J-A07027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.J.N.                                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

G.N.

                            Appellee                 No. 1370 WDA 2015


                     Appeal from the Order August 10, 2015
               In the Court of Common Pleas of Allegheny County
                    Family Court at No(s): FD 97-06360-004


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                 FILED JULY 7, 2016

       Appellant, D.J.N. (Mother), appeals from the August 10, 2015 custody

order, which granted the petition for modification of the existing custody

order filed by G.N. (Father), with respect to the parties’ minor children.

Upon careful review, we affirm.

       Mother and Father are the parents of the following children: Mo.N., a

female, born in September 2005; G.N., a male, born in August 2003; Ma.N.,

a female, born in March 2001; Br.N., a female, born in December 1999; and

Ba.N., a female, born in June 1997 (collectively, the children).1


____________________________________________


1
  Mother has two older daughters from a prior relationship, B.P.1 and B.P.2.
In addition, Mother is remarried and has one son, L.F., with her current
husband. N.T., 7/30/15, at Joint Exhibit #1, ¶ 3. Father has a one-year-old
(Footnote Continued Next Page)
J-A07027-16


      Because Ba.N. was eighteen years old at the time of the relevant

proceedings, the order does not apply to her. However, as described below,

the order is based, in part, on Mother’s failure to supervise Ba.N. pursuant

to the existing custody order and failing to advise Father when Ba.N. was

pregnant and when she went into labor to deliver her child.2 We summarize

the history of this case as follows.

      The underlying matter commenced in 2006, following the marital

separation of Mother and Father.            Since November 12, 2008, following an

evidentiary hearing, Father has been exercising sole legal and primary

physical custody of the children. Trial Court Order, 11/12/08, at ¶ 1. The

trial court granted Mother partial physical custody of the children on

alternating weekends from Friday after school until Monday morning before

school. Id. at ¶ 2.3

      The trial court set forth the ensuing procedural history as follows.

             The pertinent history begins with the October 30,
             2013 custody order, wherein this [c]ourt [continued]
             Father[’s] sole legal and primary physical custody of
             the children. This custody order expanded Mother’s
                       _______________________
(Footnote Continued)

child with his present girlfriend. Id. at ¶ 4. The record does not reveal if his
child is male or female.
2
  Ba.N. gave birth in December 2014, when she was seventeen years old.
N.T., 7/30/15, at 31.
3
  Since 2008, the Honorable Kathryn Hens-Greco has presided over the
underlying custody matter, including the proceedings in this case.




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J-A07027-16


              custodial time by a day. Instead of receiving the
              children on alternating Fridays after school, Mother
              would receive them alternating Thursdays after
              school.    Her custody time would end when the
              children left for school Monday morning. The [trial
              c]ourt further ordered that Mother supervise all of
              the children when they were in her custody.

Trial Court Opinion, 10/8/15, at 1-2 (citations to record omitted).

       Specifically, the provision involving Mother’s supervision of the children

stated, “Mother shall be present at all times when the children are in

Mother’s custody. [Ba.N.], [Br.N.], [Ma.N.], [G.N.] and/or [Mo.N.] shall not

be left alone with [L.G.],[4] [B.P.2] or [B.P.1], at any time, while the children

are in Mother’s custody.”        Trial Court Order, 10/30/13, at ¶ 5.   By order

dated May 16, 2014, the trial court clarified the foregoing provision, stating,

“[t]he children may be dropped off under the supervision of their respective

coaches if 2 children need to be in different locations at the same time -- or

approximately the same time.” Trial Court Order, 5/16/14, at ¶ 2.

       In its opinion, the trial court continued as follows.

                     [I]n January 2014, [ ] Father brought an action
              for contempt and modification of the October 30,
              2013 order. Th[e trial c]ourt put the matter before
              Hearing Officer Laura Valles upon Father’s allegations
              that Mother allowed the children to be babysat by
              Mother’s older, non-subject adult children, one of
              [whom] struggled with drug addiction, and that
              Mother allowed daughter Ba.N., then 15, to have a
              relationship with a 20-year-old man.        Th[e trial
____________________________________________


4
  L.G. is Mother’s niece, of whom she is the permanent legal custodian.
N.T., 7/30/15, at 130-131, 140.



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              c]ourt adopted the hearing officer’s Report and
              Recommended Order, which reinstated th[e trial
              c]ourt’s October 30, 2013 custody order, and
              sanctioned Mother $500 for her contempt.1

