55.

        On August 20, 2018, Father filed a petition to modify the October 2017

order, requesting sole legal and primary physical custody of Child. The trial

court held hearings on Father’s petition on December 19, 2018, and April 16,

2019.

        During the latter hearing, Father testified that “the communications with

[Maternal Grandmother] . . . since the last time [they] were in court” were

“[f]ine” and that he has been “communicating” with her “directly[.]” N.T.,

4/16/2019, at 23-24. “Father testified about his progress with his addiction,

his work challenges and his new family (a fiancé[e], their infant, her 3 year

old daughter[, A.D.,] and [Child])[.]” Tr. Ct. Op., filed July 3, 2019, at 16.

Father stated that A.D. and Child have had “normal fights between sister” but

that they are “the same age, one month apart, so they fight, of course, but

they get along well.” N.T., 4/16/2019, at 25, 37. He admitted that A.D. had

bitten Child once but added that A.D. began behavioral health therapy two

months ago. Id. at 39, 105. Father also talked about his fiancée, who cares

for Child while he is working and who he said “plays a mother role very well”

and “is a great mother to our other two children.”         Id. at 36.   Father’s

testimony continued as follows:


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     A     . . . I am one hundred percent fine with giving [Maternal
     Grandmother] weekend visitations just like it has been, and, you
     know, if she were to contact me during the week asking can I get
     [Child] for a few hours or something, if we had nothing planned,
     or nothing going on, that wouldn’t be an issue either.

     Q     Would [Maternal      Grandmother]    be   invited    to   family
     functions at all?

     A       I could invite her. I am not sure that she would come.

     Q     Would you make sure that [Child] could be with [Maternal
     Grandmother] if she had family functions on her side of the
     family?

     A       As long as nothing was going on in my family, yes.

     Q     And you are okay with having an order that requires you to
     give her time?

     A       Yes.

Id. at 27.   When Maternal Grandmother’s attorney asked Father about a

missed drug screen in February 2019, Father explained that “Restorative

Sanctions” had not given him “24-hour notice” of the drug test, as the trial

court had ordered them to do prior to each screen, due to his erratic work

schedule. Id. at 30. He further clarified that he missed the test, as he was

working a part-time second job that day, chopping wood, and that he took the

test the day after receiving notice of his “no show.”     Id.    Finally, Father

testified that the parties had argued over the Child’s belongings but that he

“realized” that the argument was “stupid” and “pointless” and “apologized” to

Maternal Grandmother. Id. at 35.

     Maternal Grandmother testified about “how the communication has

been between [herself] and [Father,]” as follows:




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       [T]here isn’t much communication, but what little there is, it
       seems to be doing quite well. [Father] will bring [Child] out
       whenever I pick her up, and, you know, he will give her to me,
       and she will say bye, and that’s basically what it is. . . . There is
       no communication outside exchanges.

Id. at 55.        Maternal Grandmother also presented the testimony of

Esther Armstrong       who    was    “present    during   all   custody   exchanges”;

Ms. Armstrong testified that Child “has been back with bruising lately.” Id. at

87.

       On May 3, 2019, the trial court entered an order granting Father sole

legal custody and primary physical custody of Child and granting Maternal

Grandmother partial physical custody of Child, with visitation every

Wednesday from 4:00 p.m. until 8:00 p.m. and every other weekend from

Friday at 4:00 p.m. until Sunday at 6:00 p.m. On June 3, 2019, Maternal

Grandmother filed this timely1 appeal from the trial court’s custody order.2

       Maternal Grandmother presents the following issue for our review:

       Whether the [t]rial [c]ourt erred and committed an abuse of
       discretion in weighing the sixteen (16) custody factors in such a
       way as to find that it is in the best interest of the Child to award

____________________________________________


1 Thirty days after May 3, 2019, was Sunday, June 2, 2019. See Pa.R.A.P.
903(a) (“the notice of appeal . . . shall be filed within 30 days after the entry
of the order from which the appeal is taken”). Grandmother’s notice of appeal
was filed the next business day thereafter and, accordingly, was timely. See
1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on
Saturday or Sunday . . . such day shall be omitted from the computation.”).
2 Grandmother filed her statement of errors complained of on appeal
contemporaneously with her notice of appeal, as required by Pa.R.A.P.
1925(a)(2)(i). On July 3, 2019, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a)(2)(ii).

