J-A06024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.C.,                                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

A.C. & L.C.,

                            Appellees                No. 2601 EDA 2016


                  Appeal from the Order Entered July 19, 2016
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2007-16468


BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 11, 2017

        S.C. (“Mother”) appeals from the order entered July 19, 2016,

awarding primary physical custody and sole legal custody of her daughter,

S.C. (“Child”), born in June of 2006, to Child’s maternal grandparents, A.C.

and L.C. (“Grandparents”), and awarding partial physical custody of Child to

Mother.1 We affirm.


____________________________________________


1
  We advise the trial court that Child’s father is a necessary party to this
custody action, and that our Rules of Civil Procedure require the court to
enter an order joining him. See Pa.R.C.P. 1915.6(a)(1) (“If the court learns
from the pleadings or any other source that a parent whose parental rights
have not been previously terminated . . . is not a party to the action, it shall
order that the person be joined as a party.”). However, while Mother is
aware of Child’s father’s identity, Mother has refused to identify him.
Complaint, 7/12/07, at 4; N.T., 6/21/16, at 123-124. Thus, we proceed to
review the custody order at issue.
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       The trial court summarized the factual and procedural history of this

matter as follows.

             Grandparents initially received custody of [Child] when she
       was an infant through the state of New York’s family court since
       both she and Mother tested positive for drugs at the time of
       [Child’s] birth. On July 17, 2007 Mother filed a custody petition
       seeking full custody of [Child] alleging that she was the primary
       financial support and caregiver for the child. However, it does
       not appear that any further action was taken on this petition.

              On March 18, 2015 Grandparents filed an Emergency
       Petition for Custody seeking temporary and sole physical custody
       of [Child]. This filing was precipitated after Grandparents were
       contacted by Puerto Rican police informing them that [Child] had
       been seen on the beach alone for a few days and that Child
       Protective Services was opening a case.[2] Mother had taken
       [Child] to Puerto Rico for what she told Grandparents was going
       to be a one week vacation but instead remained there for seven
       weeks. Grandparents immediately flew down to Puerto Rico
       where [Child] was released into their custody. On March 18,
       2015 the undersigned entered an order granting temporary sole
       legal and sole physical custody of [Child] to Grandparents.
       Pursuant to the March 18, 2015 order, Grandparents were given
       permission to return with the child from Puerto Rico to
       Pennsylvania. Additionally, the order prohibited Mother from
       having any kind of contact with the child unless agreed to by
       Grandparents and was further prohibited from removing her
       from school.

____________________________________________


2
  Grandparents presented a slightly different account of Mother’s trip to
Puerto Rico in their emergency petition for custody as compared to their
testimony at the June 21, 2016 hearing. In their petition, Grandparents
averred that Mother was in Puerto Rico for seven weeks, rather than three
months. Emergency Petition for Custody, 3/18/15, at ¶ 5; N.T., 6/21/16, at
43. Grandparents further averred that they learned of Child’s whereabouts
when they received a phone call from the Puerto Rican police, rather than a
concerned bystander. Emergency Petition for Custody, 3/18/15, at ¶ 7;
N.T., 6/21/16, at 42, 44. It appears that the trial court accepted the former
version. Findings of Fact, 7/19/16, at 1.



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            On June 10, 2015 Mother filed an Emergency Petition to
     Modify Custody.       In her petition, Mother denied all of
     Grandparents’ allegations and asserted that she was [a] fit and
     able parent. The Court deemed Mother’s petition to not be an
     emergency. On August 6, 2015 the parties entered into a
     Temporary/Interim       Agreed    Order     Without     Prejudice.
     Grandparents retained primary physical and legal custody of
     [Child] and Mother received supervised custodial visits with
     [Child] as follows: every Monday from 7:00 p.m. until 9:00 p.m.,
     every Saturday from 4:00 p.m. to 8:00 p.m. and every Sunday
     from noon to 5:00 p.m. Custodial exchanges were to occur at a
     location mutually agreed upon between the parties. Additionally,
     the parties were required to notify the other party of a schedule
     change at least 48 hours in advance unless there was an
     emergency. [C]hild was also permitted to have daily reasonable
     phone contact with Mother.

            In March of 2016, the Court entered an Order permitting
     Mother to have visitation with [Child] from 4:00 p.m. to 8:00
     p.m. on Saturdays and from noon to 5:00 p.m. on Sundays with
     all other aspects of interim order from August 6, 2015
     remaining. On May 27, 2016 Mother filed a Motion for Contempt
     alleging that Grandparents were preventing her from having
     visitation with [Child].

          The parties appeared before the undersigned on June 21,
     2016 for a one day protracted hearing.

Findings of Fact, 7/19/16, at unnumbered 1-2 (footnote omitted).

