J-A11013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 C.L.L.                                  :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 C.T.B.                                  :
                                         :
                                         :     No. 2036 MDA 2018
              v.                         :
                                         :
                                         :
 T.D.L. & J.L.L.                         :
                                         :
                                         :
 APPEAL OF: C.T.B.                       :

             Appeal from the Order Entered November 7, 2018
  In the Court of Common Pleas of Franklin County Civil Division at No(s):
                               2014-3340


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                     FILED: AUGUST 22, 2019

      C.T.B. (“Mother”) appeals from the November 7, 2018 custody order

awarding T.D.L. and J.L.L. (“Paternal Grandparents”) legal custody and Mother

and C.L.D. (“Father”) shared physical custody of their then-four-year-old

daughter, W.G.B. We affirm.

      Mother and Father never married, and they terminated their year-long

relationship approximately six months after W.G.B.’s birth in March 2014. The

child resided with Mother throughout that six-month period, either as an intact

family with Father or with the maternal grandparents.      On September 16,

2014, Father filed a complaint for custody seeking physical and legal custody
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of W.G.B. The trial court entered an interim custody order that maintained

shared legal custody and awarded shared physical custody on an alternating

weekly basis.   Other than modifications to create a holiday schedule and

provide the out-of-custody parent periods of physical custody during his or

her off week, the arrangement remained unchanged for approximately two

and one-half years.

      On May 9, 2017, in response to Mother’s allegations that Father

perpetrated abuse against W.G.B., Mother obtained primary physical custody

and Father was limited to periods of supervised visitation.        The parties

maintained shared legal custody. The court ordered both parties to undergo

parental fitness evaluations and to exchange reports prior to the custody

conciliation conference. Father completed his evaluation within three weeks,

and upon a finding by Franklin County Children and Youth Services (“CYS”)

that the abuse allegations were unfounded, on June 20, 2017, the trial court

resumed the alternating weekly periods of shared physical custody.

      On October 5, 2017, Mother filed another petition for special relief, this

time seeking to suspend Father’s periods of unsupervised physical custody

due to Father’s cognitive limitations, which were outlined in the parenting

evaluation. The trial court immediately entered an interim order awarding

Mother sole legal custody and primary physical custody pending Father’s

verified answer to the petition and an evidentiary hearing. The court also

ordered CYS to submit a report and case file regarding W.G.B. for its in camera

review.

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          While the hearing on Mother’s pending motion for special relief was

pending, Paternal Grandparents initiated a parallel custody proceeding by

filing at a separate docket number a custody complaint and a petition for

special relief invoking Mother’s neglect and Father’s incapacity as a basis to

seek primary physical custody and shared legal custody of W.G.B. Until that

juncture, Paternal Grandparents’ involvement in the underlying custody

dispute included, inter alia, supervising Father’s periods of partial custody and

acting as Father’s proxy during the custody exchanges.               Mother filed

preliminary objections to Paternal Grandparents’ complaint and petition for

special relief, which the court sustained, dismissed the superfluous custody

case, treated the complaint as a petition to intervene in the instant action,

and scheduled a hearing on the proposed intervention and petition for special

relief.

          On January 17, 2018, the trial court granted Paternal Grandparents’

petition to intervene on an interim basis, “as the [c]ourt [found] that the

intervenors have standing to intervene.” Trial Court Order, 1/17/18, at 1.

Also on an interim basis, the court awarded shared legal custody among all

four parties, and allocated shared physical custody between Paternal

Grandparents and Mother. Id. at 2. Father was granted periods of supervised

physical custody. Id.

          Thereafter, on January 29, 2018, the trial court granted the petition to

intervene “based on the agreement” among the parties and maintained the

interim custody arrangement outlined in the prior order. Trial Court Order,

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1/29/18, at 1. Significantly, as it relates to Mother’s complaints on appeal,

the agreement was set forth on the record and acknowledged by each of the

parties under oath. See N.T., 1/29/18, at 3-6.

      The three-day custody trial occurred on September 21, 26, and 28,

2018. At the close of evidence, the trial court rescinded the portion of the

prior orders that required supervision of Father’s periods of physical custody.

Later, on November 7, 2018, following the consideration of the parties’ post-

hearing briefs, the trial court entered a final custody order awarding sole legal

custody to Paternal Grandparents, and awarding Mother and Father shared

physical custody on an alternating weekly period similar to the prior existing

custody arrangements.

