J-A21021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.L.H.                                  :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                    Appellant           :
                                        :
                                        :
            v.                          :
                                        :
                                        :
L.M.C., W.H. (DECEASED), AND D.H.       :   No. 369 WDA 2017

               Appeal from the Order Entered February 15, 2017
              In the Court of Common Pleas of Allegheny County
                  Family Court at No(s): FD 14-007453-001


BEFORE:    BENDER, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                    FILED NOVEMBER 21, 2017

     M.L.H. (“Maternal Grandmother”) appeals from the order dated

February 13, 2017 and entered on February 15, 2017, that awarded sole

legal custody and primary physical custody of A.H. (born in August of 2010)

(“Daughter”), and B.H. (born in February of 2013) (“Son”) (collectively,

“Children”) to Mother; and partial physical custody of the Children to

Maternal Grandmother and D.H. (“Paternal Grandmother”).        We affirm in

part, and remand in part, with instructions to the trial court to clarify the

caption of the February 13, 2017 final order of court, and to clarify the

custody schedule.


     The Children’s father, W.H. (“Father”), passed away in May of 2014.

On July 22, 2014, Paternal Grandmother filed a complaint seeking partial
J-A21021-17


custody.   The trial court set forth the procedural history of this appeal as

follows.

            . . . About a year after Father’s death [(in May of 2014)],
      Paternal Grandmother and Mother entered into a consent order
      that granted Paternal Grandmother partial custody every other
      Saturday, from 1:30 P.M. until 7:30 P.M., and every Thursday
      following the custodial Saturday, from 4:30 P.M. until 7:30 P.M.

             On April 7, 2016, Maternal Grandmother filed a Third Party
      Complaint for Confirmation of Custody that was then deemed a
      Petition to Modify Custody. An Interim Order of Court dated
      April 29, 2016 granted Maternal Grandmother and Mother shared
      physical custody of the Children on a week-on, week-off
      schedule, with Paternal Grandmother’s partial custody periods
      remaining unchanged. Pursuant to the April 29, 2016 Interim
      Order, Mother retained sole legal custody of the Children.
      Finally, pursuant to Maternal Grandmother’s August 22, 2016
      Emergency Motion to Maintain Status Quo - School, [on that
      same date] the [c]ourt ordered that the Children should remain
      enrolled in the Chartiers Valley School District, with Maternal
      Step-Grandfather providing transportation during Mother’s
      custody weeks.

             The [c]ourt conducted a hearing in the matter on January
      30, 2017. During the hearing, the [c]ourt heard testimony from
      the following witnesses: Daughter’s substitute first grade
      teacher,     Daughter’s    first   grade    teacher,   Maternal
      Step-Grandfather (N.H.), Maternal Grandmother, Maternal
      Step-Grandfather’s Brother (J.H.), two Paternal Aunts (M.K. and
      K.H.), the Children’s Paternal Half-Sister (L.H.), Paternal
      Grandmother, and Mother.         The [c]ourt admitted Maternal
      Grandmother’s Exhibits 1-9 and 11-161 and [c]ourt’s Exhibit A
      into the record.

      The parties completed all testimony on January 30, 2017.

      ___________________________________________________
      1  Maternal Grandmother’s counsel identified a document as
      Maternal Grandmother’s Exhibit 10 but never moved to admit
      this exhibit.

Trial Court Opinion, 5/8/17, at 1-2 (footnote in original).


                                     -2-
J-A21021-17


      The trial court made the following factual findings from the testimony

at the evidentiary hearing.

            Mother has admittedly struggled with issues of drug and
      alcohol abuse dating back to her early adulthood. Following
      Father’s death, Mother was arrested on May 19, 2014 and
      January 13, 2015. These arrests resulted in guilty pleas to two
      DUI charges and two counts of Endangering the Welfare of
      Children.6 Mother received a sentence of probation.

            In December 2015, Mother was arrested for violating her
      probation. She was incarcerated at the Allegheny County Jail for
      approximately one month and was released from jail to
      residential drug and alcohol treatment at Family Links. Mother
      successfully completed six months of treatment at Family Links.
      She then obtained her own housing in Brentwood and has
      maintained her sobriety since her re-entry into the community.
      At the time of the hearing in this matter, Mother had achieved
      over a year of sobriety, was fully compliant with the terms of her
      probation, was actively involved in mental health treatment, and
      had progressed to the fourth of five stages in this jurisdiction’s
      DUI Court.

            Despite Mother’s struggles with substance abuse, the
      Children have resided with Mother for most of their lives.
      Mother, Father, and the Children lived together as a family when
      the Children were born. After a domestic dispute in April 2014,
      Mother and the Children moved in with Maternal Grandmother.
      Following Father’s death and Mother’s arrests, Mother and the
      Children continued to reside with Maternal Grandmother. The
      Children lived in Mother’s care and Mother’s legal custody in
      Maternal Grandmother’s house until December 2015, when
      Mother was incarcerated. At that point, the Children remained in
      Maternal Grandmother’s care.

             When Mother first entered treatment at Family Links, the
      Children lived with Maternal Grandmother during the week and
      stayed with Mother on the weekends. In April 2016, after
      Maternal Grandmother filed for custody, the Children began
      alternating between Maternal Grandmother’s care and Mother’s
      care on a week-on, week-off schedule.7 This schedule remained
      in effect at the time of the hearing.


                                    -3-
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              By all accounts, the Children are thriving. In 2014, while
      Mother and the Children were residing together with Maternal
      Grandmother, Mother enrolled Daughter in Chartiers Valley
      School District, where she remained during the pendency of this
      litigation.8    Daughter has performed well in school, has
      maintained good attendance, and has exhibited no significant
      behavioral difficulties of any kind.9

            Son attended Early Enrichment Childcare during Maternal
      Grandmother’s custody weeks. Shortly before Son turned three
      years old, the Alliance for Infants and Toddlers evaluated him
      and identified one area in which he might benefit from early
      intervention services. However, no evidence was presented that
      DART [(“Discovery, Assessment, Referral and Tracking”)], which
      is an entity responsible for early intervention evaluation and
      services beginning at age three, has ever provided services to
      Son or recommended them as necessary. Son does not attend
      day care during Mother’s custody weeks, and instead engages in
      a variety of typical, age-appropriate activities.

