J-S22029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.M.J.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                   Appellee

                         v.

N.L.J.,

                   Appellant                    No. 1742 WDA 2014


             Appeal from the Order entered September 24, 2014,
              in the Court of Common Pleas of Venango County,
                       Civil Division, at No(s): 17-2014

BEFORE: PANELLA, LAZARUS, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 03, 2015

        N.L.J. (Mother) appeals from the order entered September 24, 2014,

in the Court of Common Pleas of Venango County, which awarded primary

physical custody and shared legal custody of the parties’ minor son, K.M.J.

(Child), to C.M.J. (Father). We affirm.

        Some background about the parties to the instant appeal is necessary.

The certified record reveals the following facts. Mother is originally from New

Jersey and moved to Western Pennsylvania to attend college. Mother and

Father met and began dating while Mother attended Clarion University. They

never married, although they did cohabitate. Child was born in February of

2013.




* Retired Senior Judge specially assigned to the Superior Court.
J-S22029-15


      Prior to and after Child’s birth, the relationship of the parties was

tumultuous and, occasionally, violent. The couple’s issues primarily focused

on finances. Although Mother informed her extended family (residing in New

Jersey) that she was frequently abused by Father, no police record of those

assaults exists.

      Both parties have sporadic work histories; Mother’s due to her college

schedule and criminal convictions and Father’s due, in part, to his mild

seizure disorder, a consequence of which is his self-imposed abstention from

driving a vehicle.1

      In November of 2013, Mother was incarcerated as part of a sentence

imposed following a 2011 conviction for driving under the influence of

alcohol (DUI). During her 45-day period of incarceration, Father exercised

sole custody of Child. Mother was released on or about December 30, 2013,

and returned to the parties’ home.    A few days later, in January of 2014,

Mother reported Father to Venango County Children and Youth Services

(CYS), alleging that Father had abused and neglected Child while Mother was

incarcerated.      These allegations stemmed from information provided to

Mother by Maternal Grandmother, who had communicated with Father




1
  At the time of the custody hearing, Mother was on parole and participating
in a work ready program with the Venango County Assistance Office and
Father was working at a Kwik-fill station near his parents’ home.

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electronically via Skype2 during Mother’s incarceration and suspected Father

had neglected Child.3   Although the allegations of abuse were ultimately

unfounded, Mother’s report to CYS prompted Father to leave the couple’s

home and move in with his parents in Mercer County, 45 minutes away.

     On January 8, 2014, Father filed a complaint for custody, in which he

requested primary physical and legal custody of Child. A custody trial was

held on July 7, 2014, and July 9, 2014. On September 24, 2014, the trial

court entered its order awarding Father primary physical custody, awarding

Mother partial physical custody every other weekend from 7:00 p.m. on

Friday until 7:00 p.m. on Sunday, and awarding both parents shared legal

custody.4 Mother timely filed a notice of appeal. However, Mother failed to

file concomitantly a concise statement of errors complained of on appeal




2
  Skype is a free internet-based program that allows individuals to video
conference from a home computer.
3
  Specifically, Maternal Grandmother contended that Father had confined
Child alone for long periods of time in a cold, empty room using baby gates
and a comforter to block doorways.          N.T., 7/7/2014, at 54, 57-58.
Additionally, Maternal Grandmother claimed that Child was violent and
animalistic while Mother was away. Id. at 53-57.
4
  On October 1, 2014, Mother filed a motion to vacate opinion and order, in
which she indicated that the subject order would need to be distributed to
third parties, and that the opinion portion of the order will “unnecessarily
demean [Mother]’s character.”       Motion to Vacate Opinion and Order,
10/1/2014, at 1 (unnumbered pages). As a result, the trial court issued a
truncated version of its order on October 16, 2014, which did not include the
opinion portion.


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pursuant to Pa.R.A.P. 1925(a)(2)(i).     On October 22, 2014, the trial court

ordered Mother to file a concise statement, and Mother timely complied.5

      Mother now raises the following issues for our review.

      1. Did the [trial c]ourt err in that the record will not support the
      court’s conclusions in the sixteen (16) factors as required by 23
      Pa. C.S.[] §[]5328?

      2. Did the [trial c]ourt err in balancing the sixteen (16) factors in
      determining the best interest of the child that [Father] have
      primary custody of the child?

Mother’s Brief at 14.6

      We address Mother’s claims mindful of our well-settled standard of

review.