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J-A30033-19


     [Father] sole legal and primary physical custody of the Child to
     [Father], pursuant to 23 Pa.C.S. Section 5328, et. al.

Maternal Grandmother’s Brief at 6.

     We begin by acknowledging our scope and standard of review in
     custody cases:

        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.

D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (quoting J.R.M. v.

J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).

     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).

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         (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.

         (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. § 5328(a). Additionally, as this is a custody order pertaining to a

parent and third party, we note the applicability of 23 Pa.C.S. § 5327(b):


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J-A30033-19


      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.

Id. § 5327(b).

      Maternal Grandmother urges this Court to reject the conclusions of the

trial court about the first, third, fourth, fifth, sixth, eighth, ninth, twelfth,

thirteenth, and fourteenth custody factors and, instead, to find that these ten

factors are strongly in her favor.     Maternal Grandmother’s Brief at 13-21

(citing 23 Pa.C.S. § 5328(a)(1), (3)-(6), (8)-(9), (12)-(14)).

      For the first custody factor, “[w]hich party is more likely to encourage

and permit frequent and continuing contact between the child and another

party[,]” 23 Pa.C.S. § 5328(a)(1), the trial court stated: “This was addressed.

In short, despite his frustration over being treated as less than human, Father

appears to have a much more forgiving heart than most other adults in this

case.” Tr. Ct. Op., filed July 3, 2019, at 24. Maternal Grandmother argues

that the trial court abused its discretion in evaluating this factor, because “the

trial court’s observation is unsupported by the record[.]”              Maternal

Grandmother’s Brief at 14 (citing Tr. Ct. Op., filed July 3, 2019, at 24).

However, the trial court provided the following additional explanation as to

why it found the first custody factor to be a “negative[]” for Maternal

Grandmother:

      [W]e acknowledged that “[Maternal] Grandmother stepped in
      when she needed to step in, and everyone should be grateful to
      her for that and actually tell her that.” Her role was not lost on
      us when we granted her more partial custody than Father’s


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J-A30033-19


       counsel would have liked. But, [Maternal] Grandmother’s view of
       stability would never permit Father to be a fulltime parent.

Tr. Ct. Op., filed July 3, 2019, at 23 (quoting N.T., 4/16/2019, at 121).

Moreover, the trial court noted that Maternal Grandmother had “refus[ed] to

allow [Paternal Grandmother] to have contact” with Child.       Id.   The trial

court’s conclusions were supported by Father’s testimony that he would be

“one hundred percent fine with” a court order “giving [Maternal Grandmother]

weekend visitations” and with her contacting him “during the week” to arrange

“a few hours” with Child, as well as his testimony that Child could attend

Maternal Grandmother’s family functions and that he “could invite” her to his

family functions even though he was “not sure” if she would attend. N.T.,

4/16/2019, at 27. The trial court’s findings were further supported by Paternal

Grandmother’s testimony that Maternal Grandmother had refused to permit

her to see Child until the court intervened. N.T., 5/31/2018, at 9. We further

note that Maternal Grandmother fails to direct this Court to any evidence of

record that she in any way encouraged contact between Child and Father or

any of Father’s family; such evidence, if it existed, could have contradicted

the trial court’s conclusion that this factor weighed against her. See Maternal

Grandmother’s Brief at 13-14. Ergo, we must accept the findings of the trial

court about the first custody factor, as they are supported by competent

evidence of record. See D.K., 102 A.3d at 478.3

____________________________________________


3 Maternal Grandmother concedes that the second custody factor, “[t]he
present and past abuse committed by a party or member of the party’s



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       For the third custody factor, “[t]he parental duties performed by each

party on behalf of the child[,]” 23 Pa.C.S. § 5328(a)(3), Maternal

Grandmother argues that the trial court failed to identify any efforts made by

Father to attend Child’s medical appointments or other functions while Child

was in Maternal Grandmother’s care. Maternal Grandmother’s Brief at 14.

