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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.K.,                                               IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

                 v.


N.P.S. AND J.S.

APPEAL OF: J.S.

                                                             No. 818 WDA 2014


                       Appeal from the Order March 31, 2014
                   in the Court of Common Pleas of Erie County
                         Civil Division at No.: 13273-2008


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED OCTOBER 31, 2014

        J.S. (Paternal Grandmother) appeals from the trial court’s order

awarding sole legal and physical custody of her grandson, N.P.S., Jr. (Child),

to his mother, J.K. (Mother). We affirm.

        Child was born in July 2006. He lived with Mother until August 2007

when Mother left him in the care of N.P.S., Sr. (Father) because she was

incarcerated for a probation violation. (See N.T. Custody Trial, 3/24/14, at

100-01).       Child   was    subsequently     placed   in   the   care   of   Paternal

Grandmother when Father suffered a seizure brought on by drug and alcohol

abuse. (See id. at 101). Father has not been a part of Child’s life since that
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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time.    (See id. at 4).    Paternal Grandmother, who lived in Florida at the

time, was appointed Child’s guardian while Mother was still incarcerated.

(See id. at 101).

        Mother filed a complaint for primary physical custody of Child on July

9, 2008. Paternal Grandmother did not file an answer. On September 10,

2008, the parties agreed to an order of custody by which they shared legal

custody    and   which     provided   that   Child   would   reside   with   Paternal

Grandmother while Mother would have visitation and partial custody.

Mother filed a motion for contempt on July 6, 2010, in which she alleged that

Paternal Grandmother was not complying with the custody order of

September 10, 2008.         The court denied the motion on August 24, 2010.

Mother filed a petition for relocation on September 23, 2013.

        The trial court held a custody trial on March 24, 2014, and it issued

the order awarding Mother sole legal and physical custody on March 31,

2014. Paternal Grandmother filed a motion for reconsideration on April 3,

2014. Mother filed an answer to Paternal Grandmother’s motion on April 17,

2014.      On April 30, 2014, the trial court entered a supplemental

memorandum opinion and order affirming its March 31, 2014 order and

granting Mother’s request for relocation.            On that same date, Paternal




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Grandmother filed a timely notice of appeal from the court’s March 31, 2014

order.1

       Paternal Grandmother presents the following questions for our review:

       I. [Whether] [t]he trial court committed an error of law and/or
       abused its discretion in failing to award [Paternal] Grandmother
       shared physical and legal custody and/or partial physical custody
       of [Child] pursuant to the factors in section 5328 of the
       Pennsylvania Child Custody Act[?]

       II. [Whether] [t]he trial court committed an error of law and/or
       abused its discretion when it failed to give proper weight to the
       expert testimony of [C]hild’s counselor when granting sole legal
       and physical custody to [M]other[?]

       III. [Whether] [t]he trial court committed an error of law and/or
       abused its discretion in failing to give proper weight [to]
       [P]aternal [G]randmother’s role as primary caretaker [of Child]
       for the past six years when it gave sole legal and physical
       custody to [M]other without any transition period with gradual
       extended visits with [M]other[?]

       IV. [Whether] [t]he trial court committed an error of law and/or
       abused its discretion in failing to provide a regularly scheduled
       visitation schedule for [P]aternal [G]randmother[?]

       V. [Whether] [t]he trial court committed an error of law and/or
       abused its discretion in failing [to] consider the factors in section
       5337 of the Pennsylvania Child Custody Act as Mother filed a
       Petition for Relocation which was properly before the [c]ourt[?]

(Paternal Grandmother’s Brief, at 3).

       Our scope and standard of review is as follows:
____________________________________________


1
  Paternal Grandmother simultaneously filed her statement of errors
complained of on appeal with her notice of appeal.              See Pa.R.A.P.
1925(a)(2)(i). The trial court entered a Rule 1925(a) opinion on May 28,
2014, it which it referred this Court to its previously entered opinions for
explanation of its rationale for its decision. See Pa.R.A.P. 1925(a)(2)(ii).



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                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.

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

         We have stated,

            . . . [T]he 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 well-being.”      Saintz v. Rinker,

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

         We must accept the trial court’s findings that are supported by

competent evidence of record, and we defer to the trial court on issues of

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credibility and weight of the evidence.       See C.R.F., supra at 443.         “[I]f

competent evidence supports the [trial] court’s findings, we will affirm even

if the record could also support the opposite result.”       In re Adoption of

T.B.B., 835 A.2d 387, 398 (Pa. Super. 2003) (citation omitted).

     Here, the trial court examined fifteen of the sixteen statutory custody

award factors enumerated in 23 Pa.C.S.A. § 5328(a) in its memorandum

entered March 31, 2014. (See Trial Court Opinion, 3/31/14, at 5-10). The

trial court addressed the remaining custody award factor, the statutory

relocation factors enumerated in 23 Pa.C.S.A. § 5337, and the other issues

Paternal Grandmother raised in her motion for reconsideration in its

supplemental memorandum entered April 30, 2014.               (See Trial Court

Opinion, 4/30/14, at 1-5).

