J-S94023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.F.T.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                   v.

T.A.B, H.M.B., & C.D.C.

                                                    No. 1312 MDA 2016


                Appeal from the Order entered July 8, 2016,
               in the Court of Common Pleas of York County,
                   Civil Division, at No(s): 2016-FC-11-03.


BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY RANSOM, J.,                          FILED MARCH 06, 2017

      Appellant, J.F.T. (“Grandmother”) appeals pro se from the order

entered on July 8, 2016, in the Court of Common Pleas of York County,

granting sole legal and primary physical custody of S.D. and K.B. to

Appellee, T.A.B. (“Mother”). After review, we affirm.

      The pertinent facts and procedural history are as follows: Mother has

two daughters, S.D, born in 2005, and K.B., born in 2007 (“Children”).

S.D.’s father is C.D.C., and K.B.’s father is Grandmother’s son, H.M.B.

Mother and H.M.B. married in 2007, and Mother lived with Grandmother

from 2007 until 2009. At that time, she entered inpatient treatment for her

heroin addiction. During her treatment, Children remained in Grandmother’s

custody pursuant to a temporary guardianship that Mother and H.M.B. had

executed.   When Mother returned from treatment in 2014, she moved in



* Former Justice specially assigned to the Superior Court.
J-S94023-16



with Grandmother and Children and stayed there for approximately one

year.1 Mother then moved to York and refused to return Children from her

custody following the 2015 December holidays.

        In January 2016, Grandmother filed a complaint pro se for custody of

Children.    A custody trial was held over three days in June 2016.      At the

time of trial, Mother had moved in with her paternal aunt and uncle, who

had raised her after her father died. At trial, both Grandmother and Mother

appeared with counsel.           H.M.B. and C.D.C. appeared and testified as

witnesses for Grandmother but informed the trial court that neither was

seeking custody rights.

        By opinion and order entered July 8, 2016, the trial court awarded

shared legal and physical custody of Children to the parties for the

remainder of the summer period. Beginning August 26, 2016, the trial court

awarded Mother sole legal custody and primary physical custody of Children,

subject to Grandmother’s rights of partial physical custody.      Grandmother

filed this timely appeal. Both Grandmother and the trial court have complied

with Pa.R.A.P. 1925.

        On appeal, Grandmother raises the following issues for our review:

        1. Did [the] Trial Court abuse [its] discretion, commit [an] error
           of law and/or its record lacks/against [sic] [the] weight of

____________________________________________


1
    H.M.B. was incarcerated.




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         evidence to support the findings of fact/conclusions of law of
         23 Pa.C.S. Section 5328(a) (1,2,3,4,7,8,9,10, and 14)?

      2. Did [the] Trial Court abuse [its] discretion, commit [an] error
         of law and/or its record lacks/against [sic] weight of evidence
         to support the findings of fact/conclusions of law of award of
         legal, primary and partial physical custody[?]

      3. Did [the] Trial Court abuse [its] discretion, commit [an] error
         of law and/or its record lacks/against [the] weight of the
         evidence to support the findings of fact/conclusions of law of
         application of and not bursting [sic] rebuttable presumption of
         parent over grandparent acting in loco parentis?

      4. Did [the] Trial Court abuse [its] discretion, and/or its record
         lacks/against [the] weight of the evidence to support the
         findings of fact of age[s] of children?

      5. Did [the] Trial Court abuse [its] discretion, commit [an] error
         of law and/or its record lacks/against [the] weight of [the]
         evidence to support the findings of fact/conclusions of law of
         credibility of Mother, Mother’s witnesses and Mother’s missing
         witnesses?

Grandmother’s Brief at 4-5.        Because each of Grandmother’s issues

essentially challenges the trial court’s consideration of the statutory custody

factors, we will address them together.

      Our scope and standard of review of an appeal from a custody order is

as follows:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion.          We must accept
      findings of the trial court that are supported by competent
      evidence of record, as our role does not include making
      independent factual determinations. In addition, with regard to
      issues of credibility and weight of the evidence, we must defer to
      the presiding trial judge who viewed and assessed the witnesses
      first-hand. However, we are not bound by the trial court’s
      deductions or inferences from its factual findings. Ultimately,
      the test is whether the trial court’s conclusions are unreasonable
      as shown by the evidence of record.           We may reject the

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         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) (citation omitted).

         [T]he discretion that a trial court employs in custody matters
         should be accorded the utmost respect, given the special nature
         of the proceeding and the lasting impact the result will have on
         the lives of the parties concerned. Indeed, the knowledge
         gained by a trial court in observing witnesses in a custody
         proceeding cannot adequately be imparted to an appellate court
         by a printed record.

A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012) (quoting Ketterer v.

Seifert, 902 A.2d 533, 540 (Pa. Super. 2006)).

         If competent evidence supports the trial court’s findings, we will affirm

even if the record could also support the opposite result. In re Adoption of

T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).

         The parties cannot dictate the amount of weight the trial court
         places on evidence. Rather, the paramount concern of the trial
         court is the best interest of the child. Appellate interference is
         unwarranted if the trial court’s consideration of the best interest
         of the child was careful and thorough, and we are unable to find
         any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (quoting Robinson v.