However, the trial court explained its reasoning as follows:

       I do believe that Father has, over the course of the last couple of
       years, shown that he is able to fully assume all of his parental
       obligations, and I have no qualms under the custody factors that
       he can do that. To the extent that he hasn’t done some things,
       like taking [Child] to the doctor, that’s really more because
       [Maternal G]randmother has held on to that responsibility, not
       that that’s a bad thing, but not that there is anything to indicate
       that Father is not capable of doing that. Certainly they are capable
       of getting the proper care and treatment for A.D., and they can
       do the same for [Child], and to the extent possible, obviously they
       may need to switch doctors, I don’t know what the circumstances
       are there, but you have a little bit of time to work that out as well.

       But, clearly, under the custody law as it is, Father is ready to
       assume full responsibility, and [Maternal G]randmother needs to
       be content with not only what Father is willing to give her, but,
       hopefully, there will at some point in time be a true relationship
       between the folks in this room. As far off in the distan[ce] as that
       may seem, I hope that that happens for [Child]’s benefit sooner
       as opposed to later.

Tr. Ct. Op., filed July 3, 2019, at 19 (quoting N.T., 4/16/2019, at 123-24)

(internal brackets omitted).        The trial court consequently concluded:     “No


____________________________________________


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[,]” 23 Pa.C.S. § 5328(a)(2), and the related (2.1)
custody factor, are not relevant to the current action, as there are no
allegations of physical abuse. Maternal Grandmother’s Brief at 22.

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J-A30033-19



doubt, [Maternal] Grandmother performed the bulk [of the parental duties]

and gets great credit, but, as stated on April 16, 2019, but for [Maternal]

Grandmother excluding Father from duties such as doctor visits, he is able to

perform these duties.” Id. at 24. We “must defer to the presiding trial judge

who viewed and assessed the witnesses first-hand.” D.K., 102 A.3d at 478.

      For the fourth custody factor, “[t]he need for stability and continuity in

the child’s education, family life and community life[,]” 23 Pa.C.S.

§ 5328(a)(4), Maternal Grandmother argues that the trial court disregarded

the “significant social ties” that Child has “to [Maternal] Grandmother and her

residence[,]” that deprivation of “close relationships” with her other family

members will harm Child, and that her home is better suited for Child than

Father’s home. Maternal Grandmother’s Brief at 15-16 (citations omitted).

The trial court found this factor favored Father, concluding that Child “will still

have a significant relationship with [Maternal] Grandmother, more so than

most grandparents[] have. Thus, the benefits of a new stability for a little

three-year-old will outweigh any loss.” Tr. Ct. Op., filed July 3, 2019, at 24.

The evidence provided that Child is not in school, and Child will continue to

see Maternal Grandmother four hours every week plus at least two weekends

per month. The trial court’s conclusion thus is not “unreasonable as shown

by the evidence of record.” D.K., 102 A.3d at 478.

      Maternal Grandmother’s entire discussion of the fifth custody factor,

“[t]he availability of extended family,” 23 Pa.C.S. § 5328(a)(5), is as follows:




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      The fifth factor, pursuant to §5328(5), asks the Court to consider
      the availability of extended family. In addressing this factor, the
      [trial] court simply stated, “[t]his is a plus and a minus for both
      side[s]”, but provided no explanation of as to how or why.

Maternal Grandmother’s Brief at 16 (quoting Tr. Ct. Op., filed July 3, 2019, at

24). Maternal Grandmother is unclear as to what she is contesting about the

trial court’s conclusion; she does not dispute that both she and Father have

extended family. As Maternal Grandmother provides us with no basis to find

the trial court’s conclusion to be unreasonable, we will not overturn it.

