J-A26043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.M.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    N.G. & R.C., JR.                           :   No. 792 WDA 2019

                 Appeal from the Order Entered April 30, 2019
       In the Court of Common Pleas of Allegheny County Family Court at
                           No(s): FD 18-7134-017


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 02, 2020

        A.M., parental grandmother (“PGM”), appeals from the order dated April

26, 2019 and entered on April 30, 2019,1 in the Court of Common Pleas of

Allegheny County, dismissing her cross-exceptions to the Report and

Recommendation and Proposed Order of Court of the Partial Custody Hearing

Officer (“HO Report”).2 The order terminated a February 2, 2018 trial court
____________________________________________


1 The subject order was dated August 26, 2019. However, notice pursuant to
Pa.R.C.P. 236(b) was not provided until August 30, 2019. Our appellate rules
designate the date of entry of an order as “the day on which the clerk makes
the notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our Supreme Court
has held that “an order is not appealable until it is entered on the docket with
the required notation that appropriate notice has been given.” Frazier v. City
of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).

2The HO Report was dated October 4, 2018 and was filed on October 5,
2018. We shall refer to the report by its filing date.
J-A26043-19



order awarding PGM interim partial physical custody of her grandchildren,

D.C., a male, born in October 2016, and I.G., a female, born in February

2018,3 (collectively, the “Children”), after the death of the Children’s natural

father, A.C. (“Father”), in November 2017. The order also placed PGM’s future

visits with the Children in the sole discretion of N.G. (“Mother”). We affirm.

        The trial court set forth the factual background and procedural history

of this appeal as follows.

        [N.G. (or “Mother”)] is the biological mother of two minor children,
        D.C. and I.G. [Father] died by suicide [in November 2017].
        Although Mother and Father never married, they were engaged to
        be married and were living together prior to Father’s death. [PGM]
        is the biological paternal grandmother of the minor children.
        [R.C., Jr., (or “PGF”)] is the biological paternal grandfather of the
        minor children.

        PGM filed her complaint for partial custody of D.C. on January 22,
        2018, and PGF filed his petition for partial custody of D.C. on
        January 31, 2018. Both PGM and PGF alleged in their petitions
        that prior to Father’s death they enjoyed [] close relationship[s]
        with D.C. and often provided childcare for him. Both PGM and PGF
        alleged that[,] following Father’s death[,] Mother began restricting
        their contact with D.C. The petitions were consolidated and then
        later amended to include I.G., who was born after Father’s death,
        despite neither PGM nor PGF having ever met her.

        On February 2, 2018, PGM presented a petition for special relief,
        in which she requested interim partial physical custody of D.C.
        Mother presented a preliminary response in which she opposed
        PGM’s request and asked that it be denied. By order of court dated
        February 2, 2018, [the trial court] granted PGM interim partial
        physical custody of D.C. on the first Saturday of every month from
        10[:00] a.m. to 4[:00] p.m.

____________________________________________


3   See N.T., 9/24/18, at 6.


                                           -2-
J-A26043-19


     Shortly thereafter, PGF filed his own petition for interim custody.
     Mother filed a response and new matter[,] in which she expressed
     concerns regarding PGF’s mental health history and stated that[,]
     at all times before and after Father’s death[,] PGF’s contact with
     D.C. was always supervised. By order of court dated April 2, 2018,
     [the trial court] denied PGF’s request for interim partial physical
     custody and granted Mother’s request that the parties proceed
     through the [trial court’s] Generations program.

     After the parties’ unsuccessful mediation, the case was assigned
     to the partial custody hearing officer [(“HO”)], Laura Valles, and
     a hearing was scheduled for July 26, 2018. By order of court
     dated July 31, 2018, two additional days of testimony were
     scheduled for August 27, 2018, and September 24, 2018. After
     the conclusion of all three days of contentious litigation, HO Valles
     issued her Report on October 4, 2018, in which she recommended
     that both PGM’s and PGF’s requests for court-ordered visitation be
     denied and that future visits be in Mother’s sole discretion, and
     that the February [2], 2018 order of court granting PGM interim
     partial physical custody be terminated.

     All parties filed exceptions to HO Valles’ Report.[1] Specifically,
     PGM identified three exceptions to HO Valles’ Report. First, PGM
     claimed HO Valles erred/abused her discretion in recommending
     [the trial court’s] February [2], 2018 Order of Court granting her
     interim partial physical custody be terminated. Second, PGM
     claimed HO Valles erred/abused her discretion in mandating that
     all future contact with the [C]hildren be at Mother’s sole
     discretion. And[,] third, PGM claimed HO Valles erred/abused her
     discretion by failing to grant PGM with [sic] her requested court-
     ordered visitation.

     After several consent orders to continue the matter, the argument
     on exceptions was heard by [the trial court] on March 13, 2019.
     ___________________________________________________

     1  PGF filed exceptions on October 22, 2018; PGM filed
     cross-exceptions on October 23, 2018; and Mother filed
     cross-exceptions on October 25, 2018.

