J-A13021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.H. AND D.H.,                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellants

                       v.

U.K.H. AND B.W.H.,

                            Appellees                No. 1907 WDA 2014


                Appeal from the Order Entered October 17, 2014
              In the Court of Common Pleas of Washington County
                    Civil Division at No(s): No. 5533 of 2013

BEFORE: PANELLA, SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 18, 2015

       B.H. and D.H., paternal grandparents (“Grandparents”), appeal from

the order denying their exceptions to a partial physical custody report and

recommendation regarding their minor grandchildren, T.H., D.H.1, 1 and

K.H., ages seventeen, ten, and nine, respectively (collectively, “the

Children”). We affirm.

       Grandparents are the parents of B.W.H. (“Father”)2 and the in-laws of

U.K.H. (“Mother”).      Mother had obtained full legal and physical custody of

the Children pursuant to a custody order dated February 22, 2013.           In
____________________________________________


1
  Because Grandfather D.H. and child D.H. have the same initials, the trial
court referred to the child as D.H.1 throughout its opinion. Trial Court
Opinion, 12/9/14, at 2 n. 2.
2
  Father’s parental rights were terminated in July 2014. He is not a party to
this appeal.
J-A13021-15


September 2013, Grandparents filed a complaint for partial physical custody

of the Children. Custody Conference Officer Dawn L. Haber (“CCO Haber”)

scheduled a conciliation conference for December 13, 2013. In response to

Mother’s request for a continuance of the conference, the trial court entered

an interim order granting Grandparents visitation on December 26, 2013,

without Father being present. Order, 12/3/13. The conciliation conference

was rescheduled to March 11, 2014.3            In a second interim order, the trial

court continued Mother’s sole physical custody of the Children and granted

Grandparents visitation on the Saturday before Easter and every other

Saturday for five hours, beginning on May 3, 2014, without Father being

present. Interim Order, 4/8/14, at ¶¶ 4–6.

       CCO Haber conducted a partial custody hearing on May 23, 2014, at

which Mother, Grandmother, T.H. and D.H.1 testified.4                  CCO Haber

subsequently issued a report, setting forth forty-three findings of fact, as

follows:
____________________________________________


3
    The certified record does not indicate if the conference was held.
4
  The certified record does not include notes of testimony from the May 23,
2014 partial custody hearing. Moreover, Grandparents did not attempt to
comply with our appellate rules by preparing “a statement of the evidence or
proceedings from the best available means, including [their] recollection.”
Pa.R.A.P. 1923. See In re G.T., 897 A.2d 1197, 1199 (Pa. 2006) (citing
Commonwealth v. Williams, 715 A.2d 1101, 1106 (Pa. 1998)) (holding
that rules of appellate procedure require appellant to provide complete
record on appeal, including requesting transcription of testimony germane to
appeal). However, as discussed above, even absent the missing transcript,
the evidence contained in the record supports the trial court’s conclusion.



                                           -2-
J-A13021-15


     1.   [Grandparents] live on Blackdog Hollow Road in Clarksville,
          PA.

     2.   Father live[s] two doors away from [Grandparents] on
          Blackdog Hollow Road in Clarksville, PA.

     3.   Prior to the Order of December 3, 2013, [Grandparents] last
          saw [the Children] in January, 2013.

     4.   Mother and Father lived with [Grandparents] for two years
          when [T.H.] was a baby.

     5.   Mother and Father lived two doors away from them on
          Blackdog Hollow Road in Clarksville, PA. until they separated
          in 2009.

     6.   [Grandparents]    saw   the   [Children]   when   Father   had
          custody.

     7.   On November 5, 2012 a PFA was entered against Father for
          threatening [M]other at 2012-7106.

     8.   Criminal charges were levied against Father for an
          altercation with his oldest son. Charges were also levied
          against [T.H.].

     9.   The Court signed an Order for special relief limiting Father to
          supervised visitation on December 28, 2012.

     10. [Grandparents] permitted Father to have custody during a
         visit in January, 2013 contrary to the December 28, 201[2]
         Court Order.

