J-A08005-16
J-A08006-16
                               2017 PA Super 29

M.G.,                                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                     v.

L.D.,

                                                     No. 2845 EDA 2015

APPEAL OF: C.B.D., INTERVENOR



                    Appeal from the Order August 19, 2015
             In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 11-31295


M.G.,                                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                     v.

L.D.,

APPEAL OF: L.D.,

                                                     No. 3215 EDA 2015


                    Appeal from the Order August 19, 2015
             In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 11-31295


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

OPINION BY BOWES, J.:                            FILED FEBRUARY 08, 2017

        L.D. (“Mother”) and C.B.D. (“Grandfather”) appeal pro se from the trial

court’s August 19, 2015 order that denied Grandfather’s request for partial

* Retired Senior Judge assigned to the Superior Court.
J-A08005-16
J-A08006-16


custody and Mother’s request for weekly telephone calls with her now

twelve-year-old biological daughter, M.G.D.1       After careful review, we

reverse and remand.

       Mother and Appellee, M.G., are former lovers who adopted one

another’s biological children, i.e., M.G. adopted M.G.D. and Mother adopted

M.G’s now-teenage biological son, E.G.D.     The family remained intact for

approximately thirteen years, until April of 2011. On November 14, 2011,

M.G. filed a complaint for custody wherein she requested sole legal and

physical custody of her son and primary physical custody of M.G.D. Mother’s

counterclaim requested primary physical custody of both children and asked

that M.G. receive periods of supervised physical custody.

       Following a custody conciliation conference, Mother and M.G. entered a

series of interim consent agreements which culminated in the August 2,

2012 custody order wherein each parent maintained primary physical

custody of her biological child with varying degrees of partial custody of the

other child.   Subsequent to the August 2012 order, Mother expressed

concerns that E.G.D. was aggressive toward her and M.G.D. and that he had

serious mental health issues.    M.G. disputed the allegations against their

son.   Nevertheless, the then-appointed parent coordinator recommended

1
   These consecutively listed appeals challenge the same custody order, arise
from identical facts, and involve related parties that filed matching Rule
1925(b) Statements, which the trial court addressed jointly. Likewise, M.G.
filed identical briefs in both actions. Thus, we consolidate the appeals for
ease of disposition. The child advocate did not file a brief in either appeal.

                                    -2-
J-A08005-16
J-A08006-16


that E.G.D. get treatment from Adele Cox, M.D. and Bradford Norford, PhD.,

and that Mother and E.G.D. participate in parent/child counseling in lieu of

the custodial periods outlined in the consent order.2 Additionally, the parent

coordinator recommended that both parents and children participate in a

custody evaluation administered by Stephen Miksic, Ph.D.

        During a subsequent custody exchange on May 27, 2013, Mother shot

M.G., who was in her car, several times in the presence of both children.

M.G. escaped grievous injury but spent two to three days in the hospital.

E.G.D., who was in the front passenger seat of the car, was not injured.

Mother was arrested, tried, and convicted of, inter alia, attempted homicide

and endangering the welfare of children. She was sentenced to twenty-two

and one-half to fifty-two years imprisonment.3          During the criminal

proceedings, Mother was prohibited from communicating with E.G.D. While

the criminal court did not level a similar prohibition relating to M.G.D, it

proscribed her from talking to her daughter about the shooting incident.

Mother continues to maintain that she acted in self-defense and shot at M.G.

only to avoid being run down by the automobile M.G. was driving.




2
   By adopting Pa.R.C.P. 1915.11-1, effective May 23, 2013, the Supreme
Court eliminated the use of parenting coordinators as an improper
delegation of judicial duties. As discussed in the body of this opinion, the
trial court’s subsequent reliance upon a child advocate in lieu of a parenting
coordinator raises similar concerns.
3
    We affirmed the judgment of sentence on November 3, 2016.

                                    -3-
J-A08005-16
J-A08006-16


        Following the shooting, M.G. filed protection from abuse petitions

against Mother and an emergency petition to modify custody. Grandfather,

who is Mother’s father, countered with an emergency petition to intervene

wherein he requested custody of M.G.D.              Grandfather attached a hand

written certification outlining his concern that M.G.D. was being physically

abused by then-eleven-year-old E.G.D. while in M.G.’s physical custody and

that M.G. did not curtail the behavior. Grandfather stated that he observed

welts and bruises on his granddaughter following visits with M.G. and that

M.G.D. advised him that she feared E.G.D., who had injured her. M.G. filed

preliminary objections to Grandfather’s petition to intervene. In addition to

challenging Grandfather’s standing to seek primary custody under § 5324 of

the    Child   Custody   Law,   23   Pa.C.S.   §§   5321-5340,   M.G.   contested

Grandfather’s claims of physical aggression by her son against M.G.D.4


4
  The Child Custody Law grants standing to seek physical custody and legal
custody as follows:

      The following individuals may file an action under this chapter for any
      form of physical custody or legal custody:

        (1) A parent of the child.

        (2) A person who stands in loco parentis to the child.

        (3) A grandparent of the child who is not in loco parentis to the
        child:

            (i) whose relationship with the child began either with the
            consent of a parent of the child or under a court order;


                                       -4-
J-A08005-16
J-A08006-16


      Thereafter, Grandfather filed an amended petition to intervene

outlining additional incidents of M.G.D.’s abuse at the hands of E.G.D. and

noted his grandson’s behavioral issues, including alleged incidents where he

threatened to kill an elementary school teacher and was suspended from

school for posting a racially-charged diatribe on his school’s computer

network.    Grandfather invoked an additional right to seek partial custody

under 23 Pa.C.S. § 5325(2), which applies where parents have been

separated for at least six months.5 See L.A.L. v. V.D., 72 A.3d 690



           (ii) who assumes or is willing to assume responsibility for
           the child; and

           (iii) when one of the following conditions is met:

            (A) the child has been determined to be a dependent
            child under 42 Pa.C.S. Ch. 63 (relating to juvenile
            matters);

            (B) the child is substantially at risk due to parental
            abuse, neglect, drug or alcohol abuse or incapacity; or

            (C) the child has, for a period of at least 12 consecutive
            months, resided with the grandparent, excluding brief
            temporary absences of the child from the home, and is
            removed from the home by the parents, in which case
            the action must be filed within six months after the
            removal of the child from the home.

23 Pa.C.S. § 5324
5
  In relation to grandparents that are seeking partial physical custody, the
Child Custody Law states, in pertinent part,

         In addition to situations set forth in section 5324 (relating to
      standing for any form of physical custody or legal custody),

                                      -5-
J-A08005-16
J-A08006-16


(Pa.Super. 2013) (“Under Child Custody Act, grandparents of a child whose


     grandparents and great-grandparents may file an action under
     this chapter for partial physical custody or supervised physical
     custody in the following situations:

           ....

         (2) where the parents of the child have been separated
         for a period of at least six months or have commenced
         and continued a proceeding to dissolve their marriage[.]

23 Pa.C.S. § 5325(2).

On September 9, 2016, our Supreme Court declared that the pertinent
portion of § 5325(2), relating to children of separated parents, was
unconstitutional. D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016). Herein, M.G. did
not challenge the constitutionality of § 5325(2) before the trial court, and,
as the Supreme Court explained in In re Petition of deYoung, 903 A.2d
1164, 1169 (2006), standing is not a jurisdictional prerequisite to subject
matter jurisdiction that can be addressed sua sponte. Thus, we need not
determine whether the High Court’s recent decision in D.P., applies to the
case at bar. See Blackwell v. Commonwealth State Ethics Commission
589 A.2d 1084, 1100 (Pa. 1991) (retroactive application of decision
declaring portion of Sunset Act unconstitutional restricted to proceedings
pending at time of decision wherein the issue was “properly raised and
preserved.”).