Trial Court Opinion, 6/17/19, at 1-3 (certain capitalization omitted; footnote

added).


                                     -3-
J-A26043-19


     In an order dated April 26, 2019, and entered on April 30, 2019, the

trial court dismissed all parties’ exceptions. On May 28, 2019, PGM timely

filed her notice of appeal and concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In her brief on appeal,

PGM raises the following issues:

     I. Did the [trial] court err as a matter of law and commit an abuse
     of discretion in denying [PGM’s] Exceptions to the [HO’s] Report,
     Recommendation, and Proposed Order dated October 4, 2018[,]
     as the [HO] committed an abuse of discretion and erred as a
     matter of law in the application of the custody factors enumerated
     at 23 Pa.C.S.A. § 5328(a)[,] when the [HO] denied contact
     between [PGM] and her grandchildren, despite evidence showing
     that an award of custody would not interfere with the parent/child
     relationship[,] and that the continuation of [PGM’s] relationship
     would be in the [Children’s] best interests, given that standing
     was conferred pursuant to 23 Pa.C.S.A. § 5325(1)?

     II. Did the [trial] court err as a matter of law and commit an abuse
     of discretion in denying [PGM’s] exceptions to the [HO’s] Report,
     Recommendation, and Proposed Order dated October 4, 2018[,]
     which denied [PGM’s] request for partial custody[,] despite settled
     caselaw [sic] and Pennsylvania’s strong public policy commitment
     to ensuring that relationships between extended family and
     children continue, despite the death of a biological parent?

     III. Did the lower court err as a matter of law and commit an abuse
     of discretion in denying [PGM’s] exceptions to the [HO’s] Report,
     Recommendation, and Proposed Order dated October 4, 2018[,]
     as the [HO] failed to address the custody factors as proscribed at
     23 Pa.C.S.A. § 5328(c)?

     IV. Did the lower court err as a matter of law and commit an abuse
     of discretion in denying [PGM’s] exceptions to the [HO’s] Report,
     Recommendation, and Proposed Order dated October 4, 2018[,]
     as the [HO] improperly considered videos not submitted as
     evidence[,] and utilized the same in her analysis of 23 Pa.C.S.A.
     § 5328(a)(7)?




                                    -4-
J-A26043-19


PGM’s Brief at 3-4.4

       In her brief on appeal, PGM argues:

       The [r]ecord indicates, not only by a preponderance of evidence,
       but by clear and convincing evidence, that it is in the best interests
       of the minor children to continue to have a relationship with
       [PGM], and[,] by extension, the rest of Father’s extended family.
       Given that standing to pursue this matter was conferred pursuant
       to 23 Pa.C.S.A. § 5325(1), any contrary decision, given the facts
       presented, goes against settled [case law] and Pennsylvania’s
       strong public policy commitment to ensuring that relationships
       between extended family and children continue, despite the death
       of a biological parent. The [trial] court’s reliance on inapplicable
       [case law] and its failure to acknowledge Pennsylvania [statutory]
       and [case law] permitting these awards of custody is a
       misapplication of the law.

       The [trial] court further erred as a matter of law and committed
       an abuse of discretion in denying [PGM’s] exceptions to the [HO’s
       Report of October 5, 2018 since] the [HO] committed an abuse of
       discretion and erred as a matter of law in the application of the
       custody factors enumerated at 23 Pa.C.S.A. § 5328(a)[,] when
       the [HO] denied contact between [PGM] and her grandchildren.



____________________________________________


4 In her concise statement and her statement of questions involved in her
brief, PGM challenged the HO’s consideration of videos not admitted into
evidence as part of the custody assessment under 23 Pa.C.S.A. § 5328(a)(7).
PGM, however, did not include a separate section regarding this issue in her
brief. Thus, we find PGM’s fourth issue waived. See In re W.H., 25 A.3d
330, 339 n.3 (Pa. Super. 2011) (“[W]here an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to develop
the issue in any other meaningful fashion capable of review, that claim is
waived.”). Nevertheless, to the extent that Mother discusses the video issue
within her discussion of section 5328(a)(7), we find that PGM’s challenge lacks
merit. First, the trial court did not consider the videos in its opinion. Second,
the HO credited Mother’s testimony in which she reported that D.C. began
banging his head against the wall after he returned from a visit with PGM and
that D.C. never exhibited this behavior prior to the court-ordered visits with
PGM. As such, the videos are not essential to an assessment of the factors
pertaining to section 5328(a)(7).

                                           -5-
J-A26043-19


     The [HO] failed to attribute any weight to the amount of contact
     that [PGM] had with D.C. prior to Father’s death[,] and instead
     placed unwarranted credence on Mother’s unsubstantiated
     concerns regarding what [PGM] may possibly say to the [C]hildren
     concerning Father’s death.