     In her first issue, Paternal Grandmother questions whether the trial

court properly evaluated the statutory custody factors.          (See Paternal

Grandmother’s   Brief,   at   18-28).     She    addresses    those   factors     by

reexamining the evidence presented to the trial court and asking us to reach

a different conclusion. (See id.). This we may not do. We must accept the

trial court’s findings that are supported by competent evidence of record,

and we defer to the trial court on issues of credibility and weight of the

evidence. See C.R.F., supra at 443.

            The parties cannot dictate the amount of weight the
        trial court places on evidence. Rather, the paramount
        concern of the trial court is the best interest of the child.
        Appellate interference is unwarranted if the trial court’s
        consideration of the best interest of the child was careful

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           and thorough, and we are unable to find any abuse of
           discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citation omitted).

       In the instant case, we have carefully examined the trial court’s

analysis of the statutory custody factors in light of the record.         We are

satisfied that the trial court’s determination to grant Mother sole physical

and legal custody of Child as in Child’s best interest is reasonable as shown

by the evidence of record. The court noted that Mother has demonstrated a

love of Child and has shown improvement in her lifestyle and parenting

ability.   We defer to the trial court in its weighing of the evidence.        We

discern no error of law or abuse of discretion. Paternal Grandmother’s first

issue does not merit relief.

       In her second issue, Paternal Grandmother complains that the trial

court failed to give proper weight to the testimony of Child’s counselor,

Pamela Presler. (See Paternal Grandmother’s Brief, at 27-29). We disagree

and quote the trial court’s analysis of Ms. Presler’s testimony, with approval:

       No great weight is given to [Ms. Presler’s testimony]. She told
       the court the majority of her initial sessions were spent with
       [Paternal Grandmother], obtaining information, and hearing her
       concerns. She saw [Child] five times individually in 2013. She
       met with [Mother] once. The majority of the information she
       used in making her recommendations came from Paternal
       Grandmother. Much of that information was either incomplete or
       slanted in her favor. [Ms. Presler] never saw . . . Child interact
       with . . . Mother. Presler noted in her report it is not her “role to
       make custody recommendations.” She followed that statement
       with suggestions the evidence at trial shows Mother complied
       with.



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             Because of a lack of input from Mother, and the
      incompleteness of the information Presler was given by Paternal
      Grandmother, Presler’s testimony was of little assistance to the
      [trial court] in determining what would be in the best interests of
      . . . Child.

(Trial Court Opinion, 4/30/14, at 1-2) (record citations omitted). The record

supports the trial court’s analysis.    Paternal Grandmother’s second issue

does not merit relief.

      Paternal Grandmother supports her third issue, her claim that the trial

court failed to give proper weight to her role as primary caretaker, with a

single sentence referring this Court to the first issue in her brief stating,

“This issue is addressed in factors (3), (4), (9) and (10).”         (Paternal

Grandmother’s Brief, at 29). As stated above, we are satisfied that the trial

court did not abuse its discretion on the first issue. Paternal Grandmother’s

third issue is without merit.

      In her fourth issue, Paternal Grandmother claims that the trial court

erred in failing to provide a schedule of visitation for her with Child. (See

id.). According to Paternal Grandmother, “The trial court’s abrupt change in

custody without providing scheduled visitation with [Paternal Grandmother]

is unreasonable given the undisputed testimony at trial that [Paternal

Grandmother] should remain in . . . Child’s life on a regular and consistent

basis.” (Id.). We again quote the trial court, with approval:

      Contrary to Paternal Grandmother’s assertions, there is no
      evidence the change [in custody] will be so abrupt or sudden it
      will traumatize . . . Child given his young age, and his
      relationship with . . . Mother.      Mother has addressed the
      problems of concern to Presler in her report. There was nothing

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         offered at trial to indicate the problems still exist or that Mother
         is incapable of properly parenting [Child].

(Trial Court Opinion, 4/30/14, at 2).            The record supports the trial court’s

determination that a change in custody from Paternal Grandmother to

Mother without any transitional visitation will not have any detrimental effect

on Child.

         In her fifth issue, Paternal Grandmother claims that the trial court

erred in failing to consider the factors relating to relocation, 23 Pa.C.S.A. §

5337.      (See Paternal Grandmother’s Brief, at 29).            Paternal Grandmother

supports her argument by, once again, reexamining the evidence and asking

us to reach a different conclusion, which we will not do. We have, however,

reviewed      the   trial   court’s   analysis    of   the   relocation   factors   in   its

supplemental memorandum in light of the record and are satisfied that the

trial court’s determination that relocation is in Child’s best interest is

supported by the record. (See Trial Court Opinion, 4/30/14, at 2-5). The

trial court found that relocation will enhance the general quality of life for

Child both financially and emotionally, with no impact on his education.

Paternal Grandmother’s fifth issue does not merit relief.

         Accordingly, for the reasons stated, we affirm the order of the trial

court.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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