             The Children benefit from a large network of extended
      family in the area, including many paternal relatives and
      Maternal Step-Grandfather’s many relatives. In the past year,
      Mother and paternal relatives have rebuilt their relationships and
      cooperate well to ensure that the Children maintain their
      connection to Father’s side of the family, including their older
      half-siblings as well as Paternal Grandmother, cousins, and
      aunts.

            It was against this background that the [c]ourt evaluated
      Maternal Grandmother’s request for primary custody of the
      Children, which would have amounted to a significant reduction
      in the time Children spent with Mother.
      ___________________________________________________

      6   See Maternal Grandmother’s Exhibit 8.

      7   See Maternal Grandmother’s Exhibit 9.

      8   Tr. 88, 94 (January 30, 2017).

      9   See Maternal Grandmother's Exhibit 1.

Trial Court Opinion, 5/8/17, at 3-5 (footnotes in original).

                                      -4-
J-A21021-17


       The trial court continued its explanation of the procedural history of

this appeal as follows.

              On February 6, 2017, with all parties present, the [c]ourt
       announced its decision and discussed its findings related to the
       custody factors that the court must consider pursuant to the
       Domestic Relations Code.2 The [c]ourt awarded primary physical
       custody of the Children to Mother, and partial physical custody to
       Maternal Grandmother and Paternal Grandmother. The [c]ourt
       maintained sole legal custody with Mother.           The [c]ourt
       subsequently issued its final order on February 13, 2017. The
       order was entered on the docket on February 15, 2017. On
       March 3, 2017, Maternal Grandmother timely filed her Notice of
       Appeal.3 On March 7, 2017, the [c]ourt issued a [Pa.R.A.P.]
       1925(b) order directing Maternal Grandmother to immediately
       file a concise statement of matters complained of on appeal and
       to serve copies on Mother, Paternal Grandmother, and the
       Court.4 Maternal Grandmother filed her Concise Statement of
       Matters Complained of on Appeal (“Concise Statement”) on
       March 9, 2017[.]

       ___________________________________________________
       2   Tr. 4-14 (February 6, 2017).

       3The [c]ourt’s opinion is being filed after the 30-day fast track
       deadline as the [c]ourt did not receive all necessary transcripts
       until March 27, 2017.

       4   See Rule 1925(b) Order, dated February 7, 2017.

Trial Court Opinion, 5/8/17, at 1-2 (footnotes in original).1


____________________________________________


1  See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009) (finding that the
appellant’s failure to simultaneously file a Rule 1925(b) Statement did not
result in waiver of all issues for appeal where the appellant later filed the
Statement, and there was no allegation of prejudice from the late filing);
compare J.P. v. S.P., 991 A.2d 904 (Pa. Super. 2010) (appellant waived
issues for appeal by failing to comply with trial court’s order directing her to
file a Rule 1925(b) Statement within 21 days).



                                           -5-
J-A21021-17


     In her brief on appeal, Maternal Grandmother raises the following

issues:

     I. Did the trial court err as a matter of law and abuse its
     discretion in failing to address the application of the sixteen (16)
     custody factors set forth in 23 Pa.C.S.A. § 5328?

     II. Did the trial court err as a matter of law and abuse its
     discretion in failing to author the terms of the February 13, 2017
     Final Custody Order of Court in a “sufficiently specific” manner in
     accordance with Pa.R.C.P. No. 1915.10(b)?

     III. Did the trial court err as a matter of law and abuse its
     discretion in issuing a Final Custody Order of Court that was
     inconsistent with its February 6, 2017 disposition of the custody
     factors under 23 Pa.C.S.A. § 5328, which was made on the
     record in open court, with respect to the physical custody
     schedule outlined in the Final Custody Order?

     IV. Did the trial court err as a matter of law and abuse its
     discretion by ignoring the best interest of the children standard
     when it determined that various relevant custody factors under
     23 Pa.C.S.A. § 5328 were “not applicable” despite the
     undisputed admissible evidence?

     V. Did the trial court err as a matter of law and abuse its
     discretion when it ordered that [Mother] shall have primary
     custody of the [C]hildren, when the evidence clearly revealed
     that [Maternal Grandmother], despite her third-party custodian
     status, has been caring for the children on a full-time basis in
     her home that she owns; enrolled and continues to be the only
     custodial parent active in their schooling; offers a more stable
     living environment; and is the party more likely to encourage
     and permit continued and frequent contact?

     VI. Did the trial court err as a matter of law and abuse its
     discretion when it made more than reasonable accommodations
     to ensure [Mother], a pro se litigant, the opportunity to have her
     matters heard in violation of Code of Jud. Conduct, Rule 2.2, 42
     Pa.C.S.A?

     VII. Did the trial court err as a matter of law and abuse its
     discretion when it acted with impropriety, bias, and or prejudice

                                    -6-
J-A21021-17


      in violation of Code of Jud. Conduct, Rule 2.3, 42 Pa.C.S.A, and
      Rule 1.2, 42 Pa.C.S.A?

Maternal Grandmother’s Brief, at 2-3.

      As the custody trial in this matter was held in January of 2017, the

Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 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).

      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.

Id. 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.


                                     -7-
J-A21021-17


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
     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 and citations omitted).

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

is the best interests of the child. See 23 Pa.C.S.A. §§ 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.A.

§ 5338. Section 5328(a) of the Act sets forth the best interest factors that

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

Super. 2011); 23 Pa.C.S.A. § 5328.

     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 in the best interest of the child:

         (1) Shared physical custody.

         (2) Primary physical custody.