     The [HO] also made a factual determination that [PGM] failed to
     follow Mother’s directives as to the care and control of D.C. during
     the visits[;] however, this goes against the weight of the evidence.
     Mother herself admitted that [PGM] historically followed her
     directives as it related to D.C’s care. In light of the totality of the
     record, this is certainly an unreasonable finding.

     Lastly, in her consideration of the custody factor found at 23
     Pa.C.S.A. § 5328(a)(7), the [HO] improperly considered videos
     not submitted as evidence and utilized the same in her analysis of
     23 Pa.C.S.A. § 5328(a)(7).

     The [trial] court erred as a matter of law and committed an abuse
     of discretion in denying [PGM’s] exceptions to the [HO’s] Report,
     Recommendation, and Proposed Order dated October 4, 2018[,]
     as the [HO] failed to address the custody factors as [prescribed]
     at 23 Pa.C.S.A. § 5328(c). Nonetheless, [PGM] met her burden
     pursuant to these factors. [PGM] established consistent contact
     with D.C. prior to Father’s death, established that her contact with
     both D.C[.] and I.G. would not interfere with Mother’s ability to
     parent the children, and further established that maintaining her
     relationship [with] D.C. would be in his best interests. A failure
     to maintain the relationship between D.C. and paternal family
     members, as well the inability for I.G. to develop the same, will
     result in a secondary loss to both children. Neither will have the
     ability to truly know their father, in a manner that only paternal
     family members can provide.

     [PGM asks] this Honorable Court to [vacate] the April [30], 2019
     final order of court and sustain her exceptions to the [HO’s
     October 5, 2018 report], so as to allow her a relationship with her
     grandchildren. [PGM further asks] this Honorable Court to follow
     longstanding settled [case law] and Pennsylvania’s strong public
     policy commitment to ensuring that relationships between
     extended family and children continue, despite the death of a
     biological parent.




                                      -6-
J-A26043-19


      Specifically, [PGM] would pray for an order permitting her partial
      custody periods with her grandchildren, once per week for six (6)
      hours per visit. Alternatively, this Honorable Court can [remand]
      the matter to the [trial court] in order to determine an appropriate
      physical custody schedule.

PGM’s Brief at 15-19 (certain capitalization omitted).

      In custody cases under the Child Custody Act (the “Act”), 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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006), quoting Jackson

v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).




                                      -7-
J-A26043-19


      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).

      Regarding the definition of an abuse of discretion, this Court has stated:

“[a]n abuse of discretion is not merely an error of judgment; if, in reaching a

conclusion, the court overrides or misapplies the law, or the judgment

exercised is shown by the record to be either manifestly unreasonable or the

product of partiality, prejudice, bias or ill will, discretion has been abused.”

Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation

omitted).   With any custody case decided under the Act, the paramount

concern is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338.

      In K.W. v. S.L., 157 A.3d 498 (Pa. Super. 2017), this Court stated as

follows:

      “Threshold issues of standing are questions of law; thus, our
      standard of review is de novo and our scope of review is plenary.”
      Rellick-Smith v. Rellick, 147 A.3d 897, 901 (Pa. Super. 2016)[,
      quoting Johnson v. American Standard, 8 A.3d 318, 326 (Pa.
      2010)].

      Generally, the Child Custody Act does not permit third parties to
      seek custody of a child contrary to the wishes of that child’s
      parents. The Act provides several exceptions to this rule, which

                                      -8-
J-A26043-19


     apply primarily to grandparents and great-grandparents. See 23
     Pa.C.S.A. § 5324(3); 23 Pa.C.S.A. § 5325.

K.W., 157 A.3d at 504.

     Section 5324 of the Act provides:

     5324. Standing for any form of physical custody or legal
     custody

     The following individuals may file an action under this chapter for
     any form of physical custody or legal custody:

     (1) A parent of the child.

     (2) A person who stands in loco parentis to the child.

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

                                   ***

23 Pa.C.S.A § 5324.

     Section 5325 of the Act provides:

     § 5325.     Standing for partial physical custody and
     supervised physical custody

     In addition to situations set forth in section 5324 (relating to
     standing for any form of physical custody or legal custody),
     grandparents and great-grandparents may file an action under
     this chapter for partial physical custody or supervised physical
     custody in the following situations:

           (1) where the parent of the child is deceased, a parent or
     grandparent of the deceased parent may file an action under this
     section.

           (2) where the relationship with the child began either with
     the consent of a parent of the child or under a court order and
     where the parents of the child:

                 (i) have commenced a proceeding for custody; and

                                    -9-
J-A26043-19



                 (ii) do not agree as to whether the grandparents or
      great-grandparents should have custody under this section; or

            (3) when the child has, for a period of at least           12
      consecutive months, resided with the grandparent                 or
      great-grandparent, excluding brief temporary absences of        the
      child from the home, and is removed from the home by            the
      parents, an action must be filed within six months after        the
      removal of the child from the home.

23 Pa.C.S.A. § 5325.

      Section 5328(a) sets forth the best interest factors that the trial court

considers in the context of child custody litigation. See E.D. v. M.P., 33 A.3d

73, 80-81, n.2 (Pa. Super. 2011). Trial courts are required to consider “[a]ll

of the factors listed in section 5328(a) . . . when entering a custody order.”

