J-A07015-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.T.,                                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                     v.

J.T.,

                           Appellant

                      v.

C.V.,

                           Appellee                  No. 1634 WDA 2015


                  Appeal from the Order September 16, 2015
                In the Court of Common Pleas of Beaver County
                       Civil Division at No(s): 11560-2014


BEFORE: BOWES, MUNDY AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                                FILED MAY 19, 2016

        This case returns for review following our July 24, 2015 order vacating

a March 18, 2015 custody order and remanding the matter for the trial court

to determine whether R.T. (“Grandmother”) met her burden in overcoming

the presumption in favor of a fit parent, J.T. (“Mother”), as outlined in Hiller

v. Fausey, 904 A.2d 875 (Pa. 2006). On remand, the trial court considered

the presumption and determined that Grandmother overcame it.                 On

September 16, 2015, the court reinstated its March 18, 2015 order awarding
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Grandmother partial physical custody of Mother’s six-year-old daughter, G.A.

We affirm.

      We previously adopted the trial court’s recitation of the facts as

follows:

              The appellant in this action is Mother, age 27, the natural
      mother of [G.A.]. 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[,]
      . . . in Beaver County, Pennsylvania.

             [G.A.] was born [during May 2009] while Mother was living
      with Grandmother.        The evidence reflected that the natural
      father of [G.A.], C.V. (“Father”), has played no part in [G.A.’s]
      life to this date. It 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.        Mother and Father were never
      married[,] have never resided together and have had virtually no
      relationship since the birth of [G.A.].

             The evidence further reflected that Mother was the primary
      caregiver of [G.A.], 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 [G.A.], even to the extent of
      taking [G.A.] to work with her as confirmed by testimony by her
      employer, a veterinarian. From that testimony, it appeared that
      [G.A.] 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 [G.A.] 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 [G.A.] up until the
      fall of 2014. In September of 2014, Mother and [G.A.] left
      Grandmother's residence. Mother claimed that she was forced



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      out of the residence by Grandmother, while Grandmother
      testified that Mother left with [G.A.] to live with her fiancé.

R.T. v. J.T, 2015 WL 6828144 (unpublished memorandum at 1-2)(quoting

Trial Court Opinion, 4/23/15, at 2-3).

      After Mother moved with G.A. from Grandmother’s residence during

September of 2014, she terminated Grandmother’s contact with G.A.

Grandmother filed a complaint for partial custody pursuant to § 5325 of the

Child Custody Law, 23 Pa.C.S. §§ 5321-5340.         The custody proceedings

culminated in a one-day trial on March 17, 2015. The trial court issued its

ruling from the bench. It discussed its findings of fact and conclusions of law

in open court and outlined its consideration of the statutory best-interest

factors on the record. The following day, the trial court entered a written

order that awarded Mother legal and primary physical custody of G.A.,

awarded Father periods of partial custody, and granted Grandmother partial

custody on alternating weekends from 6:00 p.m. Friday until 6:00 p.m.

Sunday. The court also provided Grandmother twenty-four-hours of partial

custody during Thanksgiving break, winter vacation, and Easter weekend,

and ten consecutive days of custody during summer. In sum, Grandmother

was awarded thirty-seven days of custody per year.

      Mother appealed the March 18, 2015 order. She challenged, inter alia,

the constitutionality of § 5325, as interfering with a parent’s fundamental

right to make decisions concerning the care, custody, and control of her



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children.   After reviewing our Supreme Court’s analysis in Hiller, supra,

wherein the High Court upheld the constitutionality of § 5311, the now-

repealed predecessor to § 5325, we upheld the current version of the statute

and rejected Mother’s related arguments concerning the inapplicability of §

5325 under the facts of this case. However, as noted supra, we vacated the

award of partial custody and remanded the matter for the trial court to

consider Hiller, supra, and to explain whether Grandmother overcame the

presumption in Mother’s favor. Specifically, we held:

       [W]e 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 the child’s best
       interest. Further, in its opinion, the trial court explained its
       rationale pursuant to the additional factors for grandparent
       custody set forth in section 5328(c)[.1] . . . 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. . . . We remand the case to the trial court so that it
       may review the evidence with due consideration for the
____________________________________________


1
 The statutory factors relevant to a grandparent seeking partial custody
pursuant to § 5325(2) are as follows:

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

       (ii) whether the award interfered with any parent-child
       relationship; and

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

23 Pa.C.S. § 5328(c).



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     presumption in Mother’s favor and to determine whether
     grandmother has met her burden in overcoming the
     presumption.

