A.M. v. N.G. & R.C., Jr. ( 2020 )

J-A26043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
N.G. & R.C., JR. : No. 792 WDA 2019
Appeal from the Order Entered April 30, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD 18-7134-017
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 02, 2020
A.M., parental grandmother (“PGM”), appeals from the order dated April
26, 2019 and entered on April 30, 2019,1 in the Court of Common Pleas of
Allegheny County, dismissing her cross-exceptions to the Report and
Recommendation and Proposed Order of Court of the Partial Custody Hearing
Officer (“HO Report”).2 The order terminated a February 2, 2018 trial court
____________________________________________
1 The subject order was dated August 26, 2019. However, notice pursuant to
Pa.R.C.P. 236(b) was not provided until August 30, 2019. Our appellate rules
designate the date of entry of an order as “the day on which the clerk makes
the notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our Supreme Court
has held that “an order is not appealable until it is entered on the docket with
the required notation that appropriate notice has been given.” Frazier v. City
of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).
2The HO Report was dated October 4, 2018 and was filed on October 5,
2018. We shall refer to the report by its filing date.
J-A26043-19
order awarding PGM interim partial physical custody of her grandchildren,
D.C., a male, born in October 2016, and I.G., a female, born in February
2018,3 (collectively, the “Children”), after the death of the Children’s natural
father, A.C. (“Father”), in November 2017. The order also placed PGM’s future
visits with the Children in the sole discretion of N.G. (“Mother”). We affirm.
The trial court set forth the factual background and procedural history
of this appeal as follows.
[N.G. (or “Mother”)] is the biological mother of two minor children,
D.C. and I.G. [Father] died by suicide [in November 2017].
Although Mother and Father never married, they were engaged to
be married and were living together prior to Father’s death. [PGM]
is the biological paternal grandmother of the minor children.
[R.C., Jr., (or “PGF”)] is the biological paternal grandfather of the
minor children.
PGM filed her complaint for partial custody of D.C. on January 22,
2018, and PGF filed his petition for partial custody of D.C. on
January 31, 2018. Both PGM and PGF alleged in their petitions
that prior to Father’s death they enjoyed [] close relationship[s]
with D.C. and often provided childcare for him. Both PGM and PGF
alleged that[,] following Father’s death[,] Mother began restricting
their contact with D.C. The petitions were consolidated and then
later amended to include I.G., who was born after Father’s death,
despite neither PGM nor PGF having ever met her.
On February 2, 2018, PGM presented a petition for special relief,
in which she requested interim partial physical custody of D.C.
Mother presented a preliminary response in which she opposed
PGM’s request and asked that it be denied. By order of court dated
February 2, 2018, [the trial court] granted PGM interim partial
physical custody of D.C. on the first Saturday of every month from
10[:00] a.m. to 4[:00] p.m.
____________________________________________
3 See N.T., 9/24/18, at 6.
-2-
J-A26043-19
Shortly thereafter, PGF filed his own petition for interim custody.
Mother filed a response and new matter[,] in which she expressed
concerns regarding PGF’s mental health history and stated that[,]
at all times before and after Father’s death[,] PGF’s contact with
D.C. was always supervised. By order of court dated April 2, 2018,
[the trial court] denied PGF’s request for interim partial physical
custody and granted Mother’s request that the parties proceed
through the [trial court’s] Generations program.
After the parties’ unsuccessful mediation, the case was assigned
to the partial custody hearing officer [(“HO”)], Laura Valles, and
a hearing was scheduled for July 26, 2018. By order of court
dated July 31, 2018, two additional days of testimony were
scheduled for August 27, 2018, and September 24, 2018. After
the conclusion of all three days of contentious litigation, HO Valles
issued her Report on October 4, 2018, in which she recommended
that both PGM’s and PGF’s requests for court-ordered visitation be
denied and that future visits be in Mother’s sole discretion, and
that the February [2], 2018 order of court granting PGM interim
partial physical custody be terminated.
All parties filed exceptions to HO Valles’ Report.[1] Specifically,
PGM identified three exceptions to HO Valles’ Report. First, PGM
claimed HO Valles erred/abused her discretion in recommending
[the trial court’s] February [2], 2018 Order of Court granting her
interim partial physical custody be terminated. Second, PGM
claimed HO Valles erred/abused her discretion in mandating that
all future contact with the [C]hildren be at Mother’s sole
discretion. And[,] third, PGM claimed HO Valles erred/abused her
discretion by failing to grant PGM with [sic] her requested court-
ordered visitation.