J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).

      Further, we have explained as follows:

      Section 5323(d) provides that a trial court “shall delineate the
      reasons for its decision on the record in open court or in a written
      opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section
      5323(d) requires the trial court to set forth its mandatory
      assessment of the sixteen [Section 5328(a) custody] factors prior
      to the deadline by which a litigant must file a notice of appeal.”
      C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied,
      70 A.3d 808 (Pa. 2013)[.]

      In expressing the reasons for its decision, “there is no required
      amount of detail for the trial court’s explanation; all that is
      required is that the enumerated factors are considered and that
      the custody decision is based on those considerations.” M.J.M. v.
      M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68
      A.3d 909 (Pa. 2013). A court’s explanation of reasons for its
      decision, which adequately addresses the relevant factors,
      complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).


                                     - 10 -
J-A26043-19


      “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted).

      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).

            (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.




                                     - 11 -
J-A26043-19


          (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.A. § 5328(a).

     Section 5328(c) provides as follows with regard to grandparents and

great-grandparents:

     (c) Grandparents and great-grandparents.-

           (1) In ordering partial physical custody or supervised
     physical custody to a party who has standing under section
     5325(1) or (2) (relating to standing for partial physical custody

                                    - 12 -
J-A26043-19


     and supervised physical custody), the court shall consider the
     following:

         (i) the amount of personal contact between the child and
         the party prior to the filing of the action;

         (ii) whether the award interferes with any parent–child
         relationship; and

         (iii) whether the award is in the best interest of the child.

                                     ***
23 Pa.C.S. § 5328(c)(1).

     In her report and recommendation, the HO found the following with

regard to section 5328(a):

     This Hearing Officer considered all of the factors set forth in [23
     Pa.C.S.A. § 5328(a)] and [its determinations] are as follows:

     1. WHICH PARTY IS MORE LIKELY TO ENCOURAGE AND
     PERMIT FREQUENT AND CONTINUING CONTACT BETWEEN
     THE CHILD AND ANOTHER PARTY?

     Pursuant to Mother’s testimony [concerning] the past relationship
     between [PGM] and Father[,] and the various hostile situations
     Mother witnessed between Father and [PGM], Mother and Father
     began limiting [PGM’s] exposure to the child, [D.C.]. Prior to
     Father’s death, Mother and Father were in agreement to limit
     [PGM’s] time with [D.C.]. In fact, Mother and Father did not visit
     [PGM] on the baby’s first Christmas in 2017[,] as evidenced by a
     text sent to Father from [PGM].        Numerous exhibits were
     presented indicating texts from [PGM] requesting time with her
     grandson and asking both Father and Mother why they were
     ignoring her, avoiding her, blocking her calls, and severing her
     contact with her grandson.

     Mother is very concerned and fearful that [PGM] and [PGF] will
     say inappropriate things to the [C]hildren regarding [F]ather’s
     death. Mother is sincerely convinced Paternal Grandparents
     blame her for Father’s suicide. Mother presented texts to support
     this belief as set forth in “Exhibit L”. As a result, Mother believes


                                    - 13 -
J-A26043-19


     the [C]hildren’s relationship with the Paternal Grandparents
     should be on her terms and at her discretion.

     2. THE PRESENT AND PAST ABUSE COMMITTED BY EITHER
     PARTY OR MEMBER OF THE PARTY’S HOUSEHOLD.

     No testimony was given regarding Mother’s present or past abuse
     regarding Mother’s actions. However, Mother credibly testified
     she witnessed, on many occasions, the verbal abuse directed to
     Father by [PGM]. Mother is very fearful [PGM] will act in the same
     manner toward the [C]hildren. Mother presented this court with
     numerous texts indicating the abusive tone and anger toward
     Father from [PGM].

     3. THE PARENTAL DUTIES PERFORMED BY EACH PARTY ON
     BEHALF OF THE CHILD.

     As [of] the date of the hearing, Mother has performed all parental
     duties on behalf of the [C]hildren. Prior to [PGM’s] first court[-
     ]ordered visit with [D.C.] in February of 2018, Mother emailed
     [PGM] an extensive list of instructions and directives for her to
     follow during her visit. [PGM’s] response, which was set forth in
     “Exhibit M”, replies to Mother that she has raised three sons and
     is currently raising her grandson, [K.], and has numerous visits
     with her granddaughters[,] and[,] as such[,] she can handle a
     six[-]hour visit without much trouble. She further replies to
     Mother that she does not know how “his strict nap by two p[.]m.”
     would work out. Further, [PGM] instructs Mother that [D.C.] will
     call her husband [P.] “PapPap”[,] against Mother’s request for
     [D.C.] not to.