The learned dissent believes that the foregoing discussion “totally misses the
point” and would find instead that the changed law divested Grandfather of
standing to continue to pursue partial custody of M.G.D. See Dissenting
Opinion at 7 n.6. However, our precedent belies this notion. While standing
in custody cases may be fluid under some circumstances, it certainly cannot
be asserted at any time. Indeed, this Court has held that pursuant to
Pa.R.C.P. 1915.5(a), “a standing challenge should be raised within [twenty
days of service] so as to give a defendant notice of the other party’s
intention to object to the action on this ground.” Kellogg v. Kellogg, 646
A.2d 1246, 1250 (Pa.Super. 1994). Moreover, while we have re-evaluated a
party’s standing following a factual change in circumstances, i.e., the
termination of parental rights or adoption, our review of Pennsylvania
jurisprudence does not support the ad hoc re-evaluation of standing that the
dissent endorses herein absent a determination that the change in law
applied retroactively.

                                    -6-
J-A08005-16
J-A08006-16


parents     never   married   have   standing   to   seek   partial   custody   of

grandchild.”). On June 4, 2013, the trial court entered a temporary order

granting Grandfather primary physical custody of M.G.D. and prohibiting

anyone except the child advocate, Lisa Kane Brown, Esquire, from discussing

Mother’s pending criminal case with M.G.D.           Attorney Kane Brown was

previously appointed through the Montgomery Child Advocacy Project

(“MCAP”) as the child advocate in relation to the PFA action M.G. filed

against Mother.6

        During the ensuing two-day custody trial, the trial court focused on

evidence as to whether E.G.D. presented a significant risk of harm to M.G.D.

Pointedly, as it relates to Grandfather’s petition, the focus of the court’s

inquiry was whether M.G.D. “is substantially at risk due to parental abuse,

[or] neglect” pursuant to § 5324. If Grandfather could not demonstrate a

substantial risk of harm based upon M.G.’s lax response to E.G.D.’s

behaviors, he would lack standing to seek physical or legal custody under §

5324.      In order to understand each child’s perspective of the sibling

dynamic, the court heard testimony from, inter alia, E.G.D.’s therapist, Dr.

Norford, and M.G.D.’s psychologist, Robert Schwarz, Ph.D.7


6
   According to the non-profit organization’s mission statement, “MCAP
provides free legal representation to children who are the victims of abuse
and neglect in Montgomery County.” See http://www.mcapkids.org/mission-
history/
7
    The trial court’s in camera interview with M.G.D. was not recorded.

                                      -7-
J-A08005-16
J-A08006-16


     At the close of the evidentiary hearings, the trial court determined

that, despite evidence of physicality, Grandfather’s concerns for M.G.D.’s

safety were unwarranted and that M.G.’s reactions to E.G.D.’s behaviors

were not tantamount to parental neglect. Hence, it ruled that Grandfather

lacked standing to seek primary physical custody. The trial court sustained

M.G.’s preliminary objection, dismissed Grandfather’s petition to intervene

pursuant to § 5324, and, as a default positon, it awarded M.G. primary

custody without addressing any of the best-interest factors that courts are

statutorily mandated to consider “in ordering any form of custody[.]” See

23 Pa.C.S. § 5328(a).

     While the trial court denied Grandfather’s petition to intervene

pursuant to § 5324 relating to physical and legal custody, it granted

Grandfather’s petition insofar as he sought to exercise partial physical

custody under § 5325. Id. at 280. However, the court neglected to fashion

a custody schedule for Grandfather. Instead, it decided to “leave it to the

attorneys to try and work something out.” Id. The trial court specifically

sought input from the child advocate whom it had previously entreated to

take a “proactive” role in the custody case by drafting a list of “dos and

don’ts,” for the court’s approval, regarding conduct in both households and

the conditions of custody. Id. at 272-273, 275.8 Neither party appealed.


8
   The child advocate’s list of conditions is not included in the certified
record, and it is unclear whether the trial court formally endorsed any

                                   -8-
J-A08005-16
J-A08006-16


       Between June and July 2013, Grandfather was able to exercise partial

custody on two occasions for a total of thirty-six hours before the child

advocate unilaterally terminated his custodial rights after she determined

that   Grandfather    contravened    her    directives   regarding   appropriate

communications with M.G.D.      Specifically, the child advocate believed that

Grandfather permitted unauthorized telephone contact between Mother and

M.G.D. and that he indicated an intention to pump the child for information.

Grandfather attempted to explain that the pertinent telephone calls occurred

prior to the custody court’s prohibition, but his efforts were futile. Similarly,

while Grandfather declared that the reference of pumping M.G.D. for

information related to information concerning E.G.D.’s physical abuse, the

child advocate believed that it related to Mother’s pending criminal case.

Accordingly, exercising authority delegated by the trial court, the child

advocate terminated all contact between Grandfather and M.G.D.

       On August 14, 2013, M.G. filed a petition to modify the June 2013

custody order.    She requested sole legal and physical custody of both

children. Following a hearing, on October 28, 2014, the trial court entered a

final order granting M.G. sole physical custody of M.G.D. and her brother.



custody conditions that the child advocate fashioned.       It is obvious,
however, that the child advocate imposed conditions upon Grandfather
because it was her unilateral decision to terminate Grandfather’s custodial
periods with M.G.D. based entirely upon her belief that the visits were
adverse to the child.


                                      -9-
J-A08005-16
J-A08006-16


Grandfather was denied partial physical custody.      M.G. and Mother shared

legal custody of the children in name only. M.G. was empowered to make all

daily and emergency decisions as well as all educational and therapeutic

choices without Mother’s consent.         If Mother objected to any of the

decisions, she was required to petition the court for relief.     The custody

order limited Mother’s contact with M.G.D. to written communication and

directed that the child advocate review Mother’s correspondence with

M.G.D., and, if appropriate, forward it directly to the child.9 Conversely, “if

inappropriate, [the child advocate] may strike the inappropriate portions,

and forward [it] to [M.G.D.]” or return it to Mother with an explanation.

Trial Court Order, 10/28/14, at 2.

        Neither party appealed the October order; however, approximately two

weeks later, Grandfather filed a motion to modify the custody order.        He

again asserted that M.G. and the child advocate had previously precluded

him from exercising his custodial rights or contacting his granddaughter on

the telephone. He again requested partial custody of M.G.D. consisting of

two non-consecutive weekend days per month and one week during summer

vacation and sought permission to take the child on his visits with Mother.

During the ensuing hearing, the parties agreed to also address Mother’s

motions      for   visitation   and   contact   by   telephone   and   written




9
    The criminal court prohibited any contact between Mother and E.G.D.

                                      - 10 -
J-A08005-16
J-A08006-16


correspondence.10 N.T., 4/27/15, at 19-20, 44. As to the increased contact,

Mother sought permission to make one telephone call and mail one letter to

M.G.D. per week.

      The focus of the evidentiary hearing was Grandfather’s interaction with

M.G.D., his ongoing concern about M.G.D.’s welfare around E.G.D., and his

remark that he intended to gain information from his granddaughter.

Grandfather presented his and Mother’s testimony, M.G. testified on her own

behalf, and the child advocate presented her concerns that Grandfather’s

preoccupation with M.G.D.’s safety and his steadfast support of Mother’s

criminal defense interfered with the children’s best interest.   Following the

evidentiary hearing and review of the parties’ post-hearing memoranda, on

August 18, 2015, the trial court entered an order denying Grandfather’s

request for partial physical custody and Mother’s requests for weekly

telephone contact. It granted Mother permission to mail her daughter one

letter per week, subject to the child advocate’s approval.11


10
   The Child Custody Law no longer identifies visitation as a specific form of
child custody and equates the term with partial physical custody, shared
physical custody, or supervised physical custody. Instantly, it is clear from
the context of Mother’s incarceration that she uses the term in its literal
sense, i.e. in-prison visitation or the virtual visitation, which we discuss in
the body of this opinion.
11
   Although the parties “agreed to have [the court] hear everything [during
the April 27 hearing],” the court’s subsequent order only addressed the
portions of Mother’s requests relating to telephone contact and written
correspondence. N.T., 4/27/15, at 44. The court neglected to address
prison visitation. If it considered visitation at all, it was in the context of