R.T., supra (unpublished memorandum at *7).

     The trial court complied with our directive, applied Hiller, found that

Grandmother presented sufficient evidence to defeat the presumption, and

reinstated the March 18, 2015 custody order.      Specifically the trial court

concluded:

            The Court must now apply the principles [outlined in
     Hiller] to the facts as found in this case. As the Court recited in
     the Facts section of its Opinion of April 23, 2015 and as was set
     forth in the Facts portion of the Superior Court's Opinion in this
     case of July 24, 2015, the maternal grandmother played an
     integral part in this child's life until the time that the mother
     removed the child from the maternal grandmother's home. The
     maternal grandmother not only took a large responsibility in the
     child's every day care, but also provided a day care for the
     mother. This was so even to the point that the grandmother
     took the child to her employment because the mother was
     working and not available to care for the child and/or was
     staying overnight with her boyfriend, who lived near the
     mother's work.         The maternal grandmother handled other
     responsibilities for the mother, including doctors' visits and
     matters at pre-school/school. The testimony at the trial of this
     case clearly reveal[s] that the mother had no problem permitting
     the maternal grandmother to care for and watch the child almost
     daily up until the fall of 2014 when the mother left the maternal
     grandmother's residence, where she had been residing since the
     child's birth, to live with her fiancé.

           Under these facts, the Court finds that the maternal
     grandmother has met her burden in overcoming the presumption
     in favor of the fit parent. The Court finds that, based upon these
     facts and the evidence of record, it is in the best interest of the
     child to continue a relationship with the maternal grandmother
     with the 37 days of partial custody that the Court set forth in its
     schedule and Order of March 18, 2015. This Court believes that

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       this finding is consistent with the Pennsylvania Supreme Court's
       findings that the grandmother had met the burden in the Hiller
       case, 904 A.2d at 890, and also believes that this finding should
       survive the strict scrutiny applicable to this finding as set forth in
       the appellate law and statutory law that preceded Hiller as well
       as the Hiller decision itself.

Trial Court Opinion, 9/16/15 at 3-4. This timely appeal followed.

       Mother filed a pro se Rule 1925(b) statement that asserted nine issues

that chiefly had been leveled in the initial appeal. She did not amend the

statement after retaining current counsel. Now, she presents one issue for

our review: “Whether the [trial] court abused its discretion and misapplied

the law by reviewing the custody factors but failing to incorporate the

appropriate presumption in favor of the fit Mother as was required by the

Superior Court upon remand.” Mother’s brief at 6.2 She requests that we

vacate the order and issue another remand “for the trial court to review the

evidence with due consideration for the presumption in Mother’s favor prior
____________________________________________


2
   While Mother did not assert this specific claim in her pro se Rule 1925
statement, the issue can be characterized fairly as a restatement of the first
and fourth issues that Mother raised and in the pro se statement, i.e.,:
“Whether the trial 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;” and
“Whether the trial court abused its discretion [in] review[ing] [the custody
factors without finding] a single factor that . . . favored [M]other.” Rule
1925(b) Statement, 10/15/15, at 1. As the claim that Mother articulates on
appeal is reasonably subsumed by the two foregoing issues, we decline to
find it waived. See Pa.R.A.P. 1925(b)(4)(v) (“Each error identified in the
Statement will be deemed to include every subsidiary issue contained
therein which was raised in the trial court[.]).”




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to determining whether [Grandmother] has met her burden in overcoming

the presumption.” Id. at 18. For the reasons explained below, no relief is

due.

       We review the trial court’s custody order for an abuse of discretion.