     Mother credibly testified [PGM] does not inform Mother of
     anything that takes place during her court[-]ordered visits.
     Further, the [trial court] denied [PGF’s] request for visitation in
     [motions court]. Despite an [o]rder that denie[d PGF] visits,
     [PGM] allowed [PGF] to be present during her court-ordered visits.
     Mother has absolutely no confidence that [PGM] or [PGF] will
     follow her directions as evidenced by their behavior so far.
     [PGM’s] and [PGF’s disregard for] Mother’s directives directly
     interferes with Mother’s parental control of the [C]hildren.

     4. THE NEED FOR STABILITY AND CONTINUITY IN THE
     CHILD’S EDUCATION, FAMILY LIFE, AND COMMUNITY LIFE.


                                   - 14 -
J-A26043-19


     It is not questioned that Mother is able to provide stability and
     continuity in the [C]hildren’s education, family life, and
     community life. Each and every time Paternal Grandparents do
     not follow Mother’s instructions and interfere with her parental
     rule with the [C]hildren, the [C]hildren will not have stability and
     continuity in their lives.

     5. THE AVAILABILITY OF EXTENDED FAMILY.

     All parties have extended family.

     6. THE CHILD’S SIBILING’S RELATIONSHIPS.

     As of the date of this hearing, [the Children] are the only siblings.

     7. WELL-REASONED PREFERENCE OF THE CHILD, BASED ON
     THE CHILD’S MATURITY AND JUDGMENT.

     Both children are very young.        Neither was present in the
     courtroom. However, th[e HO] was shown two separate videos in
     which [D.C] is outside with Mother or with Maternal Grandfather
     in the front yard. As soon as [PGM] pulls up to the driveway and
     gets out of her van, the child instantly starts to cry and runs in
     the opposite direction of [PGM]. Mother also credibly testified that
     [D.C.] began banging his head against the wall after he returned
     from a visit with [PGM]. Mother credibly testified the child did not
     exhibit this behavior prior to the court[-]ordered visits.

     8. THE ATTEMPTS OF A PARENT TO TURN THE CHILD
     AGAINST THE OTHER PARENT, EXCEPT IN CASE OF
     DOMESTIC VIOLENCE WHERE REASONABLE SAFETY
     MEASURES ARE NECESSARY TO PROTECT THE CHILD FROM
     HARM.

     Mother whole heartedly believes [PGM] and [PGF] will attempt to
     turn her children against her by not following her directives and
     by telling them inappropriate things about Mother’s relationship to
     Father regarding his suicide.

     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.


                                    - 15 -
J-A26043-19


     After hearing all testimony, until the issues between Paternal
     Grandparents and Mother are resolved in an amicable manner, the
     hostility and animosity between the parties will continue. This
     animosity and hostility will not cultivate a loving, stable,
     consistent and nurturing environment adequate for the
     [C]hildren’s emotional needs.

     10. WHICH PARTY IS MORE LIKELY TO ATTEND TO THE
     DAILY   PHYSICAL,   EMOTIONAL,    DEVELOPMENTAL,
     EDUCATIONAL AND SPECIAL NEEDS OF THE CHILD.

     Mother has been the primary caretaker and has attended to the
     daily physical, emotional, developmental, educational and any
     special needs of each child since their birth.

     Due to Paternal Grandparent’s [sic] past behaviors, it is unlikely
     that the Paternal Grandparents will attend to the daily physical,
     emotional, developmental, educational and special needs of the
     [C]hildren while following Mother’s directives for the same.

     11. THE PROXIMITY OF THE RESIDENCES OF THE PARTIES.

     [PGM] lives approximately ten minutes from Mother. [PGF] lives
     approximately forty minutes from Mother.

     12. EACH PARTY’S AVAILABILITY TO CARE FOR THE CHILD
     OR ABILITY TO MAKE APPROPRIATE CHILD-CARE
     ARRANGEMENTS.

     Since birth, Mother has shown her ability to care for the [C]hildren
     and the ability to make appropriate childcare arrangements.
     [PGM] and [PGF] may have the availability to care for the
     [C]hildren[,] but[,] due to past behavior[,] have not shown their
     ability to care for the [C]hildren while adhering to Mother’s
     directives.

     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.




                                    - 16 -
J-A26043-19


     At the current time, there is an extremely high level of conflict
     between the parties. Mother is clearly concerned with Paternal
     Grandparents’ refusal to follow her directives regarding her own
     children. Mother is extremely concerned Paternal Grandparents
     will reveal to the [C]hildren their own version of Father’s suicide
     and their belief Mother was the cause. Mother credibly testified
     she does not trust Paternal Grandparents. Mother also credibly
     testified she witnessed the verbal abuse between [PGM] and
     Father[,] and her unwillingness to have the [C]hildren around
     [PGM] is an effort to protect them.


     14. THE HISTORY OF DRUG OR ALCOHOL ABUSE OF A
     PARTY OR MEMBER OF A PARTY’S HOUSEHOLD.

     During [PGM’s] and [PGF’s] testimony, both tried to implicate that
     Mother had a history of drug use. Mother vehemently denies the
     same.

