J-S22003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.M.H.                                                IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

J.K., M.K., JR., J.E., AND P.E.

                                                          No. 1842 MDA 2015


               Appeal from the Order Entered September 21, 2015
              In the Court of Common Pleas of Susquehanna County
                       Civil Division at No(s): 2014-00115


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                   FILED APRIL 18, 2016

          Appellant, A.M.H. (Adoptive Mother) appeals from the September 21,

2015 order denying her petition to modify custody and petition for special

relief.     In her petitions, Adoptive Mother requested that the trial court

eliminate or reduce the partial physical custody rights of Appellees, J.E. and

P.E. (Maternal Grandparents), with respect to Adoptive Mother’s minor niece

and adopted daughter, A.K.           After careful review, we vacate and remand

with instructions.

          A.K. was born in June 2011.          Tragically, both of A.K.’s biological

parents passed away as a result of unrelated drug overdoses.                  A.K.’s

biological mother, R.E., died in December 2012, and A.K.’s biological father,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S22003-16


D.K., died in January 2014.1           On May 1, 2014, Adoptive Mother, A.K.’s

paternal grandparents, J.K., and M.K., Jr. (Paternal Grandparents), and

Maternal     Grandparents,      entered    into   a   custody   agreement,   whereby

Adoptive Mother was awarded primary physical custody and sole legal

custody of A.K.       Both Paternal Grandparents and Maternal Grandparents

were awarded periods of partial physical custody.               The parties’ custody

agreement was made an order of court on May 14, 2014. Adoptive Mother

subsequently adopted A.K.2

        On July 21, 2015, Adoptive Mother filed a petition to modify custody,

in which she sought to eliminate Maternal Grandparents’ periods of partial

physical custody.        In the alternative, Adoptive Mother requested that

Maternal Grandparents’ periods of partial physical custody be reduced to

supervised physical custody only.3 Adoptive Mother also filed a petition for

special relief that same day, in which she requested that Maternal

Grandparents’ custodial rights be immediately ended pending further order

of court. A custody hearing was held on September 21, 2015, during which

____________________________________________


1
    Adoptive Mother is D.K.’s sister.
2
  The record does not indicate when this adoption took place. The trial court
states in its opinion that A.K. was adopted in December 2014. Trial Court
Opinion, 12/2/15, at 2 (unpaginated).
3
  Adoptive Mother did not attempt to reduce the partial physical custody
rights of Paternal Grandparents. Paternal Grandparents have not filed a
brief in this matter.



                                           -2-
J-S22003-16


the trial court heard the testimony of A.K.’s therapist, Charmarie Bisel;

Adoptive Mother; paternal grandmother, J.K.; Maternal Grandparents;

maternal aunt, H.M.; and Maternal Grandparents’ niece, T.P.          That same

day, following the hearing, the trial court entered its order denying the

petition to modify, denying the petition for special relief, and instructing the

parties to comply with the prior custody order of May 14, 2014. Adoptive

Mother timely filed a notice of appeal on October 20, 2015, along with a

concise   statement   of   errors   complained   of   on   appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).

      On appeal, Adoptive Mother raises the following issues for our review.

            [1.] Whether the [t]rial [c]ourt lacked subject matter
            jurisdiction to enter its order dated September 21,
            2015?

            [2.] Whether the [t]rial [c]ourt [c]ommitted an
            [a]buse of [d]iscretion and [e]rred as a [m]atter of
            [l]aw when it entered its September 21, 2015
            custody order without considering all of the
            mandatory § 5328 custody factors?

Adoptive Mother’s Brief at 3.

      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 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

                                      -3-
J-S22003-16


           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.A. § 5328(a).

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


                                    -4-
J-S22003-16


              (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.




                                 -5-
J-S22003-16


                 (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).

     Instantly, Adoptive Mother’s first claim on appeal is that the trial court

lacked subject matter jurisdiction to enter the September 21, 2015 custody

order. Adoptive Mother’s Brief at 3, 7-15. Adoptive Mother relies on Section

5326, which provides as follows.

           Any rights to seek physical custody or legal custody
           rights and any custody rights that have been granted
           under section 5324 (relating to standing for any form
           of physical custody or legal custody) or 5325
           (relating to standing for partial physical custody and
           supervised physical custody) to a grandparent or
           great-grandparent prior to the adoption of the child
           by an individual other than a stepparent,
           grandparent     or    great-grandparent      shall  be
           automatically terminated upon such adoption.

23 Pa.C.S.A. § 5326.

     Adoptive Mother contends that her adoption of A.K. eliminated the

existing custody rights of Maternal Grandparents, and eliminated Maternal

Grandparents’ standing to seek custody rights in the future.          Adoptive

Mother’s Brief at 3-4, 7-8, 14-15.   Adoptive Mother asserts that issues of

standing and subject matter jurisdiction become intertwined when a statute

directs who may sue. Id. at 11-12, citing Grom v. Burgoon, 672 A.2d 823,

824-25 (Pa. Super. 1996); Hill v. Divecchio, 625 A.2d 642, 645 (Pa.

