J-S72030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.A.S.,                                   :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
            v.                            :
                                          :
B.J.L.,                                   :
                                          :
                        Appellant         :     No. 1027 WDA 2014


                 Appeal from the Order Entered May 15, 2014,
                 In the Court of Common Pleas of Elk County,
                        Civil Division, at No. 2013-604.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                            FILED JANUARY 16, 2015

      B.J.L. (“Maternal Grandmother”) appeals from the order entered on

May 15, 2014, which awarded primary physical custody of C.J.S. (“Child”),

born in August of 2010, to Child’s paternal grandmother, J.A.S., (“Paternal

Grandmother”), awarded partial physical custody of Child to Maternal

Grandmother, and awarded equally shared legal custody, all in accordance

with a schedule, pursuant to the Child Custody Act, (“the Act”), 23 Pa.C.S.

§§ 5321 to 5340.1 We affirm.

      The trial court set forth the factual background and procedural history

in its Discussion and Findings of Fact as follows:



*Retired Senior Judge assigned to the Superior Court.
1
 Child’s mother, N.S. (“Mother”), died in June of 2013, and Child’s father,
D.J.S., died in December of 2012. Trial Court Opinion, 5/15/14, at 3.
J-S72030-14



     This custody action was initiated by the filing of a custody
     complaint on July 12, 2013, by [Paternal Grandmother]. A
     collateral petition for appointment of guardian of the person of a
     minor child and appointment as emergency guardian was filed on
     July 18, 2013, to No. 2013-7-OC in the Orphan’s Court Division
     of the Cameron County Branch of the Fifty-Ninth Judicial District
     of Pennsylvania by [Maternal Grandmother]. Both the custody
     complaint and the guardianship petition involved the same minor
     child, [Child], age 3, born [in August of 2010], the grandson of
     both [Paternal Grandmother and Maternal Grandmother]. By
     order dated July 22, 2013, the pending custody complaint and
     guardianship proceedings were consolidated[,] and the Cameron
     County Prothonotary was directed to transfer the petition for the
     appointment of the guardian of the person to the Elk County
     Branch of the Fifty-Ninth Judicial District of Pennsylvania, where
     that action was consolidated with the above-captioned case.

            Preliminary objections to the custody complaint were then
     filed on August 13, 2013, on behalf of [Maternal Grandmother]
     and an amended petition for the appointment of a guardian of
     the person of a minor child and appointment as emergency
     guardian were filed that same date on [Maternal Grandmother’s]
     behalf as well. By order dated August 21, 2013, the [c]ourt
     ordered that the amended petition for the appointment of a
     guardian of the person would be considered for disposition in
     conjunction with the custody complaint and by order dated
     August 19, 2013, a hearing on the preliminary objections was
     scheduled for October 3, 2013.        In the interim, a custody
     conciliation conference was conducted by Conference Officer
     Joshua Dean, Esq., on August 22, 2013. When the parties were
     unable to resolve the custody issues at the conciliation
     conference, by order dated August 23, 2013, a custody
     settlement conference was scheduled before a senior judge on
     November 6, 2013.          On September 9, 2013, [Maternal
     Grandmother] filed a motion for reconsideration of the August
     19, 2013 and August 21, 2013 orders of court, with that motion
     having been denied by order dated September 18, 2013. When
     all of the evidence necessary for consideration of the preliminary
     objections and amended petition for emergency guardian which
     had been filed on August 13, 2013, on behalf of [Maternal
     Grandmother], could not be presented on October 3, 2013, that
     hearing was continued and reconvened on October 21, 2013. At


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     the time of the continued hearing scheduled for that date, the
     preliminary objections of [Maternal Grandmother] as to
     jurisdiction and venue were withdrawn.            The [Maternal
     Grandmother’s] amended petition for emergency guardian was
     also withdrawn, subject to interim physical custody provisions
     being provided to permit [Maternal Grandmother] the
     opportunity to exercise physical custody of the subject minor
     child at defined times. The October 21, 2013 order which
     granted the oral motion of [Maternal Grandmother’s] counsel to
     withdraw the emergency guardianship petition and established
     periods of physical custody to be exercised by [Maternal
     Grandmother] also included the provision that legal custody of
     the subject child would be shared by the parties.

