M.J.S. v. B.B. v. B.B. ( 2017 )

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2017 PA Super 327M.J.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
B.B.
v.
No. 37 WDA 2017
B.B.
Appeal from the Order Dated December 6, 2016
In the Court of Common Pleas of Clearfield County
Civil Division at No(s): 2015-1290-CD
BEFORE: BOWES, LAZARUS, AND OTT, JJ.
OPINION BY BOWES, J.: FILED OCTOBER 17, 2017
M.J.S. (“Father”) appeals the trial court order entered on December 6,
2016, wherein the trial court awarded primary physical custody of his son,
L.M.S., to the maternal grandmother, B.B. (“Grandmother”). Father
challenges Grandmother’s standing to pursue custody, assails the trial
court’s miscomprehension of the procedural posture of the case, and
complains that the court ignored the statutory presumption favoring parents
over third parties. As we agree with the latter two contentions, we reverse
and remand for further proceedings.
L.M.S. was born during January 2010 of Father’s relationship with
B.M.B. (“Mother”). For the first five years of L.M.S.’s life, he lived with
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Mother at Grandmother’s home in Clearfield County, Pennsylvania. Father,
who resides approximately one-hour away in Dubois, Pennsylvania,
exercised partial physical custody of his son on alternating weekends
pursuant to an informal custody arrangement.
On August 19, 2015, Mother informed Father through an intermediary
that she intended to enroll in an inpatient detoxification program at DuBois
Regional Medical Center and that Father should assume custody of their son.
Father took physical custody of L.M.S., and approximately one week later,
he filed a petition for primary physical custody. The trial court scheduled a
custody conference for September 22, 2015, and on September 25, 2015, it
ordered that Mother and Father each pay $250.00 for compulsory custody
mediation.
In the interim, Father enrolled then-five-year-old L.M.S. in
kindergarten in the school district near his residence, and filed an
emergency petition alleging that Mother continued to abuse illicit drugs.
Father asserted that the purpose of the emergency petition was “to ensure
that the child is protected and remains in school until such time as a hearing
can be held.” Emergency Petition for Special Relief, 9/15/15, at 2. The trial
court granted the emergency petition summarily, awarded Father temporary
physical custody, and scheduled a hearing on the petition for October 5,
2015. Mother failed to respond to either the emergency petition or Father’s
petition for primary physical custody.
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On September 23, 2015, Grandmother filed an emergency petition to
intervene wherein she requested primary physical custody of L.M.S.
Grandmother invoked 23 Pa.C.S. § 5324 as the basis to pursue legal and
physical custody of her grandson. Grandmother asserted that she “has
always been the primary caretaker . . . [and] has provided for all of the
financial, emotional and physical needs of the child.” Petition for Special
Relief, 9/23/15, at 2. Essentially, Grandmother asserted that she has stood
in loco parentis since the child’s birth. The trial court immediately granted
Grandmother’s petition to intervene, rescinded its interim custody order in
favor of Father, and awarded Grandmother emergency custody of L.M.S.
pending the hearings on the parties’ dueling petitions for emergency relief.
The trial court neglected to state its basis for finding that Grandmother had
standing to pursue primary custody, and it failed to rule upon Father’s
ensuing motion for reconsideration of the standing issue.
The court ultimately denied Father’s emergency petition for special
relief and entered a temporary order directing that Grandmother maintain
primary physical custody of L.M.S. subject to Father’s periods of partial
custody. The court directed that Grandmother join the compulsory
mediation process and amended its prior order so that responsibility for the
$500.00 mediation fee would be shared equally among the three parties.
On March 11, 2016, the trial court held a custody trial on Father’s
petition for primary custody. Father testified on his own behalf and
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presented the testimony of his step-father, fiancée, and future father-in-law.
Mother testified and called L.M.S.’s kindergarten teacher to the stand to
discuss the child’s progress in the Clearfield School District. Grandmother
testified on her own behalf. The trial court conducted an in camera interview
with L.M.S. off the record.
