J-A22025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.D.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

L.D

APPEAL OF: D.D. & D.D.
                                                      No. 426 MDA 2015


               Appeal from the Order Entered February 25, 2015
                 In the Court of Common Pleas of York County
                  Civil Division at No(s): 2009-FC-002198-03
                                           2011-FC-001241-03


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 28, 2015

        Appellants D.D. & D.D. (“Grandparents”) appeal from the order

entered in the York County Court of Common Pleas awarding sole legal and

primary physical custody of their daughter’s child (“Child”) to L.D. (“Father”)

and awarding Grandparents custody on alternating weekends. We affirm.

        Child was born in March 2008.          Mother and Child lived with

Grandparents for Child’s first year, at which time Mother and Child moved in

with Maternal Great-Grandmother for about six months. N.T., 2/19/2015, at

84-85.     Mother and Child then moved in with Mother’s fiancé for about a

year and a half. Id. at 85. Mother and Child then returned to Grandparents

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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home. Id. Mother and Child moved back in with Great Grandmother, before

returning to live with Grandparents in the summer of 2012. Id. at 85, 87.

They remained with Grandparents until Mother died of a drug overdose on

August 30, 2014.1 Id. at 85, 87.

       On February 19, 2010, the trial court issued a stipulated custody

order, which provided Mother with primary physical custody and Father with

partial physical custody every other week from Wednesday at 9:30 a.m.

until Friday at 2:00 p.m.2 The parties shared legal custody. In September,

2012, after Mother was arrested for heroin offenses, Father filed a Petition

for Special Relief and Petition to Modify Custody.3 On September 18, 2012,

the trial court granted Father’s petition for special relief and awarded Father

sole legal and physical custody of Child.

       Grandparents then sought primary physical custody of Child.          On

March 1, 2013, the trial court issued an order providing for shared physical

custody between Mother and Father. Mother had custody from Thursday at


____________________________________________


1
  The exact time periods of Mother’s time spent away from Grandparents’
house varies in the testimony.
2
 In October, 2011, Grandparents were awarded visitation on every third
weekend of the month.
3
  It appears Mother spent one to two nights in jail and entered drug court for
the heroin offenses. She was incarcerated for 1 to 2 weeks for violating
probation. N.T., 2/19/2015, at 86.




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8:30 p.m. until Monday at 5:30 p.m. and Father had the remainder of the

week.4 Grandparents received no custody rights.

         On August 30, 2014, Mother passed away.        Father took custody of

Child.     On September 19, 2014, Grandparents filed a petition to modify

custody seeking sole legal and primary physical custody of Child.

         On October 23, 2014, the trial court issued an interim custody order,

providing Father with sole legal custody and primary physical custody of

Child and awarding Grandparents custody on alternate weekends.

         On February 27, 2015, following a February 19, 2015 custody trial, the

trial court issued an opinion and final order for custody awarding Father sole

legal and primary physical custody. Grandparents were awarded custody on

alternate weekends.

         Grandparents filed a timely notice of appeal. Both Grandparents and

the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

         Appellant raises the following claims on appeal:

            A. Whether the trial court erred as a matter of law and
            committed a gross abuse of discretion in determining that
            neither party is more likely than the other to encourage
            and permit frequent and continuing contact between the
            child and the other party/parties where Father has shown
____________________________________________


4
  Grandmother testified the parties did not follow this schedule after Child
started school. Rather Child was with Mother on weekdays and Father on
weekends. N.T., 2/19/2015, at 93. She testified they changed it because
Father was unable to transport Child to school during the week because he
did not drive. Id. at 93-94. Father’s house is within walking distance to
Child’s current school.



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       repeatedly that he has no respect for Grandparents’ rights
       of custody?

       B. Whether the trial court erred as a matter of law and
       committed a gross abuse of discretion in failing to
       integrate its finding of contempt against [F]ather in its
       best interests analysis?

       C. Whether the trial court erred as a matter of law and
       committed a gross abuse of discretion in determining that
       [F]ather performed basic parental duties for [Child] during
       his custodial time?