                                    - 11 -
J-A08005-16
J-A08006-16


     These timely, pro se appeals followed.12 Mother and Grandfather filed

identical Rule 1925(b) statements that asserted four issues:

     a) the Court committed an error of law when it denied
     appellant's requests for visitation and phone contact with her
     daughter as it deprives appellant ([L.D.]) of her Constitutional
     rights under the 1st and 14th Amendments.

     b) the Court committed an error of law when it denied
     grandparent visitation to appellant . . . with his granddaughter,
     as it applied a "fact" not in evidence when it considered the legal
     standards in making this decision.

     c) the Court committed an error of law when it used the
     "contentious nature" of the relationships between Plaintiffs and
     Defendant as the basis of denying Plaintiffs[‘] requests for
     contact with the minor child, rather than applying the
     appropriate legal standards. Also, the Court did not consider the
     fact that the source of the "contention" is due to the Defendant,
     not the Plaintiffs, and the Plaintiffs should not be penalized for
     this.


denying Grandfather’s request for partial custody, which necessarily
subsumed his entreaty to take M.G.D. to a third-party closed-circuit video
facility in Philadelphia for virtual visitation during his custodial period.
12
   Under the prisoner mailbox rule, which applies equally to civil matters,
Mother is deemed to have filed her notice of appeal on September 12, 2015,
the date that she presented it to prison authorities for mailing. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (pro se inmate’s
notice of appeal deemed filed on the date that he gives appeal to prison
official or places it in prison’s mailbox); Thomas v. Elash, 781 A.2d 170,
176 (Pa.Super. 2001) (prisoner mailbox rule applies to all pro se filings by
incarcerated litigants including civil matter). Moreover, the Montgomery
County Prothonotary erroneously rejected Mother’s initial notice of appeal
because it misidentified the date of the custody order, which was attached to
the notice of appeal. See Commonwealth v. Williams, 106 A.3d 583,
588-589 (Pa. 2014) (clerk of courts lacks authority to reject, as defective,
timely notice of appeal; “therefore [it is] obligated to accept and process
notices of appeal upon receipt in accordance with the Rules of Appellate
Procedure, notwithstanding any perceived defects therein”). Hence, the
appeal was timely filed.

                                   - 12 -
J-A08005-16
J-A08006-16



         d) the Court, in its award of weekly letters from Plaintiff [L. D.]
         to her daughter, ignored the fact that this does not effect
         MEANINGFUL communication with her daughter since the
         Defendant admitted in court that the child is not consistently
         being given the letters.

Concise Statement of Matters Complained of on Appeal, 9/17/15, at 1.

         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.    However, we are not bound by the trial court’s

deductions or inferences, nor are we constrained to adopt a finding that

cannot be sustained with competent evidence. A.V. v. S.T., 87 A.3d 818,

820 (Pa.Super. 2014).         In sum, this Court will accept the trial court’s

conclusion unless it is tantamount to legal error or unreasonable in light of

the factual findings. S.W.D., supra at 400.

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

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

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

physical, intellectual, moral, and spiritual well-being.”     Saintz v. Rinker,

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

674, 677 (Pa.Super. 2004)).

         Mother raises the following questions for review:

         1. Did the lower court's decision to deny visitation and phone
         contact between [L.D.] and her biological daughter [M.G.D.]

                                       - 13 -
J-A08005-16
J-A08006-16


         violate [L.D.’s] Constitutional   Rights     under   the   First   and
         Fourteenth Amendments?

         2. Did the lower court ignore a grave issue of child welfare by
         not immediately modifying custody of [M.G.D.] or allowing her
         biological family any contact with her to ensure her ongoing
         safety once new information became available (and was brought
         to the attention of the court) after the hearing of 4/27/15 which
         spoke to abuse and /or neglect of the child [M.G.D.] while under
         the care of appellee [M.G.]?

         3. Did the lower court commit an error of law when it utilized
         "facts" either not in evidence and /or not relevant to applicable
         law when making its decisions to deny requests of appellants . . .
         for visitation /phone contact and partial custody /grandparent
         visitation with the child [M.G.D.]?

         4. Are the lower court's decisions in this case in accordance with
         statutory and case law, and do they provide means for
         meaningful communication between [Mother] and [M.G.D.]?

Mother’s brief at 10.13

         At the outset, we reject Mother’s third argument summarily because

the crux of her contention challenges only the trial court’s decision vis-à-vis

Grandfather and not any aspect of the custody order relating to her custodial

rights.     Although Mother referenced her custodial rights in phrasing this

issue,    her   argument   simply   invokes     the   now-repealed    Custody     and

Grandparent Visitation Act, and asserts that the court erred in failing to

grant Grandfather’s request for partial custody. As Mother does not present

13
   Mother’s brief is disjointed. While the first issue raised in her statement of
questions presented corresponds with the first argument asserted in her
brief, issues two and three are argued in her brief under the headings “Point
#3” and “Point 4,” respectively. Mother’s brief at 19, 20. Consequently,
issue four is argued under “Point 2”. Id. at 17.


                                       - 14 -
J-A08005-16
J-A08006-16


a basis to disturb the custody order in relation to her rights, this claim does

not warrant relief.

      Similarly, we note that Mother’s second issue, regarding the court’s

failure to consider new information about the alleged abuse that E.G.D.

inflicted upon M.G.D., is waived because Mother ignored this contention in

her Rule 1925(b) statement.      See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.”).

      Moreover, even if the second issue had been preserved, it is meritless.

Concisely, Mother asserts that, in rendering its best interest determination,

the trial court neglected to consider significant injuries that M.G.D. received

to her head and clavicle during July 2014. Mother surmised that the injuries

were the result of E.G.D.’s continued physical abuse and that M.G.’s

explanation for the injury, i.e. that M.G.D. fell from a warped wall at a

parkour gym,14 was a dubious attempt to cover up the abuse. Accordingly,

she opined that her direct contact with M.G.D. is necessary to verify her

daughter’s continued safety and welfare. She also complains that she was




14
   The notes of testimony includes the malapropism that M.G.D. fell at “a
park or a gym[.]” N.T., 4/27/15, at 64. During oral argument, it was
confirmed that M.G.D. fell while participating in parkour, a training type
athletic activity made popular by the television show “American Ninja
Warrior.” A warped wall is a common obstacle used in parkour.


                                    - 15 -
J-A08005-16
J-A08006-16


not informed about the incident or the substantial injuries that her daughter

suffered. The record belies both of these arguments.

      First, the trial court considered testimony regarding the injury, but

unlike Mother, it accepted M.G.D.’s explanation that the injury was

accidental.   Our standard of review precludes us from reweighing the

testimony from Mother’s perspective and making a contrary determination in

her favor. Furthermore, the certified record refutes Mother’s insinuation that

she was not informed of the injury.     In fact, Mother had been advised of

M.G.D.’s hospitalization during her criminal sentencing and her present

assertion sought only to confirm that this was the same injury that was

previously disclosed.   Thus, although we believe that the trial court, and

more precisely the child advocate, discounted the legitimate concerns of

Mother and Grandfather about M.G.D.’s safety around E.G.D., nothing in the

record supports Mother’s specific assertion concerning the trauma that

M.G.D. sustained to her head and upper body during July 2014.

      Mother’s first preserved argument is that the trial court’s custody

determination violates her constitutional rights.15      Although her precise

argument is difficult to follow, the crux of this contention is that, even

15
    The dissent mischaracterizes our analysis as addressing the trial court’s
custody factors. In actuality, we address Mother’s specific reference to
D.R.C. v. J.A.Z., 31 A.3d 677 (Pa. 2011), regarding the viability of the
“grave threat” aspect of in-prison visitation, and we confront the trial court’s
failure to apply the appropriate standard that our High Court outlined in that
case. This argument was preserved as a subsidiary component of Issue A in
the Rule 1925(b) statement.

                                     - 16 -
J-A08005-16
J-A08006-16


though she is incarcerated, her right to visit with M.G.D. is a fundamental

right   guaranteed    by    the   First   and      Fourteenth   Amendments      to   the

Constitution of the United States of America.            She continues that the trial

court can only deny her right to visitation to prevent “a severe adverse

impact on [M.G.D.’s] welfare.” Mother’s brief at 15. Other than one citation

to our Supreme Court’s decision in D.R.C. v. J.A.Z., 31 A.3d 677 (Pa.