      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

5
  Father has not objected or claimed any prejudice as a result of Mother’s
failure to file a concise statement until ordered to do so by the trial court.
Thus, we have accepted Mother’s statement in reliance on our decision in In
re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that a mother’s
failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver
of her claims, as there was no prejudice to any party). Cf. J.P. v. S.P., 991
A.2d 904, 908 (Pa. Super. 2010) (stating that an appellant waived her
issues on appeal when she failed to file a concise statement with her notice
of appeal, and then also failed to comply with the trial court’s order to file
concise statement within 21 days).
6
  We note that Mother has not divided her argument into as many parts as
there are questions to be argued, in violation of Pa.R.A.P. 2119(a).
However, we decline to quash as this error does not prevent us from
reviewing her claims.
                                      -4-
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     deductions or inferences from its factual findings. Ultimately,
     the test is whether the trial court’s conclusions are unreasonable
     as shown by the evidence of record.            We may reject the
     conclusions of the trial court only if they involve an error of law,
     or are unreasonable in light of the sustainable findings of the
     trial court.

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

     “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 (Pa. Super. 2014)

(citation omitted). The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S.A. § 5328(a).

     (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) (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.

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

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

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

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

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

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

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

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

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

     (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

     Instantly, in its September 24, 2014 Findings and Order, the trial court

analyzed each of the factors listed supra, and concluded that all of the

relevant factors weighed in favor of Father, while none of the factors




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J-S22029-15


weighed in the favor of Mother.7     We address each of Mother’s arguments

with respect to the trial court’s conclusions in turn.

      With respect to Sections 5328(a)(1), (8), and (13), Mother contends

that the trial court erred by finding that Father is more likely than Mother to

encourage and permit frequent and continuing contact between the child and

the other parent, that the trial court erred by concluding that Mother “would

attempt to turn the child against [Father] if she had any significant periods

of custody,” and that the trial court erred by concluding that “‘[Father] has

made attempts to cooperate and work with [Mother] despite the level of

conflict that exists.’” Mother’s Brief at 18-19, 22-23, 26-27. Mother asserts

that the court’s findings are not supported by the evidence. Id. at 19, 22-

23.    Mother contends that Father is uncooperative and refuses to

communicate with her, and that Father’s mother (Paternal Grandmother) is

hostile toward her and has threatened to kill her. Id. at 19, 23, 26. Mother

cites as proof of Father’s unwillingness to cooperate in co-parenting Child (1)

the emergency petition for special relief she filed on May 14, 2014 after

Father refused her permission to take Child to New Jersey over a weekend in

June to attend a family wedding because the proposed visit fell during a



7
  Effective January 1, 2014, the Child Custody Act was amended to include
Section 5328(a)(2.1) (providing for consideration of child abuse and
involvement with child protective services).      The trial court did not
specifically consider Section 5328(a)(2.1) in its Findings and Order.
However, the court considered the involvement of child protective services in
this matter while addressing Section 5328(a)(15). Findings and Order,
9/24/2014, at 8.
                                       -7-
J-S22029-15


period of his designated custodial time, and (2) the petition for contempt

filed against Father in December of 2014, months after the custody trial took

place, in which she alleged Father denied her telephone access to Child on

six separate occasions. Id. at 18, 26-27.8

     After reviewing the record in this matter, we conclude that the trial

court’s findings are supported by the evidence.     During the custody trial,

Father testified that Mother has threatened to move back to her home state

of New Jersey and take Child with her.       N.T., 7/7/2014, at 102.    Father

further testified that this was why he opposed Mother’s taking Child to New

Jersey to attend the wedding.        Id. at 155.      Paternal Grandmother

corroborated Father’s testimony that Mother has threatened to not let Father

see Child anymore.    Id. at 28 (“[Father] was told she hoped he enjoyed

seeing [Child] because it was going to be the last time ….”).          Paternal

Grandmother testified that Mother does not make these threats during every

weekly custody exchange, “but it has been getting worse.” Id. Father and

his mother noted that Mother is sometimes hostile toward Father during

custody exchanges. Id. at 28-29, 102.

     Notably, the trial court also heard testimony that Mother does not

allow Father to have access to Child while Child is at daycare , nor did she

list Father as an emergency contact at the daycare. N.T., 7/9/2014, at 61-

62. Instead, she listed Maternal Grandmother, who resides in New Jersey.

8
  Although he was ordered to communicate with Mother daily, Father was
not held in contempt of the existing custody order. Trial Court Order,
2/5/2014.
                                    -8-
J-S22029-15


N.T., 7/9/2014, at 61-63. Moreover, as discussed in greater detail infra, the

court found that Mother has made false claims of abuse against her by

Father. Based on the foregoing, it was reasonable for the court to conclude

that Mother is unlikely to foster a relationship between Father and Child, and

that Mother will try to alienate Child from Father if given the opportunity.