              Shortly thereafter, and once again upon allegations
              of Mother’s lack of supervision, Father brought forth
              a petition for custody modification.       Specifically,
              Father alleged that Mother allowed daughter Ba.N. to
              regularly spend the night with her 20-year-old
              boyfriend, which directly resulted in Ba.N.’s
              pregnancy. In light of these facts, th[e trial c]ourt
              restricted Mother’s custodial time, on an interim
              basis, to alternating Saturdays and Wednesday
              evenings with no overnight time.[5] The matter was
              set for a custody trial … on September 9, 2014. The
              ensuing trial was continued three separate times
              before the matter was ultimately heard on July 30,
              2015[.]
              _________________________________________
              1
                The custody order had been temporarily suspended
              until the hearing before the hearing officer.

Trial Court Opinion, 10/8/15, at 1-3 (citations to record omitted) (internal

footnotes 2 & 3 omitted).

        Father and Mother testified during the hearing on July 30, 2015. In

addition, the four younger children, Br.N., age fifteen, Ma.N., age fourteen,

G.N., nearly age twelve, and Mo.N., age nine, testified in camera in the

presence of the parties’ counsel.

        Br.N. testified, “I would just like a little bit more time with my mom.

It’s like you miss her when you’re away from her for so long. And I don’t

like only being with her for like a few hours a day.” N.T., 7/30/15, at 173.
____________________________________________


5
    The interim order is dated June 26, 2014.



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              THE COURT: And there was a time when you spent
              the night, and now you don’t spend the night
              anymore. Is it better this way where you don’t
              spend the night… ?

              [A.]: I think it’s better that we spend like a few
              nights there.

                    THE COURT: Why is that?

              [A.]: I don’t know.    I would just like to spend the
              night there.

Id. at 174.

     Similarly, Ma.N. testified, “I wish I could see my mom more.” Id. at

182. She testified that she liked spending the night at Mother’s house, but

she could not offer a reason why. Id. at 183. Further, Ma.N. testified with

respect to the differences at Mother’s and Father’s homes, “[m]y dad, he’s

like a little more strict with like cleaning the house and stuff. And we just

kind of do that on our own at my mom’s house.” Id. She also testified that

Father “would just be more strict[] towards [her spending time with a boy].”

Id. at 184.

     G.N., the parties’ only son, described the differences in Mother’s and

Father’s homes as follows.

              My dad, he’s probably just a little bit more like
              tough, like it’s his way or the highway, like that kind.
              My mom she’s like — she’s not as tough, but she still
              kind of like disciplines you and stuff.




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J-A07027-16


Id. at 192. G.N. testified that he misses Mother. Id. at 194. He testified,

“I would like to start sleeping at her house again. I kind of miss that. And

just have a couple more days with her.” Id.

      Mo.N., the youngest, testified that she does not like, “[h]ow I get to

see my mom less and I get to see my dad more.” Id. at 199.

           THE COURT: [S]o you say that seeing your mom
           less than what you see your dad is harder for you?

           [A.]: Yeah.

Id.

      On August 10, 2015, the trial court essentially made final the existing

interim custody order. Specifically, the subject order granted Father primary

physical and sole legal custody, and Mother partial physical custody on

alternating Saturdays, from 12:00 p.m. to 5:00 p.m., and, on alternating

Wednesdays, from 5:00 p.m. to 8:00 p.m., to correspond to the week

Mother does not have custody on Saturday. The order states, “Mother shall

not exercise any overnight custodial periods with the children.” Trial Court

Order, 8/10/15, at ¶ 3. However, the order provides that Mother and Father

“may take two consecutive or non-consecutive weeks of vacation with the

children during the summer vacation from school.” Id. at ¶ 13. The order

also sets forth a holiday schedule. Importantly, the order provides, “Mother

shall be present at all times when the [four younger] children are in Mother’s

custody. [Br.N.], [Ma.N.], [G.N.] and/or [Mo.N.] shall not be left alone with




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J-A07027-16


[L.G.], [B.P.1] or [B.P.2], at any time, while the children are in Mother’s

custody.” Id. at ¶ 4.

       On September 8, 2015, Mother timely filed a notice of appeal and a

concise    statement     of   errors    complained   of   on   appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). The trial court filed

its Rule 1925(a) opinion on October 8, 2015.