                                     -8-
J-A21021-17



           (3) Partial physical custody.

           (4) Sole physical custody.

           (5) Supervised physical custody.

           (6) Shared legal custody.

           (7) Sole legal custody.

23 Pa.C.S.A. § 5323.

      Section 5323(d) provides that the 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).

      Section 5322 of the Act defines the relevant forms of custody as

follows:

      § 5322. Definitions

      (a) This chapter.— The following words and phrases when
      used in this chapter shall have the meanings given to them in
      this subsection unless the context clearly indicates otherwise:

                                        ***

      “Legal custody.” The right to make major decisions on behalf
      of the child, including, but not limited to, medical, religious and
      educational decisions.

                                        ***

      “Partial physical custody.” The right to assume physical
      custody of the child for less than a majority of the time.”

      “Physical custody.”            The actual physical possession and
      control of a child.




                                        -9-
J-A21021-17


     “Primary physical custody.” The right to assume physical
     custody of the child for the majority of time.

                                   ***

     “Shared legal custody.” The right of more than one individual
     to legal custody of the child.

     “Shared physical custody.” The right of more than one
     individual to assume physical custody of the child, each having
     significant periods of physical custodial time with the child.

     “Sole legal custody.” The right of one individual to exclusive
     legal custody of the child.

     “Sole physical custody.”        The right of one individual to
     exclusive physical custody of the child.

                                   ***

23 Pa.C.S.A. § 5322.

     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).

                                  - 10 -
J-A21021-17


           (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.

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


                                    - 11 -
J-A21021-17


            (16) Any other relevant factor.

23 Pa.C.S.A. § 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). . . . 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, [620 Pa. 727], 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, [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., 87 A.3d at 822-823.

      Both Maternal Grandmother and the trial court grouped Maternal

Grandmother’s issues 1, 4, and 5 together, as these issues comprise a

challenge to the trial court’s assessment of the facts and weighing of

evidence regarding the Children’s best interests under the section 5328(a)

                                     - 12 -
J-A21021-17


best interest factors.    In her summary of argument section of her brief,

Maternal Grandmother argues that, despite the              presumption against

awarding physical custody to her as a third-party custodian, the clear and

convincing evidence at the evidentiary hearing, when properly weighed

against the sixteen section 5328(a) best interest factors, demonstrated that

the best interest of the Children would be served by awarding her shared

legal and substantial partial physical custody. Maternal Grandmother’s Brief,

at 9.    Maternal Grandmother contends that the trial court’s findings with

regard to the section 5328(a) factors that the court did not weigh in her

favor were not in the Children’s best interests. Id.

        Maternal Grandmother argues that Mother has a significant history of

dangerous substance and alcohol abuse, and has been in and out of

substance and alcohol rehabilitation, as well as incarceration.       Id. at 10.

Maternal    Grandmother     asserts   that   she   has   always   supported   and

encouraged Mother with her struggle with substance and alcohol abuse, and

she has always supported the Children’s best interests and relationship with

Mother.     Id.    Maternal Grandmother alleges “Mother did not present one

scintilla of evidence that indicated she has truly rehabilitated herself [and]

improved her parenting abilities.” Id. Maternal Grandmother asserts that

Mother has never safely had sole legal and primary physical custody of the

Children.    Id.    In her prayer for relief, Maternal Grandmother requests

shared legal and shared physical custody of the Children with Mother, and an


                                      - 13 -
J-A21021-17


order returning the Children to Chartiers Valley Primary School. Id. at 11,

38.2

       The trial court prefaced its analysis of Maternal Grandmother’s issues

by discussing the presumption favoring parents over third parties in custody

disputes and the trial court’s process of weighing the evidence set forth in

the Act, 23 Pa.C.S.A. § 5327(b). Section 5327(b) of the Act provides:

       § 5327.     Presumption            in   cases   concerning   primary
       physical custody

             (a) Between parents.— In any action regarding the
       custody of the child between the parents of the child, there shall
       be no presumption that custody should be awarded to a
       particular parent.

             (b) Between a parent and third party.—In 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. The presumption in favor of the
       parent may be rebutted by clear and convincing evidence.

             (c) Between third parties.—In any action regarding the
       custody of the child between a nonparent and another
       nonparent, there shall be no presumption that custody shall be
       awarded to a particular party.

23 Pa.C.S.A. § 5327.
____________________________________________


2 We observe that Maternal Grandmother argues that it is in the Children’s
best interests for the court to award her substantial partial physical custody.
She requests an award of shared physical custody with Mother, and Paternal
Grandmother’s partial physical custody time to remain the same. See 23
Pa.C.S.A. § 5322, set forth supra.          Thus, it appears that Maternal
Grandmother concedes that she and Mother cannot have a 50-50 split of all
of the custodial time, and that she is seeking an award more akin to the
50-50 split that she shared with Mother under the April 29, 2016 interim
order, with Paternal Grandmother’s partial custodial time undisturbed.



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J-A21021-17


     The trial court stated as follows.

            The dispute in this matter lies between Mother and
     Maternal Grandmother, a third party custodian.11 It is well
     established that in a custody dispute between a third party and a
     parent, the burden of proof is not evenly balanced. In such
     cases, “the [parent has] a ‘prima facie right to custody,’ which
     will be forfeited only if ‘convincing reasons’ appear that the
     [children’s] best interest[s] will be served by an award to the
     third party.”12 “Thus, even before the proceedings start, the
     evidentiary scale is tipped, and tipped hard, to the [biological
     parent’s] side.”13 “What the judge must do, therefore, is first,
     hear all evidence relevant to the [children’s] best interest[s],
     and then, decide whether the evidence on behalf of the third
     party is weighty enough to bring the scale up to even, and down
     on the third party’s side.”14

           The Pennsylvania General Assembly recently codified the
     presumption favoring the parent, providing that “[in] 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. The presumption in favor of the
     parent may be rebutted by clear and convincing evidence.”15
     The [c]ourt evaluated the evidence in light of this presumption
     and awarded primary physical custody of the Children to Mother.