No relief is due.

          With respect to Section 5328(a)(2), Mother argues that the trial court

erred by finding that Father had not physically abused her. Mother’s Brief at

19-21. Mother emphasizes the testimony of her mother and brother, as well

as her own testimony, that abuse had occurred. Id. at 20, 28-29.9

          Again, our review of the record reveals that Mother is not entitled to

relief.    Father repeatedly denied that he had abused Mother, and instead

testified that Mother would become physically aggressive toward him, and

that he called the police approximately nine times due to Mother’s physical

aggression.       N.T., 7/7/2014, at 112-13, 129.        Father’s claims were

corroborated by the former neighbor of Father and Mother, R.W., who

testified that she observed Mother throw part of “one of those little grills” at

Father, but that she never observed Father attack Mother. Id. at 78. While



9
  Maternal Grandmother and Mother’s Brother did not witness the abuse first
hand, but testified that Mother told them Father had caused her bruising and
injuries. N.T., 7/7/2014, at 62-68, 75. According to Maternal Grandmother,
she confronted Father about the abuse over Skype while Mother was
incarcerated, at which time Father admitted to “going too far” and
apologized. Id. at 71. Father denied this conversation occurred. Id,. at 112-
113.
                                        -9-
J-S22029-15


Mother and her family members claimed that Father committed acts of

abuse against Mother, the trial court was free to reject this testimony as

incredible, and we discern no abuse of discretion.10

      With respect to Sections 5328(4), (9), and (12), Mother contends that

the trial court erred by finding that Father “would be best suited for

stability,” and that Father is more likely to maintain a maintain a loving,

stable, consistent and nurturing relationship with the child adequate for the

child’s emotional needs. Mother’s Brief at 21-23. Mother contends that the

court erred by concluding that Mother had left Child in the care of possibly

dangerous individuals, when in fact it was Father who had done so. Id. at

21, 25-26. Mother also insists that she is a loving and attentive parent, and

that Father is financially irresponsible. Id. at 21-23.

      We conclude that there was ample testimony presented during the

hearing to support the trial court’s conclusion that Father is more stable than

Mother. Father testified that he requested primary custody of Child because


10
   In its Findings and Order, the trial court explained that some of Mother’s
abuse accusations “seemed extremely farfetched to the significant injuries
she claimed to have suffered without medical treatment.” Findings and
Order, 9/24/2014, at 4. It appears that the court was referring to the
testimony of Mother’s mother, who stated that Father took Mother’s hand
“and bent back until all the bones snapped and her hand was broken.” N.T.,
7/7/2014, at 64. According to mother’s Mother, the police “saw it broken
and swollen and everything,” but did nothing to assist Mother because “Oil
City police did not like getting involved in domestic abuse.” Id. at 65.
Reportedly, Mother did not seek medical treatment for this injury, because
she was afraid of Father. Id. at 66. In Mother’s account of this incident,
she stated that Father “[s]queezed my hand and just rolled it and my one
pinky bone snapped out ….” N.T., 7/9/2014, at 26.

                                     - 10 -
J-S22029-15


“I can give him more stability.” N.T., 7/7/2014, at 94. He explained that

Mother engages in aggressive behaviors, such as “yelling, screaming, [and]

hitting,” and that “I just don’t want my kid around that.”       Id.   While he

admits that he and Mother were evicted from their first apartment for failure

to pay rent, Father testified that he now works regular hours and lives with

his parents, who assist him by caring for Child while he is at work. Id. at

24, 89.

      By contrast, Mother has an erratic employment history. She testified

that she recently lost her job, and that she has signed up to do “community

service … for cash assistance” through the “[w]ork ready program with the

county assistance office.” Id. at 5, 16; N.T., 7/9/2014, at 7. As discussed

above, Mother’s criminal history plays a role in her inability to hold certain

jobs. N.T., 7/7/2014, at 13. However, the work ready program does provide

Mother with discounted daycare for Child. Nonetheless, we discern no error

in the trial court’s assessment that this factor weighs in favor of Father.