       D. Whether the trial court erred as a matter of law and
       committed a gross abuse of discretion in determining that
       stability and continuity in [Child’s] education, family, and
       community life would be served by awarding physical
       custody to [F]ather where [] Child had lived primarily with
       Mother and Grandparents almost all of her life and
       attended school in their district for the year prior to Father
       be [sic] awarded primary custody?

       E. Whether the trial court erred as a matter of law and
       committed a gross abuse of discretion in determining that
       the well-reasoned preference of [Child] only slightly
       favored Appellants where [C]hild clearly indicated her
       preference to remain with Grandparents and attend
       Wrightsville Elementary School?

       F. Whether the trial court erred as a matter of law and
       committed a gross abuse of discretion in determining that
       each of the parties was likely to maintain a loving, stable,
       consistent and nurturing relationship with [Child] where
       the evidence clearly indicates that Father is not nurturing
       of [Child] and Grandmother is very nurturing?

       G. Whether the trial court erred as a matter of law and
       committed a gross abuse of discretion in determining that
       Appellants would have a need for alternative child care
       arrangements which was any greater than arrangements
       needed by [F]ather?

       H. Whether the trial court erred as a matter of law and
       committed a gross abuse of discretion in determining that
       the level of conflict between the parties and the willingness
       and ability of the parties to cooperate with one another

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         favored [F]ather, especially in light of the expert testimony
         and report, as well as the testimony of the parties?

         I. Whether the trial court erred as a matter of law and
         committed a gross abuse of discretion in determining it did
         not have the benefit of clear and convincing evidence that
         [Child’s] best interests would be served by an award of
         primary physical custody to Appellants where there was
         uncontroverted opinion by an expert that Grandparents
         should be awarded primary custody?

Appellants’ Brief at 4-6.

      In a custody action “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.” 23 Pa.C.S. § 5327(b). The “burden of proof and of

persuasion is on the non-parent, and that burden is heavy.”           E.A.L. v.

L.J.W., 662 A.2d 1109, 1113 (Pa.Super.1995) (quoting Ellerbe v. Hooks,

416 A.2d 512 (Pa.1980)).       The court, however, “may award custody to a

third party ‘where the best interests of the child will be clearly served by

such a decision.’”     Id. (quoting Albright v. Commonwealth ex rel.

Fetters, 421 A.2d 157, 160 (Pa.1980)).

      “The standard of clear and convincing evidence means testimony that

is so clear, direct, weighty, and convincing so as to enable the trier of fact to

come to a clear conviction, without hesitation, of the truth of the precise

facts in issue.” V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa.Super.2012) (quoting

In re B.C., 36 A.3d 601, 605–606 (Pa.Super.2012)).

      This Court has stated:



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        What the judge must do, therefore, is first, hear all
        evidence relevant to the child’s best interest, 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.

V.B., 55 A.3d at 1199 (quoting McDonel v. Sohn, 762 A.2d 1101, 1107

(Pa.Super.2000)). Further,

        [O]ur Supreme Court noted that “these principles do not
        preclude an award of custody to the non-parent. Rather
        they simply instruct the hearing judge that the non-parent
        bears the burden of production and the burden of
        persuasion and that the non-parent’s burden is heavy.”
        Essentially, the Supreme Court determined, “where
        circumstances do not clearly indicate the appropriateness
        of awarding custody to a non-parent, we believe the less
        intrusive and hence the proper course is to award custody
        to the parent or parents.”

Id. (quoting Ellerbe, 416 A.2d at 514).

     When addressing custody issues:

        [T]he court shall determine the best interest of the child by
        considering     all  relevant   factors,  giving   weighted
        consideration to those factors which affect the safety of the
        child, including the following:

        (1) Which party is more likely to encourage and permit
        frequent and continuing contact between the child and
        another party.

        (2) The present and past abuse committed by a party or
        member of the party’s household, whether there is a
        continued risk of harm to the child or an abused party and
        which party can better provide adequate physical
        safeguards and supervision of the child.

        (2.1) The information set forth in section 5329.1(a)
        (relating to consideration of child abuse and involvement
        with protective services).

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

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        (4) The need for stability and continuity in the child’s
        education, family life and community life.

        (5) The availability of extended family.