After several consent orders to continue the matter, the argument
on exceptions was heard by [the trial court] on March 13, 2019.
___________________________________________________
1 PGF filed exceptions on October 22, 2018; PGM filed
cross-exceptions on October 23, 2018; and Mother filed
cross-exceptions on October 25, 2018.
Trial Court Opinion, 6/17/19, at 1-3 (certain capitalization omitted; footnote
added).
-3-
J-A26043-19
In an order dated April 26, 2019, and entered on April 30, 2019, the
trial court dismissed all parties’ exceptions. On May 28, 2019, PGM timely
filed her notice of appeal and concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In her brief on appeal,
PGM raises the following issues:
I. Did the [trial] court err as a matter of law and commit an abuse
of discretion in denying [PGM’s] Exceptions to the [HO’s] Report,
Recommendation, and Proposed Order dated October 4, 2018[,]
as the [HO] committed an abuse of discretion and erred as a
matter of law in the application of the custody factors enumerated
at 23 Pa.C.S.A. § 5328(a)[,] when the [HO] denied contact
between [PGM] and her grandchildren, despite evidence showing
that an award of custody would not interfere with the parent/child
relationship[,] and that the continuation of [PGM’s] relationship
would be in the [Children’s] best interests, given that standing
was conferred pursuant to 23 Pa.C.S.A. § 5325(1)?
II. Did the [trial] court err as a matter of law and commit an abuse
of discretion in denying [PGM’s] exceptions to the [HO’s] Report,
Recommendation, and Proposed Order dated October 4, 2018[,]
which denied [PGM’s] request for partial custody[,] despite settled
caselaw [sic] and Pennsylvania’s strong public policy commitment
to ensuring that relationships between extended family and
children continue, despite the death of a biological parent?
III. Did the lower court err as a matter of law and commit an abuse
of discretion in denying [PGM’s] exceptions to the [HO’s] Report,
Recommendation, and Proposed Order dated October 4, 2018[,]
as the [HO] failed to address the custody factors as proscribed at
23 Pa.C.S.A. § 5328(c)?
IV. Did the lower court err as a matter of law and commit an abuse
of discretion in denying [PGM’s] exceptions to the [HO’s] Report,
Recommendation, and Proposed Order dated October 4, 2018[,]
as the [HO] improperly considered videos not submitted as
evidence[,] and utilized the same in her analysis of 23 Pa.C.S.A.
§ 5328(a)(7)?
-4-
J-A26043-19
PGM’s Brief at 3-4.4
In her brief on appeal, PGM argues:
The [r]ecord indicates, not only by a preponderance of evidence,
but by clear and convincing evidence, that it is in the best interests
of the minor children to continue to have a relationship with
[PGM], and[,] by extension, the rest of Father’s extended family.
Given that standing to pursue this matter was conferred pursuant
to 23 Pa.C.S.A. § 5325(1), any contrary decision, given the facts
presented, goes against settled [case law] and Pennsylvania’s
strong public policy commitment to ensuring that relationships
between extended family and children continue, despite the death
of a biological parent. The [trial] court’s reliance on inapplicable
[case law] and its failure to acknowledge Pennsylvania [statutory]
and [case law] permitting these awards of custody is a
misapplication of the law.
The [trial] court further erred as a matter of law and committed
an abuse of discretion in denying [PGM’s] exceptions to the [HO’s
Report of October 5, 2018 since] the [HO] committed an abuse of
discretion and erred as a matter of law in the application of the
custody factors enumerated at 23 Pa.C.S.A. § 5328(a)[,] when
the [HO] denied contact between [PGM] and her grandchildren.
____________________________________________
4 In her concise statement and her statement of questions involved in her
brief, PGM challenged the HO’s consideration of videos not admitted into
evidence as part of the custody assessment under 23 Pa.C.S.A. § 5328(a)(7).