Robinson, 645 A.2d 836, 838 (Pa. 1994)).

         The primary concern in any custody case is the best interest of the

child.     “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902



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A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004)).

     Section 5328 of the Child Custody Act sets forth certain factors a trial

court must consider in order to determine the best interest of the child when

awarding custody. Specifically, Section 5328 provides as follows.

     § 5328. Factors to consider when awarding custody

     (a) Factors.—In ordering any form of custody, the court shall
     determine the best interest of the child by considering all
     relevant factors, giving weighted consideration to those factors
     which affect the safety of the child, including the following:

        (1) Which party is more likely to encourage and permit
        frequent and continuing contact between the child and
        another party.

        (2) The present and past abuse committed by a party or
        member of the party’s household, whether there is a
        continued risk of harm to the child or an abused party and
        which party can better provide adequate physical
        safeguards and supervision of the child.

        (2.1) The information set forth in section 5329.1(a)(1) and
        (2) (relating to consideration of child abuse and
        involvement with protective services).

        (3) The parental duties performed by each party on behalf
        of the child.

        (4) The need for stability and continuity in the child’s
        education, family life and community life.

        (5) The availability of extended family.

        (6) The child’s sibling relationships.

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


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           (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)(1)-(16).

        Initially, we note that the trial court’s July 8, 2016 opinion presented a

complete assessment of the 16 best interest factors enumerated in Section

5328(a).2     See C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super 2013) (holding

____________________________________________


2
    The trial court did not discuss separately factor 2.1 and factor 16.



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that the trial court must set forth its assessment of the 16 best interest

factors outlined in 23 Pa.C.S.A. § 5328(a)). On several occasions during the

custody trial, the court emphasized the well-established legal principal that

natural parents have a rebuttable presumption against third parties in

custody disputes. See 23 Pa.C.S.A. § 5327(b) (codifying the then-existing

common law presumption). Regarding this presumption, the Child Custody

Act states provides:

      § 5327.     Presumption       in    cases   concerning   primary
      physical custody.
                                      …

      (b) Between a parent and third party.—In any action
      regarding the custody of the child between a parent of the child
      and a nonparent, there shall be a presumption that custody shall
      be awarded to the parent. The presumption in favor of the
      parent may be rebutted by clear and convincing evidence.

Id. “The standard of clear and convincing evidence means testimony that is

so clear, direct, weighty, and convincing so as to enable the trier of fact to

come to a clear conviction, without hesitation, of the truth of the precise

facts in issue.” V.B., 55 A.3d at 1199 (citation omitted).

      Regarding this presumption, we have concluded as follows.

      [O]ur Supreme Court [has] noted that “these principles do not
      preclude an award of custody to the non-parent. Rather they
      simply instruct the [trial] judge that the non-parent bears the
      burden of production and the burden of persuasion and that the
      non-parent’s burden is heavy.”

Id. (quoting Ellerbe v. Hooks, 416 A.2d 512, 514 (Pa. 1980)).

      What the [trial] judge must do, therefore, is first, hear all
      evidence relevant to the child’s best interest, and then, decide

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         whether the evidence on behalf of the third party is weighty
         enough to bring the scale up to even, and down on the third
         party’s side.

V.B., 55 A.3d at 1199 (citation omitted). Further, we recognize that when a

grandparent is involved in a custody dispute with a parent, the grandparent

is a third party and bears this heightened burden. Id. at 1198-99 (citation

omitted).

         Grandmother asserts that she “presented clear and convincing

evidence to burst [the] presumption in favor of Mother against in loco

parentis Grandmother for seven years, if not for ten years (since children’s

birth), in her household.”       Grandmother’s Brief at 14.      She therefore

contends that “the interim status quo [custody arrangement] before trial

should have been confirmed and ratified rather than the dramatic paradigm

flip, or, in the alternative, at least provide substantial custody [to her].” Id.

at 15.

         As noted above, the trial court considered the sixteen custody factors.

The court explained its factual findings and conclusions of law as to each

relevant factor as follows:

         (1)   Encouragement of Continuing Contact Between the
               Other Party

               The Court finds that both parties are likely to
               encourage and permit continuing contact between
               Children and the other party. As such this factor, is
               neutral.

         (2)   Present and Past Abuse



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           The Court finds that there was no significant
           testimony regarding any present or past abuse by
           either party. As such, this factor is neutral.

     (3)   Parental Duties

           The Court finds that both parties are currently
           performing parental duties on behalf of Children
           during their custody time. However, Grandmother
           had primary physical custody of Children for several
           years while Mother was dealing with an admitted
           drug addiction. The Court commends Grandmother
           for her care of Children over those years. Testimony
           established that Mother shared in the parental duties
           for Children during the time that she was living with
           Grandmother after her recovery. Overall, due to
           Grandmother’s role as primary caregiver to Children
           during Mother’s recovery, this factor weighs slightly
           in favor of Grandmother.