        (6) The child’s sibling relationships.

        (7) The well-reasoned preference of the child, based on
        the child’s maturity and judgment.

        (8) The attempts of a parent to turn the child against the
        other parent, except in cases of domestic violence where
        reasonable safety measures are necessary to protect the
        child from harm.

        (9) Which party is more likely to maintain a loving, stable,
        consistent and nurturing relationship with the child
        adequate for the child’s emotional needs.

        (10) Which party is more likely to attend to the daily
        physical, emotional, developmental, educational and
        special needs of the child.

        (11) The proximity of the residences of the parties.

        (12) Each party’s availability to care for the child or ability
        to make appropriate child-care arrangements.

        (13) The level of conflict between the parties and the
        willingness and ability of the parties to cooperate with one
        another. A party’s effort to protect a child from abuse by
        another party is not evidence of unwillingness or inability
        to cooperate with that party.

        (14) The history of drug or alcohol abuse of a party or
        member of a party’s household.

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

        (16) Any other relevant factor.

23 Pa.C.S. § 5328.

     This Court’s standard of review is:

        In reviewing a custody order, our scope is of the broadest
        type and our standard is abuse of discretion. We must


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        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.

V.B., 55 A.3d at 1197 (Pa.Super.2012) (quoting A.D. v. M.A.B., 989 A.2d

32, 35–36 (Pa.Super.2010)).

     Here, the trial court discussed the best-interest factors as follows:

        The first inquiry the [c]ourt must make is which party is
        more likely to encourage and permit frequent and
        continuing contact between the child and the other party.
        Dr. Thomas’s report reflects that Father is uncomfortable
        with the thought of Maternal Grandparents having any
        rights to custody which exceed one weekend per month.
        Pl.s Ex. 6, at 20. Father exhibited his disdain for sharing
        custody in his own testimony. However, in the brief time
        since Mother’s passing, the parties have had one incident
        involving a custody exchange, which could have been
        handled better by Maternal Grandparents. Following the
        [p]retrial [c]onference, this [c]ourt ordered an exchange
        during the holidays to occur at 2 p.m., but Father was
        under the understanding that the pickup was to occur at
        the regularly scheduled time of 5 p.m. When Father
        arrived to pick up [Child], Maternal Grandparents refused
        to exchange custody because Father was late with no
        notification. While Maternal Grandparents were technically
        correct, they could have been more flexible given that it
        appears that Father made an honest mistake as to the
        pick-up time. Therefore, based on the history of the parties
        and the reluctance on both sides to permit frequent and
        continuing contact, the [c]ourt finds that this factor is



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       neutral and that both parties need to improve in this
       regard.

       The second consideration is present or past abuse
       committed by either party or a member of a party’s
       household and whether there is a continued risk of harm to
       the child. Because there is no history of abuse by either
       party, the [c]ourt finds that this factor favors neither
       party.

       The third factor that the [c]ourt must consider is the
       parental duties performed by each party on behalf of the
       child. Both parties perform basic parental duties for [Child]
       during their custodial time. The [c]ourt therefore finds
       that this factor favors neither party.

       The next factor for consideration is the need for stability
       and continuity in the child’s education, family life, and
       community life.     [Child] has undoubtedly experienced
       substantial change in the past year. Despite this, she has
       been doing well in school and at home. Father has had
       primary custody since Mother’s passing, but Mother
       previously had primary custody while living with Maternal
       Grandparents. Given that [Child] is doing well under the
       current schedule, this factor slightly favors Father.

       The [c]ourt must next consider the availability of extended
       family and the child’s sibling relationships. Both parties
       have extended family in the general area, and [Child] has
       no siblings. These factors favor neither party.

       The next factor to consider is the well-reasoned preference
       of the child, based on the child’s maturity and judgment.
       [Child] expressed a desire to attend her old school -
       Wrightsville Elementary, which she attended while living
       with Mother and Maternal Grandparents - because she had
       more friends there. This is corroborated by Dr. Thomas’s
       report. See Pl.’s Ex. 6, at 23. [Child] also stated that she
       had some friends at her new school and enjoyed it as well.
       Based on [Child’s] age and maturity, the [c]ourt finds that
       this factor weighs slightly in favor of Maternal
       Grandparents.