       On appeal, Mother presents the following questions for our review.

              I. Whether the [t]rial [c]ourt committed an error of
              law and/or abused its discretion in denying
              [Mother’s] Petition for Modification of Custody?[6]

              II. Whether the [t]rial [c]ourt committed an error of
              law and/or abused its discretion in allowing [Father]
              to continue to have primary physical and legal
              custody of the children?

              III. Whether the [t]rial [c]ourt committed an error of
              law and/or abused its discretion in not allowing
              [Mother] to have overnight custodial periods with the
              children?

              IV. Whether the [t]rial [c]ourt committed an error of
              law and/or abused its discretion by requiring
              [Mother] to be present with all children at all times
              while in her custody[?]



____________________________________________


6
  The trial court notes that Mother “did not petition the [c]ourt for custody
modification. Initially, Mother sought to modify the interim custody [order]
by requesting that the trial court revert the parties back to their October 30,
2013 custody order. It is clear from her Amended Pretrial Statement,
however, that Mother ultimately requested primary physical and shared legal
custody.” Trial Court Opinion, 10/8/15, at 4 (citations to record omitted).



                                           -7-
J-A07027-16


             V. Whether the [t]rial [c]ourt committed an error of
             law and/or abused its discretion by failing to consider
             the children’s best interests in light of:

                   a. Parental duties performed by [Mother] on
                   behalf of the children;

                   b. The ability of extended family while with
                   [Mother];

                   c. The well-reasoned preference of the children
                   based on the children’s maturity and
                   judgment;

                   d. The proximity of the residences of the
                   parties involved;

                   e. [Mother’s] ability to care for the children or
                   ability  to   make      appropriate    child-care
                   arrangements.

Mother’s Brief at viii-ix.

      We review Mother’s issues according to the following scope and

standard of review.

                   [T]he appellate court is not bound by the
                   deductions or inferences made by the trial
                   court from its findings of fact, nor must the
                   reviewing court accept a finding that has no
                   competent evidence to support it…. However,
                   this broad scope of review does not vest in the
                   reviewing court the duty or the privilege of
                   making its own independent determination….
                   Thus, an appellate court is empowered to
                   determine     whether     the     trial   court’s
                   incontrovertible factual findings support its
                   factual conclusions, but it may not interfere
                   with those conclusions unless they are
                   unreasonable in view of the trial court’s factual
                   findings; and thus, represent a gross abuse of
                   discretion.


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J-A07027-16


              R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
              Super. 2009) (quoting Bovard v. Baker, 775 A.2d
              835, 838 (Pa. Super. 2001)). Moreover,

                    [O]n issues of credibility and weight of the
                    evidence, we defer to the findings of the trial
                    [court] who has had the opportunity to
                    observe the proceedings and demeanor of the
                    witnesses.

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

              R.M.G., Jr., supra at 1237 (internal citations
              omitted). The test is whether the evidence of record
              supports the trial court’s conclusions. Ketterer v.
              Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

         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), citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004).

         Child custody actions are governed by the Child Custody Act (“Act”),

23 Pa.C.S.A. §§ 5321-5340. Trial courts are required to consider “[a]ll of

the factors listed in section 5328(a) … when entering a custody order.”


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J-A07027-16


J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).

This statutory section provides as follows.

            § 5328.     Factors to consider when awarding
            custody.

            (a) Factors. – 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)(1) and (2) (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.




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                 (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.A. § 5328(a).

     We have further explained as follows.

           Section 5323(d) provides that a trial court “shall
           delineate the reasons for its decision on the record in
           open court or in a written opinion or order.” 23

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J-A07027-16


            Pa.C.S.A. § 5323(d). Additionally, “section 5323(d)
            requires the trial court to set forth its mandatory
            assessment of the sixteen [Section 5328 custody]
            factors prior to the deadline by which a litigant must
            file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
            955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
            (Pa. 2013). …

            In expressing the reasons for its decision, “there is
            no required amount of detail for the trial court’s
            explanation; all that is required is that the
            enumerated factors are considered and that the
            custody decision is based on those considerations.”
            M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.
            2013), appeal denied, [620 Pa. 710], 68 A.3d 909
            (2013). A court’s explanation of reasons for its
            decision, which adequately addresses the relevant
            factors, complies with Section 5323(d). Id.