           As required by the Domestic Relations Code, the [c]ourt
     reached its determination regarding the Children’s best interests
     by considering each of the 16 custody factors delineated in 23
     Pa.C.S. § 5328(a). While the [c]ourt found that two of the
     custody factors weighed in Maternal Grandmother’s favor, the
     evidence on these factors was insufficient to overcome the
     presumption in Mother’s favor, particularly in light of the
     [c]ourt’s findings that three custody factors favored Mother and
     that 12 factors were either neutral between the two parties or
     were not applicable.

           Maternal Grandmother’s strongest evidence in favor of her
     request for primary custody was the evidence regarding Mother’s
     struggles with substance abuse. These struggles have been
     longstanding, and the [c]ourt recognizes that it will not serve the
     Children’s best interests for Mother to experience a significant
     relapse. However, the evidence demonstrated to the [c]ourt
     that Mother is succeeding at maintaining sobriety and at caring

                                    - 15 -
J-A21021-17


     for the Children while she does so. Case law demonstrates that
     in circumstances such as these, Mother’s history need not cause
     her to lose custody of the Children.

           The Superior Court’s decision in Jordan v. Jackson,
     provided useful guidance to this [c]ourt.16 In Jordan, the child’s
     grandparents exercised custody of the child while the mother
     was struggling with a period of substance abuse and
     incarceration. In affirming the trial court’s decision to award the
     mother primary custody, the Superior Court stated:

           Admirably, it is clear that grandparents have provided a
       home and have provided emotionally for the child for a
       significant period of time while mother was unable to do so.
       . . . All evidence, however, indicates mother has been
       providing the same since shortly after she was released
       from jail. She is ready, willing, and able to provide a home,
       and to provide financially and emotionally for the child. The
       child has continued to do well academically while the parties
       have shared custody.17

           The Jordan Court emphasized that while a parent’s past
     substance abuse and criminal history, as well as a parent’s
     rehabilitation, are very pertinent considerations, the focus of the
     case is still the current best interests of the children.18 The child
     in Jordan had been cared for exclusively by the grandparents in
     excess of two years. The Jordan Court nevertheless found it
     within the trial court’s discretion to apply the presumption in
     Mother's favor and award her primary custody. What Jordan
     demonstrates is that it is well within the [c]ourt’s discretion to
     reach the conclusion reached here.

            Maternal   Grandmother     emphasized  the    Children’s
     educational needs and believes she is more likely to attend to
     these needs. The evidence, however, did not support this belief.
     Daughter is excelling in the first grade. Mother and Maternal
     Grandmother have been sharing custody for the entire school
     year.    There is no indication that Mother is inattentive to
     Daughter’s education.    Daughter does not have issues with
     tardiness, absences, incomplete homework, or behavior.
     Maternal Grandmother made much of Mother’s lack of in-person
     participation at school and Mother’s choice not to use what
     appears to be a non-mandatory, supplemental web-based
     program. The [c]ourt sees these as legitimate parental choices

                                    - 16 -
J-A21021-17


      regarding a child who is succeeding, not an indication of flawed
      parenting.

             Outside of Factor 4 (relating to stability) and Factor 14
      (relating to substance abuse), the [c]ourt rated the custody
      factors in favor of Mother, neutral, or not applicable.        On
      February 6, 2017, with all parties present, the [c]ourt discussed
      its finding concerning all the factors on the record and now
      incorporates those findings into this opinion.19 Based on these
      findings, as well as the above discussion, the Superior Court
      should conclude that this [c]ourt properly applied the
      presumption in favor of Mother and properly exercised its
      discretion.
      ___________________________________________________

      11Paternal Grandmother is also a named party, but because no
      party sought to alter Paternal Grandmother’s partial custody
      periods, the [c]ourt focuses on the dispute between Mother and
      Maternal Grandmother only.

      12K.B. v. C.B.F., 833 A.2d 767, 771 (Pa. Super. 2003) (citing
      Charles v. Stehlik, 744 A.2d 1255 (Pa. 2000)).

      13   Id.

      14 McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super[.] 2000),
      citing Ellerbe v. Hooks, 416 A.2d 512, 513-514 (Pa. 1980),
      appeal denied, 566 Pa. 665, 782 A.2d 547 (Pa. 2001).

      15   23 Pa.C.S. 5327(b).

      16   876 A.2d 443 (Pa. Super. 2005).

      17   Id. at 452.

      18   Id. at 450.

      19   Tr. 4-14 (February 6, 2017).

Trial Court Opinion, 5/8/17, at 6-9 (footnotes in original).

      Maternal Grandmother essentially contends that the trial court should

have found that the evidence on behalf of herself, as a third party, was

                                     - 17 -
J-A21021-17


weighty enough to bring the scale up to even, and then down on her side.

Maternal Grandmother’s Brief, at 17.           In her first issue, Maternal

Grandmother argues that the trial court erred as a matter of law and abused

its discretion in failing to address the application of the sixteen (16) custody

factors set forth in 23 Pa.C.S.A. § 5328. Id. at 12-18.

      In her related fourth issue, Maternal Grandmother argues that the trial

court erred and abused its discretion when it determined that various

custody factors under section 5328 were not applicable.            Specifically,

Maternal Grandmother points to the trial court’s oral disposition on February

6, 2017, and its May 8, 2017 opinion, wherein the trial court stated that

section 5328(a)(2) and (2.1) is not applicable in this case. She asserts that

the conclusion is erroneous, in light of Mother’s most recent convictions for

endangering welfare of children and driving under the influence, as well as

Mother’s prior criminal history, history of involvement with domestic abuse,

and struggles with substance and alcohol abuse, and previous unsuccessful

rehabilitation. Maternal Grandmother’s Brief, at 18-21.