            Since the parties were not able to settle the custody issues
     at the time of the custody settlement conference on November
     6, 2013, an order was subsequently entered on November 20,
     2013, scheduling the custody hearing for February 11, 2014.
     When the three hours allotted for the custody hearing proved
     insufficient for the introduction of all of the evidence, the hearing
     was continued until April 1, 2014, with the presentation of all
     evidence being concluded during that proceeding.

           The parties complied with pretrial directives which included
     undergoing psychological and bonding evaluations, submitting
     pretrial memorandums and parenting plans[,] and providing
     Pennsylvania State Police criminal history records and Protection
     From Abuse Database reports. At the time of the custody
     hearings, the [c]ourt received the testimony of John A. Goga,
     the chief executive officer of the Dickinson Center, Inc.,
     psychologist Daniel Kysor, [Paternal Grandmother], and
     [Paternal Grandmother’s] daughter, [T.L.S.]        The testimony
     presented on behalf of [Maternal Grandmother] included the
     testimony of [Maternal Grandmother], as well as [C.P.W.], a
     neighbor of [Maternal Grandmother], [Maternal Grandmother’s]
     daughter, [N.S.], and [Maternal Grandmother’s] former
     boyfriend, [D.F.]. Documentary evidence in the nature of the
     custody evaluations and summary of Daniel Kyzor were admitted
     as well as documents relating to [Child’s] mother, [Mother], who
     passed away [in June of 2013].           Photographs were also
     admitted.




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Trial Court Opinion, 5/15/14, at 1-3.

       On May 15, 2014, the trial court entered a custody order awarding the

parties equally shared legal custody, Paternal Grandmother primary physical

custody, and Maternal Grandmother partial physical custody. On June 13,

2014, Maternal Grandmother filed a notice of appeal and concise statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and

(b).   On June 27, 2014, the trial court filed its Rule 1925(a) Opinion,

addressing the issues raised in Maternal Grandmother’s concise statement

by incorporating its May 15, 2014 opinion.

       In her brief on appeal, Maternal Grandmother raises three issues:

       1. Did the lower court abuse its discretion and err as a matter of
       law in failing to consider all relevant facts of this case under the
       grounds of the Pennsylvania Custody Act, 23 Pa.C.S.A. sections
       5321-5340, including the 16 statutorily defined factors set forth
       at 23 Pa.C.S.A. [§]5328(a)?

       2. Did the lower court properly consider the best interests of the
       child as it affects the physical, intellectual, moral and spiritual
       well-being of the child[?]

       3. Did the lower court abuse its discretion and err as a matter of
       law in considering evidence not part of the record[?]

Maternal Grandmother’s Brief, at 4.

       Maternal Grandmother argues that the trial court should have weighed

heavily in her favor that, after Mother’s death, she willingly allowed Paternal

Grandmother to have contact with Child.        Further, Maternal Grandmother

asserts that the trial court should have weighed heavily against Paternal


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Grandmother that Paternal Grandmother took Child to her home with the

intention of not returning him to Maternal Grandmother’s home, and that

Paternal Grandmother did not consider the effect on Child from removing

Child from the home with which he was familiar.           Maternal Grandmother

contends that the trial court ignored the weight of the evidence, as the

evidence supported a finding that Paternal Grandmother did not have much

contact with Child and did not perform essential duties for Child, except to

the extent necessary when Child was in her physical custody a few times.

      Maternal   Grandmother    urges    that   the   trial   court   should   have

considered her current station in life when determining her ability to provide

stability and continuity for Child, as opposed to her history of instability.

Moreover, Maternal Grandmother contends that the trial court should have

considered Paternal Grandmother’s past attempts at alienating Child from

Mother and her family, as well as Paternal Grandmother’s present actions,

observed by the psychologist, Mr. Kysor, regarding hovering and being

secretive with Child in Maternal Grandmother’s presence.                  Maternal

Grandmother also argues that the trial court should have considered Mr.