Approximately nine months after the hearing, on December 6, 2016,
the trial court entered a final order and opinion awarding all three parties
shared legal custody, granting Grandmother primary physical custody, and
providing Father periods of partial physical custody.1 Mother was awarded
undesignated periods of physical custody to be exercised during
Grandmother’s primary custody.
This timely appeal followed. Father filed a concise statement of errors
complained of appeal pursuant to Pa.R.A.P. 1925(b). He raised five issues,
which he reiterates on appeal as follows:
I. I. Whether the Trial Court abused its discretion in granting
Grandmother Emergency Leave to Intervene and Emergency
Custody?
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1 We disapprove of the trial court’s nine-month delay in issuing its opinion
and order resolving the child custody litigation. Our Supreme Court has
directed that courts set cases involving child custody for expedited
disposition. We understand that some custody matters require post-hearing
briefs and additional arguments. Likewise, we recognize the limitations of a
trial court’s flexibility in scheduling. However, the nine-month lag between
the custody hearing and final disposition is unacceptable. See In re T.S.M.,
71 A.2d 251, at 261 n.21 (Pa. 2013) (“The repeated delays in the courts
below are not fully explained and are unacceptable”).
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II. Whether the Trial Court erred as a matter of law in finding
that Grandmother had standing pursuant to 23 Pa.C.S. § 5324?
III. Whether the Trial Court abused its discretion in finding
that the factors set forth in 23 Pa.C.S. § 5328 favored a
placement of primary physical custody with Grandmother?
IV. Whether the Trial Court erred as a matter of law in finding
that Father had a burden to sustain, where 23 Pa.C.S. § 5327(b)
clearly states that there is a presumption custody should be with
a parent over a third party and therefore, Grandmother had the
burden of proof?
V. Whether the Trial Court abused its discretion in finding
that Grandmother met her heavy burden of proof to overcome
the presumption set forth in 23 Pa.C.S. § 5327(b)?
Father’s brief at 10-11.
At the outset, we address Father’s challenge to Grandmother’s
standing. This argument implicates the first two issues that Father raises in
his statement of questions involved. We address those issues seriatim.
As a threshold contention, Father asserts that the trial court engaged
in ex parte review of Grandmother’s emergency petition to intervene and
assume physical custody. While artless in its presentation, Father’s
argument essentially assails the trial court’s grant of special relief to
Grandmother without a hearing. Oblivious to the irony of his contention,
considering the fact that the trial court previously granted him special relief
in the identical manner, Father implies that the trial court was required to
schedule a hearing on the emergency petition prior to awarding
Grandmother emergency custody.
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Father’s claim fails for at least two reasons. First, he neglects to
support his legal argument with citation to any authority beyond Pa.R.C.P.
1915.13, the rule governing special relief. Thus, the assertion is
underdeveloped. Moreover, contrary to Father’s posturing, Rule 1915.13
does not establish any specific procedure for the trial court to impose
temporary special relief and, critically, it certainly does not require that the
trial court schedule a hearing or listen to argument before special relief is
awarded. Indeed, pursuant to Rule 1915.13, the court may grant relief sua
sponte. See Pa.R.C.P. 1915.13 (“At any time after commencement of the
action, the court may on application or its own motion grant appropriate
interim of special relief[, including] the award of temporary legal or physical
custody[.]”).
Instantly, we observe that Father does not assert that he was not
provided notice of the emergency petition or that Grandmother had an
extrajudicial communication with the trial court. To the contrary, the record
confirms that Grandmother filed the emergency petition with the trial court
and upon review of the allegations in the petition, the trial court granted
interim relief as sanctioned by Rule 1915.13. Accordingly, for both of the
foregoing reasons, we reject Father’s bare assertion that the trial court erred
in granting what he styled as ex parte relief.