     11. [Grandmother] claimed she did [not] understand why her
         visits were terminated after this incident.

     12. Mother testified she told [Grandmother] that Father’s
         contact was limited by Court Order.

     13. [Grandparents] appeared at the District Justice office to
         testify on Father’s behalf regarding the altercation with his
         oldest son.




                                    -3-
J-A13021-15


     14. [Grandmother] testified that she doesn’t believe that Father
         abused Mother or the [C]hildren.

     15. Grandmother also testified that she knows the [C]hildren
         are in counseling but believes that Mother is as much to
         blame for their mental health problems as Father.

     16. Grandmother also testified that she told the [C]hildren that
         it is Mother’s fault that the [C]hildren have no family as she
         was cheating on Father.

     17. Grandmother admitted that she approached the younger
         children at school and told them that she was going to get
         custody of them.

     18. Grandmother testified that [T.H.] had changed and no
         longer wants to talk to them.

     19. Grandmother testified that the [C]hildren want to see their
         Father and she had [K.H.] write a letter to her Father while
         at [G]randmother’s home.

     20. Grandmother testified that she did not believe [G]randfather
         hit [D.H.1] during the last visit.

     21. [Grandfather] was present [at the hearing] but did not
         testify.

     22. [T.H.] age 16 testified he did not have a relationship with
         his grandparents.

     23. [T.H.] testified that he was concerned about the safety of
         his younger siblings while visiting [Grandparents] because
         his Father lived nearby and that Grandfather had hit [D.H.1]
         during the last visit.

     24. [T.H.] testified that [G]randmother told him that his Mom
         cheated on his Father and was too [sic] blame for the
         marriage ending.

     25. [T.H.] testified that the Grandparents just want to see them
         on holidays to save face with the extended family.




                                   -4-
J-A13021-15


     26. [D.H.1], age 10 testified that his father had grabbed him
         and that he was afraid of his Father.

     27. [D.H.1] testified that he was afraid of his grandfather. His
         grandfather had hit him on the last visit because he got the
         quad dirty.

     28. [D.H.1] testified that his grandparents do not like his
         Mother.

     29. [D.H.1] testified his grandmother told him that he should
         live with them.

     30. [D.H.1] testified that he did not feel safe at his
         grandparents[’ house]. He would see them if a police officer
         supervised the visits.

     31. [D.H.1] enjoys     seeing   his   cousins   during   visits   with
         [G]randparents.

     32. [Mother] testified that she was abused by Father through
         out [sic] their marriage.

     33. Mother testified that after they separated Father started to
         abuse [T.H.] during visits.

     34. When [T.H.] stopped seeing his Father, Father became
         abusive toward [D.H.1].

     35. Mother informed Grandmother of the abuse but
         [Grandmother] told her that [the] men [in the family] do
         this.

     36. Mother feels there is [a] culture of abuse in the [H.] family.

     37. Mother testified that the [C]hildren are very antsy before
         any visits with [G]randparents.

     38. [T.H.] is on medication for stress and anxiety.

     39. The [C]hildren attend therapy.

     40. The younger children were very upset when Grandmother
         approached them and told them they were going with her.

                                     -5-
J-A13021-15


      41. [Mother] indicates that [G]randparents did not have a
          relationship with the [C]hildren independent of the parents.
          They did not babysit.

      42. [Mother] did not hear from [G]randparents from January
          2013 to July 2013.

      43. Mother feels that [G]randparents’ partial custody should be
          suspended so the [C]hildren can heal.

Report and Recommendation, 6/5/14, at 2–4. CCO Haber recommended no

partial physical custody by Grandparents. Id. at 4.

      Relying on CCO Haber’s Report and Recommendation, the trial court

entered an order suspending Grandparents’ visitation and denying their

complaint for partial custody, subject to exceptions being filed within twenty

days. Order, 6/5/14, at ¶¶ 4–6. Grandparents filed exceptions on June 23,

2014, and a brief in support; Wife filed a brief in opposition. “On October

17, 2014, after oral argument, a review of the Report and Recommendation

of CCCO Haber, and a review of the parties’ briefs and pertinent case law,”

the trial court denied the exceptions, thereby finalizing its June 5, 2014

order. Trial Court Opinion, 12/9/14, at 2–3. Grandparents filed the instant

appeal on November 17, 2014. Grandparents and the trial court complied

with Pa.R.A.P. 1925.