PGM, however, did not include a separate section regarding this issue in her
brief. Thus, we find PGM’s fourth issue waived. See In re W.H., 25 A.3d
330, 339 n.3 (Pa. Super. 2011) (“[W]here an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to develop
the issue in any other meaningful fashion capable of review, that claim is
waived.”). Nevertheless, to the extent that Mother discusses the video issue
within her discussion of section 5328(a)(7), we find that PGM’s challenge lacks
merit. First, the trial court did not consider the videos in its opinion. Second,
the HO credited Mother’s testimony in which she reported that D.C. began
banging his head against the wall after he returned from a visit with PGM and
that D.C. never exhibited this behavior prior to the court-ordered visits with
PGM. As such, the videos are not essential to an assessment of the factors
pertaining to section 5328(a)(7).
-5-
J-A26043-19
The [HO] failed to attribute any weight to the amount of contact
that [PGM] had with D.C. prior to Father’s death[,] and instead
placed unwarranted credence on Mother’s unsubstantiated
concerns regarding what [PGM] may possibly say to the [C]hildren
concerning Father’s death.
The [HO] also made a factual determination that [PGM] failed to
follow Mother’s directives as to the care and control of D.C. during
the visits[;] however, this goes against the weight of the evidence.
Mother herself admitted that [PGM] historically followed her
directives as it related to D.C’s care. In light of the totality of the
record, this is certainly an unreasonable finding.
Lastly, in her consideration of the custody factor found at 23
Pa.C.S.A. § 5328(a)(7), the [HO] improperly considered videos
not submitted as evidence and utilized the same in her analysis of
23 Pa.C.S.A. § 5328(a)(7).
The [trial] court erred as a matter of law and committed an abuse
of discretion in denying [PGM’s] exceptions to the [HO’s] Report,
Recommendation, and Proposed Order dated October 4, 2018[,]
as the [HO] failed to address the custody factors as [prescribed]
at 23 Pa.C.S.A. § 5328(c). Nonetheless, [PGM] met her burden
pursuant to these factors. [PGM] established consistent contact
with D.C. prior to Father’s death, established that her contact with
both D.C[.] and I.G. would not interfere with Mother’s ability to
parent the children, and further established that maintaining her
relationship [with] D.C. would be in his best interests. A failure
to maintain the relationship between D.C. and paternal family
members, as well the inability for I.G. to develop the same, will
result in a secondary loss to both children. Neither will have the
ability to truly know their father, in a manner that only paternal
family members can provide.
[PGM asks] this Honorable Court to [vacate] the April [30], 2019
final order of court and sustain her exceptions to the [HO’s
October 5, 2018 report], so as to allow her a relationship with her
grandchildren. [PGM further asks] this Honorable Court to follow
longstanding settled [case law] and Pennsylvania’s strong public
policy commitment to ensuring that relationships between
extended family and children continue, despite the death of a
biological parent.
-6-
J-A26043-19
Specifically, [PGM] would pray for an order permitting her partial
custody periods with her grandchildren, once per week for six (6)
hours per visit. Alternatively, this Honorable Court can [remand]
the matter to the [trial court] in order to determine an appropriate
physical custody schedule.
PGM’s Brief at 15-19 (certain capitalization omitted).
In custody cases under the Child Custody Act (the “Act”), our standard
of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
We have stated:
[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), quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).
-7-
J-A26043-19
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated
the following regarding an abuse of discretion standard.
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
Id. at 18-19 (quotation and citations omitted).
Regarding the definition of an abuse of discretion, this Court has stated:
“[a]n abuse of discretion is not merely an error of judgment; if, in reaching a
conclusion, the court overrides or misapplies the law, or the judgment
exercised is shown by the record to be either manifestly unreasonable or the
product of partiality, prejudice, bias or ill will, discretion has been abused.”
Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation
omitted). With any custody case decided under the Act, the paramount
concern is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338.
In K.W. v. S.L., 157 A.3d 498 (Pa. Super. 2017), this Court stated as
follows:
“Threshold issues of standing are questions of law; thus, our
standard of review is de novo and our scope of review is plenary.”
Rellick-Smith v. Rellick, 147 A.3d 897, 901 (Pa. Super. 2016)[,
quoting Johnson v. American Standard, 8 A.3d 318, 326 (Pa.
2010)].
Generally, the Child Custody Act does not permit third parties to
seek custody of a child contrary to the wishes of that child’s
parents. The Act provides several exceptions to this rule, which
-8-
J-A26043-19
apply primarily to grandparents and great-grandparents. See 23
Pa.C.S.A. § 5324(3); 23 Pa.C.S.A. § 5325.