      Thereafter, within thirty days of the November 7, 2018 order, the trial

court granted, in part, Mother’s motion for reconsideration insofar as the court

amended the custody order to clarify that Mother and Father are authorized

to access school and medical records and permitted to participate in academic

activities and medical appointments where the practitioner deems their

attendance helpful.   This timely appeal followed, wherein Mother complied

with Pa.R.A.P. 1925(a)(2)(i) by contemporaneously filing a concise statement

of errors complained of on appeal.

      Mother presents two issues for our review:

      I.     Whether the trial court abused its discretion or committed
      an error of law when it awarded sole legal custody to non-physical
      custody third[-]party grandparents where, pursuant to the
      custody statute at 23 Pa.C.S. § 5324, there is no substantial risk,
      the circumstances do not exist for them to be granted any form of

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      physical or legal custody, there is an absurd, unreasonable and
      unworkable result, and natural parents have substantial form of
      care and control.

      I[I]. Whether the trial court abused its discretion or committed
      an error of law by granting Father shared [physical] custody but
      essentially permitting him to delegate the majority of his custody
      rights to his parents who do not meet the requirements to be
      granted partial custody.

Mother’s brief at 9.

      Our standard of review is well-settled.

      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.

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

      The first argument that Mother levels on appeal challenges Paternal

Grandparents’ standing to intervene in the custody litigation. Reducing to a

mere inconvenience the fact that she expressly acceded to Paternal

Grandparent’s intervention under oath, Mother now dedicates twenty pages

of argument to challenging it. The crux of her positon is that, because she

could not appeal the trial court’s initial, interim grant of intervention, she is

not precluded from assailing that decision herein. While we agree that Mother



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could not appeal the interim order granting standing to intervene in the

custody dispute, this argument misses the mark because Mother subsequently

acceded to Paternal Grandparents’ participation. Thus, it is not a question of

waiver but the reality of the January 29, 2018 accord that defeats Mother’s

current challenge.

      In attempting to diminish this truth, Mother argues that her agreement

to intervention was “interim in nature” in that she would have the subsequent

opportunity to contest it. Mother’s brief at 28. That argument fails for one

simple reason. Nothing in the certified record supports her claim that her

consent to Paternal Grandparents’ intervention was temporary. Throughout

the litigation, the trial court was careful to identify its non-final orders as

temporary or interim, and it expressly identified the temporary aspects of the

January 29, 2018 order as interim. However, the portion of the January 29,

2018 order that notes Mother’s assent to intervention had no such

designation.    Indeed, the certified record, which includes Mother’s sworn

acquiescence, belies her contention that her assent was temporary or

qualified.   As outlined on the record prior to Mother’s approval, the Court

stated, “So the terms of the agreement are as follows: . . . the motion for trial

is continued generally; . . . the petition to intervene is granted; that the

petition for special relief on behalf of [Paternal Grandparents] is granted in

part on an interim basis; [and the] interim temporary custody will be as

follows: . . .” N.T., 1/29/18, at 3-4 (emphasis added). Thus, while the court


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specifically identified the interim nature of the partial grant of special relief

and the custody arrangement, it declined to qualify Mother’s express assent

in a similar manner.        Hence, the record belies Mother’s assertion to the

contrary.

         Moreover, Mother’s foundational premise is illogical. The crux of her

assertion is that her assent to Paternal Grandparents’ intervention did not

preclude her from challenging it later. However, if Mother sought to challenge

a third-parties’ intervention, she certainly was not required to accede to

intervention in order to contest it. Mother’s current argument equates the

custody trial with an intervention hearing to determine Grandparents’

standing.     In actuality, however, the trial court’s January 29, 2018 order

disposed of that issue conclusively, alleviated the necessity for an intervention

hearing, and continued the custody trial generally. As Mother’s assent did not

reserve any objections to Paternal Grandparents’ standing she could not level

a fresh challenge post-trial.