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial

court’s factual findings that are supported by the record and its credibility

determinations. Id. This Court will accept the trial court’s conclusion unless

it is tantamount to legal error or unreasonable in light of the factual findings.

Id.

       Mother’s argument is imprecise and generally amounts to declarative

statements concerning the framework of our remand. The crux of Mother’s

argument challenges the sufficiency of trial court’s Hiller analysis, which we

reproduced, supra. Essentially, Mother asserts that, although the trial court

stated the reasons that it found that Grandmother was able to overcome the

presumption, it neglected to identify the presumption specifically or “show

[the presumption] due consideration.”         Mother’s brief at 12.      Mother

contends that the court was required to “follow a formula” which she

apparently interprets as requiring the court to accept all of the evidence that

supported a finding that the presumption was insurmountable. Id. at 13-14.

In addition, she complains, “The Court must be able to identify how the

presumption in favor of the mother is shown before showing that

[Grandmother] overcame the burden.” Id. at 14.           She posits, “The trial

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court abused its discretion by failing to mention the Mother and failing to

identify what evidence was used as the basis for [its] analysis of the

presumption in [Mother’s] favor.” Id. at 17. Indeed, Mother complains that

the entirety of the trial court’s Hiller analysis “rests on actions and

responsibilities which [Grandmother] operated under, on behalf of the child

when [Mother] was living in her home.” Id. She continues that, in focusing

upon Grandmother’s actions, the trial court neglected to consider G.A.’s best

interest. Id. at 13.

      The   collective   inference   underlying   Mother’s   sometimes-cryptic

assertions is that the trial court did not understand our Supreme Court’s

discussion of Hiller and misapplied that authority in determining that

Grandmother overcame the presumption in Mother’s favor and tipped the

balance in her favor. We disagree.

      In Hiller, supra, our Supreme Court addressed the propriety of a

custody order that awarded partial custody of a grandchild to a grandmother

pursuant to the now-repealed § 5311.          Significantly, the grandmother

maintained a close relationship with her grandchild prior to the mother's

death but the surviving parent objected to his daughter’s continued contact

with the grandmother.     Consistent with prevailing case law, the trial court

considered the presumption that a fit parent acts in the child's best interest

and it concluded that the award of partial custody was in the child’s best

interest despite the Father’s objection.    In affirming the order, the High

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Court reiterated 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.” Id. at 877. However, it rejected the

related principle that, as a precondition to partial custody, grandparents are

required to demonstrate the child will suffer harm if custody is denied. Id.

at 889-890.   Instead, the Court concluded, “the stringent requirements of

Section 5311 . . . 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 or specific

requirement of harm or potential harm.” Id. at 890.

      The Hiller Court held that the trial court applied the presumption

properly and gave what it styled “special weight” to the father’s objection to

the grandmother’s contact with his child.          Id.    The Supreme Court

highlighted the trial court’s findings that the child benefited from her

interactions with the grandmother, with whom she had a longstanding

relationship and from whom she received emotional solace following her

mother’s death. The Court also noted that the trial court weighed whether

the grant of partial custody would interfere with the parent-child relationship

and determined that it would not.      Id.   Hence, the Hiller Court did not

disturb the trial court’s conclusion that the grandmother satisfied her burden

of equalizing the presumption and tilting the allegoric scale in her favor.




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      First, we observe that, contrary to Mother’s perspective, the trial court

was not required to set forth the Hiller standard, “identify how the

presumption in favor of the mother is shown” or “provide analysis which

shows that the trial court considered evidence which meaningfully tipped the

balance in the favor of the mother.”      Mother’s brief at 12, 14.   Mother’s

argument reveals her misunderstanding of the doctrine the high court

outlined in Hiller. In reality, the presumption is not required to be shown or

demonstrated.     As with any evidentiary presumption, the presumption in

favor of a fit parent exists independent of support.      Stated plainly, in a

custody action between a fit parent and a third party, the scale is

automatically tipped in favor of the parent and a third party cannot prevail

unless he or she adduced sufficient evidence to overcome the presumption

and reorient the scale in his or her favor.

