J-S25029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.S.                                                IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

B.M.P. AND M.J.P.

                            Appellee                    No. 1795 WDA 2015


                 Appeal from the Order Dated October 12, 2015
                In the Court of Common Pleas of Cambria County
                        Civil Division at No(s): 2015-2190


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                     FILED MAY 2, 2016

        Appellant, J.S. (Mother) appeals from the October 12, 2015 order

granting primary physical custody of K.P., born in October 2007, to M.J.P.

(Paternal Grandmother), partial physical custody to Mother and B.M.P.

(Father), and shared legal custody among all of the parties.1 After careful

review, we affirm.

        The relevant factual and procedural history, as gleaned from the

certified record, is as follows. K.P. resided in the care and custody of Mother

and Father, who never married, from birth until early 2014. N.T., 8/14/15,

at 38-39.     On January 16, 2014, Mother was incarcerated for a probation


____________________________________________


1
    Father did not file a notice of appeal, and he is not a party to this appeal.
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violation.2 Id. at 39. K.P. remained in Father’s care until February 2014.

Trial Court Opinion, 12/18/15, at 3, ¶ 2. On March 10, 2014, the trial court

granted legal and physical custody of K.P. to Paternal Grandmother, at which

time Mother remained incarcerated, and Father was homeless. Id. at 3, ¶ 5.

       From June 4, 2014, to July 14, 2014, Mother resided in a halfway

house. She was then placed on house arrest until February 28, 2015. Id. at

3, ¶ 7. On May 26, 2015, Mother, acting pro se, filed a complaint against

Father and Paternal Grandmother, wherein she sought primary physical

custody of K.P. On July 27, 2015, Mother, through counsel, filed a petition

for emergency interim relief, wherein she requested an interim order

granting her shared legal and physical custody pending a hearing.

       A hearing was held on Mother’s custody action on August 14 and

October 12, 2015, at which time Mother resided in the Ferndale School

District, and Paternal Grandmother resided in the Windber School District.

The trial court received testimony from the following witnesses on the first

day of the hearing: Paternal Grandmother; Mark Malcotti, a probation

officer; Mother; and Amanda Wissinger, K.P.’s kindergarten teacher in the

Windber School District. On the second day of the hearing, the trial court

received testimony from Father; Tony Mognet, a probation officer; and

Mother and Paternal Grandmother, on rebuttal. In addition, the trial court
____________________________________________


2
  Mother was on probation from 2009, for a crime involving conspiracy to
deliver 100 grams of heroin. Trial Court Opinion, 12/18/15, at 3, ¶ 5.



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interviewed K.P. in camera, who was then nearly eight years old and in

second grade in the Windber School District.

       On October 13, 2015, the trial court granted Mother, Father, and

Paternal Grandmother shared legal custody; maintained primary physical

custody with Paternal Grandmother; and granted Mother and Father partial

physical custody “as mutually agreed or, if not agreed, as determined by

th[e trial c]ourt.” Trial Court Order, 10/13/15, at ¶ 2(c). Further, the order

directed that the parties “shall have 14 days to submit a Consent Order

regarding partial physical custody to be awarded to Mother and Father.”3

Id. at ¶ 2(d). On November 10, 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 December 18, 2015.

       On appeal, Mother presents the following two issues for our review.

____________________________________________


3
  In its Rule 1925(a) opinion, the trial court stated that the custody order is
final and appealable because the court “completed its hearing and resolved
the ultimate issues of primary and partial physical custody, pending an
agreement to or implementation of a partial physical custody schedule.”
Trial Court Opinion, 12/18/15, 2, n.3. We agree. See G.B. v. M.M.B., 670
A.2d 714, 715 (Pa. Super. 1996) (en banc) (stating that, “a custody order
will be considered final and appealable only after the trial court has
completed its hearing on the merits and the resultant order resolved the
pending custody claims between the parties”); see also Cady v. Weber,
464 A.2d 423, 426 (Pa. Super. 1983) (holding that the order was final that
resolved the ultimate issue between the parties by transferring custody from
the grandparents to the mother, even though the details of implementation
remained to be worked out pending home studies).