2011), Mother supports her cryptic claim with references to the former child

custody    law,   various   non-precedential         cases,   and   three   cases    with

questionable relevance to the visitation rights of an incarcerated parent.

While Mother’s argument is artless, it highlights a significant flaw in the trial

court’s decision to deny her request for visitation, i.e., by focusing upon

Mother’s insistence upon her innocence and the effect that Mother’s

increased contact with M.G.D. would have upon the child’s relationship with

M.G. and E.G.D., the trial court neglected to consider the factors relevant to

determine whether visitation with Mother, or, at least, weekly telephone

contact is in M.G.D’s best interest. Upon review, we find that the trial court

based its denial of Mother’s request for expanded contact with M.G.D. on

improper considerations.

        Section 5328 of the Child Custody Law, which we reproduce infra,

provides that, “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

                                          - 17 -
J-A08005-16
J-A08006-16


child[.]”   23 Pa.C.S. § 5328(a).     However, where, as here, one parent is

incarcerated and will remain imprisoned for an extended period, the

applicability of several of the enumerated statutory factors is questionable.

Traditionally, when determining the best interest of a child in reference to an

incarcerated parent’s request for visitation, this Court has considered the

factors set forth in Etter v. Rose, 684 A.2d 1082 (Pa.Super. 1996).        See

D.R.C., supra.

       In D.R.C., our Supreme Court addressed the counseling provision

under § 5303(c) of the prior custody statutes and reviewed the trial court’s

consideration of an incarcerated parent’s criminal conviction under §

5303(b).     The relevant provisions, which were repealed and reenacted in

substantial part at 23 Pa.C.S. §§ 5329(a) and (d), required that, prior to

making an order of physical custody or visitation, the court must determine

whether a parent who committed one of the offenses enumerated in that

section posed a threat of harm to his or her child. 16 Subsection (c) of the




16
     In pertinent part, the current version of the statute provides,

       Consideration of criminal conviction

       (a) Offenses.—Where a party seeks any form of custody, the
       court shall consider whether that party or member of that party's
       household has been convicted of or has pleaded guilty or no
       contest to any of the offenses in this section or an offense in
       another jurisdiction substantially equivalent to any of the
       offenses in this section. The court shall consider such conduct
       and determine that the party does not pose a threat of harm to

                                      - 18 -
J-A08005-16
J-A08006-16


former statute required that the trial court appoint a counselor to the

offending parent.    The precise question before the High Court in D.R.C.

concerned who was required to pay for the incarcerated parent’s counseling

in the state facility. As it relates to the case at bar, in disposing of the issue

before it, the High Court found that § 5303(b) and (c) did not apply to

incarcerated parents who were only seeking visitation with their children

within the prison.    The court concluded, “[W]e find that it was not the

General Assembly's intent for subsections (b) and (c) to be applied to

requests for prison visitation.” Id. at 687. Instead, the section applied only

to custody considerations following a parent’s release from prison.        Id. at

686. The Supreme Court reasoned,


      the child before making any order of custody to that parent
      when considering the following offenses:

      18 Pa.C.S. Ch. 25 (relating to criminal homicide).

      18 Pa.C.S. § 2701 (aggravated assault)

        . . . . [a litany of enumerated offenses]

      18 Pa.C.S. § 4304(endangering welfare of children)[.]

      (b) Parent convicted of murder.—No court shall award custody,
      partial custody or supervised physical custody to a parent who
      has been convicted of murder under 18 Pa.C.S. § 2502(a)
      (relating to murder) of the other parent of the child who is the
      subject of the order unless the child is of suitable age and
      consents to the order.

            ....

23 Pa.C.S. § 5329 (effective November 30, 2015).

                                      - 19 -
J-A08005-16
J-A08006-16


      [D]ue to the strictures of their confinement and the rules of the
      penal institution, incarcerated parents are unable to engage in
      the type of physical interaction feared by the drafters of this
      legislation. Thus, it would serve no significant ameliorative
      purpose to mandate counseling for every incarcerated offending
      parent for the limited and closely scrutinized contacts associated
      with prison visits. A visitation request by an incarcerated parent
      necessarily stands on different footing than a traditional custody
      petition.

Id.

      While the Supreme Court concluded that a mechanical application of §

5303 was ill-fitting in the visitation scenario, it astutely observed that the

nature of the incarcerated parent’s criminal conduct was a component of the

determination.   Thus, referring to Etter, supra, a prison visitation case

decided by this Court, our High Court outlined the various factors relevant to

prison visitation. The Court explained,

      In prison visit cases, the court in fashioning an appropriate
      order, where it determines visits would be in the child's best
      interests, is limited to a determination of the number of visits
      and perhaps some contacts through telephone calls and written
      correspondence. . . . [P]rison visit requests involve additional
      factors unique to that scenario that courts must consider in
      evaluating the overarching best interests of the child. For
      example, in Etter v. Rose, 454 Pa.Super. 138, 684 A.2d 1092,
      1093 (1996), the Superior Court recognized some of the factors
      to be considered in deciding a question of visitation where the
      parent is incarcerated: (1) age of the child; (2) distance and
      hardship to the child in traveling to the visitation site; (3) the
      type of supervision at the visit; (4) identification of the person(s)
      transporting the child and by what means; (5) the effect on the
      child both physically and emotionally; (6) whether the parent
      has and does exhibit a genuine interest in the child; and (7)
      whether reasonable contacts were maintained in the past. Of
      course, although not mentioned in Etter, another relevant
      consideration is the nature of the criminal conduct that

                                     - 20 -
J-A08005-16
J-A08006-16


      culminated in the parent's incarceration, regardless of whether
      that incarceration is the result of a crime enumerated in section
      5303(b).

Id. The D.R.C. Court reversed the order denying relief and remanded the

matter for a hearing to address the parent’s request for prison visitation

pursuant to the relevant factors.    We recognize that D.R.C. concerns the

statutory interpretation of a provision that has been repealed and reenacted

as § 5329 of the current child custody law.       However, since § 5329 is

materially indistinguishable from its predecessor, we follow the guidance

that our High Court provided in addressing prison visitations in D.R.C.

      Herein, the trial court did not consider how visitation would affect

M.G.D. physically and emotionally in light of her age, travel logistics, and

supervision during the visit.   Likewise, it neglected to determine whether

Mother’s interest in expanding her contact with M.G.D. is genuine.

Moreover, the trial court failed to consider the nature of Mother’s criminal

conduct or its effect upon her daughter.

      Rather than confronting the relevant factors, the trial court first noted

that incarceration necessarily curtailed Mother’s freedom of association and

it then considered Mother’s past statements and behaviors, which it

characterized as arrogant and short-tempered.         In addition, the court

implicated Mother in Grandfather’s statement to her that he would pump

M.G.D. for information, which the court interpreted as an attempt to

influence the child’s testimony in the criminal proceedings. In sum, the trial

                                    - 21 -
J-A08005-16
J-A08006-16


court reasoned that “permitting visitation and/or telephone contact with the

child(ren) would be detrimental to the child(ren) given that [Mother] and

Grandfather continue to maintain that [Mother] is innocent in the shooting of

M.G.” Trial Court Opinion, 10/19/15, at 6 (parentheses in original) (citation

to record omitted). As the trial court failed to consider the visitation factors

that we outlined in Etter, supra, and that our Supreme Court endorsed in

D.R.C., supra, we vacate the order denying Mother’s request for visitation

and remand for the trial court to render a determination in light of the

appropriate considerations.

      Although we remand for further proceedings, our resolution of

Mother’s remaining complaint, which is a tangent of her request for

visitation, will assist the trial court’s visitation determination. We therefore

address that argument as well.17       Essentially, Mother contends that the

court’s denial of her request for greater contact with M.G.D. denied her the

right to meaningful communication with her daughter.          In asserting this

complaint, Mother highlights the extent of the child advocate’s interference,

albeit on authority delegated by the trial court, with her already-

17
   We respectfully disagree with the dissent’s perspective that Mother did not
complain of Attorney Kane Brown’s role throughout the custody proceedings.
The issue is an integral component of Issue D in the Rule 1925(b) statement
insofar as she challenged Attorney Kane Brown’s interference with her
meaningful communication with M.G.D. Likewise, Mother preserved the
claim in Issue 4 of her statement of questions presented and highlighted
Attorney Kane Brown’s overreaching at pages seventeen through eighteen of
her brief.