A.V., supra at 822-823.     Instantly, the trial court considered the Section

5328(a) custody factors on the record in open court at the conclusion of the

testimonial evidence, as well as in its Rule 1925(a) opinion. See generally

N.T., 7/30/15, at 208-217; Trial Court Opinion, 10/8/15, at 5-12.

     On appeal, Mother’s issues are interrelated, such that we review them

together.   Mother argues that the trial court abused its discretion with

respect to its findings and/or the weight it assigned to Section 5328(a)(3),

the parental duties performed by each party; Section 5328(a)(5), the

availability of extended family; Section 5328(a)(6), the child’s sibling

relationships; Section 5328(a)(7), the well-reasoned preference of the child,

based on the child’s maturity and judgment; Section 5328(a)(11), the

proximity of the residences of the parties; and Section 5328(a)(12), each




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J-A07027-16


party’s availability to care for the child or ability to make appropriate child-

care arrangements.

      The trial court found significant the following factors and weighed them

in favor of Father:   Section 5328(a)(1), (2), (3), (4), (5), (10), and (12).

Specifically, in discussing Section 5328(a)(12), the trial court stated:

            If there was a singular problem that propelled this
            custody litigation, it was Mother’s repeated decisions
            regarding child-care arrangements.         Even before
            Ba.N.’s pregnancy, the parties would appear in
            motions court on allegations that Mother left the
            children unattended.      Th[e trial c]ourt does not
            dismiss the level of conflict that has arisen from this
            single issue. Over the history of this case, Mother
            has evidenced a history of allowing her children to go
            unsupervised       and      maintain      inappropriate
            relationships with adults. Mother’s poor decision-
            making in this area has placed a great strain on this
            family.

Trial Court Opinion, 10/8/15, at 11-12. The record supports the trial court’s

findings.

      Indeed, by order dated May 15, 2014, the trial court adopted the

custody master’s recommendation finding Mother in contempt of the October

30, 2013 order, in part, for leaving the children alone with L.G., B.P.1, or

B.P.2.   The record includes criminal dockets involving B.P.1, which reveal

charges arising in 2014 with respect to illegal drugs, theft, and disorderly

conduct.    N.T., 7/30/15, at Exhibit R.      Mother acknowledged on cross-

examination that B.P.1 “has a heroin problem.” Id. at 163. Mother testified

B.P.1 does not reside with her, and she promised never to leave the children

alone with B.P.1. Id. at 163-164.

                                     - 13 -
J-A07027-16



      The trial court’s finding under Section 5328(a)(2), which provides in

relevant part, “which party can better provide adequate physical safeguards

and supervision of the child,” is related.    23 Pa.C.S.A. § 5238(a)(2).      The

trial court explained that it “does question Mother’s ability to properly

supervise the children.    It is a concern that directly led to the interim

suspension of Mother’s overnight visitations back in June 2014.” Trial Court

Opinion, 10/8/15, at 6. Specifically, the trial court stated the following.

            Since October 2013, th[e trial c]ourt ordered Mother
            on four separate occasions not to leave her children
            unattended. Th[e trial c]ourt finds that Mother’s lack
            of supervision over Ba.N. contributed to the child’s
            teen pregnancy.

                  Father had forbidden Ba.N. from dating her
            boyfriend, who was four to five years her senior and
            a legal adult. At best, Mother turned a blind eye to
            their relationship.  Although she testified to the
            contrary, Mother evidently condoned Ba.N. sleeping
            over her boyfriend’s house on several occasions. At
            one point, Mother and Ba.N. had a verbal fight[,] and
            Ba.N. left Mother’s house with the boyfriend. Only
            after Ba.N. did not return for days did Mother text
            Father….

                                       …

                  Whether Mother actively allowed Ba.N. to see
            her boyfriend, which would have been a violation of
            the supervision requirement of the custody order, or,
            whether Mother passively let Ba.N. run away for
            days, which would still have been a violation of the
            supervision requirement of the custody order, the
            result was the same: a teen pregnancy. … While
            Ba.N. is now a legal adult, the [trial c]ourt’s concerns
            are not alleviated, as there are still four other
            children, two of [whom] are teenage girls. As such,


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                th[e trial c]ourt was left with no recourse but to
                order that [Mother shall be present at all times when
                the four younger children are in Mother’s custody].
                The effect of th[e trial c]ourt’s order is that Father
                can know exactly where the children are and
                whether they are safe. Given the Mother’s prior
                decision-making, the provision[] within the [trial]
                court’s order is the only way to guarantee such
                security.