Kysor’s conclusion that she had a bond with Child better than that of

Paternal Grandmother with Child, and that Maternal Grandmother was a

more nurturing grandparent.




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     Maternal Grandmother argues that the trial court should have honored

Mother’s wishes regarding Child, as set forth in Mother’s Will and Power of

Attorney appointing Maternal Grandmother Child’s guardian in the event of

Mother’s death.   She contends that Paternal Grandmother has not shown

convincing reasons why the guardianship should not be enforced.        Thus,

Maternal Grandmother urges that she should be awarded primary physical

custody of Child. Maternal Grandmother requests this Court to find it in

Child’s best interests to award her primary physical custody of Child, as she

had a close, ongoing relationship with him, and it was the wish of his last

living parent. Maternal Grandmother’s Brief at 30.

     Finally, Maternal Grandmother contends that the trial court abused its

discretion and erred as a matter of law in considering evidence that was not

part of the record when it considered that the reason for Child’s fear of the

dark was due to watching the television program, “The Walking Dead.”

Maternal Grandmother’s Brief at 29.

     Initially, we observe that, as the custody trial in this matter was held

in February and April of 2014, the Act, 23 Pa.C.S. §§ 5321 to 5340, is

applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding

that, if the custody evidentiary proceeding commences on or after the

effective date of the Act, i.e., January 24, 2011, the provisions of the Act

apply).




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     In custody cases, our standard of review is as follows:

     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., 45 A.3d at 443 (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) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

     In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard:

           Although we are given a broad power of review, we are
     constrained by an abuse of discretion standard when evaluating
     the court’s order. An abuse of discretion is not merely an error
     of judgment, but if the court’s judgment is manifestly
     unreasonable as shown by the evidence of record, discretion is


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      abused. An abuse of discretion is also made out where it
      appears from a review of the record that there is no evidence to
      support the court’s findings or that there is a capricious disbelief
      of evidence.

Id. at 18-19 (quotation marks and citations omitted).             Furthermore,

regarding the definition of an abuse of discretion, this Court has stated:

“[a]n abuse of discretion is not merely an error of judgment; if, in reaching a

conclusion, the court overrides or misapplies the law, or the judgment

exercised is shown by the record to be either manifestly unreasonable or the

product of partiality, prejudice, bias or ill will, discretion has been abused.”

Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation

omitted).

      With any custody case decided under the Act, the paramount concern

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section

5338 of the Act provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child. 23 Pa.C.S. § 5338.

Section 5328(a) of the Act sets forth the best interest factors that the trial

court must consider.        E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super.

2011).

      Section 5323 of the Act provides for the following types of awards:

      (a) Types of       award.—After considering the factors set forth in
      section 5328        (relating to factors to consider when awarding
      custody), the       court may award any of the following types of
      custody if it is   in the best interest of the child:




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         (1) Shared physical custody.

         (2) Primary physical custody.

         (3) Partial physical custody.

         (4) Sole physical custody.

         (5) Supervised physical custody.

         (6) Shared legal custody.

         (7) Sole legal custody.

23 Pa.C.S. § 5323.

     Section 5328(a) of the Act 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).




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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.




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            (15) The mental and physical condition of a party or
            member of a party’s household.

            (16) Any other relevant factor.

23 Pa.C.S. § 5328.

      In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained

the following:

      “All of the factors listed in section 5328(a) are required to be
      considered by the trial court when entering a custody order.”
      J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
      in original). Section 5337(h) requires courts to consider all
      relocation factors. E.D., supra at 81. The record must be clear
      on appeal that the trial court considered all the factors. Id.

            Section 5323(d) provides that a trial court “shall delineate
      the reasons for its decision on the record or in open court or in a
      written opinion or order.” 23 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, ___ Pa. ___, 70 A.3d 808 (2013). Section
      5323(d) applies to cases involving custody and relocation.
      A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 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, ___ Pa. ___, 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., 87 A.3d at 822-23 (emphasis in original).