     15. THE MENTAL AND PHYSICAL CONDITION OF A PARTY
     OR MEMBER OF A PARTY’S HOUSEHOLD.

     [PGF’s] mental health status was discussed by Dr. Prabir K.
     Mullick, M.D.[,] who has been treating [PGF] since August 16,
     1999.

     16. ANY OTHER RELEVANT FACTOR.

     N/A

Hearing Officer’s Report and Recommendation and Proposed Order of Court,

10/5/18, at 3-7.

     The HO’s proposed order provided:

                     ORDER OF COURT – CUSTODY

                                   ***
     1. Mother shall continue to have sole legal and primary physical
     custody of [the Children].

     2. [PGF’s] request for a court[-]ordered visitation schedule with
     the minor children is hereby denied. Should[,] at any time Mother

                                   - 17 -
J-A26043-19


      determine[] it is in the best interest of the [C]hildren to begin a
      relationship with [PGF], Mother shall have sole discretion with
      regard to visitation schedule between the minor children and
      [PGF].

      3. The February 3, 2018 Interim, Order of Court is hereby
      terminated.

      [PGM] shall not be entitled to any court[-]ordered visitation
      schedule with the minor children. Should[,] at any time, Mother
      determine[] it is appropriate for the children to visit with [PGM],
      Mother shall have sole discretion to make said arrangements.

Hearing Officer’s Proposed Order of Court, 10/5/18, at 2.

      As noted by the trial court, supra, PGM’s three exceptions were:

      a. The Hearing Officer erred and/or committed an abuse of
      discretion in vacating Judge Satler’s Interim Order of Court dated
      February 2, 2018.

      b. The Hearing Officer erred and/or committed an abuse of
      discretion in mandating that any contact between the [C]hildren
      and [PGM] would be at Mother’s discretion.

      c. The [HO] erred and/or committed an abuse of discretion in
      failing to grant [PGM] court[-]ordered custody periods with her
      grandchildren.

PGM’s Cross-Exceptions, 10/23/18, at 2.

      We begin with PGM’s first and third issues on appeal, in which PGM

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

with regard to its consideration of section 5328(a)(1) and in failing to consider

the factors set forth in section 5328(c).

      Regarding the first issue, we conclude that HO Valles considered each

of the statutory factors and made the determination that an award of partial

physical custody to PGM was not in the best interest of the Children. Within

                                     - 18 -
J-A26043-19


her discussion of the section 5328(a)(1) factors, the HO also considered the

section 5328(c)(1) factors, without specifically enumerating them. We find

the HO’s consideration of the factors under section 5328(a)(1) is not

unreasonable as shown by the evidence of record. C.R.F., 45 A.3d at 443.

      Further, with regard to PGM’s challenge to the HO’s failure to analyze

the factors under 23 Pa.C.S. § 5328(c) (factors pertinent to assessing custody

claims advanced by grandparents), the trial court stated as follows:

      First and foremost, [the trial court] did not address the issue of
      HO Valles’ error/abuse of discretion in failing to analyze the
      custody factors set forth in 23 Pa.C.S.A. § 5328(c), identified
      above as issue #3, because that issue was waived by PGM.
      Pursuant to Pa.R.C.P. Rule 1915.4-2(b)(4), “[w]ithin twenty days
      after the date of the hearing officer’s report . . . any party may
      file exceptions. . . . Matters not covered by exceptions are
      deemed waived unless . . . leave is granted.”

      The issue of HO Valles’ failure to address the custody factors set
      forth in Section 5328(c) was not included in PGM’s exceptions. It
      was not until PGM filed her brief in support of her exceptions that
      she first raised the issue of HO Valles’ failure to address the
      custody factors set forth in Section 5328(c). Because PGM failed
      to raise the issue at the time of filing her exceptions, and because
      she did not seek leave of court to file additional exceptions, [the
      trial court] considered the issue to have been waived and, thus,
      did not address it.

Trial Court Opinion, 6/17/19, at 6 (certain capitalization omitted).

      For the reasons stated by the trial court, we agree with the trial court

that PGM waived the challenge to the HO’s failure to consider section 5328(c)

as an issue for our review. Nevertheless, recognizing that PGM had standing

under section 5325(1), the trial court did consider the section 5328(c)(1)

factors, specifically, the amount of personal contact between the Children and

                                     - 19 -
J-A26043-19


PGM prior to the filing of the action; whether the award of partial physical

custody would interfere with any parent-child relationship; and whether the

award was in Children’s best interest. The trial court ruled against PGM on

these factors, as set forth, supra. The trial court, through adopting the HO’s

findings, determined that, although there had been contact between PGM and

D.C. prior to Father’s death, Mother and Father had begun to withhold contact

between D.C. and PGM prior to Father’s death.          Father and Mother were

ignoring PGM, avoiding her, blocking her calls, and severing her contact with

D.C.   The trial court also found that there was a tumultuous relationship

between Father and PGM, and that PGM had been verbally abusive toward

Father.   Further, as I.G. was not born until after Father’s death, PGM had

never had any contact with her.

