S.E.M. v. N.D.(M) P. v. L.A. & S. M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.E.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
N.D.(M.)P. :
:
Appellant : No. 534 WDA 2020
:
:
v. :
:
:
L.A. & S.M. :
Appeal from the Order Entered March 26, 2020
In the Court of Common Pleas of Blair County Civil Division at No(s):
2013 GN 363
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2020
N.D.(M.)P. (“Mother”) appeals from the March 26, 2020, Order (the
“Custody Order”) awarding L.A. and S.M. (“Paternal Grandparents” or
“Grandparents”) shared legal and primary physical custody of their three
female, minor grandchildren, C.M. (born in April 2004), K.M. (born in February
2007), and M.M. (born in October 2008) (collectively, the “Children”).1 We
affirm.
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1 The Order also granted shared legal and physical custody of the Children to
S.E.M. (“Father”). Mother does not challenge the court’s Custody Order
regarding Father.
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We adopt the procedural and factual history provided by the trial court
in its March 27, 2020, Opinion, for the purpose of this appeal. See Trial Court
Opinion, 3/27/20, at 1-21.
On March 27, 2020, the trial court issued its Custody Order and
accompanying Opinion. The Custody Order granted Paternal Grandparents
shared legal and primary physical custody, Father shared legal and partial
physical custody, and Mother shared legal and partial physical custody. The
Custody Order provided that Mother would have partial custody on weekends
that she is not working, pursuant to her work schedule, as well as one
weekday period of partial custody on Thursdays, when she is not working.
The Order provided for a holiday schedule as well as other necessary
provisions for the care of the Children.
Mother timely filed a Notice of Appeal, but did not simultaneously file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(ii) and (b). However, Mother filed her Concise Statement on May
5, 2020, and there is no prejudice resulting therefrom. Accordingly, we need
not dismiss her appeal. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super.
2009) (holding that the failure to file a Rule 1925(b) statement
contemporaneously with a notice of appeal in a children’s fast track case will
result in a defective notice of appeal that this Court will address on a case by
case basis, avoiding the extreme action of dismissal when the defect does not
prejudice any party).
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On appeal, Mother raises the following issues for review:
1. Whether the [trial] court erred in awarding primary custody of
the [Children] to [Grandparents] of the [Children], over [Mother,]
when there is a heavy burden and rebuttable presumption under
the law in favor of the parent in any custody action regarding a
parent and a non-parent. [See] 23 Pa.C.S.A. § 5327(b).
2. Whether the [trial] court erred in disregarding the preferences
of the [C]hildren, two (2) of which are teenagers, to spend more
time with [Mother]?
Mother’s Brief at 15 (answers omitted).
In custody cases under the Child Custody Act, 23 Pa.C.S.A. §§ 5321-
5340, our standard of review is as follows:
We review a trial court’s determination in a custody case for an
abuse of discretion, and our scope of review is broad. Because
we cannot make independent factual determinations, we must
accept the findings of the trial court that are supported by the
evidence. We defer to the trial [court] regarding credibility and
the weight of the evidence. The trial [court]’s deductions or
inferences from its factual findings, however, do not bind this
Court. We may reject the trial court’s conclusions only if they
involve an error of law or are unreasonable in light of its factual
findings.
C.A.J. v. D.S.M., 136 A.3d 504, 506-07 (Pa. Super. 2016) (citation omitted).
Additionally,
[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.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
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Mother first claims that the trial court erred in awarding primary custody
of the Children to Paternal Grandparents over Mother, when there is a heavy
and rebuttable presumption under the law in favor of the parent in any custody
action between a parent and a non-parent. See Mother’s Brief at 21. Mother
argues that the trial court’s conclusions about Mother’s lack of maturity and
instability were based upon her testimony in open court, but that there was
no evidence showing a connection between her testimony and her parenting
abilities. Id. The majority of Mother’s arguments regarding the custody
factors focus on various aspects of the trial court’s factual findings. Id. at 21-
22.
Of note, Mother contends that she did not abandon the Children, but
that she could not take care of them for several years due to her health,
namely, a tumor in her left ventricle. See Mother’s Brief at 25-26; see also
N.T., 3/28/18, at 9-10. Mother further claims that she does not need
assistance with her parental responsibilities, and she keeps the same routine
as the Paternal Grandparents with regard to the Children’s homework. See
Mother’s Brief at 28-29. Mother contends that the trial court ignored certain
testimony, such as the fact that Paternal Grandmother talks negatively about
Mother, and that Maternal Grandmother is available for childcare. Id. at 30,
33. Mother additionally contends that her behavior in court was the result of
tiredness and frustration, but is irrelevant to the custody analysis and does
not affect her ability to parent. Id. at 31-32.