K.W., 157 A.3d at 504.
Section 5324 of the Act provides:
5324. Standing for any form of physical custody or legal
custody
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. . . .
***
23 Pa.C.S.A § 5324.
Section 5325 of the Act provides:
§ 5325. Standing for partial physical custody and
supervised physical custody
In addition to situations set forth in section 5324 (relating to
standing for any form of physical custody or legal custody),
grandparents and great-grandparents may file an action under
this chapter for partial physical custody or supervised physical
custody in the following situations:
(1) where the parent of the child is deceased, a parent or
grandparent of the deceased parent may file an action under this
section.
(2) where the relationship with the child began either with
the consent of a parent of the child or under a court order and
where the parents of the child:
(i) have commenced a proceeding for custody; and
-9-
J-A26043-19
(ii) do not agree as to whether the grandparents or
great-grandparents should have custody under this section; or
(3) when the child has, for a period of at least 12
consecutive months, resided with the grandparent or
great-grandparent, excluding brief temporary absences of the
child from the home, and is removed from the home by the
parents, an action must be filed within six months after the
removal of the child from the home.
23 Pa.C.S.A. § 5325.
Section 5328(a) sets forth the best interest factors that the trial court
considers in the context of child custody litigation. See E.D. v. M.P., 33 A.3d
73, 80-81, n.2 (Pa. Super. 2011). Trial courts are required to consider “[a]ll
of the factors listed in section 5328(a) . . . when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).
Further, we have explained as follows:
Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a written
opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section
5323(d) requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328(a) custody] factors prior
to the deadline by which a litigant must file a notice of appeal.”
C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied,
70 A.3d 808 (Pa. 2013)[.]
In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68
A.3d 909 (Pa. 2013). A court’s explanation of reasons for its
decision, which adequately addresses the relevant factors,
complies with Section 5323(d). Id.A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
- 10 -
J-A26043-19
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted).
Section 5328(a) of the Act provides as follows.
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
- 11 -
J-A26043-19
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by another
party is not evidence of unwillingness or inability to cooperate with
that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
Section 5328(c) provides as follows with regard to grandparents and
great-grandparents:
(c) Grandparents and great-grandparents.-
(1) In ordering partial physical custody or supervised
physical custody to a party who has standing under section
5325(1) or (2) (relating to standing for partial physical custody
- 12 -
J-A26043-19
and supervised physical custody), the court shall consider the
following:
(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).
In her report and recommendation, the HO found the following with
regard to section 5328(a):
This Hearing Officer considered all of the factors set forth in [23
Pa.C.S.A. § 5328(a)] and [its determinations] are as follows:
1. WHICH PARTY IS MORE LIKELY TO ENCOURAGE AND
PERMIT FREQUENT AND CONTINUING CONTACT BETWEEN
THE CHILD AND ANOTHER PARTY?
Pursuant to Mother’s testimony [concerning] the past relationship
between [PGM] and Father[,] and the various hostile situations
Mother witnessed between Father and [PGM], Mother and Father
began limiting [PGM’s] exposure to the child, [D.C.]. Prior to
Father’s death, Mother and Father were in agreement to limit
[PGM’s] time with [D.C.]. In fact, Mother and Father did not visit
[PGM] on the baby’s first Christmas in 2017[,] as evidenced by a
text sent to Father from [PGM]. Numerous exhibits were
presented indicating texts from [PGM] requesting time with her
grandson and asking both Father and Mother why they were
ignoring her, avoiding her, blocking her calls, and severing her
contact with her grandson.
Mother is very concerned and fearful that [PGM] and [PGF] will
say inappropriate things to the [C]hildren regarding [F]ather’s
death. Mother is sincerely convinced Paternal Grandparents
blame her for Father’s suicide. Mother presented texts to support
this belief as set forth in “Exhibit L”. As a result, Mother believes
- 13 -
J-A26043-19
the [C]hildren’s relationship with the Paternal Grandparents
should be on her terms and at her discretion.
2. THE PRESENT AND PAST ABUSE COMMITTED BY EITHER
PARTY OR MEMBER OF THE PARTY’S HOUSEHOLD.