      On appeal, Grandparents state the following questions for review:

      1. Whether the trial court erred as a matter of law by utilizing a
         repealed statute — 23 Pa. C.S.A. § 5312 — in forming the
         legal basis of its Order, and therefore failed to consider the
         requisite factors set forth in § 5328(a) and (c)?




                                    -6-
J-A13021-15


       2. Whether the trial court erred by concluding that granting
          [Grandparents’] Petition for partial physical custody was not
          in the Children’s best interest?

       3. Whether the trial court erred by failing to consider the
          previous and established relationship between [Grandparents]
          and the Children, as required by 23 Pa. C.S.A. §5328(c)(1)(i).

       4. Whether the trial court erred as a matter of law by
          considering matters or factual allegations beyond the scope of
          the factors set forth in 23 Pa. C.S.A. 5328; specifically, the
          trial court considered the alleged conduct of the Children’s
          Father/Appellee when determining whether to grant
          [Grandparents] partial physical custody of the Children and
          whether the same was in Children’s best interest?

       5. Whether the trial court erred in concluding that
          [Grandparents] would interfere with the parent-child
          relationship as a result of a perceived animus by
          [Grandparents] against Appellee/Mother?

       6. Whether the trial court’s conclusion that [Grandparents]
          intended to reintroduce Children to Appellee/Father, was
          against the weight of the evidence?

Grandparents’ Brief at 21–22 (reformatted to single space).5

       We apply the following standards when reviewing a custody decision:

       Our standard of review over a custody order is for a gross abuse
       of discretion.   If a trial court, in reaching its conclusion,
____________________________________________


5
     Question 5 appears in Grandparents’ Pa.R.A.P. 1925(b) statement of
errors as issue number 6. Question 6 appears in Grandparents’ Pa.R.A.P.
1925(b) statement of errors as issue number 5. Moreover, Grandparents’
Pa.R.A.P. 1925(b) statement included two additional issues.           Issue 7
challenged the trial court’s denial of “any periods of custody with Children.”
Pa.R.A.P. 1925(b) Statement, 12/1/14, at ¶ 7. Issue 8 challenged the trial
court’s failure to use “less harsh means . . . while still addressing the two
concerns of the [c]ourt.” Id. at ¶ 8. Grandparents have abandoned these
two issues on appeal. Grandparents’ Brief at 21–22.




                                           -7-
J-A13021-15


       overrides or misapplies the law or exercises judgment which is
       manifestly unreasonable, or reaches a conclusion that is the
       result of partiality, prejudice, bias or ill will as shown by the
       evidence of record, then discretion is abused. Our scope of
       review over custody disputes is broad; this Court is not bound by
       the deductions and inferences the trial court derives from its
       findings of fact, nor must we accept the trial court’s findings of
       fact when these findings are not supported by competent
       evidence of record. Our paramount concern in child custody
       matters is the best interests of the children.

L.A.L. v. V.D., 72 A.3d 690, 692 (Pa. Super. 2013) (quoting Yates v.

Yates, 963 A.2d 535, 539 (Pa. Super. 2008) (citations omitted)).

       A grandparent’s right to partial physical custody is governed by two

statutes, 23 Pa.C.S. § 5325 (standing)6 and 23 Pa.C.S. § 5328(c) (factors).

Where custody or visitation is concerned, “our paramount concern is that the

disposition of the matter reflects what is in the best interests of the child.”

Tripathi v. Tripathi, 787 A.2d 436, 439 (Pa. Super. 2001) (citation

omitted).    This is equally true in cases involving grandparents’ rights to

visitation or custody.        We have emphasized, “[I]t is the grandparents’

burden to demonstrate partial custody or visitation is in the best interest of

the children and will not interfere with the parent-child relationship.”