      We first consider Maternal Grandmother’s assertion that the trial court

should have found pursuant to 23 Pa.C.S.A. § 5329 that Mother’s criminal

history involving endangering welfare of Children, 18 Pa.C.S.A. § 4304,




                                     - 18 -
J-A21021-17


tipped the custody scale in Maternal Grandmother’s favor.3          Maternal

Grandmother’s Brief, at 18, 22-23. Maternal Grandmother ignores the fact

that the trial court did consider Mother’s history of substance and alcohol

abuse, and the criminal offenses and history of incarceration.    Ultimately,

the court determined that, despite Mother’s past struggles, she did not

commit the acts of abuse contemplated in section (a)(2) and (2.1). The trial

court also gave Mother’s involvement with the child endangerment offense

due consideration.         The weight assigned to Mother’s history of child

endangerment is within the trial court’s discretion. We will not disturb the

weight that the trial court assigned to Mother’s history under sections

5328(a)(2) and (2.1), and 5329.

       Moreover, Maternal Grandmother argues that the factual scenario in

the instant appeal is distinguishable from Jordan, upon which the trial court

relied, as Mother failed to present evidence regarding her rehabilitation and

improved capacity to parent. Id. at 22. Maternal Grandmother ignores the

fact that, as a third-party to this custody matter against a parent, she had

the burden of proof, not Mother. K.B., 833 A.2d at 771.

____________________________________________


3 Section 5329 provides that, where a party seeks any form of custody, the
court shall consider whether the party or member of that party’s household
has been convicted of or has pleaded guilty or no contest to any listed
offenses, which include endangering welfare of children, 18 Pa.C.S.A.
§ 4304, and determine that the party does not pose a threat of harm to the
child before making any order of custody to that party.




                                          - 19 -
J-A21021-17


      Moreover, with regard to her related fifth issue, Maternal Grandmother

argues that the evidence regarding factors 5328(a)(3), (6), (9), (10), and

(13), does not support the trial court’s conclusions. Maternal Grandmother

argues that the evidence clearly revealed that she has been caring for the

Children on a full-time basis in a home she owns, and that she enrolled the

Children in school, and continues to be the only custodial party active in

their schooling (factors 5328(a)(3) and (10)); she offers a more stable living

environment than Mother (factor 5328(a)(9)); she tends to the Children’s

daily physical, emotional, developmental, educational, and special needs,

(factor 5328(a)(10)); and she is the party who is more likely to encourage

and permit continued and frequent contact (factor 5328(a)(13)).            See

Maternal Grandmother’s Brief at ii, 2-3, 23-26, and 27-30.         Additionally,

Maternal Grandmother contends that both parties support the Children’s

relationship with their paternal minor, female sibling, L.H.     Id. at 26-27.

Again, Maternal Grandmother ignores the trial court’s February 6, 2017 oral

explanation of its weighing of the various best interest factors against the

competent evidence of record. See N.T., 2/6/17, at 4-14.

      In its May 8, 2017 opinion, the trial court stated as follows.

      1. The [c]ourt addressed the application of the 16 custody
      factors set forth in 23 Pa.C.S. § 5328 on the record with all
      parties present.

            In Issue 1, Maternal Grandmother claims the [c]ourt failed
      to address the application of the 16 custody factors set forth in
      23 Pa.C.S. § 5328.20 When awarding any form of custody, the
      Court must consider the best interest of the children. 21 23

                                     - 20 -
J-A21021-17


     Pa.C.S. § 5328(a) requires the [c]ourt to consider 16 specifically
     enumerated factors in reaching this determination.22 Further, 23
     Pa.C.S. § 5323(d) requires the [c]ourt to “delineate the reasons
     for its decision on the record in open court or in a written opinion
     or order.”23 The Superior Court has held that merely listing the
     factors24 or simply stating that the court considered the factors
     without further explanation25 are both insufficient under the
     statute.

            On February 6, 2017, with all parties present, the [c]ourt
     announced its decision on the record in open court and explained
     its findings with regard to each individual custody factor.26 The
     Superior Court should reject Maternal Grandmother’s Issue 1
     because the record clearly shows the [c]ourt addressed the
     application of the 16 custody factors listed in § 5328(a) in
     making its decision.

     2. The [c]ourt considered all custody factors when determining
     the best interests of the Children.

           In Issue 4, Maternal Grandmother claims the [c]ourt
     ignored the best interests of the Children when determining
     various custody factors were “not applicable.”27 The Superior
     Court should reject Maternal Grandmother’s Issue 4 because the
     [c]ourt considered the evidence presented relating to all custody
     factors when determining the Children’s best interests. The
     [c]ourt indeed identified certain factors as “not applicable” to the
     [c]ourt’s determination of the Children’s best interests. The
     [c]ourt reached this conclusion based on consideration of the
     evidence presented, and the record supports the [c]ourt’s
     conclusion.

           In relation to Factor 2 (present and past abuse committed
     by a party), the [c]ourt found that this factor was not applicable
     in this case.     No party presented any evidence concerning
     present or past abuse committed by a party or a member of the
     party’s household.28 Likewise, in relation to Factor 2.1 (whether
     the child is the subject of an indicated or founded report of child
     abuse), no party presented evidence of any indicated or founded
     reports of child abuse.29 The [c]ourt also found Factor 7 (the
     well-reasoned preference of the Children), not to be applicable in
     this case because of the Children’s ages. At the time of trial,
     Daughter was six and Son was three.30


                                    - 21 -
J-A21021-17


            The [c]ourt also found Factor 8 (the attempts of a party to
     turn the child against the other party) not to be an applicable
     factor in its decision. Upon review of the admissible evidence,31
     the [c]ourt was not persuaded that either party was actively
     trying to turn the Children against another party. Both parties
     testified as to some negative things the Children may say. The
     [c]ourt believes that such comments are likely the result of the
     Children’s awareness of the tension between the parties, not the
     result of an active effort to turn the Children against another
     party. Consequently, this factor did not weigh in favor of or
     against either party.