         In addition, we note that Mother’s current objection to standing fails on

its merits because Paternal Grandparents have standing to pursue any form

of physical or legal custody pursuant to 23 Pa.C.S. § 5324(3)(i-iii)(B)1. That

____________________________________________


1 In pertinent part, § 5324 of the Child Custody Law extends standing to
pursue any form of physical or legal custody to:

         (3) A grandparent of the child who is not in loco parentis to the
child:



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subsection grants standing to, inter alia, grandparents who have a relationship

with a child that began with the consent of a parent, are willing to assume

responsibility for the child and, as it relates to this case, “the child is

substantially at risk due to parental abuse, neglect, drug or alcohol abuse or

incapacity[.]” 23 Pa.C.S. § 5324(3)(iii)(B). While Mother challenges the trial

court’s finding that W.G.B. would be substantially at risk of parental neglect

or incapacity without Paternal Grandparents’ intervention, both the certified

record and our case law support that determination. Mother contends that

the child is not substantially at risk because she maintains shared physical

custody and that her alleged parenting deficiencies do not raise to an actual

risk. She asserts, “[t]he basis upon which the trial court granted standing

fails to reach the level of parental behavior that equates to substantial risk.”

Mother’s brief at 42. We disagree.



____________________________________________




            (i) whose relationship with the child began either with the
       consent of a parent of the child or under a court order;

             (ii) who assumes or is willing to assume responsibility for
       the child; and

              (iii) when one of the following conditions is met:

              ....

                   (B) the child is substantially at risk due to parental
              abuse, neglect, drug or alcohol abuse or incapacity[.]

23 Pa.C.S. § 5324.

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       In In G.A.P. v. J.M.W., 194 A.3d 614 (Pa.Super. 2018), this Court

rejected the idea that the statute requires a specific articulable risk of harm.

We stated, “Simply, the plain language of the statute confers standing to

grandparents when a child is substantially at risk due to ongoing parental

behaviors.”     Id. at 618.       Instantly, the certified record is replete with

references to parental behaviors, deficiencies in the parental fitness of Mother

and Father, and the effects of those behaviors and deficiencies upon W.G.B.

Thus, assuming arguendo that we would address the issue of standing

notwithstanding the parties’ agreement to permit Paternal Grandparents’

participation in the custody litigation, Mother’s claim fails.

       The second component of Mother’s first issue purports to challenge the

merits of the trial court’s award of sole legal custody to Paternal Grandparents.

She argues that awarding legal custody to a third-party who does not also

exercise physical custody “conjures an absurd result that is unreasonable and

unworkable.” Mother’s brief at 47. In support of her argument, Mother assails

the trial court’s factual findings concerning her lack of candor with the court,

and the delay she experienced in acquiring services for her daughter’s special

needs.    Id. at 47-48.      In addition, she levels a series of accusations that

Paternal Grandparents wield their authority unjustly.2           To the extent that

____________________________________________


2  Mother complains that Paternal Grandparents continue to withhold access
to information to which she is entitled and erect barriers to her participation
in W.G.B.’s mental health treatment. See Mother’s brief at 48-50. Clearly,



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Mother challenges the substance of the court’s custody decision, the record

supports the trial court’s best-interest determination.

       Pursuant to 23 Pa.C.S. § 5328(a), relating to an award of any form of

custody, the determination of a child’s best interest requires the examination

of the following factors:

       (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.

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

       (5) The availability of extended family.


____________________________________________


by awarding sole legal custody to Paternal Grandparents, the trial court placed
its faith in Paternal Grandparents to remain objective despite their historical
view of Mother’s parenting skills and decision-making as deficient. If Mother’s
accusations were to be established as fact, it would raise a legitimate concern
that Paternal Grandparents are not interested in exercising their new-found
authority evenhandedly. While these still-unproven assertions are insufficient
for this Court to disturb the trial court’s best-interest analysis in light of the
deference we provide the trial court under our standard of review, which
Mother does not challenge, we highlight that Mother is not powerless against
the alleged misconduct. Custody orders are subject to modification, and
where warranted, Mother can file a motion for contempt or a petition for
special relief.

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     (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.

     It is within the trial court’s purview as the finder of fact to determine

which enumerated best-interest factors are most salient and critical in each

particular child custody case.   M.J.M. v. M.L.G., 63 A.3d 331 (Pa.Super.

2013).   Herein, the trial court weighed the applicable custody factors in

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awarding Mother and Father shared physical custody and granting Paternal

Grandparents sole legal custody. As it relates to the determination of legal

custody, the trial court focused on the factors that addressed stability and the

performance of parental duties. In this vein, it found that factors three, four,

ten, thirteen, and sixteen militated to varying degrees in favor of Parental

Grandparents, with the considerations concerning W.G.B.’s special needs and

the level of conflict between the parties weighing heavily in their favor. Factor

one favored Father, and the remaining considerations were either inapplicable

or did not inure to either parent’s advantage. None of the factors entirely

favored Mother, whom the court found demonstrated a lack of initiative in

obtaining the necessary treatment and counseling for W.G.B.