                                     -6-
J-S22003-16


Super. 1993), appeal denied, 645 A.2d 1316 (Pa. 1994).                Therefore,

according to Adoptive Mother, Maternal Grandparents’ lack of standing

indicates that the trial court also lacked jurisdiction to award partial physical

custody of A.K. to Maternal Grandparents. Id. at 3-4, 7-8, 15.

      We conclude that Adoptive Mother has failed to preserve this claim for

our review. Initially, we observe that Adoptive Mother’s present claim does

not raise an issue of subject matter jurisdiction. Adoptive Mother is correct

that several past opinions of this Court’s have espoused the notion that

subject matter jurisdiction and standing become intertwined when a statute

instructs who may sue.         However, our Supreme Court rejected this

proposition in In re Nomination Petition of deYoung, 903 A.2d 1164 (Pa.

2006), in which it stated, “[t]his Court has never adopted the reasoning

regarding standing intertwined with subject matter jurisdiction … and we

specifically renounce it here.” deYoung, supra at 1168 n.5; accord In re

Adoption of Z.S.H.G., 34 A.3d 1283, 1288-89 (Pa. Super. 2011).             Even

assuming that Adoptive Mother is correct that Maternal Grandparents lack

standing pursuant to Section 5326, their alleged lack of standing would not

deprive the trial court of subject matter jurisdiction.

      Further, because Adoptive Mother’s first claim does not raise an issue

of subject matter jurisdiction, it was necessary for Adoptive Mother to

properly preserve that claim in the trial court.      Our review of the record

reveals that Adoptive Mother has failed to do so. Adoptive Mother did not


                                      -7-
J-S22003-16


raise any issue with respect to Section 5326 until she filed her Rule 1925

statement on October 20, 2015.       Thus, Adoptive Mother has waived her

claim by raising it for the first time on appeal, and we express no opinion

with regard to the applicability of Section 5326 to the instant matter. See

Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal[]”).

      Adoptive Mother’s second claim is that the trial court erred by failing to

consider the Section 5328(a) factors.      Adoptive Mother’s Brief at 15-16.

Adoptive Mother observes that the trial court not only failed to address any

of the Section 5328(a) factors, but the trial court also failed to set forth its

assessment of those factors prior to the time that Adoptive Mother was

required to file her notice of appeal. Id. at 16. We agree.

      It is well-settled that the Child Custody Act requires courts to consider

each of the Section 5328(a) factors when “ordering any form of custody.”

23 Pa.C.S.A. § 5328(a). “Mere recitation of the statute and consideration of

the § 5328(a) factors en masse is insufficient.”      S.W.D., supra at 401,

citing C.B. v. J.B., 65 A.3d 946, 950 (Pa. Super. 2013), appeal denied, 70

A.3d 808 (Pa. 2013). A court must “set forth its mandatory assessment of

the sixteen factors prior to the deadline by which a litigant must file a notice

of appeal.” C.B., supra at 955.

            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

                                     -8-
J-S22003-16


            custody decision is based on those considerations. A
            court’s explanation of reasons for its decision, which
            adequately addresses the relevant factors, complies
            with [the Child Custody Act].

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citations and quotation

marks omitted).

       Here, it is clear that the trial court was required to consider the

Section 5328(a) factors.     However, the trial court failed to address these

factors during the custody hearing, or in the subject custody order. While

the trial court ultimately did file a written opinion, that opinion also failed to

address the relevant factors.

       Maternal Grandparents argue that it was not necessary for the trial

court to consider the Section 5328(a) factors, because the trial court did not

enter a new custody order, but only ordered that the parties comply with

their previous custody agreement. Maternal Grandparents’ Brief at 11. We

disagree with Maternal Grandparents’ interpretation of the Child Custody

Act.

       This Court has explained that consideration of the Section 5328(a)

factors is necessary when a court denies a petition to modify custody, and

orders the parties to comply with an existing custody order. See S.W.D.,

supra at 406.     In such cases, the key question is whether the petition to

modify requests a change to the underlying form of custody.              See id.

(stating, “[e]ven if the trial court only reaffirmed its prior order, it

nonetheless was ruling upon a request to change the form of physical

                                      -9-
J-S22003-16


custody and, therefore, bound to decide whether the prior order remained in

[the c]hild’s best interest[]”).   Here, the trial court was asked to rule on

Adoptive Mother’s request to eliminate Maternal Grandparents’ periods of

partial physical custody, or to reduce those periods to supervised physical

custody only. Thus, pursuant to S.W.D., the court was required to address

each of the Section 5328(a) factors.

      Based on the foregoing, we conclude the trial court erred when it

entered the order in question without considering the Section 5328(a)

custody factors. Accordingly, the trial court’s September 21, 2015 order is

vacated, and the case is remanded for the preparation of a new order and

opinion. On remand, the trial court is instructed to hold further proceedings,

if necessary, and to issue a new order and opinion within forty-five days of

the date of this memorandum.

      Order vacated.      Case remanded with instructions.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2016




                                     - 10 -