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      With regard to Maternal Grandmother’s first two issues, she simply

challenges the trial court’s credibility determinations and the weight it placed

on certain evidence.    We conclude that Maternal Grandmother’s first two

issues lack merit.   The trial court considered the statutory best interest

factors under section 5328(a) and determined the credibility of the

witnesses’ testimony and the amount of weight to afford the testimony and

evidence. The trial court also properly considered the best interests of Child,

including his physical, intellectual, and moral well-being.   After review, we

discern no abuse of discretion.

      Next, Maternal Grandmother argues that Mother’s testamentary

appointment of Maternal Grandmother as Child’s guardian upon her death

should have been afforded controlling weight. We do not agree. In In re

Slaughter, 738 A.2d 1013 (Pa. Super. 1999), this Court instructed that,

pursuant to 20 Pa.C.S. § 2519, where the sole surviving parent has made a

testamentary guardianship appointment, the appointment may be defeated

upon a showing of convincing reasons as to why is should not stand. Id. at

1017. The panel in In re Slaughter stated that the challenging party bears

the burden of production and persuasion, and explained that the burden is a

heavy one. Id., at 1017-1018.

      Maternal Grandmother argues that Paternal Grandmother has not

overcome the heavy burden of production and persuasion outlined in In re




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Slaughter and has failed to show convincing reasons why the guardianship

should not stand. Maternal Grandmother’s Brief, at 28.

      In relation to the “any other relevant factor” language from 23 Pa.C.S.

§ 5328(a)(16), the trial court stated as follows:

             While relevant to the extent that his custody summary was
      presented as a portion of Joint Exhibit 1 and he testified to his
      recommendation, the findings and conclusions of Daniel Kysor
      have been considered and attributed the appropriate weight.
      Those findings and the suggestion of custody do not supercede
      [sic] the ultimate fact[-]finding role of the [c]ourt, which found
      the evidence presented in general on behalf of [P]aternal
      [G]randmother to be more competent and her testimony in
      particular to be more compelling than that of [M]aternal
      [G]randmother. While [P]aternal [G]randmother was cogent and
      plausible while testifying, [M]aternal [G]randmother was
      indirect, labile and vague. When asked about why she changed
      residences as often as she did, her response was “Things
      happen.” Similar responses were provided to inquiries about her
      personal relationships. She also disavowed knowledge of her
      sons’ criminal histories, only to acknowledge that they had both
      spent time in jail for statutory sexual assaults.

            The evidence regarding [Mother’s] designation in her Will
      of her mother as the guardian of [Child] together with her
      appointing [Maternal Grandmother] as her attorney-in-fact or
      agent has been considered and attributed the appropriate
      weight, which was eroded somewhat by the fragility of
      [Mother’s] mental health and the circumstances under which the
      documents were prepared. [Mother] had been hospitalized as an
      in-patient in two psychiatric units in the spring of 2013. She
      was discharged from the Clarion Hospital Psychiatric Unit on May
      10, 2013, with recommended behavioral aftercare with Dr.
      Coffman and substance abuse treatment at Alcohol and Drug
      Abuse Services. In addition, while [Mother] purportedly asked
      her mother to make arrangements to have a will and power of
      attorney prepared, it was [Maternal Grandmother] herself who
      contacted the attorney, made the appointment for [Mother] and
      paid the attorney’s fee on behalf of [Mother]. Moreover, given


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      the situation, it was not surprising that [Mother] designated her
      mother as her agent and guardian of [Child].            However,
      [Mother’s] appointment of [M]aternal [G]randmother does not in
      any way supercede [sic] the function of [the trial court] in
      determining the current best interest of [Child].

           Despite a purported close relationship with [Child], D.L.,
      who has lived with and is now married to [Maternal
      Grandmother], did not testify.

Trial Court Opinion, 5/14,14, at 12-13.

      We conclude that the trial court did consider Mother’s testamentary

appointment of Maternal Grandmother as Child’s guardian, and it considered

the circumstances surrounding the appointment.             There was sufficient

evidence surrounding the appointment upon which the trial court properly

could have    concluded that Maternal Grandmother’s involvement            and

Mother’s fragile state, caused by the death of Child’s father and Mother’s

drug addiction affected the amount of weight to place on that appointment.

