J-S48043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.T.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                   v.

J.T.

                          Appellant

                     v.

C.V.

                                                      No. 570 WDA 2015


                    Appeal from the Order of March 18, 2015
                In the Court of Common Pleas of Beaver County
                        Civil Division at No.: 11560-2014


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                               FILED JULY 24, 2015

       J.T. (“Mother”) appeals the March 8, 2015 order that granted primary

physical custody of G.A. (“Child”), born in May 2009, to Mother and partial

physical custody to R.T. (“Grandmother”).       We vacate and remand with

instructions.

       The trial court summarized the factual history as follows:

       [The appellant] in this action is [Mother], age 27, the natural
       mother of [Child].       Mother now lives in Allison Park,
       Pennsylvania, having relocated there in September of 2014. For
       the first 26 years of her life she resided with her mother[,
       Grandmother]. . . . [Grandmother] resides in Beaver County,
       Pennsylvania.

       [Child] was born while [Mother] was living with [Grandmother.]
       The evidence reflected that the natural father of [Child, C.V.
       (“Father”),] has played no part in [Child’s] life to this date. It
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       should be noted that [Father] did not appear for any of the
       proceedings leading up to the trial and was not present during
       the trial.[1] [Mother] and [Father] were never married[,] have
       never resided together and have had virtually no relationship
       since the birth of [Child].

       The evidence further reflected that [Mother] was the primary
       caregiver of [Child], but she also worked at a casino in
       Pittsburgh and would be away from [Grandmother’s] residence
       for significant periods of time for purposes of work and also
       spent overnights after work with her present fiancé, with whom
       she now lives. When [Mother] was not available, [Grandmother]
       took over the caretaking responsibilities for [Child], even to the
       extent of taking [Child] to work with her as confirmed by
       testimony by her employer, a veterinarian.             From that
       testimony, it appeared that [Child] was a regular at
       [Grandmother’s] work and well-liked and encouraged to be there
       by the employer.          The testimony also reflected that
       [Grandmother] would handle other responsibilities for [Child]
       such as doctors’ visits and matters at pre-school/school.

       The testimony clearly revealed that [Mother] had no problem
       permitting [Grandmother] to watch and care for [Child] up until
       the fall of 2014. In September of 2014, [Mother] and [Child] left
       [Grandmother’s] residence.     [Mother] claimed that she was
       forced out of the residence by [Grandmother,] while
       [Grandmother] testified that [Mother] left with [Child] to live
       with her fiancé.

Trial Court Opinion (“T.C.O.”), 4/23/2015, at 2-3 (footnote omitted).

       On October 16, 2014, Grandmother filed a complaint for partial

custody of Child. Following custody conciliation, the hearing officer entered

a proposed custody order             granting    Grandmother   partial custody on

December 12, 2014. Both Mother and Grandmother filed exceptions to the

order.
____________________________________________


1
       Father also did not participate in this appeal.



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      The court held a custody trial on March 17, 2015.    At trial, Mother

testified that, since September 2014, she has livied with her fiancé, K.B.,

and Child. Notes of Testimony (“N.T.”), 3/17/2015, at 9. Mother and K.B.

had a son, E.B., approximately six weeks prior to trial. Id. at 10. Mother

testified that she and Grandmother tried to get along when Child was

younger and that Grandmother helped with Child.           However, Mother

asserted that the relationship between Mother and Grandmother became

hostile and Grandmother was verbally abusive. Id. at 13. Mother testified

that Grandmother kicked Mother and Child out of the house in September

2014. Id. at 12.

      When Mother returned to work after having Child, Mother worked

evening hours and Grandmother watched Child.       Id. at 58-59.    Mother

admitted to spending the night with K.B. after work two or three times per

month while Grandmother cared for Child.          Id. at 60.       Although

Grandmother watched Child for twenty to thirty hours per week while Mother

worked, Mother did not like some of Grandmother’s behavior around Child.