           Finally, the [c]ourt also noted that Factor 15 (the mental
     and physical condition of a party or a member of a party’s
     household), was not applicable in its decision making. In noting
     this, the [c]ourt stated that it recognized Mother’s history of
     drug and alcohol abuse, but had already fully discussed this
     issue under Factor 14 (history of drug or alcohol abuse). There
     was no evidence presented to persuade the [c]ourt that a party
     or member of a party’s household has any other mental or
     physical health conditions that were not addressed under Factor
     14.

     3. Maternal Grandmother did not overcome the presumption in
     favor of Mother by proving that the Children’s best interest
     would be served by awarding Maternal Grandmother primary
     custody.

          In Issue 5, Maternal Grandmother claims the [c]ourt erred
     in awarding Mother primary physical custody of the Children.32
     The [c]ourt found three custody factors weighed in favor of
     Mother, two weighed in favor of Maternal Grandmother, and 12
     were neutral or not applicable. As discussed above, because
     Maternal Grandmother is a third party custodian, there is a
     presumption in favor of Mother.

             Maternal Grandmother first claims the evidence clearly
     revealed that she has been caring for the Children on a
     “full-time” basis in her home that she owns [(factor
     5328(a)(3))].33 This is simply incorrect. As discussed in Section
     II, the Children have resided with Mother for most of their lives.
     There have been only brief periods in the Children’s lives where
     Maternal Grandmother cared for them on a full-time basis.


                                   - 22 -
J-A21021-17


            Maternal Grandmother also claims that the evidence
     clearly revealed that she enrolled and continues to be the only
     custodial adult active in their schooling [(factor 5328(a)(3) and
     (10)].34 Again, the evidence does not support this assertion.
     Daughter has maintained good grades, a good attendance
     record, and good behavior while being in Mother’s custody every
     other week. No current evaluation identifies Son as having
     special needs that Mother is ignoring.            While Maternal
     Grandmother may not agree with Mother’s choices concerning
     the Children’s education, the evidence revealed Mother’s choices
     as legitimate parental decisions.

           Maternal Grandmother next claims that the evidence
     revealed she offers a more stable living environment [(factor
     5328(a)(9))].35 As discussed above and on the record, the
     [c]ourt did find that Factor 4 weighed in favor of Maternal
     Grandmother.36

            Maternal Grandmother finally claims that the evidence
     clearly revealed that she is the party more likely to encourage
     and    permit    continued   and   frequent    contact    [(factor
     5328(a)(13))]. 37     Again, the evidence presented directly
     contradicts this assertion. The record is replete with evidence
     that Maternal Grandmother does not communicate with the other
     parties.   Maternal Grandmother did not provide Mother or
     Paternal Grandmother and her family with a copy of Daughter’s
     softball schedule or any information that would allow them to
     attend her games.38 Maternal Grandmother did not allow the
     Children to spend any time with Mother or Paternal Grandmother
     on Thanksgiving or Christmas.39 Paternal relatives try to speak
     to Maternal Grandmother during custody exchanges, but
     Maternal Grandmother will not greet or otherwise acknowledge
     them.40 Maternal Grandmother also testified that she does not
     respond to Mother at custody exchanges.41 While Maternal
     Grandmother has always followed the [c]ourt’s custody orders,
     the [c]ourt could not find she is the party more likely to
     encourage and permit continued and frequent contact when she
     herself refuses even to speak to the other parties in front of the
     Children.
     ___________________________________________________


     20See Concise Statements of Matters Complained of on Appeal,
     ¶ 1.

                                   - 23 -
J-A21021-17



     21   23 Pa.C.S. § 5238(a).

     22   Id.

     23   23 Pa.C.S. § 5323(d).

     24   M.P. v. M.P., 4 A.3d 950, 955-956 (Pa. Super. 2012).

     25   C.B. v. J.B., 65 A.3d 946, 950-951 (Pa. Super. 2013).

     26   Tr. 4-14 (February 6, 2017).

     27See Concise Statements of Matters Complained of on Appeal,
     ¶ 4.

     28The [c]ourt recognizes that Mother moved in with Maternal
     Grandmother following a domestic dispute with Father. Mother
     was charged with domestic simple assault, but these charges
     were then withdrawn.

     29 The [c]ourt is well aware that Mother pled guilty to two counts
     of Endangering Welfare of Children in relation to her May 19,
     2014 and January 13, 2015 arrests.                 See Maternal
     Grandmother’s Exhibit 8.       The [c]ourt is also aware that
     Allegheny County Office of Children, Youth and Families (“CYF”)
     twice received referrals for the family. See Court’s Exhibit A,
     Stipulations 14 and 15.

     30   No party sought to call the Children as witnesses.

     31 Because two of the three parties were proceeding pro se, the
     [c]ourt warned the parties that while there may not be
     objections, the [c]ourt would disregard any inadmissible
     hearsay.

     32See Concise Statements of Matters Complained of on Appeal,
     ¶ 5.

     33   Id.

     34   Id.

     35   Id.

                                     - 24 -
J-A21021-17



      36   Tr. 6-7 (February 6, 2017).

      37See Concise Statements of Matters Complained of on Appeal,
      15.

      38 Tr. 64-66 (January 30, 2017). Mother, on the other hand,
      testified that Maternal Grandparents, as well as anyone that
      wished to support the Children were welcome to attend their
      activities and events. She testified that both sides of the family
      would be provided with schedules and information concerning
      activities. Tr. 367-368 (January 30, 2017).

      39   Tr. 159 (January 30, 2017).

      40   Tr. 211-212 (January 30, 2017); Tr. 234 (January 30, 2017).

      41   Tr. 150 (January 30, 2017).

Trial Court Opinion, 5/8/17, at 9-13 (footnotes in original).