                                     - 22 -
J-A08005-16
J-A08006-16


compromised ability to communicate with her daughter. The following facts

are relevant to our review.

      As noted supra, in fashioning the June 2013 custody order, the trial

court enlisted the child advocate to oversee the custody arrangement.

During October 2014, the trial court extended its reliance upon the child

advocate and directed her to review Mother’s correspondence with M.G.D.

and censor, redact, or strike any portions that she deemed inappropriate.

The certified record demonstrates that the child advocate wielded her

delegated authority industriously.     She regularly micromanaged Mother’s

contacts with M.G.D. in the name of the child’s best interest. Beyond merely

reviewing Mother’s missives for inappropriate content, the child advocate

first objected to Mother numbering her correspondence, and then instructed

Mother to reduce the frequency of her weekly correspondence with M.G.D. to

one letter per month.         Neither of these edicts involved any specified

inappropriate statements on Mother’s part. The child advocate disapproved

of the enumeration because she had not seen the prior letters and could not

confirm that they had been sent. N.T., 4/27/14, at 83. Likewise, she limited

the communications to “small talk” and ordered that Mother reduce the

frequency of the communiqués because she was told that their frequency

upset the child. Id. at 80, 83.

      As to the latter requirement, even when Mother complied with the

child advocate’s mandate and waited longer than normal before mailing

                                      - 23 -
J-A08005-16
J-A08006-16


M.G.D. her next letter, the child advocate was still dissatisfied.    The child

advocate rejected that correspondence because Mother had written to

M.G.D. to expect fewer letters from her and attempted to reassure her that

the reduction did not mean that Mother loved her any less.            The child

advocate characterized this letter as “about three paragraphs” that she

believed were patently inappropriate to forward to her adolescent client. In

reality, she objected to the following passage,

      [M]y dearest [M.G.D.], hello sweetheart. I’m sending you a big
      hug through the page of this letter. I hope you can feel it
      sending you my warmth and love. You may have noticed that it
      was a little longer than usual between my last letter and this
      one. The reason for that is because [the child advocate] told me
      that sometimes it upsets you when you read my letters, so she
      [M.G.] and Dr. Norford [18]would like me to send you less
      letters. Now, [M.G.D.], the last thing I want is for you to be
      upset. I realize you are in a tough situation, and I certainly
      don’t want to make it worse. Now I understand that reading my
      letters means you think of me and us and that makes you miss
      me more, and that is very hard. So I will send you less letters
      for now as long as you understand that it does not mean I am
      thinking about you less because my love now is stronger than
      anything on this [E]arth and that I feel it each minute of every
      single day just as I know how much you love me . . . too.

Id. at 83-84.

      In justifying her decision to the trial court, the child advocate

explained, “[R]ather then redact almost the entire first page of [Mother’s]

Letter, which would have looked rather strange, I sent it back to [Mother]

with a letter . . . stating [that ‘the entire first paragraph is inappropriate’]

18
   Curiously, Dr. Norford is E.G.D.’s therapist. As noted supra, M.G.D. was
treated by Dr. Schwarz.

                                     - 24 -
J-A08005-16
J-A08006-16


and [informing her] that if she wanted to rewrite it and leave those portions

out . . . [she] would be happy to forward it to [M.G.D.]”       Id. at 80-81

(quoting Child Advocate’s Letter dated 2/10/15).

      Neither of the child advocate’s explanations identifies which aspect of

the letter was inappropriate, and the record does not reveal the specific

reason for the child advocate’s unilateral decision to reject it. As outlined,

supra, Mother’s letter did not insult or belittle M.G. or E.G.D., discuss

Mother’s pending criminal matters, or even present a false hope of their

immediate reunification.    Indeed, we are uncertain whether the child

advocate protested the letter’s reference to M.G. and Dr. Norford, Mother’s

loving reassurances, or the statement that implicated the child advocate in

the decision to reduce the contacts. While we will not presume to know the

child advocate’s logic, it is evident that the result of the child advocate’s

excessive control was that Mother was required to reduce her weekly

contacts with M.G.D. and then was forbidden to explain to her daughter why

she was sending the correspondence less frequently.

      Although Mother declined to revise the pertinent letter and simply

acquiesced to the child advocate’s directive to communicate with her

daughter less frequently, this episode, which stems entirely from the child

advocate’s overreach of her court-ordered mandate to ensure that the

correspondence was appropriate, uncovered yet another problem with this




                                    - 25 -
J-A08005-16
J-A08006-16


case—the trial court’s improper delegation of its authority to child advocate

Attorney Kane Brown.

        The trial court did not define Attorney Kane Brown’s precise role in this

child custody case.      Indeed, the court’s Rule 1925(a) opinion refers to

Attorney Kane Brown interchangeably as both a child advocate and guardian

ad litem. See Trial Court Opinion, 10/19/15, at 2, 7, 8. Unlike the roles of

guardian ad litem and counsel for child, which are clearly delineated in the

child custody law, the statute does not recognize the role of “child advocate”

or define the scope of a child advocate’s authority in custody cases. See 23

Pa.C.S. §§ 5334-5335.         Recall that Attorney Kane Brown was initially

appointed through MCAP as M.G.D.’s child advocate in the PFA action against

Mother, and ostensibly retained pursuant to 42 Pa.C.S. § 5983, which

provides for the appointment of advocates for children who are victims or

material witnesses in criminal proceeding.19


19
     That statute provides as follows:

        (A) Designation of persons to act on behalf of children.—
        Courts of common pleas may designate one or more persons as
        a child advocate to provide the following services on behalf of
        children who are involved in criminal proceedings as victims or
        material witnesses:

          (1) To explain, in language understood by the child, all legal
          proceedings in which the child will be involved.

          (2) As a friend of the court, to advise the judge, whenever
          appropriate, of the child's ability to understand and
          cooperate with any court proceedings.

                                         - 26 -
J-A08005-16
J-A08006-16


     Moreover,       stark   differences   exist   among   the   appropriate

responsibilities of an MCAP attorney appointed as a child advocate for a

victim of abuse, neglect, or a crime; a guardian ad litem appointed under §

5334; and legal counsel appointed pursuant to § 5335. Basically, the MCAP

child advocate utilizes a holistic approach to representation that is not

specifically authorized by the child custody law and transcends both that of

guardian ad litem and legal counsel.20




        (3) To assist or secure assistance for the child and the
        child's family in coping with the emotional impact of the
        crime and subsequent criminal proceedings in which the
        child is involved.

     (b) Qualifications.--Persons designated under subsection (a)
     may be attorneys at law or other persons who, by virtue of
     service as rape crisis or domestic violence counselors or by
     virtue of membership in a community service organization or of
     other experience acceptable to the court, possess education,
     experience or training in child or sexual abuse and a basic
     understanding of the criminal justice system.

42 Pa.C.S. § 5983.
20
   MCAP child advocates are charged with the mission “to give Voice, Healing
and Security to children.” http://www.mcapkids.org/mission-history/.
Indeed, as stated with a spirit commensurate with the organization’s
impactful role, MCAP defines its child advocacy by stating, “We help kids be
kids and recapture their childhoods! We give children roots to grow and
wings to fly. We advocate for our kids, so that they will be the SUPERHeroes
they were born to be!” Id. In sum, the MCAP child advocate cultivates a
protective emotional and social environment as well as providing legal
expertise.