Fausey v. Hiller, 851 A.2d 193, 196 (Pa. Super. 2004).



____________________________________________


6
  Although Grandparents’ standing was not an issue in this case, the trial
court determined that they have standing to seek partial physical custody
under 23 Pa.C.S. § 5325(2) because the parents had been separated for
more than six months, since 2009. Trial Court Opinion, 12/9/14, at 3.



                                           -8-
J-A13021-15


     Upon review of the parties’ briefs, the certified record, and the

relevant case law, we conclude that the thorough, well-reasoned Pa.R.A.P.

1925(a)   opinion   of   the   Honorable   Valarie   Costanzo   completely   and

accurately disposes of the issues Grandparents raise in this appeal.         We,

therefore, affirm the trial court’s order denying Grandparents’ exceptions on

the basis of its December 9, 2014 opinion.       The parties are instructed to

attach a copy of that opinion to this memorandum in the event of future

proceedings.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015




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                                                                                                                               j
    IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
                               CIVIL DIVISION



    B.H. and D.H.,                                              )
                                                                )
                     Appellants,                                )
                                                                )        Nos.     2013-5533
           v.                                                  )                  1907 WDA 2014
                                                               )                                                        -n
                                                                                                                        1-·-
                                                                                                                        t
    U.K.H. and B.W.H.,                                         )
                                                                                                                        fTl
                                                               )
                     Appellees.                                )

                              OPINION PURSUANT TO Pa.R.A.P. 1925(a)

          This matter comes before the Court upon B.H. and D.H.'s appeal to the Superior Court

from an order of this Trial Court dated October 17, 2014 (hereinafter referred to as "Order"). The

Order denied a number of Exceptions raised by the Appellants to a partial physical custody

Recommendation and Report. The Appellants filed an appeal of the Order to the Superior Court

on or about November 17, 2014. Thereafter, on November 18, 2014, this Trial Court directed

the Appellants to file a Concise Statement of Errors complained of on appeal pursuant to Pa.

R.A.P. l 925(b).1 On or about November 26, 2014, Appellant filed a concise statement, which

includes eight matters complained of on appeal. The Trial Court will address the issues below.

                                        PROCEDURAL HISTORY

          On September 10, 2013, B.H. and D.H. (hereinafter referred to as "Appellants") filed a

Complaint for Partial Custody ofU.K.H. and B.W.H.'s three minor children, T.H.,._




1
  As this is a custody matter, Appellant was required to file a concise statement of errors complained of on appeal
simultaneously with the notice of appeal. Pa.R.A.P. 905(a)(2). Because Appellants failed to do so, the Trial Court
issued the above-referenced order.
                                                                                                    Circulated 06/03/2015 11:07 AM




._..), age 17, D.H.1,2                               ••        age 10 and K.H.,                    •••age              9.

    U.K.H., the children's mother, has sole legal and primary physical custody of the children

pursuant to a custody order dated February 22, 2013 at docket number 2012-6253. Under that

order, B.W.H., the father of the children, was granted supervised partial custody of the three

minors on the condition that he completed anger management classes as well as a drug and

alcohol evaluation.

           On January 21, 2014, Appellee U.K.H. filed a petition to involuntarily terminate

B. W .H. 's parental rights to the three children that are the subject of the instant appeal. On June

30, 2014, a hearing was held on the petition before the Honorable Judge Katherine Emery. On

July 31, 2014, Judge Emery issued an opinion and order that granted U.K.H. 's petition.

Accordingly, B.W.H.'s parental rights to the three children, T.H., D.H.1, and K.H. were

terminated.

           On March 11, 2014, a custody conciliation meeting was scheduled before Custody

Conference Officer L. Dawn Haber (hereinafter referred to as "CCCO Haber.") Every party but

B.W.H. attended that meeting. Thereafter, on May 23, 2014, every party but father B.W.H.

attended a two hour partial custody hearing before CCCO Haber, at which testimony was taken.