Next, Father argues that the trial court erred in concluding that
Grandmother stood in loco parentis to L.M.S. and that, absent that
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designation, Grandmother cannot establish the statutory grounds for
standing to pursue custody of L.M.S. For the following reasons, we disagree.
We review the trial court’s determination of standing de novo, and our
scope of review is plenary. K.L. v. S.L., 157 A.3d 498, 504 (Pa.Super.
2017) (“Threshold issues of standing are questions of law; thus, our
standard of review is de novo and our scope of review is plenary.”).
The Child Custody Law provides the following individuals standing to
pursue 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
(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.
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23 Pa.C.S. § 5324.
While Father accurately highlights that the trial court neglected to
expressly articulate the statutory basis of Grandmother’s standing to pursue
custody of L.M.S., Grandmother consistently asserted that she stood in loco
parentis to her grandson. Moreover, it is evident from the trial court’s
acceptance of Grandmother’s assertions in the petition to intervene and its
analysis of the best-interest factors relating to the performance of parental
duties, that it found that Grandmother attained in loco parentis status.
Specifically, without confronting the standing issue directly, the court
determined, “Evidence presented at the [c]ustody [t]rial indicated . . .
Grandmother performed all of the parental duties for [L.M.S.’s] daily
routines and insured the care of the [c]hild since birth.” Trial Court Opinion,
12/6/16, at 2. Accordingly, we examine Father’s challenge to
Grandmother’s standing pursuant to the in loco parentis proviso of §
5324(2).
As we recently reiterated in K.W., supra, at 504-505, “The term in
loco parentis literally means ‘in the place of a parent.’” (quoting Peters v.
Costello, 891 A.2d 705, 710 (Pa. 2005)). There are two components to in
loco parentis standing: (1) “the assumption of parental status[;] and [(2)]
“the discharge of parental duties.” Id at 505. As it relates to this aspect of
Father’s complaint, we highlight that, “in loco parentis status cannot be
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achieved without the consent and knowledge of, and in disregard of, the
wishes of a parent.” (quoting E.W. v. T.S., 916 A.2d 1197, 1205 (Pa.
2007)).
Father argues that Grandmother’s relationship with L.M.S. did not
amount to in loco parentis standing. The crux of this contention is that,
although L.M.S. resided in Grandmother’s home for his entire life,
Grandmother shared parental responsibilities with Mother. Thus, he asserts
that Grandmother’s involvement with her grandson falls short of either (1)
assuming a parental relationship or (2) discharging parental duties. Again,
we disagree.
First, the fact that Grandmother shared with Mother the responsibility
of raising L.M.S. is irrelevant. Indeed, in D.G. v. D.B., 91 A.3d 706, 709
(Pa.Super. 2014), this Court recognized, “[w]hen a party asserting in loco
parentis status lives with the child and a natural parent as a family unit, our
courts have held that the party has standing.” To be clear, this is not a case
where Grandmother was essentially a glorified baby-sitter. To the contrary,
the certified record established that, by satisfying L.M.S.’s daily physical,
emotional, and financial needs for his entire life, Grandmother assumed an
enduring role that was much more significant than a frequent caretaker.
Compare the facts of the instant case with Argenio v. Fenton, 703 A.2d
1042 (Pa.Super. 1997), where this Court denied in loco parentis status to a
grandparent who merely provided daily child care. Thus, contrary to
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Father’s assertions, the evidence demonstrating that Grandmother shared
parental responsibilities with Mother when they lived together in
Grandmother’s home militates in favor of in loco parentis status rather than
against it. See T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (former partner
stood in loco parentis because she shared day-to-day child rearing
responsibilities with biological mother, co-owned the family residence, and
maintained exclusive responsibility for child when biological mother was
away from home). In sum, Pennsylvania jurisprudence simply does not
support the contention that Grandmother was required to assume the role of
L.M.S.’s sole parental figure in order to attain in loco parentis status.