                                     - 27 -
J-A08005-16
J-A08006-16


        Furthermore, the two types of representatives that are authorized

under the child custody law serve different functions, and the trial court’s

intention in appointing Attorney Kane Brown is not obvious from the

authority that it delegated to her throughout these proceedings.            For

example, Attorney Kane Brown has performed tasks consistent with legal

counsel appointed under § 5335(a), i.e., she invoked the privilege of

communication during one hearing, and the trial court routinely invited her

to present evidence and cross-examine witnesses.         However, during the

identical period, Attorney Kane Brown maintained monthly telephone contact

with M.G.D., presented her concerns and general recommendations to the

court consistent with the guardian ad litem’s powers and duties under §

5334(b)(6) and (8), and the trial court not only examined her on the record,

presumably under oath, and elicited opinion testimony interpreting one of

Grandfather’s statements, but it also subjected her to cross-examination by

Mother and Grandfather. The latter considerations are particularly relevant

in light of the fact that, effective September 3, 2013, the Supreme Court

clarified, inter alia, that the guardian ad litem can no longer represent both

the best interest and legal interest of the child, or present evidence or cross-

examine witnesses; however, the guardian ad litem may testify and be

subject to cross-examination.21     While the changes became effective three


21
     The Editors’ Note following 23 Pa.C.S. § 5334 explained,


                                      - 28 -
J-A08005-16
J-A08006-16


months after the trial court first endowed Attorney Kane Brown with her

court-ordered authority during June 2013, the alterations were operative

when the trial court extended this power in its October 2014 custody order.

Moreover, Attorney Kane Brown’s role as child advocate was ambiguous at

the outset. At best, the trial court’s mandates blurred the lines of Attorney

Kane Brown’s appointment, and at worst, the action was the improper

delegation of judicial-decision making authority reminiscent of a parenting

coordinator.   Thus, upon remand, the trial court shall state Attorney Kane

Brown’s specific role with clarity and ensure that she acts within the

statutory authority of that appointment.

     Having reversed the portion of the custody order relating to Mother’s

request for visitation and increased non-physical contact, we next address

Grandfather’s pro se appeal. He presents four questions for our review:

     [1.] Was the relevant evidence before the lower court sufficient
     to terminate the Partial Custody previously granted to the
     grandfather by Order of June 12, 2013? The Order being
     appealed was entered on August 19, 2015 and terminated Partial
     Custody in the Grandparent.


                             SUSPENDED IN PART

     23 Pa.C.S.A. § 5334 is suspended insofar as it (1) requires that
     a guardian ad litem be an attorney, (2) permits the guardian ad
     litem to represent both the best interests and legal interests of
     the child, (3) provides the guardian ad litem the right to
     examine, cross-examine, present witnesses and present
     evidence on behalf of the child, and (4) prohibits the guardian ad
     litem from testifying, pursuant to Pa.R.C.P. No. 1915.25.

23 Pa.C.S. § 5334; Pa.R.C.P. 1915.25 (effective September 3, 2013).

                                   - 29 -
J-A08005-16
J-A08006-16



      [2.] Is the lower court permitted to consider the opinion of the
      attorney for M.G.D. as determinative to a finding of that which is
      in the "best interests" of the child when that attorney, guardian
      ad litem clearly has no expertise in the relevant professions to
      render such opinions and there is no testimony in the record as
      to any negative impact that Grandparents Partial Custody would
      have on M.G.D.(Grandchild)?

      [3.] Is the lower court permitted to determine a potential
      future harmful impact upon M.G.D.(Grandchild) upon a
      completely unsubstantiated interpretation of a Statement made
      by Intervenor-Appellant?

      [4.] Did the lower court err by not considering (a) the
      importance of preserving the stability in the life of M.G.D. when
      it completely removed the Grandfather from the life of M.G.D.,
      and (b) the traumatic effect upon M.G.D. that would surely result
      from the continued denial of contact between M.G.D. and her
      grandfather?

Grandfather’s brief at 2-3.

      Grandfather’s brief does not conform to Pa.R.A.P. 2119 insofar as he

failed to divide the argument into sections that correspond with the four

issues he raised in his statement of questions involved.          Instead of

complying with the procedural uniformity of Rule 2119, Grandfather presents

one rambling argument that touches, to varying degrees, upon on the points

that he noted in his statement of issues. While this Court is authorized to

quash a nonconforming brief, his procedural misstep does not substantially

impede our ability to perform appellate review, and we shall address the

merits of the arguments that have been preserved for review in the Rule

1925(b) statement. See Pa.R.A.P. 2101; Commonwealth v. Adams, 882



                                    - 30 -
J-A08005-16
J-A08006-16


A.2d 496, 498 (Pa.Super. 2005) (“Despite the numerous defects in

Appellant's brief, we will address the one claim that we are able to

review[.]”).

      Next, we observe that Grandfather’s first and fourth claims are waived

due to his failure to present them in his Rule 1925(b) statement.            See

Pa.R.A.P. 1925(b)(4)(vii).   Likewise, while Father hinted at the crux of his

second claim in his Rule 1925(b) statement, i.e., the trial court erred in

denying him partial custody by “appl[ying] a ‘fact’ not in evidence,” he failed

to identify the fact that he intended to challenge, and the trial court was

unable to address this claim. See Concise Statement of Matters Complained

of on Appeal, 9/17/15, at 1. Grandfather attempts to rectify his mistake by

specifying in his brief that the trial court erred in equating Attorney Kane

Brown’s supposition with actual fact. However, this post hoc explanation is

unavailing. By failing to articulate a specific argument in his Rule 1925(b)

statement that the trial court could identify, Grandfather forfeited appellate

review of this issue.   Reinert v. Reinert, 926 A.2d 539 (Pa.Super. 2007)

(issue raised on appeal waived where Rule 1925(b) statement was too

vague for trial court review).

      While M.G. also asserts that the third issue is waived pursuant to Rule

1925(b), we disagree with that assessment.        The Rule 1925(b) statement

delineated that, inter alia, the trial court erred in relying on the effect of the

perceived discord between Grandfather and M.G. as the basis for denying

                                     - 31 -
J-A08005-16
J-A08006-16


him periods of custody with his granddaughter.             Contrary to M.G.’s

characterization, our interpretation of Grandfather’s Rule 1925(b) statement

subsumes the third argument that Grandfather raises herein.22 Accordingly,

we will address it.

      Grandfather challenges the trial court’s finding that he and Mother are

responsible for the family’s contentious relationship with M.G. In reaching

this conclusion, the trial court pointed to three factual determinations: (1)

Grandfather demeans M.G. by insisting upon referring to her as “adoptive

mother;” (2) he believes Mother acted in self-defense despite the jury

conviction; and (3) he attempted to alienate M.G.D. from M.G. and E.G.D.

As we discuss infra, the certified record clearly sustains the trial court’s

findings that Grandfather referred to M.G. as adoptive mother and advocated

Mother’s criminal defense.     However, since there is no indication in the

record that Grandfather shared with M.G.D. his personal perspective of M.G.

or discussed Mother’s legal defense in the child’s presence, we reject the

inference that those differences interfered with the parent-child relationship.

      The following legal principles guide our review. This court must defer

to the trial court’s credibility determinations and its factual findings that are


22
   While the dissent does not hesitate to find the third issue waived, Rule
1925(b)(4)(v) provides for a nuanced review of claims that treats as
preserved the specific error identified as well as “every subsidiary issue
contained therein[.]”   Instantly, we find that the specific claims that
Grandfather leveled in Issue C of his Rule 1925(b) statement subsume the
third argument that he makes on appeal.

                                     - 32 -
J-A08005-16
J-A08006-16


supported by the record. S.W.D., supra at 400. However, findings of fact

that cannot be sustained with competent evidence are not binding.         A.V.,

supra at 820. “Ultimately, the test is whether the trial court's conclusions

are unreasonable as shown by the evidence of record.” See K.T. v. L.S.,

118 A.3d 1136, 1159 (Pa.Super. 2015) (quotations omitted).23

      The child custody law outlines the relevant factors to consider in

determining whether to award partial physical custody to a grandparent who

has standing to pursue partial custody under § 5325(2) based upon the

dissolution of her parents’ relationship.      In this scenario, § 5328(c)(1)

requires that the trial court consider:

          (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. § 5328(c)(1). Moreover, in adjudicating the child’s best interest

under § 5328(c)(1)(iii), the trial court is required to engage in a review of


23
   While the dissent criticizes what it depicts as our glib disagreement with
the trial court’s findings of fact, our standard of review demands that this
Court ensure that the trial court’s factual determinations are sustained by
competent evidence of record. As noted in the body of this writing, some of
the trial court’s findings are founded on Attorney Kane Brown’s supposition
and others are based on insinuations leveled during Mother’s criminal case.
Thus, our observations regarding these tenuous factual underpinnings, as
well as the inherent contradiction in the trial court’s risk-of-harm discussion
undoubtedly is within the purview of our standard of review. See A.V.,
supra at 820.