     Following the hearing, on July 19, 2016, the trial court entered an

order awarding primary physical custody and sole legal custody of Child to

Grandparents, and awarding partial physical custody to Mother each

Saturday from 4:00 p.m. to 8:00 p.m. and each Sunday from noon to 5:00

p.m. In addition, the court awarded Mother an overnight visit on the third




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weekend of each month, from Friday after school until 8:00 p.m. on

Saturday.3

       Mother timely filed a pro se notice of appeal on August 4, 2016, along

with a concise statement of errors complained of on appeal.4      Mother now

raises the following issues for our review:

       1. Did the Trial Court err as a matter of law in applying the
       incorrect legal standard in a child custody case where
       grandparents sought custody of a child from that child’s
       biological mother?

       2. Did the Honorable Trial Court abuse its discretion in awarding
       custody of the child to the grandparents and not to her Mother in
       the absence of a specific finding of unfitness?

Mother’s Brief at 4.

       We consider these issues mindful of our well-settled standard of

review.

       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
____________________________________________


3
  The trial court’s desired custody award is somewhat unclear, as the order
on appeal contains a typographical error. The order states that when Mother
exercises her overnight visit with Child, “the weekend visitation schedule in
point (iii) will not apply on that weekend[.]”         Order, 7/19/16, at 1.
However, there is no “point (iii)” in the order. It appears that the court may
have been referring to point (i), which sets forth the parties’ normal
weekend custody schedule.        Additionally, while the trial court did not
specifically address Mother’s motion for contempt, we are satisfied that the
trial court denied the motion in light of its conclusions. Order, 7/19/16, at
9-10.
4
  Mother was pro se during the custody hearing.             However, she is
represented by counsel on appeal.



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     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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

     “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S. § 5328(a):

     (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)
           (relating to consideration of child abuse and
           involvement with protective services).

           (3) The parental duties performed by each party on
           behalf of the child.


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          (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.


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23 Pa.C.S. § 5328(a).

     Instantly, the trial court addressed each of the Section 5328(a) factors

in its findings of fact accompanying the order on appeal.          The court

summarized its decision to award primary physical and sole legal custody of

Child to Grandparents as follows:

           It is obvious to the Court that despite the immense tension
     and resentment that characterizes the parties’ relationships with
     each other, they are united in their deep love and affection for
     [Child].

            The Court understands Mother’s desire as [Child’s]
     biological parent to retain primary custody of her child. The
     Court appreciates Mother’s free spirit and her unique approach
     to life. However, at this time the Court finds that it is not in
     [Child’s] best interest to grant Mother primary and/or sole
     physical and legal custody. The Court has serious doubts about
     Mother’s ability to provide [Child] with a stable living
     environment and attend to her daily needs since she appears
     neither to have steady employment nor reliable and/or
     permanent housing. It is also evident to the Court that Mother
     has chosen to exercise her visitation with [Child] based on her
     own convenience. Furthermore, Mother presented little to no
     evidence that she undertakes any kind of parental obligation on
     [Child’s] behalf (i.e. assisting with homework or attending
     [Child’s] parent teacher conferences, extracurricular events or
     doctor’s appointments) or has ever made any effort to do so.
     Grandparents have provided [Child] with the solid family
     structure and stable home environment that a young, developing
     child needs.    The Court commends Grandparents for their
     exemplary efforts in raising [Child] and their willingness to allow
     Mother to be a part of [Child’s] life despite the high level of
     conflict between them.       The Court urges Grandparents to
     continue to accommodate Mother’s requests to visit with [Child]
     as much as they reasonably can and promote [Child’s] bond with
     her Mother.

            The Court would like to emphasize that the significant
     efforts Grandparents have made to care for [Child] is borne not
     only out of a love for their granddaughter but for their daughter

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       as well. Regardless of Mother’s feelings towards Grandparents,
       she is incredibly fortunate to have parents who are so committed
       to ensuring that [Child] has the resources she needs to excel in
       school and her extracurricular activities.

Findings of Fact, 7/19/2016, at 9-10 (footnote omitted).

       In her first issue on appeal, Mother argues that the trial court erred by

failing to apply the presumption that custody should be awarded to her

rather than Grandparents who are third parties.          Mother’s Brief at 9-12.

Mother waived this issue by failing to include it in her concise statement of

errors complained of on appeal. Krebs v. United Refining Co. of Pa., 893

A.2d 776, 797 (Pa. Super. 2006) (citations omitted) (“[A]ny issue not raised

in a statement of matters complained of on appeal is deemed waived.”).5

       In her second issue, Mother argues that the trial court abused its

discretion by awarding custody of Child to Grandparents. Mother’s Brief at

12-18.       Mother challenges several of the court’s factual findings, including

that Mother does not have an appropriate living arrangement and lacks

stability.     Id. at 12-14.      Mother also claims that the court overlooked

evidence showing that she did well raising Child for the first ten years of

____________________________________________


5
  Mother is correct that “[i]n 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.” Mother’s Brief at 9. However,
the presumption in favor of the parent may be rebutted “by clear and
convincing evidence.” 23 Pa.C.S. § 5327. Thus, even if Mother had not
waived this issue, the record contains overwhelming evidence in support of
the trial court’s decision to award primary physical and sole legal custody of
Child to Grandparents rather than Mother. We detail this evidence infra.