Moreover, the record supports the trial court’s determination. One of
the primary considerations in determining in loco parentis status is the effect
of the third-party relationship upon the child’s best interest. As our
Supreme Court explained,
while it is presumed that a child's best interest is served by
maintaining the family's privacy and autonomy, that
presumption must give way where the child has established
strong psychological bonds with a person who, although not a
biological parent, has lived with the child and provided care,
nurture, and affection, assuming in the child’s eye a stature like
that of a parent. Where such a relationship is shown, our courts
recognize that the child’s best interest requires that the third
party be granted standing so as to have the opportunity to
litigate fully the issue of whether that relationship should be
maintained even over a natural parent's objections.
T.B., supra, 917.
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Instantly, Grandmother, Mother, and L.M.S. lived together five years
as an intact family unit and Grandmother either shared or assumed sole
parenting responsibility for the entirety of the child’s life. Moreover, Mother
and Grandmother both testified that they shared parenting responsibilities.
N.T., 10/5/15 (Vol. 1), at 29-30, N.T., 3/11/16, at 137. Furthermore, as it
relates to day-to-day child rearing, the certified record confirms that
Grandmother fed, bathed, and entertained L.M.S. daily, attended doctors’
appointments, and transported him to kindergarten class in Clearfield. N.T.,
3/11/16, at 136-139, 154-155. Grandmother also assisted L.M.S.
financially, and she has consistently been a stabilizing force in the child’s life
and ensured his safety. Id. at 139-140, 154.
As a final component of the standing issues, we observe that Father
does not specifically assert that Grandmother was precluded from assuming
in loco parentis status in contravention of his wishes. Nevertheless, he cited
that legal principle in brief. To the extent that we can interpret his reference
as leveling the assertion implicitly, no relief is due. Stated plainly, Father
failed to oppose Grandmother’s assumption of parental duties. Instead, he
allowed Grandmother to share the parental responsibilities with Mother.
Father not only declined to protest Grandmother’s emergent role, he did not
attempt to intercede in Grandmother’s assumption of parental duties, and he
failed to perform any parental obligations beyond exercising partial physical
custody. Through his own inaction, Father acquiesced to the development of
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the in loco parentis relationship between Grandmother and L.M.S. As the
certified record confirms that Grandmother shouldered at least a shared role
of carrying out the day-to-day care of L.M.S. with Father’s implicit approval,
it belies the inference that she assumed parental status in defiance of
Father’s wishes. Stated another way, by failing to act while Grandmother
raised his son, Father acted in a manner consistent with his consent to her in
loco parentis status. See In re C.M.S., 884 A.2d 1284 (Pa.Super. 2005)
(birth father demonstrated consent by failing to be involved in child’s life for
one year). As Grandmother stood in loco parentis to L.M.S., she had
standing to pursue custody pursuant to § 5324(2).2
Having found that the trial court did not err in concluding that
Grandmother stood in loco parentis, we next address Father’s substantive
complaints. We review the trial court’s custody order for an abuse of
discretion. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer
to the trial court’s factual findings that are supported by the record and its
credibility determinations. Id. This Court will accept the trial court’s
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2 Assuming, arguendo, that Grandmother failed to attain in loco parentis
status, she has standing to pursue custody of L.M.S. pursuant to 23 Pa.C.S.
§ 5324(3)(i-iii)(B), insofar as her relationship with L.M.S. began with Mother
and Father’s consent, she has assumed responsibility for L.M.S. since birth,
and Mother’s chronic drug abuse placed L.M.S. substantially at risk.
Although Father complains that Grandmother never alleged that her
grandson was at risk due to Mother’s substance abuse, the certified record is
replete with evidence of Mother’s struggle with drug addiction and
Grandmother’s efforts to act as a stabilizing force against its harmful effects.
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conclusion unless it is tantamount to legal error or unreasonable in light of
the factual findings. Id.