Further, although the trial court noted the failure of Maternal Grandmother’s

husband, D.L., to testify as a witness at the custody trial, it does not appear

that the trial court penalized Maternal Grandmother for D.L.’s failure to

testify. In fact, the trial court sustained an objection at trial when Paternal

Grandmother’s    counsel   attempted   to     question   Maternal   Grandmother

regarding the failure of D.L., to testify on the basis that it was a matter of

trial strategy. N.T., 4/1/14, at 95-96. We will not disturb the trial court’s

conclusion that Paternal Grandmother sustained her burden in challenging




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the appointment.    In re Slaughter, 738 A.2d at 1017-1018.       Again, we

discern no abuse of discretion.

      Finally, we address Maternal Grandmother’s contention that the trial

court improperly concluded that Child has a fear of the dark that comes from

watching “the Walking Dead” on television while at Maternal Grandmother’s

home.   Maternal Grandmother avers that there was no testimony at the

custody trial that Child mentioned “The Walking Dead” or zombies. Maternal

Grandmother’s Brief, at 22.

      In addressing 23 Pa.C.S. § 5328(a)(9) in its opinion entered on May

15, 2014, the trial court stated the following:

      The evidence established that both grandmothers try to maintain
      a loving, stable, consistent and nurturing relationship[] with
      [Child] which is adequate for his emotional needs, although
      there is some concern with [Child] being exposed to disturbing
      or unsettling depictions or programs when he is staying with
      [M]aternal [G]randmother. He has watched such programs as
      “The Walking Dead” while at [Maternal Grandmother’s] residence
      and has manifest[ed] a fear of the dark, requiring that at times
      he sleep in a room with an adult. His ability to watch such
      programming calls into question the discretion of the adults in
      [Maternal Grandmother’s] household and their lack of sensitivity
      to the impact upon [Child] in viewing disturbing, graphic images
      of zombies attacking and killing people.

             As set forth herein, while both parties attempt to provide
      [Child] with stability and consistency, based on the personal
      histories of the parties, [P]aternal [G]randmother is much more
      capable of sustaining a dependable, reliable and predictable
      environment conducive to [Child’s] emotional needs. This factor
      is weighted substantially in favor of [P]aternal [G]randmother.

Trial Court Opinion, 5/14/14, at 11, ¶ 9.


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      Paternal Grandmother testified that Child is petrified of the dark and

that he is afraid that someone is going to knock on his window.         N.T.,

2/11/14, at 52. She further testified that she observed Child place his toy

pistol in his mouth and pull the trigger, then fall to the ground as if dead,

which she considered unusual behavior.      Id.   Paternal Grandmother also

stated that she hears Child use bad words, such as the “f” word, and “bit--,”

which she considered inappropriate. Id.

      Maternal Grandmother testified that Child is afraid of going to his

bedroom in her home at night and will not sleep by himself. N.T., 4/1/14, at

59.   She also testified on cross-examination that Child likes to watch

television with D.L., and that they watch “The Walking Dead,” which has

violence and depicts zombies.      Id. at 93-95.     Maternal Grandmother

conceded that the violence depicted in the program might scare a young

child, but she did not believe it is inappropriate for Child to watch the

program, maintaining that Child was fearful even before he watched “The

Walking Dead.” Id. at 95. She admitted that Child must sleep with an adult

at all times. Id. at 97-98.

      In light of this testimony that was accurately described by the trial

court, we conclude that there was sufficient, competent evidence in the

record from which the trial court could have properly concluded that Child’s

viewing of an adult program such as “The Walking Dead” had an emotional




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impact on him. We reject Maternal Grandmother’s claim that there was no

evidence to support the trial court’s determination under section 5328(a)(9)

      After a careful review of the record in this matter, we conclude that

the trial court’s determinations are supported by competent evidence. We,

therefore, affirm the trial court’s May 15, 2014 order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2015




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