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            1. Did the trial court err and/or commit an abuse of
            discretion by finding that the grandmother proved by
            clear and convincing evidence that the child’s best
            interests would best be served in the primary
            physical custody of the grandmother?

            2. Did the trial court err and/or commit an abuse of
            discretion by basing the decision to award primary
            physical custody to a third-party largely based on
            mother’s prior bad conduct, without a proper
            showing that any such prior conduct has had any
            ongoing negative effect on the child, instead of
            focusing on mother’s current situation[?]

Mother’s Brief at 7.

      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.

            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

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                 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, 2006 PA Super 144, 902 A.2d 533, 539 (Pa.
           Super. 2006).

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

     Child custody actions are governed by the Child Custody Act (Act), 23

Pa.C.S.A. §§ 5321-5340.       With regard to the presumption in cases

concerning primary physical custody between a parent and a third party, the

Act provides, “there shall be a presumption that custody shall be awarded to

the parent. The presumption in favor of the parent may be rebutted by clear

and convincing evidence.”     23 Pa.C.S.A. § 5327(b).       Accordingly, we

recognize that when a grandparent is involved in a custody dispute with a

parent, the grandparent is a third party and bears this heightened burden.

V.B. v. J.E.B., 55 A.3d 1193, 1198-1199 (Pa. Super. 2012) (citation

omitted), citing Charles v. Stehlik, 744 A.2d 1255, 1258 (Pa. 2000), cert.

denied, Stehlik v. Charles, 530 U.S. 1243 (2000).




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         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).

         Trial courts are required to consider “[a]ll of the factors listed in

section 5328(a) … when entering a custody order.”          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).

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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.


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                 (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
           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. See N.T., 10/12/15, at 71-83. The trial court found significant

the following factors, and weighed them in favor of Paternal Grandmother:


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Section 5328(a)(3), the parental duties performed by each party on behalf

of the child; Section 5328(a)(4), the need for stability and continuity in the

child’s education, family life and community life; Section 5328(a)(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; Section

5328(a)(10), which party is more likely to attend to the daily physical,

emotional, developmental, educational and special needs of the child; and

Section 5328(a)(14), the history of drug or alcohol abuse of a party or

member of a party’s household. See id. at 71-76, 78-79, 80-83.

      Further, in its Rule 1925(a) opinion, the court explained its decision as

follows.

            Considering [K.P.]’s stability and Mother’s short-term
            unmonitored sobriety … as well as [K.P.]’s significant
            educational needs, the trial court found by clear and
            convincing evidence that the scales were tipped in
            favor of Paternal Grandmother. Therefore, the trial
            court     appropriately        considered     Paternal
            Grandmother’s burden of proof as a third-party
            against a parent and properly maintained primary
            physical custody of the child with Paternal
            Grandmother.

Trial Court Opinion, 12/18/15, at 11.

      Turning to Mother’s first issue on appeal, she argues the record

evidence does not support granting Paternal Grandmother primary physical

custody. Specifically, Mother argues the record does not demonstrate that

(1) she caused “any educational deficit in [K.P.;]” and (2) “ongoing

educational concerns” remained with K.P.       Mother’s Brief at 14-15.     In

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support of her argument Mother argues “[t]hat statement by the trial court

fails to take into consideration the fact that [M]other was in rehab in

November of 2013 and jail for a week and a half and that she was in jail

beginning in January of 2014 and thus the vast majority of time [K.P.] was

in [F]ather’s care.” Id. at 16.

      In concluding Section 5328(a)(14) weighed in favor of Paternal

Grandmother, the trial court reiterated its findings in its Rule 1925(a)

opinion as follows.