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

court’s conclusions are not unreasonable as shown by the evidence of

record. As stated above, 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, and 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. Here, we

discern no error of law or abuse of the trial court’s consideration of the

section 5328(a) factors and its weighing process. Thus, we affirm the trial




                                         - 25 -
J-A21021-17


court’s custody determination on the basis of its discussion relating to

Maternal Grandmother’s issues 1, 4, and 5.4

       Next, Maternal Grandmother and the trial court grouped Maternal

Grandmother’s second and third issues, regarding whether the trial court’s

February 13, 2017 final custody order lacked sufficient specificity, and

whether the February 13, 2017 order was inconsistent with the order that

was announced orally on February 6, 2017.5 See Maternal Grandmother’s

____________________________________________


4 Further, we note that the trial court did not specifically address section
5328(a)(6) in its May 8, 2017 opinion. At the hearing on February 6, 2017,
at which the trial court orally announced its disposition, however, the trial
court stated that, with regard to factor 6, 23 Pa.C.S. § 5328(a)(6), the
evidence weighed in favor of Mother as the party more likely to facilitate the
Children’s relationship with their paternal half-sibling, L.H. N.T., 2/6/17, at
7. The trial court found that Maternal Grandmother was less likely than
Mother to spend time with the Children’s paternal extended family. Id.
Given the trial court’s conclusions with regard to factor 13, 23 Pa.C.S.A.
§ 5328(13), based on the evidence concerning Maternal Grandmother’s
interaction with the Children’s paternal relatives, we find its conclusion
regarding section 5328(a)(6) supported by the competent evidence of
record.

5 Maternal Grandmother requests this Court to remand the February 13,
2017 order to the trial court for proper specificity to ensure its enforceability.
See Maternal Grandmother’s Brief, at 34. The trial court suggests that
Maternal Grandmother has waived her second, third, sixth, and seventh
issues for failure to specify them with clarity in her concise statement. See
Trial Court Opinion, 5/8/17, at 13-16.

In Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), our
Supreme Court “re-affirm[ed] the bright-line rule first set forth in
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)] that in order
to preserve their claims for appellate review, [a]ppellants must comply
whenever the trial court orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised
(Footnote Continued Next Page)


                                          - 26 -
J-A21021-17


Brief, at i, 31-34. Maternal Grandmother asserts that four weekend dates

listed in the final custody order for Maternal Grandmother’s exercise of

physical custody, February 17-19, 2017, March 17-19, 2017, April 28-30,

2017, and May 12-14, 2017, presented a direct conflict with Paternal

Grandmother’s weekend partial custodial time. See Maternal Grandmother’s

Brief, at 31-34, citing Trial Court Order, 2/13/17, Section II, B.2.a-d.

Maternal Grandmother alleges that, when her counsel contacted the trial

court about the order, counsel was told that the trial court had been

receiving phone calls about the order.            Id. at 34 n.20.      Maternal

Grandmother cites Section 5323(f) of the Act and Pennsylvania Rule of Civil

Procedure (“Pa.R.C.P”) 1915.10(b) in support of her argument.          Maternal

Grandmother also complains that the caption section of the final order states

Interim Order of Court, whereas the Order below is titled Final Order of

Court.


(Footnote Continued) _______________________

in a Pa.R.A.P. 1925(b) statement will be deemed waived.” Castillo, 585 Pa.
at 403, 888 A.2d at 780 (internal quotations and citations omitted). Cf.
Commonwealth v. LaBoy, 936 A.2d 1058, 1059-1060 (Pa. Super. 2007)
(finding the appellant’s sufficiency of the evidence issue raised in his concise
statement had adequate specificity for appellate review).

We find Maternal Grandmother’s concise statement sufficiently specific to
encompass her arguments and requests in issues 2 and 3. Thus, we reject
the trial court’s suggestion that these issues are waived for lack of
specificity. We appreciate the trial court’s willingness to clarify its order
should this court not find the issues waived and decide to remand the
matter. See Trial Court Opinion, 5/8/17, at 16.



                                         - 27 -
J-A21021-17


      Section 5323(f) of the Act provides, “In awarding custody, the court

shall specify the terms and conditions of the award in sufficient detail to

enable a party to enforce the court order through law enforcement

authorities.”   23 Pa.C.S.A. § 5323(f).        Similarly, Pa.R.C.P. 1915.10(b)

provides with regard to custody orders, “[t]he terms of the order shall be

sufficiently specific to enforce the order.”

      Maternal Grandmother’s request for a correction of the trial court’s

caption of its undisputedly final order is more appropriately directed to the

trial court. It appears that the trial court made a clerical error in copying the

caption of “Interim Order of Court” from a previous interim order in the

case. Likewise, the schedule under Section II.B.2 of the final custody order,

which set forth Maternal Grandmother’s partial custodial time, so that her

scheduled custodial days and times will not interfere with any particular days

and times during which Paternal Grandmother is scheduled to exercise her

partial custody time, is a matter for the trial court to clarify. As we are not a

fact-finding court, we will remand the final custody order to the trial court to

clarify its caption of the February 13, 2017 final order of court, and to clarify

the custody schedule set forth in section II.B.2.a-d so that the order is more

readily discernible and enforceable, and that there will be no overlapping

custodial times, if such time and date conflicts do exist.

      Finally, Maternal Grandmother and the trial court also grouped

Maternal Grandmother’s sixth and seventh issues for purposes of discussion.


                                      - 28 -
J-A21021-17


In her sixth issue, Maternal Grandmother argues that the trial court erred as

a matter of law and abused its discretion when it ensured Mother, who

appeared at the custody evidentiary hearing pro se, had an opportunity to

have her matters heard by affording Mother “more than reasonable

accommodations,” in violation of Code of Judicial Conduct (the “Code”) 2.2.