      As to the sixth factor, “the child’s sibling relationships,” 23 Pa.C.S.

§ 5328(a)(6), Maternal Grandmother argues that the trial court “ignore[d]”

testimony that A.D. and Child “are mean to each other and will bite, hit and

kick one another.”      Maternal Grandmother’s Brief at 16 (citing N.T.,

4/16/2019, at 37, 39, 87). Nevertheless, the trial court did not “ignore[]” this

concern but thoroughly addressed it during the April hearing and in its opinion:

      Indeed, after cutting through the testimony, the main concern
      about Father’s ability to parent, which he and his fiancé[e] ably
      addressed in their testimony, was sisters being sisters. Having
      heard of, seen and tested Father’s sobriety, we now had a four-
      month track record of successful parenting with no major
      concerns:

         I am happy that some of the worst things I heard today were
         about two-and-a-half-year-olds fighting. Kids say and do
         things they shouldn’t say and do. Sometimes it seems to
         come out of thin air, sometimes you don’t know, but there
         are problems with conflicts among most children. That’s not
         to minimize the circumstances here, and I am glad to hear
         that [Father’s fiancée] and [Father] are addressing issues
         with [A.D.], and it appears that you are addressing them in
         an appropriate way. Head Start should be helpful in that
         respect, not only regarding [A.D.] but also regarding how



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          you work with [Child] . . . So, I am glad that you are doing
          that.

Tr. Ct. Op., filed July 3, 2019, at 18 (quoting N.T., 4/16/2019, at 125-27).

The trial court’s conclusion was supported by Father’s testimony that, while

Child and A.D. may fight, they generally “get along well.” N.T., 4/16/2019,

at 25, 37.    Additionally, Father testified that A.D. began behavioral health

therapy two months prior to the April 2019 hearing. Id. at 105. We thereby

find that, based upon the evidence of record, the trial court did not abuse its

discretion when it concluded for the sixth custody factor that, “at this time,

and hopefully for many years to come, Father has a good, healthy young

family.” Tr. Ct. Op., filed July 3, 2019, at 24; see D.K., 102 A.3d at 478.4

       As to the eighth factor, “[t]he attempts of a parent to turn the child

against the other parent,” 23 Pa.C.S. § 5328(a)(8), Maternal Grandmother

argues that the trial court “is quick to dismiss issues that it was having with

Father at the same time,” such as “when Father failed to attend a court

ordered drug screening” in February 2019. Maternal Grandmother’s Brief at

17.   The trial court referred to this factor as a “negative[]” for Maternal

Grandmother, Tr. Ct. Op., filed July 3, 2019, at 23, finding:

       This is one of [Maternal] Grandmother’s biggest problems, and we
       fear that it could grow worse. Hopefully, she has grown beyond
       referring to Father as “sperm donor,” something Child should
       never hear. If she does not; however, and if the animosity turns
       into outright interference, [Maternal] Grandmother runs the risk
       of losing the custodial rights she has.

____________________________________________


4The seventh custody factor is inapplicable, because Child is too young to
have a well-reasoned preference. See id.

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Id. at 25. Once again, Maternal Grandmother fails to present any evidence

to this Court contradicting the trial court’s conclusions about her behavior and

attitude towards Father; she does not claim, let alone present any evidence,

that she has not attempted to turn Child against Father.         See Maternal

Grandmother’s Brief at 17. As for Father’s failure to attend a court-ordered

drug screening in February 2019, Father provided a thorough explanation for

missing this one test, which the trial court accepted. N.T., 4/16/2019, at 30.

Pursuant to our standard of review, we must accept findings of the trial court

that are supported by competent evidence of record. See D.K., 102 A.3d at

478.