No testimony was given regarding Mother’s present or past abuse
regarding Mother’s actions. However, Mother credibly testified
she witnessed, on many occasions, the verbal abuse directed to
Father by [PGM]. Mother is very fearful [PGM] will act in the same
manner toward the [C]hildren. Mother presented this court with
numerous texts indicating the abusive tone and anger toward
Father from [PGM].
3. THE PARENTAL DUTIES PERFORMED BY EACH PARTY ON
BEHALF OF THE CHILD.
As [of] the date of the hearing, Mother has performed all parental
duties on behalf of the [C]hildren. Prior to [PGM’s] first court[-
]ordered visit with [D.C.] in February of 2018, Mother emailed
[PGM] an extensive list of instructions and directives for her to
follow during her visit. [PGM’s] response, which was set forth in
“Exhibit M”, replies to Mother that she has raised three sons and
is currently raising her grandson, [K.], and has numerous visits
with her granddaughters[,] and[,] as such[,] she can handle a
six[-]hour visit without much trouble. She further replies to
Mother that she does not know how “his strict nap by two p[.]m.”
would work out. Further, [PGM] instructs Mother that [D.C.] will
call her husband [P.] “PapPap”[,] against Mother’s request for
[D.C.] not to.
Mother credibly testified [PGM] does not inform Mother of
anything that takes place during her court[-]ordered visits.
Further, the [trial court] denied [PGF’s] request for visitation in
[motions court]. Despite an [o]rder that denie[d PGF] visits,
[PGM] allowed [PGF] to be present during her court-ordered visits.
Mother has absolutely no confidence that [PGM] or [PGF] will
follow her directions as evidenced by their behavior so far.
[PGM’s] and [PGF’s disregard for] Mother’s directives directly
interferes with Mother’s parental control of the [C]hildren.
4. THE NEED FOR STABILITY AND CONTINUITY IN THE
CHILD’S EDUCATION, FAMILY LIFE, AND COMMUNITY LIFE.
- 14 -
J-A26043-19
It is not questioned that Mother is able to provide stability and
continuity in the [C]hildren’s education, family life, and
community life. Each and every time Paternal Grandparents do
not follow Mother’s instructions and interfere with her parental
rule with the [C]hildren, the [C]hildren will not have stability and
continuity in their lives.
5. THE AVAILABILITY OF EXTENDED FAMILY.
All parties have extended family.
6. THE CHILD’S SIBILING’S RELATIONSHIPS.
As of the date of this hearing, [the Children] are the only siblings.
7. WELL-REASONED PREFERENCE OF THE CHILD, BASED ON
THE CHILD’S MATURITY AND JUDGMENT.
Both children are very young. Neither was present in the
courtroom. However, th[e HO] was shown two separate videos in
which [D.C] is outside with Mother or with Maternal Grandfather
in the front yard. As soon as [PGM] pulls up to the driveway and
gets out of her van, the child instantly starts to cry and runs in
the opposite direction of [PGM]. Mother also credibly testified that
[D.C.] began banging his head against the wall after he returned
from a visit with [PGM]. Mother credibly testified the child did not
exhibit this behavior prior to the court[-]ordered visits.
8. THE ATTEMPTS OF A PARENT TO TURN THE CHILD
AGAINST THE OTHER PARENT, EXCEPT IN CASE OF
DOMESTIC VIOLENCE WHERE REASONABLE SAFETY
MEASURES ARE NECESSARY TO PROTECT THE CHILD FROM
HARM.
Mother whole heartedly believes [PGM] and [PGF] will attempt to
turn her children against her by not following her directives and
by telling them inappropriate things about Mother’s relationship to
Father regarding his suicide.
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.
- 15 -
J-A26043-19
After hearing all testimony, until the issues between Paternal
Grandparents and Mother are resolved in an amicable manner, the
hostility and animosity between the parties will continue. This
animosity and hostility will not cultivate a loving, stable,
consistent and nurturing environment adequate for the
[C]hildren’s emotional needs.
10. WHICH PARTY IS MORE LIKELY TO ATTEND TO THE
DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL,
EDUCATIONAL AND SPECIAL NEEDS OF THE CHILD.
Mother has been the primary caretaker and has attended to the
daily physical, emotional, developmental, educational and any
special needs of each child since their birth.