Trial Court Opinion, 10/8/15, at 6-7 (citations to record omitted) (emphasis

in original).

      In addition to Mother failing to supervise Ba.N., the trial court found

that Mother failed to advise Father when Ba.N. was pregnant and when

Ba.N. was in labor to deliver her child. With respect to Section 5328(a)(1),

which party is more likely to encourage and permit frequent and continuing

contact between the child and another party, the trial court found as follows.

                Mother did not encourage her then sixteen-year-
                old[,] Ba.N.[,] to reveal to her Father that she was
                pregnant. Mother instructed at least one of the
                children, all of whom evidently knew of the
                pregnancy before Father, not to tell him. Mother
                reasoned that the daughter wanted to tell Father on
                her own terms. The [trial c]ourt was dubious of this
                line of thinking. For one, Father was the sole legal
                custodian, and Ba.N.’s medical needs were
                exclusively in his domain. Father ultimately found
                out several months into the pregnancy. Ba.N. was
                not without medical care during those months,
                however, as Mother apparently enrolled the child in a
                free clinic, a violation of Father’s legal custody rights.
                Mother also failed to tell Father when their daughter
                went into labor. At that time, there was general
                testimony that Father and Ba.N. were not on the
                best of terms. Mother had an opportunity to include
                Father, or at least encourage Ba.N. to include Father
                during the birth of her child, but she did not.

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Trial Court Opinion, 10/8/15, at 5 (citations to record omitted).       Mother’s

and Father’s testimony supports the trial court’s findings.

      With respect to Section 5328(a)(3), the parental duties performed by

each party, the trial court found that Father “is the more responsible

parent.”   Trial Court Opinion, 10/8/15, at 8 (citation to record omitted).

Importantly, the trial court found, “Father testified very credibly about his

parenting of the children, specifically with their education.” Id. (citation to

record omitted).   In contrast, with respect to Mother’s parenting, the trial

court found as follows.

            Apart from the supervision issues discussed above,
            Father testified that when the children returned from
            Mother’s custodial time (prior to the suspension of
            overnights) it would take them a few days to get
            back on track. He testified that the [children] would
            often be tired, that they had a hard time
            concentrating, and that Mother’s house had few
            rules. There are still other instances that cause this
            [c]ourt to question Mother’s parental decisions. For
            example, Father testified that Mother bragged to him
            that she made allegations to the agency in charge of
            Father’s governmental assistance, which resulted in
            his loss of benefits. It also resulted in the loss of the
            children’s health insurance.

Id. at 9 (citations to record omitted). The trial court’s findings are related

with respect to Section 5328(a)(4), the need for stability and continuity in

the child’s education, family life, and community life, as follows.

            [T]h[e trial c]ourt was also able to find that Father
            provided more stability and continuity for the
            children, especially when it comes to their education.
            The [trial c]ourt finds the children have excelled in

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J-A07027-16


              no small part due to stability and continuity that is
              created by Father’s close attention paid to his
              parental duties.

Id. Father’s testimony supports the trial court’s findings.

              Q. [H]ow do your children do in school?       What are
              their grades like?

              A. They’re pretty good. I’m fairly proud of them. []
              [S]ome are better than others. [Br.N.], honor roll,
              As, Bs. ..       [Mo.N.] is probably the biggest
              challenge[d] one of the group. But I think she’s kind
              of learning her spot and her capabilities and stuff of
              that sort, and we’re working with her on that.

N.T., 7/30/15, at 48.

       Father testified with respect to the children’s 2014-2015 report cards,

which were introduced into evidence and indicated that Mo.N. and Ma.N. had

academic struggles, but that Ba.N., Br.N., and G.N. did not struggle. Id. at

50-54; Exhibit M. He explained that Mo.N.’s worst grade on the report card

“is the B, which [means], ….             ‘Student is making (inaudible) progress

towards proficiency and may need reinforcement.’ And … once again, that’s

[Mo.N.].    We got to work with her a little more.”7       Id. at 53; Exhibit M.