Id. at 16-18.   Mother was concerned that Grandmother would bathe with

Child and would allow Child to swim in the pool without a bathing suit. Id.

at 17, 18. Grandmother also spanked Child against Mother’s wishes. Id. at

20.

      Mother alleged that Grandmother sold prescription medicine and grew

marijuana at the home.    Id. at 20, 22, 23.   Mother also stated that she

dated J.K. for six months in 2005, and then Grandmother dated J.K. off and

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on from 2005 through at least September 2014.         Id. at 26-27.     Mother

stated that Grandmother becoming involved with J.K. caused problems with

Mother and Grandmother’s relationship.        Id. at 27.     Mother was also

concerned about J.K. because he used drugs in the home.            Id. at 33.

Grandmother has guns in the home that were left loaded and were not in a

locked cabinet. Id. at 29-30. Mother admitted that she also owns a gun.

Id. at 67. Mother’s brother, Ro.T., also lives with Grandmother, and Mother

alleged that he uses drugs and is physically and verbally abusive. Id. at 34-

36.

      Mother testified that, since overnight visits with Grandmother began,

Child has had issues with the sleeping arrangements, and Grandmother

feeds Child food that Mother does not permit her to eat. Id. at 46-47. Child

has been defiant upon returning from Grandmother’s house. Id. at 48-49.

Further, Grandmother will not communicate with Mother regarding Child.

Id. at 48.

      K.B.   testified   that   Grandmother   and   Mother   had   “a   broken

relationship,” and that Grandmother was demeaning to Mother. Id. at 76.

K.B. believed that Grandmother loved Child, but thought that Grandmother

said inappropriate things to Child. Id. at 78-79. K.B. stated that Child likes

to go to Grandmother’s house but does not like to sleep there. Id. at 84.

K.B. also noted that Child seems less engaged with the family when she

returns from Grandmother’s house. Id. at 85. K.B. and Mother started the




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paperwork for K.B. to adopt Child, but were still in the process of trying to

get Father to relinquish his parental rights. Id. at 86-87.

      Grandmother testified that only she and Ro.T. live in her residence.

Id. at 105. After Mother went back to work after having Child, Mother and

Grandmother agreed that Mother would work nights and weekends because

Grandmother worked during normal business hours during that week. With

that schedule, someone would always be home with Child.         Id. at 107.

Grandmother took Child swimming and on trips with her two other

grandchildren who live in the area. Id. at 108. Grandmother also took Child

to work when Mother was unavailable during weekdays or when Mother was

sleeping after a late shift. Id. at 108-09. Grandmother testified that she

took Child to some dentist and pediatrician visits. Id. at 109. Grandmother

described herself as “the other parent” and stated that she and Mother

discussed how Child would be raised. Id. at 125.

      Grandmother testified that the guns in her home are not loaded and

that she keeps them in a cabinet, but that the children cannot access the

cabinet. Id. at 112, 134-35. Grandmother denied that J.K. was living in her

house and stated that she had not seen him since before Mother left the

house. Grandmother testified that she knew that her relationship with J.K.

could strain her relationship with Mother.       Id. at 145.   Grandmother

admitted that J.K. used drugs, but stated that her relationship with him

ended in 2010, although he still occasionally came around the house through




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early 2014. Id. at 146-47. Grandmother denied that she grew marijuana or

sold prescription drugs. Id. at 117-18.

     Grandmother also denied that she kicked Mother and Child out of the

house. Id. at 130. Grandmother admitted that she argues with Mother, and

sometimes the arguments become heated. Id. at 131. Grandmother denied

calling Mother names or disparaging Mother in front of Child.    Id. at 132.

Grandmother also argues with her son on occasion, but not in front of Child.

Id. at 136-37.

     Grandmother testified that the first scheduled visit was not an

overnight visit as ordered.    Instead, Mother offered to bring Child to a

restaurant to meet with Grandmother and Mother stayed during the visit.

Although Child was hesitant at first, Grandmother thought the visit went

well. Id. at 118-19. At the second visit, K.B. notified Grandmother that the

visit had to start Friday instead of Saturday as ordered.       Id. at 121.