            [Since March 10, 2014,] Paternal Grandmother
            performed “the lion’s share of the parenting duties”
            for [K.P.], including going “above and beyond to
            make      sure    that   [K.P.]’s   deficiencies   were
            appropriately addressed and that [K.P.] would not
            start out in the educational system at a loss or
            behind her peers.” See N.T., [10/12/15], [at] 71-
            74[; s]ee also N.T., [8/14/15], [at] 61 (the child’s
            kindergarten teacher explaining that the child
            completed workbooks with Paternal Grandmother,
            made big improvements, “came a long way,” and
            made huge gains in knowledge while in Paternal
            Grandmother’s care);        N.T.[, 10/12/15], [at] 32
            (Father commenting on Paternal Grandmother’s
            parenting).      Specifically, Paternal Grandmother
            arranged for tutoring, counseling, and swimming
            lessons for the child, as well as completing
            workbooks with the child. N.T.[, 8/14/15], [at] 8-9,
            18, 25-27, 61. Additionally, the trial court found
            that Paternal Grandmother took initiative in caring
            for    the   child’s   overall    physical,  emotional,
            developmental, educational, and medical needs.
            See e.g. N.T.[, 10/12/15], [at] 78-79[; s]ee also
            N.T.[,    8/14/15],    [at]    27-30,    34    (Paternal
            Grandmother outlining the schedule she followed
            with the child, including reviewing schoolwork;
            completing homework; brushing teeth; bathing; and


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            attending Bible Study, swimming, ballet, and ice
            skating).

            Conversely, Mother presented no evidence of her
            efforts to address the child’s needs. Rather, Mother
            claimed she was “never informed of” the child’s
            parent-teacher conferences, “not given any other
            information regarding her schooling[,]” “was not
            made aware of” the child’s routine medical visits,
            and “was never given” access to the school’s
            website. N.T.[, 8/14/15], [at] 44-45, 54-55. Based
            on the foregoing evidence, the trial court found that
            “Mother has not taken the additional steps to pay
            careful attention to the child’s education [nor is she]
            as driven as [Paternal Grandmother] is when it
            comes to making sure that [K.P.] overcomes any
            remaining educational deficiencies that she has.”
            N.T.[, 10/12/15], at 72-73. These facts weighed
            heavily against Mother and in favor of Paternal
            Grandmother, especially in light of credible
            testimony from the child’s teacher and evidence of
            the child’s academic performance and attendance
            while in Paternal Grandmother’s care.            N.T.[,
            8/14/15], [at] 57-64.

Trial Court Opinion, 12/18/15, at 9-10.      Upon review, we conclude the

testimony of Mother, Paternal Grandmother, and Amanda Wissinger, K.P.’s

kindergarten teacher in the Windber School District, support the trial court’s

findings.

      Specifically, Ms. Wissinger testified that, at the beginning of K.P.’s

kindergarten year in 2013, when she was in the care of Mother and Father,

she “was very behind socially and emotionally as well as academically in all

academic areas.” N.T., 8/14/15, at 58. Ms. Wissinger testified that K.P.’s

assessment for the first semester indicated, “there were huge gaps in her

abilities across the board, in math as well as language arts….        I clearly

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state[d K.P.] is struggling in all academic areas….” Id. at 59. In addition,

Ms. Wissinger testified she revealed on the assessment that K.P. “is not

ready to move on to first grade and we would have to schedule a meeting

and discuss retaining her in kindergarten to build her needed skills.” Id. at

60. Further, Ms. Wissinger testified on direct examination to the following.

            Q. [H]ow much contact or cooperation did you have
            from [K.P.]’s parents in assisting her development?

            A. There were [sic] none. We have regular parent
            conferences every November… Our school district
            has a texting communication with parents as well as
            an e-mail so all you have to do is sign up for it and
            you get notifications there. We send home notes
            and paperwork. It is on my calendar. It is on the
            school calendar and I never had a conference with
            them…. They would’ve received some type of other
            reports between that time stating that she is behind
            and activities sent home. I do something, it is called
            a book bag activity where it is simply a Ziploc bag
            where I put reading materials in just for the kids to
            be doing at home to kind of bridge the gap. None of
            the materials were ever utilized.

Id.   In addition, Ms. Wissinger acknowledged that, from the fall of 2013,

until March of 2014, K.P. had an excessive number of absences in

kindergarten. Id. at 62.