On June 3, 2014, after a review ofCCCO Haber's Report and Recommendation, and pursuant to

Rule 1915-4-2(b) and Washington County Local Rule 1915.31, the Trial Court issued an order

denying Appellants petition for partial physical custody.

          On or about June 23, 2014, Appellants filed a number of Exceptions to CCCo+{ffber,Js

Report and Recommendation.           Appellant filed a brief in support of its Exceptions, and Appellee

U.K.H. filed a brief in opposition to the Exceptions. On October 17, 2014, after oral argument, a

2
  Appellant D.H. and child D.H have the same initials. For purposes of clarity, the child with the initials D.H. who
is ten years old, will be referred to as D.H. I throughout this opinion. The Appellant will be referred to as D.H.


                                                          2
                                                                                      Circulated 06/03/2015 11:07 AM




 review of the Report and Recommendation of CCCO Haber, and a review of the parties' briefs



                               .
 and pertinent case law, the Trial Court denied Appellants Exceptions.
          -,..
-. Appellants now seek to appeal.
                                    '

                                                         s.,   ~ ••
                                                                          It is this order that



                                                 OPINION

        Appellants have filed eight matters complained of on appeal. For purposes of clarity, the

 Trial Court has condensed these matters where appropriate.

        1. Whether CCCO Haber and the Trial Court erred by relying on 23 Pa.C.S.A. § 5312,
           which was repealed on November 23, 2010.

        Appellants first argue that CCCO Haber and the Trial Court erred by relying on Section

5312, which was repealed by the General Assembly in 2010. Appellants' argument is based

upon a minor typographical error, and therefore lacks any merit.                In Pennsylvania, a

grandparent's right to partial physical custody is primarily governed by two statutes, 23

Pa.C.S.A. § 5325 and 23 Pa C.S.A. § 5328(c). Under Section 5325, grandparents are able to

petition the court for custody in three situations. Because standing is not an issue raised in this

appeal, nor was it raised before this Court, for purposes of this appeal the Trial Court will

assume Appellants have met the standing requirements set forth in Section 5325. Based on the

pleadings and oral argument, Appellants have standing to file for partial custody of the children

under Section 5325(2) which permits grandparents to file for custody 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."

        In ordering partial physical custody to grandparents who meet the standing requirements

described above, Section 5328(c) requires the Trial Court to consider the following factors:

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



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                (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.A. § 5328(c)(l)(i)-(iii).   In the instant matter, the Report and Recommendation clearly

reflects that CCCO Haber considered these three factors. For example, paragraphs 4, 5, 6, 41,

and 42 describe the amount of contact the children had with the Appellants prior to the filing of

this action for partial custody. Paragraphs 14, 15, 16, 17, 20, 24, 28, 29, and 40 contain findings

from the testimony before CCCO Haber that touch upon whether an award of custody would

interfere with U.K.H.'s relationship with her three children. Lastly, paragraphs 10, 13, 14, 16,

17, 18, 20, 22, 23, 24, 27, 28, 30, 35, 37, 38, 39 and 40 include findings that pertain to whether a

grant of partial physical custody to Appellants would be in the best interests of the three children.

        Appellants appear to hang their argument on the fact that CCCO Haber's report cites to

Section 5312. The language of repealed Section 5312, which was entitled, "When parents'

marriage is dissolved or parents are separated", stated the following:

               In all proceedings for dissolution, subsequent to the
               commencement of the proceeding and continuing thereafter or
               when parents have been separated for six months or more, the
               court may, upon application of the parent or grandparent of a party,
               grant reasonable partial custody or visitation rights, or both, to the
               unmarried child if it finds that visitation rights or partial custody,
               or both, would be in the best interest of the child and would not
               interfere with the parent-child relationship. The court shall
               consider the amount of personal contact between the parents or
               grandparents of the party and the child prior to the application.

23 Pa.C.S.A § 5312. The language of this repealed statute is identical in meaning to the

language set forth in Section 5328( c). Assuming CCCO Haber did rely upon Section 5312,

instead of Section 5328( c ), the requirements contained in both statutes are identical in meaning.