Regarding Ma.N., Father explained that she has an Individualized Education

Plan, but that she “has done excellent this year … and she really worked

hard this year.” Id. at 52. Ma.N.’s grade point average was a 3.17. Id.

____________________________________________


7
  Further discussion explained the report card system which was not an A, B,
C, D, grading system but rather P for proficient, D for developing, B needing
reinforcement, and N area needs to be strengthened. Id. at 53.



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Further, Father testified with respect to three separate e-mails from the

teachers of Ma.N., Br.N., and G.N., indicating that they were doing well

during the last school year. Id. at 64-67; Exhibits O, P, Q.

      With respect to Section 5328(a)(5), the availability of extended family,

the trial court found as follows.

            [B]oth parents offer access to extended family, but
            the custody arrangement would not infringe on that
            access. Father’s parents reside close to him and the
            children. He testified that they are very involved.
            Mother testified her siblings and parents live in Ohio.
            Testimony revealed that the children were not
            particularly close with Mother’s extended family. In
            fact, none of the subject children had ever even met
            Mother’s father. Mother claimed that this is because
            of her limited custodial time without recognizing that
            her time was not always so limited.

Trial Court Opinion, 10/8/15, at 9 (citations to record omitted).

      In contrast to the trial court’s finding, Mother testified as follows.

            Q. What other family do you have close by that
            would be available with your children?

            A. [B]oth of my sisters, my father. My other brother
            lives in Ohio.

N.T., 7/30/15, at 130.     Although the trial court improperly found that the

majority of Mother’s extended family lives in Ohio, the trial court’s remaining

findings related to this factor are supported by the testimonial evidence.

Based on the totality of the record evidence, we deem harmless the trial

court’s factual error in this regard.




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      With respect to Section 5328(a)(10), which party is more likely to

attend to the daily physical, emotional, developmental, educational and

special needs of the child, the trial court found as follows.

             Father is extremely attentive to the children’s
             educational needs, and when enabled, was also very
             caring for Ba.N. during her pregnancy. He was
             cognizant of Ba.N.’s emotional well-being in light of
             this tumultuous time in her life, as well as the impact
             it would have on the younger children. Mother might
             argue that her limited time prevents her from
             demonstrating the same. The [trial c]ourt notes first
             that it was Mother’s direct lack of supervision which
             warranted the suspension of her time[,] and
             second[,] that Mother did not produce any real,
             persuasive evidence or testimony on the subject
             from prior to the custody suspension.

Trial Court Opinion, 10/8/15, at 11 (citations to record omitted).      Upon

review, the testimonial evidence supports the trial court’s findings.

      The trial court found significant the foregoing factors, made findings

with respect to each, and weighed each factor according to the evidence

before it.    We further observe that the trial court considered Section

5328(a)(7), the well-reasoned preference of the child, based on the child’s

maturity and judgment, and found as follows.

             All the children articulated that they would like to see
             Mother more, but they had difficulty reasoning why
             and often said they did not know.           Two of the
             children testified that Mother’s household is more
             lenient. Ma.N. said, for example, her Mother would
             be more inclined to let her hang out with a boy,
             whereas her Father would be stricter towards it.
             G.N. testified that with his Father, it [is] “his way or
             the highway” but that his Mother is “not as tough.”


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Trial Court Opinion, 10/8/15, at 10. After hearing the in camera testimony

of the children, the trial court concluded as follows.

            These preferences are not exactly well-reasoned, nor
            are they particularly mature. These children would
            like to see more of their Mother, but they would also
            like to see fewer rules. This statutory factor is but
            one factor for this very reason. Father’s household
            has created an environment where the children have
            grown and thrived academically. The evidence of
            record shows this.     Unfortunately, the testimony
            regarding the Mother’s house illustrates something of
            the opposite. To be clear, while the children miss
            sleeping at Mother’s, and while they might desire to
            spend a bit more time with her, they said nothing of
            changing primary custodians. Th[e trial c]ourt finds
            some time increase from the interim order is
            appropriate, which is why th[e trial c]ourt awarded
            Mother vacation time in the summer.

Id. We discern no abuse of discretion by the trial court with respect to the

children’s custody preference.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion nor commit an error of law when it entered the underlying custody

order. Accordingly, the trial court’s August 10, 2015 order is affirmed.

      Order affirmed.

      Judge Bowes joins the memorandum.

      Judge Jenkins files a concurring statement.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2016




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