                                     - 33 -
J-A08005-16
J-A08006-16


the sixteen statutory best-interest factors applicable when making any order

of custody. K.T., supra at 1159; L.A.L., supra at 695; 23 Pa.C.S. §

5328(a).24


24
     The list of best-interest factors include:

        (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.

        (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.


                                        - 34 -
J-A08005-16
J-A08006-16


      Instantly, the trial court denied Grandfather’s request for partial

custody because it determined that partial custody would interfere with

M.G.D.’s relationship with M.G., and would be adverse to M.G.D.’s best

interest.   Specifically, the court concluded that Grandfather’s animosity

towards M.G., insistence upon Mother’s innocence in the criminal matter,

and alleged attempt to influence M.G.D.’s testimony in that case were

detrimental to M.G.D. The court also determined that Grandfather’s feigned

concern for M.G.D.’s safety in M.G.’s household was designed to alienate

M.G.D. from M.G. and E.G.D.



      (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. § 5328(a)(1)-(16).

                                    - 35 -
J-A08005-16
J-A08006-16


        In explaining its rationale, the trial court ignored our recent decision in

K.T.,    supra,   wherein    we   addressed     grandparent   custody    under   §

5328(c)(1).     Instead, the court relied upon two cases that predated the

current child custody law, Zaffarano v. Genaro, 455 A.2d 1180 (Pa. 1983)

and Miller v. Miller, 478 A.2d 451 (Pa.Super. 1984), which discuss the

effects of hostility between parents and grandparents.         More importantly,

however, the trial court omitted the component of the § 5328(c)(1) analysis

relating to M.G.D.’s level of personal contact with Grandfather prior to the

custody litigation, and it utterly failed to engage in the required review of

the statutory best-interest factors pursuant to § 5328(a). Since Grandfather

did not assert these omissions as grounds to reverse the instant custody

order, we do not raise them sua sponte in order to grant relief. We note,

however, that had Grandfather leveled these complaints, we would have

reversed the custody order on the basis of the omitted best-interest factors

alone.    See L.A.L. supra (“Because the present record does not evince a

thorough analysis of all relevant factors, we cannot conclude that the trial

court properly considered the Child's best interest.”). Nevertheless, as we

are compelled to reverse the order relating to Grandfather due to the trial

court’s unsupported factual findings, we caution the court to be mindful of

the statutory requirements on remand and to perform the appropriate best-

interest analysis as required by the child custody statute. See K.T., supra

at 1159.

                                       - 36 -
J-A08005-16
J-A08006-16


      First, as it relates to Grandfather’s persistent references to M.G. as

“adoptive   mother,”   we   agree   that   the   moniker   is   inexcusable   and

Grandfather’s cavalier reaction to M.G.’s objection to the epithet evinces his

disdain for her as a parent and ignores M.G.’s unwavering legal, emotional,

and moral responsibility to her daughter.        Notwithstanding Grandfather’s

insensitive behavior, however, considering the procedural and factual errors

that we have encountered in reviewing the trial court's custody decision, we

find that the derogatory statements do not warrant depriving Grandfather of

his custodial rights—particularly in light of his pledge to drop the disparaging

qualification and to simply refer to M.G. as the child’s mother.

      Next, concerning the discussion of Mother’s legal defense with M.G.D.,

the trial court adopted Attorney Kane Brown’s interpretation of Grandfather’s

statement that he would “pump M.G.D. for information” as an indication of

Grandfather’s intention to influence the child’s testimony in the criminal

proceedings. As Grandfather points out in his brief, nothing in the certified

record suggests that he has ever discussed the criminal matter with M.G.D.,

let alone attempted to influence her testimony. He further explained that he

made the statement in reference to his granddaughter’s allegations of abuse

in M.G.’s household.     Indeed, apparently recognizing this reality, M.G.

concedes in her brief that the “pump for information” statement related to

Grandfather’s intention to obtain details of the abuse that he suspected that

his granddaughter was enduring at the hands of E.G.D. See Appellee’s brief

                                     - 37 -
J-A08005-16
J-A08006-16


at 8 (stating that Grandfather’s actual purpose for seeking this information

was to undermine the parent-child relationship).        While M.G. could have

leveled an alternative assertion in her brief concerning Grandfather’s alleged

attempt to obtain information from M.D.G. about the shooting, she did not.

In fact, Appellee does not mention Grandfather’s comment in reference to

the criminal matter at all. Unlike Attorney Kane Brown’s conjecture about

Grandfather’s intent to interfere with the criminal matter, as we highlight

infra, the certified record is replete with evidence that M.G.D. has been

required   to   endure   E.G.D.’s   physical     mistreatment   without   M.G.’s

intervention. As the certified record will not sustain Attorney Kane Brown’s

supposition concerning what she believed Grandfather intended by the

statement, the court erred in adopting her perspective as grounds to deny

partial custody.

      Likewise, neither M.G. nor the trial court identified any countervailing

evidence to contest Grandfather’s statement that he never discussed the

incident with M.G.D. Grandfather testified that soon after the May 27, 2013

shooting, he scheduled a meeting between M.G.D. and Mother’s defense

counsel. Id. at 25, 27. The scheduling occurred prior to the custody court’s

June 4, 2013 order precluding any discussion of the incident, and once the

trial court issued its order, the meeting was immediately cancelled.        Id.

Accordingly, this finding also is unsupported.




                                    - 38 -
J-A08005-16
J-A08006-16


      Finally, we address the trial court’s finding of alienation, which is the

primary ground for concluding that awarding Grandfather partial physical

custody   of   M.G.D.   would   interfere   with   her   relationship   with   M.G.

Throughout the proceedings, the trial court was preoccupied with how its

ruling would affect M.G.D.’s relationships in M.G.’s home.        For example, it

interpreted Grandfather’s ongoing concern for M.G.D.’s safety around E.G.D.

as a pretext to alienate his granddaughter from that side of her family.

Indeed, when the trial court actually confronted the issue in its threshold

determination of Grandfather’s standing, it was less concerned with M.G.D.’s

safety than the effect that the allegations of abuse would have upon E.G.D.

The court’s reaction and its finding of alienation would be reasonable if the

allegations of physicality had been completely refuted. However, that is not

the case herein.25

      The record demonstrates that, notwithstanding M.G.’s protestations to

the contrary, E.G.D. posed a risk to M.G.D.’s safety and that Grandfather’s

concerns were warranted.        During the June 2013 hearing, Dr. Norford

testified about the treatment that he rendered to E.G.D. in order to address

25
   To be clear, we do not revisit the 2013 proceeding in order to disturb the
trial court’s prior conclusions that E.G.D. did not abuse his sister or that
M.G.’s response to E.G.D.’s behavior was not tantamount to parental neglect
that conferred standing to Grandfather to seek primary physical custody of
M.G.D. Neither of these issues is presently before this Court. Instead, we
review the evidence adduced during the 2013 hearing in light of the trial
court’s current finding that Grandfather’s continued concern for M.G.D.’s
safety is pretextual and to highlight that the trial court shared similar safety
concerns during 2013, even though it declined to find abuse or neglect.

                                     - 39 -
J-A08005-16
J-A08006-16


his aggressive behavior. Dr. Norford treated E.G.D. for approximately one

month during June 2011 and resumed treatment during January 2013,

following E.G.D.’s publication of inappropriate statements on the school’s

computer network.         He described the post as racially and ethnically

insensitive, extremely intense, and aggressive, but lacking any direct threats

of violence to any of the individuals that he identified.        In spite of that

conclusion, he recommended that the school increase its monitoring of

E.G.D., require weekly meetings with the school guidance counselor, regular

contact with his psychiatrist, and outpatient therapy. Since the resumption

of counseling, E.G.D. participated in nine sessions, two of which followed the

shooting incident.