Grandmother testified that the visit went well and that she and Child played

games.    Id. at 121-22.      At the third visit, Child was excited to see

Grandmother and was able to spend time with Child’s cousins. Id. at 123.

     F.S., Grandmother’s daughter and Mother’s half-sister, testified that

she and her daughter are at Grandmother’s house at least once per week.

Id. at 158.      F.S. observed Grandmother and Child and believed their

relationship to be that of a typical family. Id. at 159. F.S. was present for

part of two overnight visits between Grandmother and Child. She thought

Child was more reserved than usual, but that Child loved Grandmother and

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had a good time.       Id. at 160-61.    F.S. admitted that sometimes family

members argued and yelled. Id. at 162-63. However, F.S. had no concerns

about her daughter or Child being in the house. Id. at 163.

        Grandmother’s employer, Richard Bell, a veterinarian, testified that

Grandmother brings Child to work, and that he knew Child and Grandmother

well.   Grandmother has worked for Mr. Bell since 1997.         Id. at 98.    He

characterized Grandmother and Child’s relationship as normal for a

grandparent and grandchild. Id. at 99. Mr. Bell noted that Child was at the

workplace frequently and, although he initially was reluctant, he believed it

was necessary and permitted Child to be there. He also testified that Child

liked being in the office and playing with the animals. Id. at 100.

        After hearing all the evidence, the trial court discussed its findings of

fact and conclusions of law on the record and gave its ruling from the bench.

On March 18, 2015, the trial court issued its order, memorializing the prior

day’s ruling. The order awarded legal custody and primary physical custody

to Mother.    Father was granted partial custody, as he and Mother agreed.

Grandmother was awarded partial physical custody on the second weekend

of every month; one day during the Christmas, Thanksgiving, and Easter

holidays; and ten consecutive days between June and August. Grandmother

received a total of thirty-seven days each year.

        On April 1, 2015, Mother filed a notice of appeal and concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and

(b). On April 23, 2015, the trial court filed its opinion.

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      Mother raises six issues for our review:

      I.     Whether the Court erred in granting partial custody to
             [Grandmother] over the objection of a fit parent when
             [Mother] has a fundamental constitutional right to the
             custody, care and control of her child.

      II.    Whether the Court erred when considering the
             Pennsylvania § 5328 custody factors, it failed to heavily
             weigh those factors in the favor of [Mother] in a custody
             dispute between the natural mother and the maternal
             grandmother.

      III.   Whether the Court erred by failing to consider the impact
             on the parent-child relationship when awarding partial
             custody to [Grandmother].

      IV.    Whether the Court erred when it failed to give weight to
             the level of conflict between the parties and the willingness
             and ability of the parties to cooperate with one another.

      V.     Whether the Court erred when [Grandmother] failed to
             prove that obtaining partial custody of [Child] was in the
             best interest of [Child].

      VI.    Whether the remarks of the trial court judge regarding
             [Mother] established an appearance of impropriety such
             that the decisions regarding custody were the result of
             bias.

Mother’s Brief at 3.

      Mother’s last issue is waived. It was not included in Mother’s concise

statement. See Pa.R.A.P.1925(b); Ravitch v. Pricewaterhouse, 793 A.2d

939, 944 (Pa. Super. 2002) (“Failure to include an issue in a 1925(b)

statement waives that issue for purposes of appellate review.”). Therefore,

we will not review that issue.

      Mother first challenges the trial court’s grant of partial custody to

Grandmother.     Mother suggests that the grandparent custody statute is

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unconstitutional when applied to a grandparent seeking custody against the

wishes of his or her own child, as opposed to a grandparent disputing

custody with his or her grandchild’s other parent.    Mother recognizes that

our Supreme Court found the statute’s predecessor to be constitutional, but

argues that the ruling should be limited to the facts of that case in which the

maternal grandmother sought partial custody from the grandchild’s father.

Mother’s Brief at 9-13.