      Importantly, Ms. Wissinger testified that she performed another

assessment of K.P. at the end of March or the beginning of April 2014, at

which time she contacted Paternal Grandmother and “asked her to come in

to have a meeting with us.”        Id. at 61.    She testified that Paternal




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Grandmother did attend a meeting at the school, after which Ms. Wissinger

observed as follows:

             [K.P.]   made     big    improvements.       [Paternal
             Grandmother] asked what she specifically could be
             doing at home. Anytime I would send things home,
             [K.P.] would complete them and send them back.
             They were also doing activities that [Paternal
             Grandmother] sought out on her own, work books I
             believe that [K.P.] used to talk about, doing some
             things with [Paternal Grandmother].       And you can
             see on the assessment between the first semester
             and the second semester huge gains were made.
             We have … a Diagnostic Reading Assessment and our
             kindergarten kids, our goal for them is to get to a
             level 3… It is a state goal, so [K.P.] whenever
             [Paternal Grandmother] came in to talk to me in
             March or April was at a level A. That’s the lowest
             level kids can be at…. She went from a level A to
             the level 3, the goal that was set for her.

Id. at 61.

      Further, Ms. Wissinger was not K.P.’s first grade teacher, but she

reviewed K.P.’s first grade assessment.       She testified that the assessment

revealed K.P. “started off really good but then she didn’t make any gains….

Now compared to kindergarten, she has made a great deal of progress[,] but

she still is not where our school would like her to be. She is still struggling

but not as much as she was.” Id. at 63.

      Based on the foregoing testimonial evidence, as well as our review of

the testimony of Mother and Paternal Grandmother, we discern no abuse of

discretion by the trial court in granting Paternal Grandmother primary




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physical custody due, in large part, to the educational needs of K.P.

Therefore, Mother’s first issue on appeal fails.

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

in basing its custody decision on her drug relapse “from October – November

2013 with no evidence of further drug abuse issues in [the] 23 months by

the time of the October 2015 hearing….” Mother’s Brief at 21. Mother relies

on this Court’s decision in Wheeler v. Mazur, 793 A.2d 929 (Pa. Super.

2002), wherein we stated that custody could not, “reasonably be granted on

the basis of the parent’s ‘unsettled past’ unless ‘the past behavior has an

ongoing negative affect on the child’s welfare.’”       Id. at 936 (citation

omitted).

      In its Rule 1925(a) opinion, the trial court properly distinguished

Wheeler by noting that the Section 5328(a) custody factors were not in

effect at the time of that decision.    Trial Court Opinion, 12/18/15, at 11.

Instantly, as the trial court noted, “[u]nder the Child Custody Act, the trial

court must consider a parent’s past conduct, specifically the history of drug

or alcohol abuse of a party.      23 Pa.C.S.A. § 5328(a)(14).”     Trial Court

Opinion, 12/18/15, at 11 (emphasis in original).     The trial court explained

that it found Mother had eight months of sobriety when not being monitored

by her probation officer.      See Trial Court Opinion, 12/18/15, at 12.

However, the trial court stated, “Mother’s past conduct had a harmful effect

on [K.P.], specifically, how the child’s educational needs suffered as a result


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of Mother’s addiction, incarceration, instability, and a lack of attention.

Therefore, the trial court appropriately considered Mother’s past conduct in

conjunction with all of the custody factors and properly awarded [primary

physical] custody to [Paternal Grandmother].”            Trial Court Opinion,

12/18/15, at 12-13 (citation omitted).       Upon review of the totality of the

record evidence and the relevant law, we agree with the trial court and

discern no abuse of discretion with respect to the weight it placed on Section

5328(a)(14) in fashioning the custody order.

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

discretion in finding it was in K.P.’s best interests for Paternal Grandmother

to have primary physical custody and Mother and Father to have partial

physical custody, with all three sharing legal custody.          A.V., supra.

Therefore, we affirm the trial court’s October 12, 2015 custody order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




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