       The next factor to be considered is any attempts of a
       parent to turn the child against the other parent, except in


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       cases of domestic violence. As neither party expressed
       concern, this factor is neutral.

       Next, the [c]ourt must consider which party is more likely
       to maintain a loving, stable, consistent and nurturing
       relationship with the child adequate for the child’s
       emotional needs. Both parties clearly want the best for
       [Child], and each party believes that their home provides
       the more stable, consistent, and nurturing environment.
       The [c]ourt does not find that this factor favors either
       party.

       The next consideration is which party is more likely to
       attend to the daily physical, emotional, developmental,
       educational, and special needs of the child. Both parties
       properly care for [Child] during their custodial time, and
       both parties have taken steps to aid in [Child’s] emotional
       development in the past year. At the time of Dr. Thomas’s
       evaluation and again at the time of trial, [Child] exhibited
       significant attachment to Maternal Grandmother. Given
       [Child’s] significant emotional needs since Mother’s death
       and the Maternal Grandparents’ resources and relationship
       with her to help meet those needs, the [c]ourt finds that
       this factor favors Maternal Grandparents.

       Next, the [c]ourt must consider the proximity of the
       residences of the parties. The parties reside approximately
       20-30 minutes apart, so this factor is not significant to
       [Child’s] best interests.

       The next enumerated factor is each party’s availability to
       care for the child or ability to make appropriate child-care
       arrangements. Father lives with Paternal Grandmother,
       who testified that she is always available for childcare.
       Maternal Grandparents testified that they should always be
       available to care for [Child] during their custodial time.
       However, due to Maternal Grandparents’ irregular work
       schedules, there is the potential for the need for
       alternative childcare arrangements. Therefore, the [c]ourt
       finds that this factor slightly favors Father, but is not
       significant to [Child’s] best interests.

       The [c]ourt must next consider the level of conflict
       between the parties and the willingness and ability of the
       parties to cooperate with one another. Each party testified
       to the significant level of conflict between Father and

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       Maternal Grandparents.         Dr. Thomas’s report and
       testimony suggest that Father is “likely to be stress
       reactive and worry prone,” and that he is vulnerable to
       “being suspicious of and mistrustful of others.” Pl.’s Ex. 6,
       at 18. The [c]ourt believes that this aspect of Father’s
       personality has a substantial negative impact on the
       parties’ ability to communicate and cooperate. However,
       Maternal Grandparents find difficulty in communicating
       effectively with Father, as well. Maternal Grandparents
       clearly do not like Father and have shown hostility towards
       him. It has long been held that hostility between parents
       and     grandparents     could    lead    to    “devastating
       consequences” for the child, and the existence of such
       animosity is sufficient to deny partial custody to the
       grandparents without a showing that actual harm to the
       child has already resulted. Zaffarano v. Genaro, 455
       A.2d 1180 (Pa.1983); Wick v. Wick, 403 A.2d 115
       (Pa.Super.1979). This factor therefore favors Father.

       The [c]ourt must also address any history of drug or
       alcohol abuse by a party or a member of a party’s
       household. Because neither party has a known history of
       drug or alcohol abuse, the [c]ourt finds that this factor is
       neutral.

       The [c]ourt must also consider the mental and physical
       condition of a party or member of a party’s household.
       Because there are no known physical or mental conditions
       relevant to the best interests of [Child], this factor is
       neutral.

       The next factor is any Children, Youth, and Families
       involvement with the case.    There is no history of
       involvement with CYF, and therefore this factor is also
       neutral.

       Lastly, the [c]ourt must consider any other relevant issue.
       Two relevant issues work to the Maternal Grandparents’
       favor: [Child] resided with Maternal Grandparents for four
       out of the previous six years of her life, and she has
       developed a strong emotional attachment to them.
       Additionally, Father does not have a driver’s license, which
       may make a shared arrangement more difficult.