      Admittedly, Mother is correct that there was little, if any, evidence

presented during the custody trial that she has left Child in the care of

potentially dangerous individuals.11    Moreover, Mother expressed concern

during the trial that Father left Child in the care of a coworker whose last

name he did not know, and that Father had left Child in the care of a man


11
   There was testimony that Mother sometimes left Child in the care of a
man named D.S., also known as “Bear.” N.T., 7/7/2014, at 16, 84-85; N.T.,
7/9/2014, at 43. No explanation was given as to why this man was an
inappropriate influence on Child.
                                     - 11 -
J-S22029-15


with a dog which, according to Mother, previously had attacked a child.

N.T., 7/9/2014, at 34. However, it does not appear that the court’s concern

with Mother’s childcare choices played a critical role in its decision, and we

discern no basis upon which to reverse the court’s order.

      With respect to Section 5328(a)(5), the record reveals that father’s

extended family is local to the Mercer/Venango County area, while Mother’s

family continue to reside in New Jersey or Eastern Pennsylvania. With

respect to her extended family, Mother testified that once a year would be

“sufficient” for Child to visit New Jersey. However, Mother also testified that

her family had limited contact with Child, due to limtiations “set by [Father]

and the [Paternal Grandmother].”        Mother’s Brief at 22.    On this point,

Mother emphasizes the testimony of Maternal Grandmother, who stated that

Father at one point allowed communication between Child and Maternal

Grandmother via Skype, but that after “only a couple of times … [Father] no

longer agreed to this form of communication ….”             Id. This account is

disputed    by   Father   who   testified   that   he   accommodated   Maternal

Grandmother’s requests to Skype with Child “[m]aybe half dozen, dozen

times” during Mother’s incarceration, and that he never refused to Skype

with Maternal Grandmother when asked to do so. N.T., 7/7/2014, at 109-

11, 130-31. Again, the trial court was free to credit this testimony.       No

relief is due.

      With respect to Sections 5328(a)(14), Mother argues that the trial

court erred by finding that she is in denial of her substance abuse issues.

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J-S22029-15


Mother’s Brief at 27.   Mother notes that she “offered into evidence … the

Venango County Substance Abuse Program, Substance Abuse Treatment

Recommendation,” which “declares no treatment indicated for [Mother] ….”

Id.

        Contrary to the claim in Mother’s Brief, it does not appear that a

“Substance Abuse Treatment Recommendation” ever was offered as an

exhibit or entered into evidence at the custody trial.12 The trial court cannot

be faulted for failing to credit a piece of evidence that was not before it.

Moreover, even if this recommendation had been presented to the court, it

was not unreasonable for the court to conclude that Mother was being less

than forthright about her issues with substance abuse, as Mother’s

testimony with regard to her prior DUI charge in New York was both evasive

and confusing.13 For example, Mother initially testified that her only criminal

conviction was for a 2010 DUI in Pennsylvania. N.T., 7/7/2014, at 11. Then

she testified that she was convicted of disorderly conduct in New York in

2003. Id. Then Mother admitted that her 2010 DUI “was a second offense

DUI.”    Id.   However, she denied that she was convicted of her first DUI

charges in New York, and stated that the charges appeared “[o]n my driving



12
   Mother did testify that she underwent a substance abuse assessment in
2010, and that no treatment was recommended, but no exhibit was offered
to corroborate this testimony. N.T., 7/9/2014, at 28.
13
  As the trial court pointed out in its 1925(a) opinion, it was “very familiar”
with Mother’s criminal history, having handled her guilty plea and
subsequent appeal. Trial Court Opinion, 11/20/2014, at 2.
                                    - 13 -
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record but not my criminal record.” Id. Mother then stated that “[t]here’s

nothing on a criminal record in New York that has my name on it,” right

before she again indicated that she had been convicted of disorderly conduct

in New York. Id. at 12. We see no reason to reverse the trial court’s order.

      With respect to Sections 5328(a)(10), (15), and (16), Mother contends

that “absolutely no testimony or evidence exists to support the court’s claim

that [Mother] suffers from ‘some type of mental illness.’” Mother’s Brief at

23, 29-30.     Mother also insists that the court acted unreasonably by

expressing concern with regard to some of her parenting decisions. Id. at

23-25, 28.    Further, Mother asserts that she is “far more educated” than

Father, that Father has failed to take an active role in Child’s education, and

that Father has a history of leaving Child “segregated and trapped within a

playpen in a room that was very cold.” Id. at 24-25, 30. She argues that

the court acted unreasonably by not addressing Father’s epilepsy. Id. at 28.