       Moreover, the trial court found that the award of partial physical custody

to PGM would interfere with Mother’s parent-child relationship with the

Children. Mother credibly feared that PGM would allow PGF to have contact

with the Children, as she had done in the past, although PGF did not have an

order allowing him to have contact with the Children.        The trial court also

determined that Mother’s fears that PGM would interfere with her wishes as

to how to care for and raise the Children were credible, as PGM had previously

disregarded Mother’s child care instructions in the past. Further, the trial court

found that PGM had not been forthcoming with Mother about her activities

with D.C. while D.C. was in PGM’s care.            Additionally, the trial court


                                     - 20 -
J-A26043-19


determined that Mother possessed credible fears that PGM and/or PGF, if given

contact with the Children unsupervised by Mother, would influence the

Children to believe that Mother caused Father’s suicide.        The trial court

acknowledged that Mother offered PGM visits with D.C. in public settings, but

PGM refused the offers.

      Based on the animosity between Mother and PGM and the high level of

conflict between the parties, the trial court determined that it would not be in

the best interest of the Children for the trial court to award partial physical

custody to PGM, but only such partial physical custody as Mother was willing

to provide, at Mother’s discretion.

      We conclude that the trial court’s discussion and conclusions regarding

the section 5328(a)(1) factors (that contained the section 5328(c)(1) factors)

was not unreasonable as shown by the evidence of record. C.R.F., 45 A.3d

at 443.

      Nevertheless, separate and apart from the consideration of the section

5328(a)(1) and (c) factors, and the evidence with regard to those factors, the

trial court refused to afford PGM her requested relief on the basis that the

court would not interfere with the established case law regarding the award

of partial physical custody to a grandparent when there is a fit and capable

parent who is alive. The trial court reviewed PGM’s first, second, and fourth

issues (see supra at 4) together, stating as follows.

      Second, [the trial court] did not address issues #1, #2, and #4
      set forth above because it concluded that court-ordered visitation

                                      - 21 -
J-A26043-19


     would be an unconstitutional infringement on Mother’s
     fundamental right to make decisions concerning the care, custody,
     and control of her children. “Parents have a fundamental liberty
     interest in raising their children as they see fit.” D.P. v. G.J.P.,
     146 A.3d 204, 206 (Pa. 2016), quoting Troxel v. Granville, 530
     U.S. 57, 65 (2000) (plurality). “[A]bsent factors such as abuse,
     neglect, or abandonment, the law presumes parents are fit and,
     as such, that their parenting decisions are made in their children’s
     best interests.” D.P., 146 A.3d at 214. “[W]here there is no
     reason to believe presumptively fit parents are not acting in their
     children’s best interests, the government’s interest in allowing a
     third party to supplant their decisions is diminished.” Id. at 214.

     In this case, there was no allegation that Mother was anything but
     a fit parent. In fact, PGM testified on cross-examination that she
     believed Mother to be a fit parent. See [N.T., 8/27/18, at 167].
     There were also no allegations made, and “[n]o testimony was
     given[,] regarding Mother’s present or past abuse” of the
     [C]hildren. HO Report, 10/5/18, at 3.

           Furthermore, after hearing all of the testimony and
     considering all of the evidence, HO Valles found that Mother “has
     performed all parental duties on behalf of the child,”. . . “is able
     to provide stability and continuity in the [C]hildren’s education,
     family life, and community life,”. . . “has been the primary
     caretaker and has attended to the daily physical, emotional,
     developmental, educational and any special needs of each child
     since their birth,” . . . and “has shown her ability to care for the
     [C]hildren and the ability to make appropriate childcare
     arrangements.” Id. at 4-6.

     In short, there was nothing in the record to [suggest] that Mother
     was anything but a fit parent. As such, “if a fit parent’s decision
     of the kind at issue here becomes subject to judicial review, the
     court must accord at least some special weight to the parent’s own
     determination.” Troxel, 530 U.S. at 70. Moreover, “whenever a
     custody dispute arises between the parents and a third party, the
     evidentiary scale is tipped, and tipped hard, to the parents’ side.”
     D.P., 146 A.3d at 212. On that issue, HO Valles’ Report is
     instructive:

        Pursuant to Mother’s testimony considering the past
        relationship between [PGM] and Father and the various
        hostile situations Mother witnessed between Father and

                                    - 22 -
J-A26043-19


        [PGM], Mother and Father began limiting [PGM’s] exposure
        to the child, [D.C]. Prior to Father’s death, Mother and
        Father were in agreement to limit [PGM’s] time with [D.C.].
        In fact, Mother and Father did not visit [PGM] on the baby’s
        first Christmas in 2017[,] as evidenced by a text sent to
        Father from [PGM]. Numerous exhibits were presented
        indicating texts from [PGM] requesting time with her
        grandson and asking both Father and Mother why they
        were ignoring her, avoiding her, blocking her calls, and
        severing her contact with her grandson.