       While the [c]ourt finds Dr. Thomas’s report and testimony
       to be highly credible and the factors to weigh somewhat in

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         Maternal Grandparents’ favor, the [c]ourt does not have
         the benefit of clear and convincing evidence that [Child’s]
         best interests will be served by an award of primary
         custody to Maternal Grandparents. Therefore, the [c]ourt
         grants Father sole legal and primary physical custody of
         [Child]. Maternal Grandparents will be awarded significant
         rights of partial physical custody, given [Child’s] strong
         emotional attachment to Maternal Grandparents, Maternal
         Grandparents’ greater resources, the unlikelihood of Father
         fostering a relationship between [Child] and Maternal
         Grandparents, and the expressed desire of [Child] to see
         all of the parties. The [c]ourt believes that it is in [Child’s]
         best interests for Maternal Grandparents to exercise
         physical custody on alternate weekends and for half of the
         summer months.          An [o]rder will be entered in
         conformance with this [o]pinion.

Opinion, 2/27/2015, at 3-6.

     Grandparents first challenge the trial court’s determination that neither

party is more likely than the other to encourage and permit frequent and

continuing contact between Child and the other party. Appellants’ Brief at

15-16.   At the hearing, the trial court received the following evidence:

Father did not wish to share custody with Grandparents; Grandparents

refused Father his custody period when he mistakenly arrived three hours

late; and Father withheld Child on Grandparents’ weekend, as he missed his

prior custody period. See Peter H. Thomas, Ph.D., Psychological Evaluation

for Child Custody, at 20 (Father did not want to share custody with

Grandparents); N.T., 2/19/2015, at 174-77 (when Father mistakenly

believed exchange time was 5:00, rather than 2:00, and arrived for the

exchange at 5:00, Grandparents refused to allow him his time); N.T.,

2/19/2015, at 115-16 (Father did not permit Grandparents to take custody



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of Child for weekend); Opinion, 2/25/2015, at 8-9 (Father withheld custody

to make up for the time he lost when Grandparents withheld custody). The

trial court acted within its discretion in finding this factor favored neither

party.

         Grandparents next claim the trial court abused its discretion when it

failed to integrate its finding of contempt against Father into its best interest

analysis. Appellants’ Brief at 16. Regarding the contempt finding, the trial

court found:

           With respect to the petition for contempt, the [c]ourt finds
           that Father did violate the [o]rder dated October 23, 2014,
           by withholding custody during Maternal Grandparents’
           custodial time to make up for the time that he lost when
           Maternal Grandparents withheld custody during the
           holidays. Although, as mentioned, Maternal Grandparents’
           withholding of custody was not a violation of the [o]rder, it
           was a display of unwillingness to cooperate with Father.
           Given the forgoing, the [c]ourt will not impose any
           sanctions for Father’s violation of the [o]rder.

Opinion, 2/15/2015, at 8. The trial court viewed Father’s non-compliance as

a   violation   of   the    order,    but   also     noted   Grandparents   showed   an

unwillingness to cooperate with Father and it chose to not sanction Father.

Given the circumstances of the violation, the trial court did not err by not

expressly considering this violation in its analysis.

         Grandparents’ third issue claims the trial court erred when it

determined Father performed basic parental duties for Child.                Appellants’

Brief at 16-17.            Grandparents focus on Father’s “historical lack of

involvement with [Child].”           Appellants’ Brief at 17.     Although Father was


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absent when Child was an infant, he has had at least partial custody since

2010, and has had shared or primary custody since September of 2012.

Further, contrary to Grandparents’ contentions, Father has taken Child to the

doctor, dentist, and eye doctor. N.T., 2/19/2015, at 248-49. There was no

evidence Father did not properly care for Child. The trial court did not err in

finding both Father and Grandparents perform basic parental needs.

      Grandparents next contend the trial court erred when it found that

stability and continuity in Child’s education, family, and community life

would be served by awarding physical custody to Father. Appellants’ Brief at

18.   Grandparents analogize this case to Albright v. Commonwealth ex

rel. Fetters, 421 A.2d 157 (Pa.1980) and Ellerbe v. Hooks, 416 A.2d 512,

513 (Pa.1980).    In Albright, after their parents’ divorce, the two minor

children lived with their grandparents for four years. After that time, they

lived with their mother and their half-brother on weekdays, and visited

Father one weekend a month.           They spent every summer with the

grandparents as well as three out of every four weekends during the winter.