      Continuously, the court emphasized that, “throughout the custody

trial, [Mother] exhibited clear signs of some type of mental disturbance,

significant enough that it caused great concern to this court in [Mother]

exercising any type of significant custodial time with the minor child.”

Findings and Order, 9/24/2014, at 5, 8, 11; see also Trial Court Opinion,

11/20/2014, at 2-3 (“Above all other factors to consider on this custody

[case], this [c]ourt specifically believes [Mother] has a very significant

mental health issue which would affect her ability to competently parent this

child.”). In its findings and order, as well as its 1925(a) opinion, the court

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explained its conclusion concerning Mother’s mental health by emphasizing,

inter alia, that Mother’s testimony was rambling and confused, and that

Mother at one point forgot what question she was answering.14 Findings and

Order, 9/24/2014, at 7; Trial Court Opinion, 11/20/2014, at 2-3. The record

amply supports the trial court’s findings.     For example, during Mother’s

testimony, she was asked about her trip to New Jersey with Child,

mentioned supra. Mother answered these questions as follows.

      Q. When you wanted to go to this event, what was the
      significance of it in your mind?

      A. I wouldn’t take [Child] down to New Jersey because his skull
      doesn’t fuse together until after one year so I waited until after--
      --

            [Father’s counsel]: Wait a minute, I didn’t hear that
            answer.

      A. His skull doesn’t fuse together until after one year.

            [Mother’s counsel]: Skull.

            [Father’s counsel]: Skull, thank you.

      Q. From a family perspective, was there some significance?

      A. (No response.)


14
   The trial court also expressed concern relative to Mother’s false claims of
abuse by Father, and Mother’s belief that children should not ride in cars
until they are a year old because their skulls have not fully been formed.
Findings and Order, 9/24/2014, at 7-8. The court further noted that Mother
refused to admit that she had a prior DUI conviction in New York, “contrary
to what this [c]ourt is familiar with” from sentencing Mother for her more
recent DUI, and that Mother “was so emphatic over this that this [c]ourt
determined that it was a fixed false belief, which by definition is a delusion.”
Trial Court Opinion, 11/20/2014, at 2.
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      Q. Was this occasion the first occasion, only occasion, to be able
      to meet some of these relatives, his extended family, that’s my
      question?

      A. This was the only occasion I was willing--- this wasn’t the first
      occasion that [Child] had met his relatives, the majority of us
      live on the East side of the United States. Some of them had
      come to visit me on the Western side of Pennsylvania, but I
      don’t like having [Child] in the car. I was in a bad accident and
      it makes me nervous and like I said his skull needed to be fused
      together, so I wouldn’t---I don’t like having [Child] in the car.

N.T., 7/9/2014, at 13-14.

      Shortly after this exchange, Mother provided a similarly disconnected

series of responses with regard to her level of cooperation with Father, and

with regard to Child’s daycare.

      Q. If [Father] would call you and say, hey our family’s doing this
      or doing that, we need a little extra time, would you be willing to
      give him extra time for those kinds of family things?

      A. I would love---I come from a family where I knew my great
      grandmother, so I know that family is very important and I
      actually chose the name, the middle name for [Child] myself to
      be [M.], because um, [Father] doesn’t know his father, he’s only
      met him one other time, his real dad, an[d] [Father] was raised
      with his grandparents. The grandfather’s name is [M.] and I
      thought that that was an incredible deed that he did to help his
      daughter raise her first child out of wedlock. To honor that, I
      had named [Child], [K.M.] and then [J.], after his adopted
      father.

      Q. Alright. The um---we talked just briefly before about your
      routine and whatnot. [Child’s] at [Child Development Center],
      which one?

      A. Oil City.

      Q. Okay, and um, do you have interaction with the staff there;
      do you talk to the staff?

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     A. Yes.

     Q. How often and what’s your take on how he’s doing and how
     they’re doing I suppose?

     A. Every time I drop [Child] off, I sit there for approximately
     fifteen minutes and some of the kids call me mom and um, I
     volunteer to help out there if they need some help.

Id. at 15-16.

     Most notably, Mother was asked about Father’s participation in caring

for Child during the time they were living together.   This resulted in the

following exchange.

     Q. … There was somewhat of an upsetting incident with regard
     to whenever you gave birth to [Child] at the hospital, was
     [Father] there?