         Mother cites 23 Pa.C.S.A. § 5311.       That statute was repealed,

effective January 24, 2011, and was replaced by the following:

      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 parents of the child have been separated for a
      period of at least six months or have commenced and continued
      a proceeding to dissolve their marriage; 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.




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23 Pa.C.S.A. § 5325.2

       In Hiller v. Fausey, 904 A.2d 875 (Pa. 2006), our Supreme Court

addressed whether now-repealed section 5311 violated a parent’s due

process rights. In that case, the maternal grandmother and the child had a

close relationship prior to the mother’s death.     The grandmother saw the

child almost daily in the two years during which the mother had cancer. The

grandmother cared for the child when the mother was unable to do so or

had doctors’ appointments and transported the child to and from school

occasionally.    After the mother’s death, the father cut off contact and the

grandmother only saw the child on three occasions in the year after the

mother died. Id. at 877.

       The grandmother filed for partial custody.    After a hearing, the trial

court granted the grandmother’s request and awarded her one weekend per

month and a week in the summer. In doing so, the trial court applied the

presumption that, as a fit parent, the father was acting in the child’s best

interest and that the grandmother had the burden of proof. The trial court

____________________________________________


2
      Section 5325 consolidated the three prior statutes that provided
grandparents with standing to pursue custody under the prior statutory
scheme: 23 Pa.C.S.A. § 5311 (providing grandparent standing when the
grandparent’s child was deceased); § 5312 (when the parents were divorced
or separated); and § 5313 (when the child lived with the grandparent for at
least twelve months). The previous sections each included a requirement
that grandparent custody or visitation must be in the child’s best interest
and must not interfere with the parent-child relationship. That requirement
can now be found in 23 Pa.C.S.A. § 5328(c).



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considered the frequent contact between the child and the grandmother and

their strong relationship.   Id. at 877.     The trial court considered that the

father was unlikely to permit continuing contact without a court order. The

trial court found that partial custody for the grandmother was in the child’s

best interest, notwithstanding the presumption that the father’s decision to

limit contact was in the child’s best interest. Id. at 878. Finally, the trial

court weighed whether partial custody would interfere with the parent-child

relationship and found that partial custody would not distress the child or

adversely impact the father’s ability to parent the child.    Therefore, the trial

court concluded that the grandmother had rebutted the presumption that

the father’s decision to limit contact was in the child’s best interest. Id. at

879.

       Our Supreme Court affirmed that “the right to make decisions

concerning the care, custody, and control of one’s children is one of the

oldest fundamental rights protected by the Due Process Clause,” and that

court must apply strict scrutiny. Id. at 885-86 (defining strict scrutiny as

determining “if the infringement is supported by a compelling state interest

and if the infringement is narrowly tailored to effectuate that interest”). The

Court identified the compelling state interest as “the state’s longstanding

interest in protecting the health and emotional welfare of children.” Id. at

886.   The Court also noted that the section 5311 was narrowly tailored,

applying only to grandparents whose children had died.                The statute

furthered   the   policy   interest   of   permitting   continuing   contact   with

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grandparents “when the parent is deceased, divorced, or separated.”            Id.

Further, it recognized that “grandparents have assumed increased roles in

their grandchildren’s lives and our cumulative experience demonstrates the

many potential benefits of strong inter-generational ties.”       Id.   While the

Court recognized that a grandparent’s desire for partial custody would not

override a fit parent’s decision to limit contact in all cases, it refused to close

the courtroom doors to a grandparent when the parent chose to limit

contact. Id. at 887.

      The Hiller Court also observed that, in addition to the language of the

statute, our precedent had established “a presumption in favor of a fit

parent.” Id. at 887. The Court noted that the United States Supreme Court

had found a Washington statute on third-party standing in custody

unconstitutional due in part to the statute’s failure to provide such a

presumption.    Id. (discussing Troxel v. Granville, 530 U.S. 57, 68-70

(2000)).    In reviewing precedent, the Hiller Court stated that it had

“maintain[ed] a presumption in favor of parents that meaningfully tips the

balance in the parent’s favor.” Id. at 888.