       Regardless, this Trial Court assessed the Appellants exceptions according to Section

5328(c) and determined that based upon the three factors it was not in the best interests of the

                                                  4
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three children for Appellants to be granted partial physical custody. As a result, Appellants

claim lacks any merit.

        2. Whether CCCO Haber and the Trial Court erred by determining that granting
           Appellants' petition for partial physical custody of the children would not serve the
           best interests of the three children.

        3. Whether CCCO Haber and the Trial Court erred by failing to consider the previously
           established relationship between the Appellants and the children as required by 23
           Pa.C.S.A. § 5328(c)(l)(i).

        4. Whether CCCO Haber and the Trial Court erred by finding that Appellants have an
           animus against the children's mother, U.K.H., and that such animus would interfere
           in the relationship between the children and their mother.

        5. Whether CCCO Haber and the Trial Court erred by denying Appellants any periods
           of custody with the children.


        As described above, Section 5328(c) requires the Trial Court to consider the three

following factors when order partial physical custody to a grandparent:

                (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.A. § 5328(c)(l)(i)-(iii).   This Trial Court is well aware that "Whether the matter

concerns custody or visitation, [its] paramount concern is the best interest of the child. McMillen

v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (Pa. 1992). 'This is equally true in cases

involving whether grandparent visitation rights should be awarded." Norris v. Teamey, 422 Pa.

Super. 246, 248, 619 A.2d 339, 340 (Pa. Super. 1993).

        In the instant matter, CCCO's Haber Report and Recommendation addressed each factor

set forth in Section 5 3 28( c) and determined that after a hearing, where testimony was taken from

U.K.H., Appellant B.H., children T.H. and D.H.l, it was not in the best interests of the children



                                                   5
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 for the Appellants to have partial physical custody. During oral argument before this Court,

Appellants' attorney had the opportunity to argue why granting Appellants partial custody would

be in the children's best interests. After a review of the record, CCCO Haber's Report and

Recommendation, and the factors set forth in Section 5328(c), the Trial Court determined that

partial custody between Appellants and the children would not serve their best interests.

           Factor (i) requires this Court to inquire into the amount of personal contact between

Appellants and the three children before Appellants filed the instant custody action. Appellants

filed their custody complaint on September 9, 2013. The Appellees had lived with the

Appellants when their oldest child, T.H. was a baby. Thereafter, Appellees lived two houses

away from Appellants until the Appellees separated sometime in 2009. On December 3, 2013

the Honorable Judge Gary Gilman entered an order granting Appellants five hours of custody

time with the children. Prior to that order, the last time Appellants had seen the children was in

January of 2013. The reason for the lapse in visitation with the children is because Appellants

had permitted their son, Appellee B.W.H., to visit with the children in clear violation of the

Appellees' custody order, dated December 28, 2012 at docket number 2012-6253.

        T.H. testified that he does not have a relationship with his grandparents. The children's

mother, Appellee U.K.H., testified that the Appellants never had a relationship with the children

independent of the Appellees. She also stated that she did not hear from the Appellants from

January 2013 through July 2013.

       Based on the above testimony, the Trial Court determined that Appellants and the

children did not have much personal contact prior to the Appellants filing an action for partial

custody.




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         Factor (ii) requires the Trial Court to consider whether an award of custody to

 grandparents would interfere with any parent-child relationship. During the partial custody

 hearing before CCCO Haber, many of the witnesses testified to an event wherein T.H. alleged

 that his father, Appellee B.W.H., had hit him. Appellant B.H. testified that she did not believe

 that B.W.H. ever hit his son T.H. In addition, Appellant B.H. stated that both she and her

 husband, D.H., had testified against T.H. and on behalf of B.W.H. at a magisterial district judge

 he~ing concerning the alleged altercation.