       For the ninth custody factor, “[w]hich party is more likely to maintain a

loving, stable, consistent and nurturing relationship with the child adequate

for the child’s emotional needs,” 23 Pa.C.S. § 5328(a)(9), the trial court

determined both parties are able to do so. Maternal Grandmother argues the

trial court neglected to address the “concerns that exist with regard to Father

entering into a new relationship and taking on the obligations of fatherhood,

for not just one but three children all under the age of three.”       Maternal

Grandmother’s Brief at 18. However, her concerns are mere speculation, and




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she presented no evidence that Father was overwhelmed by or unable to cope

with his personal responsibilities. See id.5

       For the twelfth custody factor, “[e]ach party’s availability to care for the

child or ability to make appropriate child-care arrangements[,]” 23 Pa.C.S.

§ 5328(a)(12), Maternal Grandmother contends that the “trial court fail[ed]

to take into consideration the fact that [she] has a stable work history, having

worked at a full-time job for fourteen years and as a result has financial

options available to her [for childcare] that Father does not exhibit.” Maternal

Grandmother’s Brief at 19 (citation to the record omitted).        Her argument

appears to be in response to the trial court’s statement:             “[Maternal]

Grandmother’s reliance on her parents is a concern as they age[.]” Tr. Ct.

Op., filed July 3, 2019, at 25. However, this finding was not the trial court’s

sole consideration when comparing the parties’ ability to care for Child; the

trial court also stated:

       From the start, the central question was the ability of Father to
       provide the essential care for his daughter despite his addiction to
       heroin. Therefore, our efforts were focused on finding out if Father
       was able to parent, generally, and if he was in recovery from his
       addiction, specifically. In other words, our paramount concern
       was the safety of the [C]hild and the ability of Father to meet her
       needs.

Id. at 2. Father testified that his fiancée helps him to meet Child’s needs by

taking care of Child when he is working, adding that “she is a great mother to

____________________________________________


5 Grandmother presents no argument about the tenth and eleventh custody
factors. See id. at 19, 22.


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our other two children.” N.T., 4/16/2019, at 36. Accordingly, contrary to

Maternal Grandmother’s insistence that this factor should be viewed as “a

positive” in her favor, Maternal Grandmother’s Brief at 19, the trial court found

that “[b]oth [parties] are able to provide for [C]hild’s needs if they are

unavailable[,]” Tr. Ct. Op., filed July 3, 2019, at 25, and we must accept

findings of the trial court that are supported by competent evidence of record.

See D.K., 102 A.3d at 478.

      For the thirteenth custody factor, “the level of conflict between the

parties and the willingness and ability of the parties to cooperate with one

another,” 23 Pa.C.S. § 5328(a)(13), Maternal Grandmother argues that Father

has “instigated conflict between the parties[.]” Maternal Grandmother’s Brief

at 20.    The trial court determined that this factor “is a problem for both”

parties, as there is “mistrust” between them. Tr. Ct. Op., filed July 3, 2019,

at 8, 25 (citing N.T., 12/19/2018, at 26-28). However, the court was “more

impressed with Father’s ability to address the conflict than with” Maternal

Grandmother’s “inclination to do so.” Id. at 25. The trial court’s conclusions

were supported by the evidence of record, including Father’s testimony that

the communication between himself and Maternal Grandmother has been

“fine[,]” that they communicate directly, and that he apologized to her when

they had an argument over Child’s belongings. N.T., 4/16/2019, at 23-24,

35.      The trial court’s findings were further supported by Maternal

Grandmother’s own testimony that, although the communication between


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herself and Father is minimal and usually limited to exchanges, when they do

communicate, they are doing “quite well[.]” Id. at 55. Additionally, the only

example that Maternal Grandmother’s brief provides of Father “instigating

conflict” is the argument over Child’s belonging. Maternal Grandmother’s Brief

at 20 (citing N.T., 4/16/2019, at 34-35).     However, her brief ignores that

Father later acknowledged that the argument was “stupid” and “pointless” and

that he “apologized” to her. N.T., 4/16/2019, at 35. Also, she fails to present

any evidence contradicting the trial court’s assessment that she has not

demonstrated any ability to address the conflict between herself and Father.