      Dr. Norford testified that E.G.D. had a fairly substantial case of

attention deficit hyperactivity disorder (“ADHD”) with a small degree of

symptoms consistent with anxiety and Asperger’s Syndrome. He highlighted

that E.G.D. exhibited impulsiveness and poor judgment. E.G.D. takes four

types of daily medication to address his impulsivity and to sharpen his focus.

Dr. Norford also noted that, while Mother highlighted the boy’s symptoms,

M.G. elected to minimize them.        For example, although Mother presented

several   examples   of    their   son’s   aggressive   and   excessive   behavior

throughout his childhood, M.G. consistently downplayed those episodes.

      For his part, Dr. Norford found that the behaviors were typical for a

child with ADHD and did not characterize E.G.D. as particularly aggressive or

                                       - 40 -
J-A08005-16
J-A08006-16


harmful to people in general.    Paradoxically, however, in describing the

profanity-laced blog post for which he was suspended from school for two

days, he opined, “I don’t want to say that someone is not any danger to

somebody when you have a rant like that sitting there.” N.T., 6/10/13, at

42-43.    He also noted that while it had been reported that the child

previously threatened an elementary school teacher and stole a knife from a

home his parents were considering purchasing, he did not follow up either

report.

      As it relates specifically to M.G.D., Dr. Norford explained that E.G.D.

speaks positively of his sister and smiles when he talks about her. He never

expressed anger with his sister or blamed her for her accusations of abuse.

Instead, E.G.D directs his anger toward Mother. Dr. Norford reported, “He

says that [Mother] believes he is violent and that, if anything happens to

[M.G.D.] when they’re playing, that it might result in her not being able to

come back.” Id. at 47. The witness continued, “he feels that . . .[M.G.D.

will] say what [Mother] feels about the situation[.]”   Id. Based on these

conversations, Dr. Norford did not believe that E.G.D. is intentionally

aggressive or violent with his sister and attributed the girl’s injuries to

roughhousing between siblings.      During Attorney Kane Brown’s cross-

examination, Dr. Norford agreed with her supposition that E.G.D. may not

realize that his sister perceives his ADHD symptoms as aggressive

behaviors. Id. at 71-72.

                                   - 41 -
J-A08005-16
J-A08006-16


      Dr. Norford conceded that his conclusion was based entirely upon

E.G.D.’s and M.G.’s versions of the sibling relationship and data from

E.G.D.’s school. Significantly, he has never to spoken to M.G.D. and he only

observed the children together once in the waiting room outside his office.

Moreover, neither E.G.D. nor M.G. informed Dr. Norford that M.G.D. hid in

the closet to avoid interacting with her brother.

      In contrast to the benign interactions that Dr. Norford relayed to the

court, Dr. Schwarz, who has treated M.G.D. monthly since August of 2012,

testified that M.G.D. was unhappy in M.G.’s home. During the majority of

their sessions, M.G.D. complained to him that E.G.D. was physically abusive

and confirmed that M.G. did not curb E.G.D.’s behavior.        In addition to

general complaints of rough treatment, she described two specific examples

of physicality. On one occasion, E.G.D. placed his legs around her neck and

squeezed them in a chokehold-like maneuver. During a separate incident,

E.G.D. put M.G.D. in a headlock. Dr. Schwarz testified that, when M.G. told

him that M.G.D. was always happy and smiling in her presence, he advised

M.G. that her daughter “has been pretty consistently unhappy with [the

situation with E.G.D. and the lack of limits.]” N.T., 6/12/13, at 292.26 While


26
   The notes of testimony for the June 12 hearing is paginated both
independently and consecutive to the June 10 hearing. Additionally, the
morning and afternoon sessions of the June 12 hearing were transcribed in
reverse order. For ease of reference and to limit confusion, we cite to the
uniform pagination.


                                     - 42 -
J-A08005-16
J-A08006-16


Dr. Schwarz was concerned about M.G.D.’s protests, he did not believe that

the actions warranted advising a child service agency of potential child

abuse.

      Dr. Schwarz also testified that, from his initial interaction with M.G.D.,

the child outlined issues with E.G.D., M.G’s lack of structure, and her feeling

that she would not be “protected from her older brother.”          Id. at 296.

M.G.D. also relayed that she took shelter in a closet while at M.G.’s home

“because she was unhappy[,] wanted to read[,] and . . . needed to be left

alone.” Id. Significantly, Dr. Schwarz rejected the trial court’s attempt to

minimize E.G.D.’s behavior as common sibling roughhousing. He stated, “I

took it more as . . . a little worse than roughhousing . . . the[se] are

brothers and sisters who don’t treat each other all that well.” Id. at 307.

      Nevertheless, the trial court rebuffed Dr. Schwarz’s perspective of the

physical interactions, continued to diminish M.G.D.’s reports as normal

sibling roughhousing, and expressed its shock that more incidents had not

been reported over the seven-year period in light of E.G.D.’s condition. The

court reasoned, “Siblings fight. Kids fight. Kids get injured as a result. . . .

Kids fight.   And every now and then kids fight to a point where one gets

injured, sometimes more seriously than others.” Id. at 269. Even when the

court acknowledged that E.G.D.’s actions could have been intentional, the

court was “not convinced by a preponderance of the evidence that there is

such serious abuse by [E.G.D.] that would prompt [it] to say that [M.G.]

                                     - 43 -
J-A08005-16
J-A08006-16


is . . . neglectful to such a point that [Grandfather] should be permitted to

intervene in this case.” Id.

      Tellingly, however, despite relegating the referenced incidents to

typical rambunctiousness between children, the trial court cautioned M.G.

about her lax discipline of E.G.D. and warned, “[Y]ou’ve got to recognize

that [M.G.D.] is a little girl who may need a watchful eye all the time she’s

with her brother and needs to be reassured that you are taking care of the

issues.”   N.T., 6/10/13, at 270 (emphasis added).     Later, the trial court

repeated its caveat: “[I]t’s up to you, [M.G.] to monitor that in your home.

That means that you don’t leave these two children alone. Don’t leave them

alone.”    Id at 274.   If M.G.D.’s injuries were truly the unfortunate but

acceptable product of sibling roughhousing, the trial court’s admonishment

of M.G. would be unnecessary.

      Thus, while the court deemed E.G.D.’s behavior to be something less

than physical abuse, the trial court’s demonstrated concern about M.G.’s

hesitancy to address her son’s conduct validated Grandfather’s apprehension

about M.G.D.’s safety in that household.    Stated another way, the court’s

factual findings regarding the siblings’ abrasive interaction substantiates

Grandfather’s concern over the potential threat that E.G.D. would pose to

M.G.D. if his behavior was permitted to continue unchecked.         The trial

court’s corroboration of Grandfather’s concern for M.G.D.’s wellbeing belies

the court’s legal conclusion that Grandfather’s fear was a pretext by which

                                   - 44 -
J-A08005-16
J-A08006-16


he alienated M.G.D. from M.G. and E.G.D.                As the trial court’s legal

conclusion that Grandfather’s concern was pretextual is unreasonable in light

of its factual finding, the trial court abused its discretion in this regard. See

S.W.D., supra at 400 (“We may reject the trial court's conclusions [that]

are unreasonable in light of its factual findings.”).

      For all of the foregoing reasons, we reverse the trial court’s August 19,

2015 custody order. The trial court is directed to clarify the statutory basis

of Attorney Kane Brown’s appointment; review Mother’s request for

visitation, whether it be “virtual visitation” or in-person visitation, consistent

with the factors our Supreme Court endorsed in D.R.C., supra; and review

Grandfather’s petition for partial physical custody in light of the § 5328 (a)

and (c)(1)(i), considerations the court omitted from its prior determination.

      Order reversed.     Cases remanded for further proceedings consistent

with this opinion. Jurisdiction relinquished.

      Judge Olson joins the opinion.

      Judge Strassburger files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/8/2017




                                      - 45 -