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When there is a custody dispute between parents and a third party, 23
Pa.C.S.A § 5327 states, in part, that “[i]n 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.” 23
Pa.C.S.A. § 5327(b). Accordingly,
where the custody dispute is between a biological parent and a
third party, the burden of proof is not evenly balanced. In such
instances, the parents have a prima facie right to custody, which
will be forfeited only if convincing reasons appear that the child’s
best interest will be served by an award to the third party. Thus,
even before the proceedings start, the evidentiary scale is tipped,
and tipped hard, to the biological parents’ side.
V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa. Super. 2012) (quoting Charles v.
Stehlik, 744 A.2d 1255, 1258 (Pa. 2000)).
What the [trial court] must do, therefore, is first, hear all evidence
relevant to the child’s best interest, and then, decide 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.
[McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000)
(quoting Ellerbe v. Hooks, 416 A.2d 512, 513–14 (Pa. 1980)].
In [Ellerbe,] our Supreme Court noted that “these principles do
not preclude an award of custody to the non-parent. Rather they
simply instruct the hearing judge that the non-parent bears the
burden of production and the burden of persuasion and that the
non-parent’s burden is heavy.” Essentially, the Supreme Court
determined, “where circumstances do not clearly indicate the
appropriateness of awarding custody to a non-parent, we believe
the less intrusive and hence the proper course is to award custody
to the parent or parents.” [Ellerbe, 416 A.2d] at 514.
V.B., 55 A.3d at 1199.
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In its Opinion, the trial court set forth the section 5328(a) best interest
factors, addressed Mother’s first claim, and concluded that it lacks merit. See
Trial Court Opinion, 3/27/20, at 21-36. The record supports the trial court’s
findings, and its conclusions are sound. We therefore affirm on the basis of
the trial court’s Opinion with regard to Mother’s first claim. See id. In
particular, we note the following.
In its Opinion, the trial court observed that Mother was unable to provide
evidence to support the reasonableness of her choice to absent herself from
the Children’s lives. See id. at 6. Further, regarding Mother’s argument about
the Children’s homework, Paternal Grandmother testified that at Paternal
Grandparents’ house, the Children do their homework, eat dinner, and are in
bed by 9 and 9:15 p.m.; when returning from Mother’s house, often their
homework is not done and the Children have to work on their homework until
9:30 p.m. See N.T., 1/31/20, at 46-49. Paternal Grandmother attempted to
talk to Mother about the homework issue, and Mother stated that the Children
informed her they did not have homework.2 Id. at 49.
Finally, the trial court found in its Opinion that Paternal Grandmother
occasionally made negative comments about Mother. See Trial Court Opinion,
3/27/20, at 26. Indeed, the trial court specifically included in its Order that
no party was to engage in negative talk against the other. See Trial Court
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2 Paternal Grandmother also testified that Mother had taken money out of
C.M.’s bank account for her own use. See Intervenor’s Ex. 6.
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Opinion, 3/27/20, at 26, 38. Because the record supports the trial court’s
findings, and we discern no abuse of discretion, we cannot grant Mother relief
on her first claim.
In her second claim, which Mother incorporates into her analysis of the
first issue, Mother asserts that the trial court improperly disregarded the
Children’s preference to live with Mother. See Mother’s Brief at 30-32, 37.
Mother argues that it is clear that the Children do not like going from Mother’s
house, to Paternal Grandparents’ house, and to Father’s house. Id. at 30.
Mother argues that, as teenagers, the Children are old enough to make their
own decisions and that Mother’s proposal of 50/50 custody between herself
and Father is in alignment with the Children’s preferences. Id. at 30-31.
This Court has explained as follows:
Although the express wishes of a child are not controlling in
custody decisions, such wishes do constitute an important factor
that must be carefully considered in determining the child’s best
interest. The weight to be attributed to a child’s testimony can
best be determined by the judge before whom the child appears.
The child’s preference must be based upon good reasons and his
or her maturity and intelligence must also be considered.
Ketterer, 902 A.2d at 540 (internal quotations and citations omitted).
Here, the trial court acknowledged that the Children wished to spend
more time with Mother, and that the Children were fairly mature and well-
spoken for their age. See Trial Court Opinion, 3/27/20, at 30. However, the
trial court also noted that the Children’s preference appeared to be because
Mother was the “fun parent,” and that Paternal Grandparents provided more
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safety, security, and discipline for the Children. See generally id. at 24-34.
The trial court accordingly granted Mother more time with the Children, while
still leaving the Children in the primary custody of the Paternal Grandparents,
as that was in their best interests. See id. at 34-36. We agree with the trial
court’s well-reasoned analysis of this factor and find no reason to disturb it on
appeal. C.A.J., 136 A.3d at 506-07.
We conclude that the trial court appropriately analyzed the custody best
interest factors under section 5328(a) of the Custody Act, weighing those
factors between primary custody remaining with the Paternal Grandparents or
being awarded to Mother, and that the competent evidence in the record
supports the trial court’s determinations, which are not unreasonable. See
id. Accordingly, we affirm the on the basis of the trial court’s Opinion with
regard to Mother’s second claim. See Trial Court Opinion, 3/27/20, at 24-34.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2020
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