     A. [Father] was there actually. We were getting into arguments
     over the money and I kept telling him, um, me and [Father] got
     into a fight and I went home with bruises on me while I was
     pregnant and I kept thinking about how I wanted my son to
     know who his dad was. So I went home---

     Q. Whenever you say “home” where do you mean?

     A. Back to my apartment in Oil City where I left [Father]. And
     um----I forgot what we were talking about.

     Q. Well really, my question was going to be focused on when you
     gave birth---

     A. OH!!! OH!!

     Q. ---was [F]ather at the hospital?

     A. So that night [Father], he just wasn’t paying the rent and I
     said to him [Father]---and he was coming home late, drunk, four
     o’clock in the morning. He said he worked at McDonald’s, I said
     they close at twelve. He said he was there and they made him

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J-S22029-15


      scrub the oil off the floor, but then the one time he came home
      with this 18 year old kid drunk and I kicked the kid out of the
      house and I said I’m not putting up with this. One time I---

            [Father’s counsel]: Can we have a timeframe please?

      A. I’m not done, I’m talking about my---

            [Father’s counsel]: Yeah, I hear ya, but I’m asking
            your attorney for a timeframe.

      Q. [Mother], that’s a fair question on his part because you didn’t
      exactly answer my question, “b”, you didn’t put this in
      perspective of when was this, was this after---

      A. Oh, so me and [Father] were in a fight---

      Q. No, no, was this after [Child] was born?

      A. [Father] left the hospital room the night [Child] was born with
      his parents. He didn’t come home till the next day or come back
      down to the hospital until the next day, the next night.

Id. at 24-25.

      Finally, when discussing an incident in which Mother reported Father to

CYS after Child had fallen down a stairs and injured himself while in Father’s

care, Mother argued with Father’s counsel that the definition of “blunt head

injury” was “somebody struck [Child] on the head with a blunt object.” Id.

at 48-51. Mother claimed repeatedly that this definition of Child’s injury was

contained in the doctor’s report. Id. at 48-49. (“That’s what the doctor said,

that’s not what I said, I have a medical report that says that.”).         When

asked to identify the relevant portion of the report, Mother was unable to do

so. Id. at 50. Mother then adamantly denied saying that the doctor had

written “the definition of a blunt head injury” in the report. Id.


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      Given this testimony, it was reasonable for the trial court to be

concerned with Mother’s mental health. Additionally, we emphasize that this

Court must show great deference to the factual findings and credibility

determinations of the trial court, which had the benefit of viewing Mother’s

testimony firsthand.   See Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.

Super.   2006)   (quoting   Jackson    v.    Beck,   858   A.2d   1250,   1254

(Pa. Super. 2004)) (“[T]he discretion that a trial court employs in custody

matters should be accorded the utmost respect …. 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.”).

      Further, with regard to Mother’s allegation that Father left Child

isolated in a cold room, Father testified that he created a “playroom” for

Child during the time Mother was incarcerated. N.T., 7/7/2014, at 103-05.

Father explained that he closed off the room using baby gates and a

playpen, and placed safety plugs in the outlets, so that Child “can run

around there and there’s nothing he can knock over, nothing he can fall.

There’s only a table there with his toys … so I could run around [and] cook

dinner, straighten up another room, do whatever.” Id. at 104-05. Father

denied that he left Child alone for long periods of time, and stated that “[if]

he’s entertained and playing then he’d play, if he started fussing then I’d

come see him. If I was doing something that’s why I made the playroom so

I could watch him, because all the rooms are connected.” Id. at 105. As


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before, the trial court was free to accept Father’s testimony, and we discern

no abuse of discretion.

      Finally, we note that Father’s medical condition also does not warrant

reversing the trial court’s order and granting primary physical to Mother.

Father testified that he suffered a serious head injury when he was “about

16 or so,” and that he now experiences “seizure events” when exposed to

pulsing lights. Id. at 114-16, 134.      Father explained that, as a result, he

does not drive a car and instead rides his bicycle to work each day. Id. at

117. Father admitted that he last saw a doctor about his condition “[f]ive or

six maybe” years ago, that he does not take medication for it, and that he

has no safety plan in place in the event he were to experience a seizure

while Child is in his care. Id. at 116, 134-35.       However, Father was clear

that his condition is brought on only by pulsing light, and that “I just don’t

go near strobe lights, that’s the solution.” Id. at 135. It was reasonable for

the court to conclude that Father’s condition does not pose a serious safety

risk to Child.

      For all of the foregoing reasons, we discern no error in the trial court’s

determination that the relevant custody factors weighed predominantly in

favor of Father.   Accordingly, because we conclude that none of Mother’s

claims entitles her to relief, we affirm the order of the trial court.

      Order affirmed.



Judgment Entered.

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Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2015




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