      In conclusion, the Hiller Court held:

      [T]he stringent requirements of Section 5311, as applied in this
      case, combined with the presumption that parents act in a child’s
      best interest, sufficiently protect the fundamental right of
      parents without requiring any additional demonstration of
      unfitness. . . . The trial court in the case sub judice applied the
      necessary presumption and gave “special weight” to the decision
      of [the father].     Nevertheless, the court found that [the
      grandmother] had met this burden given the court’s
      consideration that the child benefited from spending time with

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       [the grandmother], with whom he had a longstanding and close
       relationship and from whom he received emotional support in
       the aftermath of the loss of his mother. We, therefore, find that
       the trial court satisfied the requirements of Section 5311 and
       that its application survives our strict scrutiny.

Id. at 890 (emphasis added).

       The statute at issue in Hiller only provided standing for the parent of

a deceased parent.         At that time, a different statute, not considered in

Hiller, provided standing to a grandparent when the parents were divorced

or separated.3 However, the compelling state interest and the requirements

that make the statute narrowly tailored are present in section 5325.       The

predecessor section 5311 was available only to the grandparent whose child

had died. Thus, section 5311 cases only presented situations in which the

grandparent was never directly related to the parent from whom partial

custody was sought and not, like here, where the parent from whom partial

custody is sought is the grandparent’s child. However, that distinction was

written into the statute and is not part of the Hiller Court’s analysis in

finding section 5311 constitutional. We see no principled distinction between

the basis for the Hiller Court’s conclusions regarding section 5311 and the

substance of section 5325.          Therefore, we reject Mother’s argument that
____________________________________________


3
      We have held that section 5325(2), relating to standing for
grandparents where the parents are divorce or separated, and its
predecessor section 5312, provides standing to grandparents when the
parents were never married and/or had never lived together. See L.A.L. v.
V.D., 72 A.3d 690, 694 (Pa. Super. 2013).




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section 5325 does not permit a trial court to grant partial custody to a

grandparent when the opposing parent is the grandparent’s child.4

       Having found that to be the case, we still must afford Mother relief

because the trial court did not apply the appropriate presumption. The trial

court on the record reviewed the sixteen factors enumerated in 23 Pa.C.S.A.

§ 5328(a), which it must do in determining a child’s best interest. N.T. at

170-82.     Further, in its opinion, the trial court explained its rationale

pursuant to the additional factors for grandparent custody set forth in

section 5328(c):

       (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 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.
____________________________________________


4
      We also reject Mother’s argument that the fact that this case involves
partial physical custody instead of visitation is controlling. Mother’s Brief at
12. In Hiller, the grandmother was awarded partial custody, which our
Supreme Court found to be constitutional as applied. Hiller, 904 A.2d at
877. As well, our custody statutes no longer include a separate type of
physical custody called visitation. Instead, there is shared, primary, partial,
sole and supervised physical custody. Compare 23 Pa.C.S.A. § 5322 with
§ 5302; § 5323 with § 5303.



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23 Pa.C.S.A. § 5328(c); see T.C.O. at 6-7. The 5328(c) factors mirror those

set forth in the predecessor section 5311 which the Hiller Court found

determinative when upholding the constitutionality of section 5311; namely,

the amount of pre-litigation contact between the child and the grandparent,

and whether the partial custody would interfere with the parent-child

relationship.   Hiller, 804 A.2d at 887.    However, the trial court does not

mention the other factor that was critical to the Hiller court’s holding: the

presumption in favor of a fit parent’s decision and Grandmother’s burden in

overcoming that presumption.     Because there is no evidence that the trial

court considered the presumption that “meaningfully tips the balance in the

parent’s favor,” id. at 888, we must vacate the trial court’s custody order.

We remand the case to the trial court so that it may review the evidence

with due consideration for the presumption in Mother’s favor and to

determine whether Grandmother has met her burden in overcoming that

presumption.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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