     HO Report, 8/5/18, at 3.

     Thus, [the trial court] concluded, as did HO Valles, that even
     before Father’s death, the parents chose to limit PGM’s contact
     with D.C. However, it was evident that Mother and Father did not
     fully cut off contact with PGM. And[,] even after Father’s death,
     Mother continued to offer to set up visits for PGM to see D.C. In
     her complaint for custody, and again in her petition for special
     relief, PGM admitted that Mother offered to meet with her on
     multiple occasions in public locations to effectuate visits. The fact
     that PGM did not like the types of visits that Mother proposed to
     arrange does not give her, or [the trial court], justification to
     interfere in Mother’s decision-making.

     “[T]he Due Process Clause does not permit a State to infringe on
     the fundamental right of parents to make child rearing decisions
     simply because a state judge believes a ‘better’ decision could be
     made.” Troxel, 530 U.S. at 72-73. Here, by seeking court-
     ordered visitation in the face of Mother’s decision to limit contact
     between PGM and D.C. to public visits, PGM was asking the court
     to supplant her preferences for those of an otherwise fit parent,
     which was something [the trial court] could not constitutionally
     do.

                                CONCLUSION

     Because [the trial court] concluded that court-ordered visitation
     would be an unconstitutional infringement on Mother’s
     fundamental right to make decisions concerning the care, custody,
     and control of her children, its decision should be affirmed.




                                    - 23 -
J-A26043-19


Trial Court Opinion, 6/17/19, at 6-9.5

       We observe that our case law has established public policy regarding

the award of partial physical custody to a grandparent where at least one of

the child’s natural parents is alive and the other is deceased. This Court has

stated that Pennsylvania has a strong public policy “favoring grandparent

involvement in a child’s life.” K.T. v. L.S., 118 A.3d 1136, 1164 (Pa. Super.

2015); see also Hiller v. Fausey, 904 A.2d 875, 886 (Pa. 2006) (stating,

“[W]e refuse to close our minds to the possibility that in some instances a

court may overturn even the decision of a fit parent to exclude a grandparent

from a grandchild’s life, especially where the grandparent’s child is deceased

and the grandparent relationship is longstanding and significant to the

grandchild”)6; Commonwealth ex rel. Goodman v. Dratch, 159 A.2d 70,

71 (Pa. Super. 1960) (stating, “Unless there [is] some compelling reason, we

do not believe that a grandchild should be denied visitation to his


____________________________________________


5 In her brief, PGM complains about the trial court’s reliance on D.P. as being
misplaced. We find her argument lacks merit, as the trial court did not rely
on D.P. as being factually similar to the instant case, and cited only general
legal principles from the case.

6 In Hiller, our Supreme Court addressed the United States Supreme Court’s
plurality decision in Troxel to determine the constitutionality of a
Pennsylvania statute, 23 Pa.C.S. § 5311 (repealed effective January 24, 2011,
and replaced by the Act), that governed the award of partial custody or
visitation to grandparents upon the death of their child who is also the
grandchild’s parent. The Pennsylvania Supreme Court in Hiller held that the
trial court’s application of the statute was constitutional. In the instant appeal,
PGM does not challenge the constitutionality of the trial court’s application of
the current statute, 23 Pa.C.S. § 5328(c).

                                          - 24 -
J-A26043-19


grandparents”). In Commonwealth ex rel. Williams v. Miller, 385 A.2d

992 (Pa. Super. 1978), this Court stated:

      Except under unusual circumstances, no child should be cut off
      entirely from one side of [his or her] family. [V]isits with a
      grandparent are often a precious part of a child’s experience and
      there are benefits which devolve upon the grandchild from the
      relationship with his grandparents which cannot derive from any
      other relationship. If animosities continue between the parties,
      and result in adverse [e]ffects on [the child] . . . , a visitation
      order may be revised, even to the extent of retracting visitation.

Id. at 995 (internal citations omitted) (reversing trial court order denying

maternal grandmother visitation with grandchild following mother’s death;

father’s “mistrust” of maternal grandmother was not valid reason for denying

grandmother visitation; and, if enforcing visitation away from child’s home

presents harmful effects on child, trial court may specify place and conditions

of visitation).   However, there may be instances in which the facts and

circumstances support a finding that a grandparent’s claim for visitation is not

appropriate. This is one of those cases.

      In this case, particularly the facts discussed above, Father’s suicide, and

the animosity between PGM, Father, and Mother prior to (and following)

Father’s death, present grounds to sustain the trial court’s order denying PGM

partial physical custody. Because Mother was a fit parent and because she

presented credible concerns regarding the Children’s visitation with PGM, the

trial court did not err or abuse its discretion in determining that it would not

be in the best interest of the Children for PGM to have unsupervised partial




                                     - 25 -
J-A26043-19


physical custody. Hence, PGM’s visits were properly left to Mother’s discretion.

We affirm the trial court order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2020




                                     - 26 -