Maternal Grandmother’s Brief, at ii, 35-37.    Rule 2.2 provides, “[a] judge

shall uphold and apply the law, and shall perform all duties of judicial office

fairly and impartially.” Maternal Grandmother acknowledges Comment 4 to

Rule 2.2, which provides, “It is not a violation of this Rule for a judge to

make reasonable accommodations to ensure pro se litigants the opportunity

to have their matters heard fairly and impartially.” Maternal Grandmother’s

Brief, at 35.   Maternal Grandmother argues, however, that the trial court

acted with “more than reasonable accommodations in that the trial court

acted as both the trier of fact and Mother’s attorney.” Id. at 36.

      The trial court explained its conduct of the evidentiary hearing as

follows:

             Maternal    Grandmother      does    not   specify     what
      accommodations were “more than reasonable” and the record
      does not contain any objections concerning accommodations.
      Based on the record, the [c]ourt’s best guess is that Maternal
      Grandmother is referring to the [c]ourt’s questioning of Mother’s
      witnesses. Because Mother chose to proceed pro se, the [c]ourt
      felt it necessary to engage in more questioning of Mother’s
      witnesses than it typically would in a case where all parties were
      represented.

           A similar issue arose in Jordan v. Jackson.59 In Jordan,
      the mother proceeded pro se in a custody case and the

                                    - 29 -
J-A21021-17


      grandparents challenged the trial court’s direct examination of
      mother’s witnesses.        The Superior Court rejected the
      grandparents’ argument, noting that “the trial court had the duty
      to question the witnesses as it did in order to extract/clarify
      information it needed to make a decision as to the best interests
      of the child.”60 The Superior Court also noted:

            [a] trial judge has the right if not the duty to interrogate
            witnesses in order to clarify a disputed issue or vague
            evidence. Unless the party can establish the judge’s
            questions constituted an abuse of discretion, resulting in
            discernible     prejudice,    capricious     disbelief,   or
            prejudgment, a new trial will not be granted.61

      Here, Mother called three witnesses besides herself - two of the
      Children’s paternal aunts and the Children’s paternal
      half-sister.62 The [c]ourt asked these three witnesses questions
      about the Children and the parties in order to extract information
      necessary to reach a decision in the Children’s best interests.
      Maternal Grandmother’s Issue 6 should be dismissed if this is the
      “more than reasonable” accommodation to which Maternal
      Grandmother refers.
      ___________________________________________________


      59   876 A.2d 443 (Pa. Super 2005).

      60   Id. at 454.

      61Id. at 453-454 (quoting Mansour v. Linganna, 787 A.2d
      443, 446 (Pa. Super. 2001)).

      62 Paternal Grandmother and Mother also testified. The [c]ourt
      similarly engaged in questioning of Paternal Grandmother and
      Mother to order to determine the best interests of the Children.

Trial Court Opinion, 5/8/17, at 16-17 (footnotes in original).

      For the reasons expressed by the trial court in its opinion, we discern

no merit to Maternal Grandmother’s argument that the trial court was biased

against her, and violated Rule 2.2 of the Code.


                                       - 30 -
J-A21021-17


    In her seventh issue, Maternal Grandmother contends that the trial court

acted with impropriety, bias, and/or prejudice in favor of Mother in

conducting the evidentiary hearing.     Id. at ii, 37-38.   Specifically, she

alleges that the trial court presided over the hearing so as to combine its

fact-finding responsibility with serving as counsel for Mother. Id. at 36-37.

Maternal Grandmother alleges, “the trial court had prejudged or adjudicated

this case long prior to trial and was simply rushing through Maternal

Grandmother’s rights to presentment of the facts regarding the custody

factors.” Id. In support of her argument, Maternal Grandmother cites Rule

1.2 of the Code, which provides, “A judge shall act at all times in a manner

that promotes public confidence in the independence, integrity, and

impartiality of the judiciary, and shall avoid impropriety and the appearance

of impropriety.” Maternal Grandmother also cites Comment 5 to Rule 1.2 of

the Code for the following: “[t]he test for appearance of impropriety is

whether the conduct would create in reasonable minds a perception that the

judge violated this Code or engaged in other conduct that reflects adversely

on the judge’s honesty, impartiality, temperament, or fitness to serve as a

judge.” We find no evidence suggesting such conduct on the part of the trial

court here.

     Maternal Grandmother also contends that the trial court violated Rule

2.3(B) of the Code, citing that rule for the proposition that a trial court’s




                                   - 31 -
J-A21021-17


words and or conduct are scrutinized for bias or prejudice.           Maternal

Grandmother’s Brief, at 36.

      Maternal Grandmother has taken the guidance set forth in Rule 2.3(B)

out of context. The rule provides:

      (B) A judge shall not, in the performance of judicial duties, by
      words or conduct manifest bias or prejudice, or engage in
      harassment, including but not limited to bias, prejudice, or
      harassment based upon race, sex, gender identity or expression,
      religion, national origin, ethnicity, disability, age, sexual
      orientation, marital status, socioeconomic status, or political
      affiliation, and shall not permit court staff, court officials, or
      others subject to the judge’s direction and control to do so.

Pa. Code of Judicial Conduct, Rule 2.3.

      For the reasons expressed by the trial court in its opinion, supra, we

discern no merit to Maternal Grandmother’s argument that the trial court

was biased against her, or that the court violated Rules 1.2 and 2.3(B) of

the Code.     Clearly, the trial court considered Child’s best interests in

fashioning its custody award and final custody order; however, its schedule

and caption bear clarification.   C.R.F., 45 A.3d at 443.      The trial court

properly considered the presumption set forth in section 5327(b) of the Act,

the sixteen custody/best interest factors set forth in section 5328(a) of the

Act, and the definitions of the various forms of custody under the Act. Id.

      Accordingly, we affirm the trial court’s February 13, 2017 final custody

order on appeal, in part, to the extent of the custody award made therein.

We remand the custody order, in part, however, with instructions to the trial

court to clarify the caption of the February 13, 2017 final order of court, and

                                     - 32 -
J-A21021-17


to clarify the custody schedule set forth in section II.B.2.a-d so that the

order is more readily discernible and enforceable

      Order affirmed in part, and remanded in part, with instructions.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2017




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