      As to the catchall considerations that are subsumed by factor sixteen,

the court reviewed its decision against the four traditional factors that our

case law incorporated into the determination of shared legal custody prior to

the enactment of the current statutory scheme.        While the court was not

obligated to incorporate these factors into its best-interest analysis, having

reviewed the substantive factors outlined in § 5328(a)(1)-(a)(15), it was free

to supplant that analysis by referencing preexisting case law.        See e.g.,

M.J.M., supra at 339 (“[T]o the extent the trial court finds it necessary to

explicitly consider [a judicially-created doctrine], it is free to do so under

subsection (a)(16).”).




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      As we stated in Yates v. Yates, 963 A.2d 535, 542 (Pa.Super.2008),

four factors exist in the determination of whether to award shared custody:

“(1) whether both parents are fit, capable of making reasonable child rearing

decisions, and willing and able to provide love and care for their children; (2)

whether [they] evidence a continuing desire for active involvement in the

child’s life; (3) whether the child recognizes both parents as a source of

security and love; and (4) whether a minimal degree of cooperation between

the parents is possible.” See also M.A.T. v. G.S.T., 989 A.2d 11, 22

(Pa.Super. 2010) (en banc) (same).

      Herein, the trial court found that the factors militated in favor of

awarding sole legal custody to Parental Grandparents. Specifically, focusing

on the first and final prongs, it determined that neither Mother nor Father is

capable of making child rearing decisions independently and the parties’

mutual enmity and substandard communication makes shared legal custody

impossible. The court deemed the second and third considerations neutral

and inapplicable, respectively.

      Essentially, Mother maintains that the trial court either ignored certain

evidence or failed to view the evidence in a more favorable light. This positon

misinterprets our standard of review and ignores our deference for the trial

court’s role as fact finder. Mother cannot dictate the weight the trial court

attributes to any group of factors. Indeed, as we highlighted in M.J.M., supra




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at 339, “it is within the trial court’s purview as the finder of fact to determine

which factors are most salient and critical in each particular case.”

      Accordingly, we find that the trial court did not abuse its discretion or

commit legal error by awarding sole legal custody to Paternal Grandparents.

The court considered all of the relevant statutory factors and rendered its

decision   accordingly.    As   the   certified    record   supports   the   court’s

determination, we will not disturb it.

      Mother styles her final issue as a challenge to the trial court’s de facto

award of partial physical custody to Paternal Grandparents. While the trial

court awarded equal physical custody to Mother and Father on an alternating

weekly basis, it expressly permitted Father to share his custodial periods with

Paternal Grandparents upon agreement.             Leveling what amounts to yet

another standing challenge, Mother asserts that this provision of the custody

order is an end-run around the standing requirements outlined in § 5325,

which outlines the circumstances that grandparents and great-grandparents

have standing to initiate actions for partial physical custody.        Essentially,

Mother contends that “by permitting Father to delegate his periods of custody

to a third party over a natural parent[,]” the trial court effectively awarded

custody to Paternal Grandparents in contravention of § 5325. We disagree.

      Unfortunately for Mother, this argument fails for the same reason we

rejected her prior standing-based challenge to the custody determination:

Mother’s express consent to Parental Grandparents’ intervention in this case


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belies    the   instant    assertion   that   their   participation   was   improper.

Furthermore, even if the agreement did not preclude Mother’s current

challenge, we previously explained that Paternal Grandparents have standing

to seek “any form of physical custody or legal custody” pursuant to subsection

5324(3)(i-iii)(B). 23 Pa.C.S. § 5324. No relief is due.

         To the extent that Mother challenges the merits of the trial court’s

decision to permit Father to delegate portions of his custodial periods to his

parents, no relief is due. As we outlined supra, the trial court considered all

of the relevant best-interest factors and fashioned a custody order to serve

those interests, including maintaining W.G.B.’s relationship with Paternal

Grandparents and permitting Father to delegate portions of his custodial

periods when he is unable to care for his daughter independently. We do not

discern an abuse of discretion in the court’s decision to fashion a custody order

that accounts for an expected scenario.

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2019




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