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Child’s life. Id. at 14-16. Mother contends that the court improperly based

its decision on Grandparents’ superior financial resources. Id. at 16-17.

      Our review of the record belies Mother’s claim.    During the custody

hearing, Child’s grandfather, A.C. (“Grandfather”), testified at length

concerning Mother’s history of instability and erratic behavior, which

culminated in her trip to Puerto Rico in December of 2015. N.T., 6/21/16, at

43.   Mother initially informed Grandfather that she and Child would be

travelling to Puerto Rico for one week, but they stayed for several weeks.

Id. Grandfather explained that he began receiving phone calls from Child’s

school due to her lengthy absence.      Id.   Grandfather attempted to call

Mother on her cellphone, but she failed to return his calls. Id. When Mother

did return Grandfather’s calls, she claimed that she and Child would be

returning to Pennsylvania in two days. Id. However, they did not return.

Id.

      According to Grandfather, he remained unable to locate Mother and

Child until he received a telephone call from a woman in Puerto Rico who

informed him that she had seen Child alone on the beach “for a couple of

days,” and that she reported it to the police. N.T., 6/21/2016, at 42, 44.

Grandfather spoke with the police in Puerto Rico, and a police officer

informed Grandfather that he had received a complaint concerning Child, but

that “he didn’t have a chance to go pick her up because she was on the

beach on an island and she couldn’t go anywhere except by ferry.” Id. at


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42, 47. The officer informed Grandfather that Child would be sent to social

services and probably placed in foster care.               Id. at 44, 47.       Grandfather

obtained a custody order and flew immediately to Puerto Rico in order to

retrieve Child.      Id. at 42, 44, 47.      Grandfather spoke to Child after this

incident; Child informed Grandfather that she was not attending school while

in Puerto Rico, and that “we were just staying on the beach all day. I sleep

on the beach.” Id. at 45. Meanwhile, Mother remained in Puerto Rico for

another month, until Grandfather paid for her return trip to Pennsylvania.

Id. at 47.

      Grandfather further testified that Mother has failed to remedy her

instability    and    erratic   behavior   since     her   return    from      Puerto    Rico.

Grandfather explained that Mother is no longer allowed to visit his home

because she “always starts an argument, starts yelling and screaming[.]”

N.T., 6/21/16, at 35. When Grandfather informed Mother that she could no

longer visit, she became violent and attacked him.                     Id.      Grandfather

recalled, “[Mother] started pushing me and she says if you don’t let me in,

I’m going to beat you up. She spit in my face and she says as a matter of

fact, I’m going to have somebody beat you up.”                    Id. at 35-36.       Because

Mother is no longer allowed to visit his home, Grandfather insists that

Mother obtain custody of Child in a public place, such as a park or shopping

center.       Id. at 10, 37.       Nonetheless, Mother continues to arrive at

Grandfather’s        home   seeking   custody       of   Child.     Id.   at    12,     34-35.


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Grandfather described an incident on June 18, 2016, after Mother informed

him that she would pick up Child “at a specific place[.]” Id. at 82. Mother

stated that she would call Grandfather when she arrived at the exchange

location.   Id.   Instead, Mother went directly to Grandfather’s home,

demanded to see Child, and even called the police.             Id. at 35, 82.

Grandfather reported that Mother does not appear to have a place to live,

other than sleeping occasionally at the home of Grandfather’s sister. Id. at

46.

      Further, L.C. (“Grandmother”) testified that Mother has often been late

to her visits with Child and failed to attend some visits entirely.         For

example, Grandmother testified that Mother missed visits on April 2, 2016,

April 3, 2016, April 9, 2016, April 10, 2016, April 16, 2016, April 17, 2016,

and April 23, 2016.     N.T., 6/21/2016, at 92; Exhibit GP-2 (Calendar of

Visits). On April 18, 2016, Mother arrived for a visit at 9:10 p.m., after Child

was asleep. Id. at 92; Exhibit GP-2 (Calendar of Visits).

      The record supports the trial court’s decision to award primary physical

and sole legal custody of Child to Grandparents. The testimony presented

during the hearing establishes that Mother has a history of instability and

erratic behavior. More concerning, Mother has a history of neglecting Child

and placing her in danger, as demonstrated by the fact that Mother left Child

alone to wander a beach in Puerto Rico. Mother appears to have made little

progress in terms of remedying these issues. Mother is uncooperative and


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hostile. Mother also fails to attend her visits with Child consistently, and she

barely visited with Child at all during April of 2016.     The court was well

within its discretion when it concluded that Mother lacks the stability

necessary to care for Child and to ensure her best interests. Accordingly, we

affirm the trial court’s July 19, 2016 order awarding primary physical and

sole legal custody of Child to Grandparents and awarding partial physical

custody to Mother.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2017




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