     (4)   Stability in Children’s Education, Family Life and
           Community Life

           The Court finds that both parties are currently able
           to provide stability and continuity in Children’s lives.
           Testimony established that Mother has had steady
           employment for several years and now has stable
           housing with [paternal] aunt and uncle who acted as
           parental figures to Mother as a teenager after the
           death of her father.       [Paternal] aunt and uncle
           testified that Mother is allowed to remain in their
           home with Children indefinitely.            Throughout
           Children’s    lives,   Grandmother     has    provided
           consistency and stability while Mother dealt with her
           drug addiction. The Court believes that Mother has
           successfully addressed her addiction issues and is
           able to ensure stability for [C]hildren going forward.
           As such, this factor is neutral.

     (5)   Availability of Extended Family

           The Court finds that both Grandmother and Mother
           have extensive extended family members who are
           involved with Children.   As such, this factor is
           neutral.


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     (6)   Sibling Relationships

           The Court finds that Children have no other sibling
           relationships. This factor is neutral.

     (7)   Well-reasoned Preference of the Children

           The Court interviewed Children in camera. Children
           expressed love for both parties and a desire to spend
           time with both parties. This factor is neutral.

     (8)   Attempt of Party to Turn Children Against Other
           Party

           The Court finds that there was no direct credible
           testimony regarding attempts by either party to turn
           Children against the other party. As such, this factor
           is neutral.

     (9)   Maintenance of Loving and Stable Relationship with
           Children

           The Court believes that both Grandmother and
           Mother are able to maintain loving and nurturing
           relationships with Children. Testimony established
           the Mother is more consistent with her discipline of
           Children which benefits their emotional development.
           As such, this factor weighs slightly in favor of
           Mother.

     (10) Attendance to Children’s Daily Needs

           The Court finds that both parties are capable of
           meeting Children’s daily physical needs but that
           Mother’s current environment provides more stability
           for Children.    Testimony established that, while
           Grandmother is very dedicated to Children, both her
           and [her live-in daughter’s] work schedules create
           inconsistency    in   Children’s  daily   care    at
           Grandmother’s residence in that Children sleep at
           two (2) different residences throughout the week
           and sometimes share a bed with two (2) minor male
           cousins.      Additionally, there was significant
           testimony regarding [S.D.] being bullied at her
           current school while in Grandmother’s custody.
           Therefore, the Court finds that Mother is able to


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            provide daily stability for Children and this factor
            weighs in favor of Mother.

      (11) Proximity of Residences

            Grandmother currently resides [in] Hanover,
            Pennsylvania[.]     Mother currently resides [in]
            Wellsville, Pennsylvania[.]    Presently, the parties
            reside approximately twenty (20) miles apart. This
            distance is conducive to regular custody exchanges.

      (12) Availability to Care for Child or Make Child Care
           Arrangements

            The Court finds that both parties are able to care for
            Children    or   make     appropriate    child   care
            arrangements. This factor is neutral.

      (13) Level of Conflict Between Parties and Willingness to
           Cooperate

            The Court finds that there is a moderate level of
            conflict between the parties and that they are able to
            cooperate regarding custody of Children. This factor
            is neutral.

      (14) History of Drug or Alcohol Abuse

            Mother admitted to a history of drug abuse. The
            Court believes that she is determined in remaining
            free of unlawful drugs.     There was no credible
            testimony to contradict Mother’s testimony that she
            has been clean for more than three (3) years.
            Overall, this factor weighs slightly in favor of
            Grandmother.

      (15) Mental and Physical Condition of Party or Member of
           Party’s Household

            The Court finds that both parties have conditions
            which are controlled by medications and do not
            affect their ability to care for Children. This factor is
            neutral.

Trial Court’s Opinion, 7/8/16, at 6-9.


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      The fact that the trial court found that a majority of the factors did not

weigh in favor of either party readily supports a conclusion that both

Grandmother and Mother are fit parties to continue to care for Children. In

awarding sole legal and primary physical custody of Children to Mother, the

trial court essentially concluded that Grandmother did not meet her heavy

burden of overcoming the statutory presumption in favor of Mother.

Grandmother’s assertion that she “burst” the presumption because a

majority of these factors actually weighed heavily in her favor is largely

based on her testimony as well as that of her witnesses.            Her claims

challenge the trial court’s credibility determinations and the weight it

afforded the custody factors.    As noted above, a party cannot dictate the

amount of weight the trial court places on evidence. S.M., supra.

      Our review of the trial court’s opinion, together with the certified

record in this matter, supports the trial court’s custody finding in favor of

Mother.   Considering the totality of the testimony presented, we conclude

that the trial court’s finding that Grandmother failed to meet her burden by

clear and convincing evidence is reasonable as shown by the evidence of

record. See In re V.B., 55 A.3d at 1202 (holding that evidence maternal

grandparents presented during custody hearings failed to rebut the

presumption of custody in favor of the father).

      Accordingly, the trial court did not err in its custody determination.

We therefore affirm the July 8, 2016 order granting Mother sole legal and

primary physical custody of Children.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2017




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