See Maternal Grandmother’s Brief at 20. Accordingly, the trial court’s findings

as to the thirteenth custody factor were not “unreasonable as shown by the

evidence of record.” D.K., 102 A.3d at 478.

      Maternal Grandmother places great emphasis on the fourteenth custody

factor, “[t]he history of drug or alcohol abuse of a party or member of a party’s

household[,]” 23 Pa.C.S. § 5328(a)(14).        She “disagrees with the [trial]

court’s suggestion that the matter [of Father’s substance abuse] has been

handled.” Maternal Grandmother’s Brief at 21. She is also concerned about

the safety of Child.   Id.   The trial court discussed this factor extensively,

including Father’s “progress with his addiction” and that, by the time it had

awarded Father primary physical custody, it had “heard of, seen and tested

Father’s sobriety,” noting that “Father had a four-month track record of

successful parenting with no major concerns[.]” Tr. Ct. Op., filed July 3, 2019,


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at 16, 18.    It acknowledged that “the big issue” throughout this case was

“Father’s drug abuse” but discussed --

       merely because somebody is addicted to drugs does not mean
       that they cannot parent their children. If they are addressing their
       problems appropriately, I am willing to give them an opportunity
       to be a parent. . . . I have worked with a number of people who
       are addicts, some through Children & Youth Services, some
       through Drug Court, and I have seen people get their act together
       so that they are in a position to be good parents.

Id. at 5-6, 22 (quoting N.T., 9/25/2017, at 3). It continued:

       Although we have said much about the [subject], it is important
       to summarize our findings on that factor. Father has an addiction,
       but that is not a perpetual impediment to parenting. Through over
       a year of drug testing, meetings and taking life on life’s terms, we
       “tested” Father’s recovery. Because of or in spite of that, Father
       jumped through our hoops and maintained his sobriety. We can
       never be assured that there will be no relapse, but this court
       cannot and will not hold anyone to the standard of perfection.

Id. at 22-23. Overall, the trial court “was satisfied that Father had progressed

to the point that he could and should assume primary custody,” id. at 18, and

this   Court’s    “role    does     not   include   making   independent   factual

determinations.”      D.K., 102 A.3d at 478.        Instead, we “must defer to the

presiding trial judge who viewed and assessed the witnesses first-hand.” Id.6

       In conclusion, the trial court found that the majority of the custody

factors were of equal weight for both parties or were irrelevant to the facts of

the current case. Tr. Ct. Op., filed July 3, 2019, at 24-26. Nevertheless, all

of the remaining factors weighed in Father’s favor and against Maternal

____________________________________________


6 Maternal Grandmother does not challenge the trial court’s conclusions about
the remaining custody factors. Id. at 22.

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Grandmother, particularly the first, sixth, eighth, and thirteenth custody

factors, as Grandmother’s continued animosity towards Father has caused her

to discourage Child’s contact with him and with Child’s half- and step-siblings,

to attempt to turn Child against Father, and to maintain a high level of conflict

with Father. Id. at 24-25 (citing 23 Pa.C.S. § 5328(a)(1), (6), (8), (13)).

Furthermore, while the trial court recognized Father’s history of drug abuse

and, in fact, gave this fourteenth custody factor the most weight, the court

also credited Father’s efforts to achieve and to maintain sobriety. Id. at 5-6,

16, 18, 22-23, 25 (quoting 23 Pa.C.S. § 5328(a)(14); N.T., 9/25/2017, at 3).

For these reasons, the trial court noted that, “even without any presumption

in favor of a parent over a third party, [it] would have issued the same order.”

Id. at 23; see also 23 Pa.C.S. § 5327(b) (presumption in favor of parent over

nonparent). In light of the deference given to the trial court with regard to

issues of credibility and weight of the evidence and the statutory presumption

favoring parents over third parties, we find that the trial court’s holding is

reasonable and supported by evidence of record. 23 Pa.C.S. §5327(b); D.K.,

102 A.3d at 478.

      We therefore affirm the trial court’s custody order of May 3, 2019. See

D.K., 102 A.3d at 478.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/28/2020




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