        Appellant B.H. also stated that she had told the children that it was the children's

mothers' fault, Appellee U.K.H., that the children have no family because she cheated on their

father, Appellee B.W.H. Furthermore, T.H. testified that his grandmother, Appellant B.H., told

him that his mother cheated on his father and that it was her fault that the marriage ended. B.H.

also testified that she approached the younger children at school and told them that she was

going to get custody of them. D .H. l testified that his grandmother told him that he should live

with the Appellants. This Court cannot fathom why B.H., the children's grandmother, would

relay such messages to the children. B.H.' s conduct in this regard is clearly detrimental to the

children and inapposite to their best interests.

        Based on the testimony presented at the partial custody hearing, this Trial Court

determined that an award of partial custody to Appellants would interfere with the parent-child

relationship that Appellee U.K.H. currently enjoys with her children. Based on the testimony

presented, the Court believes that Appellant B.H. would make more harmful disparaging remarks

about the children's mother to the children if she were granted partial custody.

       Factor (iii) requires this Court to determine whether an order of partial custody to

Appellants would be in the children's best interests. During the hearing, several of the witnesses



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    testified to an event where Appellee B.W.H. and his son T.H. got into a physical altercation.

    Afterwards, both were criminally charged. During a hearing before a magisterial district judge,

    Appellants testified on B.W.H.'s behalf and against T.H.

             As noted previously, B.H. admitted that she told the children she was going to get

    custody of them and that their parents' divorce was a result of their mother's infidelity. T.H.

    stated that he had no relationship with Appellants. T.H. testified that he would fear for the safety

    of his younger siblings if they were left in Appellants' care.

             D.H.1, who is ten years old, testified that his grandfather, Appellant D.H., had hit him

    during their last visit because he had "got the quad dirty." D.H.l further stated that he did not

    feel safe at the Appellants' home, but that he would feel comfortable during visits with

    Appellants if the police were present.'          The children's mother, Appellee U.K.H., testified that all

    of the children appear anxious before visits with Appellants, and that T.H. is currently on

medication for stress and anxiety. U.K.H. also stated that the children became very upset when

Appellant B.H. told the younger children during school that she was going to get custody of

them.

            Based on these facts, the Trial Court determined that it was not in the best interests of the

children for Appellants to be granted partial physical custody. However, based on the testimony

presented, the Trial Court determined that at the current time, partial physical custody would

serve more as a detriment to the children, than a benefit, and consequently is not in their best

interest.

            In accordance with Section 5328(c) this Trial Court considered (i) the amount of personal

contact between Appellants and the children; (ii) whether the award would interfere with

Appellees and the children's relationship; and (iii) whether the award of custody would be in the

3
    K.H., the youngest child in this matter, did not testify.

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 best interests of the children. Based on these factors as well as the testimony and evidence

presented, the Trial Court determined that it was not in the children's best interests for

Appellants to be granted partial physical custody. As a result, Appellants appeal should be

dismissed.

        Appellants further argue that the Trial Court failed to consider the previously established

relationship between Appellants and the children. The CCCO Haber's Report and

Recommendation clearly addresses the amount of "personal contact between the child and the

party prior to filing the action." During oral argument before the Trial Court, Appellants'

attorney addressed the Appellants' connection with the three children. The Trial Court

considered the Appellants established relationship with the children, as described in CCCO

Haber's Report and Recommendation, detailed in Appellants' brief and presented at oral

argument. Because the Trial Court considered this relationship in making its determination,

Appellants argument is meritless and should be denied.

        Appellants also assert that both CCCO Haber and the Trial Court erred by "finding" that

Appellant B.H. has an animus against the children's mother, Appellee U.K.H. First, the Trial

Court never made such a finding. Second, CCCO Haber's Report and Recommendation never

refers to Appellant B.H. as harboring an animus against Appellee U.K.H. The Report and

Recommendation does contain findings consistent with the testimony of the witnesses, wherein

Appellant B.H. admitted to making negative remarks about U.K.H. to her children, which are

described in the preceding paragraphs.   Because there was never a :finding of animus, Appellants

assertion is baseless and should be dismissed.


       6. Whether CCCO Haber and the Trial Court erred by considering factual matters
          outside the scope of 23 Pa.C.S.A. § 5328(c).