In awarding primary custody to Grandmother, the trial court reviewed
the following best interest factors to consider when awarding any form of
custody:
(a) Factors. – In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and (2)
(relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
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(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or member
of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
In weighing the enumerated factors, the trial court treated the
custodial roles of Grandmother and Mother collectively. Bolstered by
Mother’s contribution, the trial court found that all but six factors weighed in
favor of granting Grandmother primary physical custody. The court
determined that factors two, eight, nine, eleven, and fourteen were
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inapplicable. Factor thirteen, relating to the conflict among the parties, was
deemed neutral. None of the court’s considerations militated in favor of
Father.
Father challenges the legitimacy of the trial court’s analysis of the
statutory best-interest factors. This argument has three components, the
court: (1) failed to differentiate between Mother and Grandmother in
considering the § 5328(a) factors; (2) neglected to apply the statutory
presumption in favor of a parent over a third party pursuant to § 5327; and
(3) misconstrued the procedural posture of the custody litigation and placed
the burden of proof upon Father to “convince the Court that the benefits of
the proposed modification are in the best interest of Child.” Trial Court
Opinion and Order, 12/6/16, at 10. Both Mother and Grandmother ignored
the court’s misapplication of the applicable framework and failed to confront
any of these errors directly in their respective briefs. As explained infra, we
agree with Father on all three accounts and conclude that the trial court’s
missteps are tantamount to reversible error.
First, we observe that the trial court erred in employing a wholesale
consideration of the collective roles of Mother and Grandmother. The instant
custody dispute is between Father and Grandmother, who filed
countervailing custody petitions. Mother transferred custody to Father and
then neglected to assert her custody rights. She merely acquiesced in
Grandmother’s intervention and supported her claim for primary physical
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custody of L.M.S. Thus, in considering the relevant statutory factors in
determining L.M.S.’s best interests, the trial court was required to weigh the
merits of Father and Grandmother’s positons independently from that of
Mother.
We concede that the trial court was free to consider Mother’s presence
in Grandmother’s home in addressing factors two, five, twelve, fourteen,
fifteen and sixteen. These considerations would inure to Grandmother’s
benefit as to the factors concerning Mother’s existing relationship with
L.M.S., and her availability to perform child care, and ostensibly, the catchall
of any relevant factor under § 5328(a)(16). However, the trial court
included Mother in its consideration of the factors that favored Grandmother,
but omitted her role in the household if it hindered Grandmother’s claim.
For example, the court’s reflection upon Mother’s history of substance abuse
and her mental and physical health would necessarily militate in favor of
Father. We find that the trial court’s manipulation of Mother’s influence
upon its best interest analysis constitutes reversible error. Upon remand,
the trial court is directed to limit its consideration of Mother’s presence in
Grandmother’s home to the specific factors where her presence is relevant,
and to account for her influence whether it inures to Grandmother’s benefit
or to Grandmother’s detriment.
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Next, we address Father’s claim assailing the trial court’s assessment
of the proper burden of proof and evidentiary presumption. The Child
Custody Law provides as follows:
5327. Presumption in cases concerning primary physical custody
(a) Between parents.--In any action regarding the custody of the
child between the parents of the child, there shall be no
presumption that custody should be awarded to a particular
parent.
(b) Between a parent and third party.--In any action regarding
the custody of the child between a parent of the child and a
nonparent, there shall be a presumption that custody shall be
awarded to the parent. The presumption in favor of the parent
may be rebutted by clear and convincing evidence.
(c) Between third parties.--In any action regarding the custody
of the child between a nonparent and another nonparent, there
shall be no presumption that custody should be awarded to a
particular party.
23 Pa.C.S. § 5327.
Instantly, the trial court undeniably ignored the presumption favoring
Father over Grandmother pursuant to § 5327(b). The presumption is
rebuttable by clear and convincing evidence, which we have defined as
presenting evidence “that is so clear, direct, weighty, and convincing so as
to enable the trier of fact to come to a clear conviction, without hesitation, of
the truth of the precise facts in issue.” V.B. v. J.E.B., 55 A.3d 1193, 1199
(Pa.Super. 2012) (quoting In re B.C., 36 A.3d 601, 605–606 (Pa.Super.