After their mother passed away they remained with the grandparents. The

trial court awarded custody to the grandparents, not the father, reasoning

the children had been in chaotic conditions throughout their lives and the

grandparents’ home “had proven to be the single stabilizing factor in their

lives” and custody with the father would separate the children from their

stepbrother. Id. at 160.




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      In Ellerbe, the Supreme Court of Pennsylvania found the trial court

did not err in awarding custody to the grandmother where “[child], then

eleven years old, had been living with her grandmother since she was less

than two years old.      [Child] had developed stable and happy relationships

with her grandmother, with neighborhood friends and, importantly, at

school.” 416 A.2d at 515.

      Unlike Albright and Ellerbe, Father has had at least partial custody

of Child since 2010, and has had shared or primary custody since 2012.

Although Grandparents had visitation rights prior to Mother’s death, they

never had custody of Child. Rather, when Child resided with Grandparents,

Mother also resided with them.      The trial court did not err in finding this

factor favored Father.

      Grandparents’ fifth claim alleges the trial court erred when it

determined the well-reasoned preference of Child only slightly favored

Grandparents. Appellants’ Brief at 21-22. The trial court found:

         [Child] expressed a desire to attend her old school -
         Wrightsville Elementary, which she attended while living
         with Mother and Maternal Grandparents - because she had
         more friends there. This is corroborated by Dr. Thomas’s
         report. See Pl.’s Ex. 6, at 23. [Child] also stated that she
         had some friends at her new school and enjoyed it as well.
         Based on [Child’s] age and maturity, the [c]ourt finds that
         this factor weighs slightly in favor of Maternal
         Grandparents.

Opinion, 2/27/2015, at 5.       The trial court did not err.   The trial court

considered Child’s testimony, which focused on her preference for her prior



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elementary school, but noted that “[b]ased on [Child’s] age and maturity, . .

. this factor weighs slightly in favor of [Grandparents].”

      Grandparents’    sixth   claim    maintains   the   trial   court   erred   in

determining both parties were likely to maintain a loving, stable, consistent,

and nurturing relationship with Child. Appellants’ Brief at 22-23. Based on

the testimony presented, including Father’s and Child’s testimony, the trial

court did not err. Grandparents rely on the expert report, which noted the

expert observed no nurturing during the session. However, the session with

Father was a half hour session, during which Father was answering

questions. N.T., 2/19/2015, at 53, 222. Father testified he has a consistent

job, and walks Child to and from school if weather permits, they play, he

grocery shops for Child and cooks for her, and he helps Child with her

homework.     N.T., 2/19/2015, at 218, 233, 238, 246, 255-56.             Child also

testified that Father played with her. Id. at 68. Although Grandmother may

be more nurturing, there is no indication Father does not provide a loving,

stable, consistent, and nurturing relationship.

      Grandparents’ seventh claim is that the trial court erred when it found

Grandparents would have a greater need for daycare than Father.

Appellants’ Brief at 24-25. The trial court found this factor slightly favored

Father, as his mother was always available to care for Child, but it was “not

significant to [Child’s] best interest.” Opinion, 2/27/2015, at 6. Therefore,

the trial court did not give this factor any weight in the best interest

analysis.

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      Grandparents’ eighth claim asserts the trial court erred in finding the

level of conflict between the parties and the willingness and ability of the

parties to cooperate with each other favored Father. Appellants’ Brief at 25.

The trial court adequately addressed this issue, including that Father was

vulnerable to “being suspicious and mistrustful” and Grandparents have

shown hostility toward Father.     See Opinion, 2/27/2015, at 7.      The trial

court acted within its discretion and did not err.

      Grandparents’ last issue claims the trial court erred when it did not

find clear and convincing evidence that Child’s best interest would be met by

custody with Grandparents. Appellants’ Brief at 28-29. Again, the trial court

did not err. As outlined above, the trial court considered all factors, and all

evidence and testimony presented. Grandparents had a heavy burden, clear

and convincing evidence, which they failed to meet.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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