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         Appellant also argues that CCCO Haber and the Trial Court erred by considering factual

 matters that are not required by Section 5328. Appellants argue that the Trial Court should not

 have considered the conduct of the children's father, Appellee B.W.H., in analyzing whether

 partial custody was in the best interest of the three children. The Trial Court did not directly

 consider the conduct of the children's father, as his custody matter was not before the Court.

 Rather, the Trial Court considered the Appellants' relationship and conduct towards the children,

 which in some instances did tangentially involve father, Appellee B.W.H.

        For instance, the Trial Court did consider the fact that the Appellants testified on behalf

of their son B.W.H. and against their grandson T.H. at a criminal proceeding. In making its

custody determination, the Trial Court also found it relevant that Appellant B.H. permitted

Appellee B.W.H. to visit with the children, in spite of a court order that stated B.W.H. was not

permitted to have supervised physical custody of the children until he satisfied certain

conditions. Clearly, any consideration the Trial Court gave to father's conduct was de minimus

and did not factor into its decision to deny Appellants petition for partial physical custody.

        Although the Trial Court submits that it did not rely on the conduct of father in denying

Appellants petition, it must address Appellants' argument that a trial court may only consider the

factors set forth in 23 Pa.C.S.A. § 5328(c) in making a custody determination, a position that is

clearly at odds with the statute. As our Supreme Court has explained, "[the] paramount concern

in child custody cases is the best interest[s] of the child[ren]." McMillen, 602 A.2d at 846. The

paragraph of Section 5328 that addresses the custodial rights of grandparents and great-

grandparents states, "(I) 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 courtshall consider the following ... " 23



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 Pa.C.S.A. 5328(c)(l) (emphasis added). Appellants appear to advocate that a trial court is

 constrained by this language and may only ever consider these three factors where determining

 whether a grandparent may have partial physical custody of their grandchildren. However, the

 statute does not require that trial courts only consider the three factors, but that triers of fact

 specifically consider the three specifically contained within subsection (c).

        Appellants' interpretation of Section 5328(c) contradicts the spirit of the child custody

statute, which requires the trial court to determine the best interest of the children. If the

legislature had intended to limit the factual information a trial court could consider in making a

best interest .determination, the statute would have included restrictive language.


        7. Whether CCCO Haber and the Trial Court erred by concluding that the Appellants
           intended to reintroduce the children to their father, B.W.H.

        Appellants next assert that CCCO Haber and the Trial Court erred by finding that the

Appellants seek to reintroduce the children to their father, Appellee B.W.H. The Superior

Court's standard of review for factual matters is as follows:

                In reviewing a custody order, our scope and standard of review are
                well established. [O]ur 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.

Collins v. Collins. 897 A.2d 466, 471 (Pa. Super. 2006).




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        During the partial custody hearing, Appellant B.H. admitted that she permitted her son,

Appellee B.W.H., to visit with the children despite the fact that a court order stated he was not

permitted to visit with his children unless he underwent a drug and alcohol evaluation and

completed anger management. B.H. further stated that she did not understand why her custody

visits with the children were terminated following that incident. Appellant B.H. further stated

that the children wish to see their father, and that when K.H. was in her custody, B.H. had K.H.

wrote a letter to her father, B.W.H.

        T.H. and D.H.l both clearly testified that they are afraid of their father. Both stated that

they fear being at Appellants' home because their father lives a couple of houses down the street.

The actions of Appellant B.H. demonstrate to this Trial Court that she seeks to reintroduce the

children to her son, despite the fact that there is a court order in place which prohibits Appellee

B.W.H. from physical custody of the children unless he satisfies the conditions described above.

Because the evidence and testimony presented at the partial custody hearing establish that B.H.

has sought to reintroduce the children to their father, Appellants claim is simply meritless.

                                          CONCLUSION

   For the reasons set forth above, the Trial Court respectfully submits that the order of the Trial

Court dated October 17, 2014 should be affirmed and Appellants' appeal dismissed.




DATE:                                                 BY THE COURT:




                                                      Valarie Costanzo




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