2012)).
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Preliminarily, we observe that the fact that Grandmother attained
standing through in loco parentis status does not alter her role as a third-
party challenger to Father’s request for primary physical custody. As
suggested by our Supreme Court’s discussion in T.B., supra, in loco
parentis status merely provides a third party an opportunity to establish that
maintaining that relationship supersedes the birth parent’s opposition. The
High Court observed, “Where [an in loco parentis] relationship is shown, our
courts recognize that the child’s best interest requires that the third party be
granted standing so as to have the opportunity to litigate fully the issue
of whether that relationship should be maintained even over a natural
parent's objections.” Id. at 917 (emphasis added). Significantly, neither
the Supreme Court’s discussion in T.B. nor the text of § 5327(b) indicates
that in loco parentis status effectively places a third-party on equal footing
with a birth parent. To the contrary, § 5327 provides that the presumption
applies “[i]n any action regarding the custody of a child between a parent of
the child and a nonparent[.]” 23 Pa.C.S. § 5327(b) (emphasis added). If
our legislature desired to carve an exception to the presumption when the
nonparent attained in loco parentis status, it could have done so; however, it
did not. Thus, for all of the foregoing reasons, the trial court erred in failing
to apply the presumption in Father’s favor pursuant to § 5327(b).
Moreover, in addition to ignoring the rebuttable presumption in favor
of Father, the trial court exacerbated that mistake by improperly saddling
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Father with the burden of proof. Our ensconced principles of custody law
provide that where, as here, the trial court is required to fashion the initial
award of primary physical custody, both parents stand on equal footing and
neither bears the burden of proof. Collins v. Collins, 897 A.2d 466, 472
(Pa.Super. 2006) (“In the absence of a pre-existing custody order, both
parents stand on equal footing, sharing the burden of production and
persuasion”); see also 23 Pa.C.S. § 5327(a) (no presumptions between
parents).
Instantly, the trial court misconstrued the procedural posture of this
case as stemming from a petition to modify an existing child custody order
and explicitly imposed the burden of proof upon Father. However, there was
neither a formal custody arrangement between Mother and Father, nor a
final custody order based upon the requisite best-interests analysis. In
reality, Father initiated this custody litigation by filing a petition for primary
physical custody.
We observe that the trial court’s misapprehension of the procedural
posture is understandable insofar as Father did not commence the custody
proceedings by filing a verified custody complaint as required by Pa.R.C.P.
1915.3., a procedural misstep which Mother and Grandmother failed to
challenge. However, notwithstanding Father’s procedurally-incorrect request
for primary physical custody, the fact remains that the parties have never
been subject to a final custody order, and therefore, Mother and Father
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continue to stand on equal footing as to demonstrating their son’s best
interests pursuant to § 5328(a). See Collins, supra. Father’s error did not
alter the nature of the custody litigation.
In sum, the trial court’s best-interest analysis is contrary to at least
three entrenched principles of our custody jurisprudence. Accordingly, we
reverse the order awarding Grandmother primary physical custody of L.M.S.
and remand the matter for a best-interests determination that conforms with
the Child Custody Law and prevailing precedent. While Father entreats that
this Court decide the case on its merits and award him primary physical
custody, we decline to analyze the relevant statutory best-interests factors
in the first instance. Although this Court has engaged in merits
determinations based upon the certified record in limited situations where
the outcome is obvious, such is not the case herein. Contrary to Father’s
protestations, it is not clear from the certified record that the presumption in
his favor is insurmountable in light of the testimony that Grandmother either
performed or shared all aspects of raising L.M.S. since birth. If accepted as
true, these allegations could form the clear and convincing evidence required
to rebut the statutory presumption. We leave that determination to the trial
court, who is the ultimate arbiter of fact.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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