      Hiller, supra, requires only that the trial court consider the evidence

in light of the presumption and determine if the grandparent can overcome it

and demonstrate that the grant of partial custody is in the child’s best

interest.   Incorporating the best-interest considerations identified in then-

effective § 5311, the Hiller Court outlined the following components of the

Hiller analysis: the frequency of the grandparent’s contact with the child;

the strength of the grandparent-child relationship; the parent’s likelihood to

permit continued contact; whether partial custody was in the child's best

interest despite the parent’s preference; and whether partial custody would

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interfere with the parent-child relationship. Id. at 877-879. The Hiller court

rejected the requirement to demonstrate either parental unfitness or that

the child would suffer harm if the request for partial custody is denied. As

we discuss infra, the trial court’s Hiller analysis addressed all of the

foregoing components. Id. at 890.

      Herein, the trial court conducted the precise examination that this

Court directed in its July 24, 2015 opinion.    Stated plainly, the trial court

reviewed the evidence adduced at the trial with due consideration for the

presumption in Mother’s favor, and it determined that Grandmother met her

burden in overcoming that presumption.            As it relates to whether

Grandmother neutralized the presumption, the trial court concluded that

G.A. shared a close relationship with Grandmother based upon the latter’s

acceptance of many of the responsibilities connected with raising G.A. while

Mother was unavailable.     In addition to the daily interaction concomitant

with residing together since birth, Grandmother accompanied G.A. to

doctor’s appointments and managed her schooling as Mother’s surrogate.

Similarly, she cared for G.A. while Mother was unavailable due to either

employment or her social schedule.

      While the trial court did not specifically articulate the precise benefit

that G.A. gained from her daily interactions with Grandmother, a dynamic

the trial court identified in Hiller, it observed that Grandmother had been an

integral part of G.A.’s life for five years, and it stressed that preserving the

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grandparent-child relationship was in G.A.’s best interest.             The obvious

implication of these findings is resounding—G.A. undoubtedly benefited from

her longstanding relationship with Grandmother. Likewise, although the trial

court’s statement of rationale does not explicitly state that Grandmother’s

award   of   partial   custody   would   not   interfere   with   the   parent-child

relationship, the trial court addressed this component of the Hiller analysis

during the prior appeal.     Specifically, the court concluded, “there was no

evidence that [the] award of partial custody for 37 days a year would

interfere with the parent/child relationship.” Trial Court Opinion, 4/22/15 at

7; R.T., supra (unpublished memorandum at *7) (observing that trial

court’s § 5328(c) analysis addressed whether partial custody would interfere

with parent-child relationship).     Moreover, the trial court reiterated this

position in its response to the pro se Rule 1925(b) statement that Mother

filed in the instant appeal, which it incorporated by reference into the

present appeal. See Memorandum Opinion, 11/16/15, at 2. Thus, despite

Mother’s protestations to the contrary, the trial court’s Hiller analysis

addressed all of the necessary components.

     Next, we address Mother’s challenge to the trial court’s factual

determinations. Mother contends “If the Court had taken a more expansive

view, some of the grandmother's testimony, which the Court appreciated

because of the grandmother's candor would be viewed as the primary reason

the mother is seeking supervised visitation.” Mother’s brief at 17. Mother’s

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argument is nothing more than a request that this Court ignore our standard

of review, reweigh the evidence, and make a determination in her favor. We

must decline.   See M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013)

(“We must accept findings of the trial court that are supported by competent

evidence of record. . . . Ultimately, the test is whether the trial court's

conclusions are unreasonable as shown by the evidence of record.”). Having

found that the certified record sustains the trial court’s findings of fact and

its legal determinations are sound, there is no basis to overturn it.

      For all of the foregoing reasons and consistent with our High Court’s

review of the trial court’s determination in Hiller, we will not disturb the trial

court’s conclusion that Grandmother satisfied her burden of proving that her

continued presence in G.A.’s life is so beneficial so as to equalize the

presumption in favor of Mother and tilt the scale in her favor.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016




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