Due to Paternal Grandparent’s [sic] past behaviors, it is unlikely
that the Paternal Grandparents will attend to the daily physical,
emotional, developmental, educational and special needs of the
[C]hildren while following Mother’s directives for the same.
11. THE PROXIMITY OF THE RESIDENCES OF THE PARTIES.
[PGM] lives approximately ten minutes from Mother. [PGF] lives
approximately forty minutes from Mother.
12. EACH PARTY’S AVAILABILITY TO CARE FOR THE CHILD
OR ABILITY TO MAKE APPROPRIATE CHILD-CARE
ARRANGEMENTS.
Since birth, Mother has shown her ability to care for the [C]hildren
and the ability to make appropriate childcare arrangements.
[PGM] and [PGF] may have the availability to care for the
[C]hildren[,] but[,] due to past behavior[,] have not shown their
ability to care for the [C]hildren while adhering to Mother’s
directives.
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.
- 16 -
J-A26043-19
At the current time, there is an extremely high level of conflict
between the parties. Mother is clearly concerned with Paternal
Grandparents’ refusal to follow her directives regarding her own
children. Mother is extremely concerned Paternal Grandparents
will reveal to the [C]hildren their own version of Father’s suicide
and their belief Mother was the cause. Mother credibly testified
she does not trust Paternal Grandparents. Mother also credibly
testified she witnessed the verbal abuse between [PGM] and
Father[,] and her unwillingness to have the [C]hildren around
[PGM] is an effort to protect them.
14. THE HISTORY OF DRUG OR ALCOHOL ABUSE OF A
PARTY OR MEMBER OF A PARTY’S HOUSEHOLD.
During [PGM’s] and [PGF’s] testimony, both tried to implicate that
Mother had a history of drug use. Mother vehemently denies the
same.
15. THE MENTAL AND PHYSICAL CONDITION OF A PARTY
OR MEMBER OF A PARTY’S HOUSEHOLD.
[PGF’s] mental health status was discussed by Dr. Prabir K.
Mullick, M.D.[,] who has been treating [PGF] since August 16,
1999.
16. ANY OTHER RELEVANT FACTOR.
N/A
Hearing Officer’s Report and Recommendation and Proposed Order of Court,
10/5/18, at 3-7.
The HO’s proposed order provided:
ORDER OF COURT – CUSTODY
***
1. Mother shall continue to have sole legal and primary physical
custody of [the Children].
2. [PGF’s] request for a court[-]ordered visitation schedule with
the minor children is hereby denied. Should[,] at any time Mother
- 17 -
J-A26043-19
determine[] it is in the best interest of the [C]hildren to begin a
relationship with [PGF], Mother shall have sole discretion with
regard to visitation schedule between the minor children and
[PGF].
3. The February 3, 2018 Interim, Order of Court is hereby
terminated.
[PGM] shall not be entitled to any court[-]ordered visitation
schedule with the minor children. Should[,] at any time, Mother
determine[] it is appropriate for the children to visit with [PGM],
Mother shall have sole discretion to make said arrangements.
Hearing Officer’s Proposed Order of Court, 10/5/18, at 2.
As noted by the trial court, supra, PGM’s three exceptions were:
a. The Hearing Officer erred and/or committed an abuse of
discretion in vacating Judge Satler’s Interim Order of Court dated
February 2, 2018.
b. The Hearing Officer erred and/or committed an abuse of
discretion in mandating that any contact between the [C]hildren
and [PGM] would be at Mother’s discretion.
c. The [HO] erred and/or committed an abuse of discretion in
failing to grant [PGM] court[-]ordered custody periods with her
grandchildren.
PGM’s Cross-Exceptions, 10/23/18, at 2.
We begin with PGM’s first and third issues on appeal, in which PGM
argues that the trial court erred as a matter of law and abused its discretion
with regard to its consideration of section 5328(a)(1) and in failing to consider
the factors set forth in section 5328(c).
Regarding the first issue, we conclude that HO Valles considered each
of the statutory factors and made the determination that an award of partial
physical custody to PGM was not in the best interest of the Children. Within
- 18 -
J-A26043-19
her discussion of the section 5328(a)(1) factors, the HO also considered the
section 5328(c)(1) factors, without specifically enumerating them. We find
the HO’s consideration of the factors under section 5328(a)(1) is not
unreasonable as shown by the evidence of record. C.R.F., 45 A.3d at 443.
Further, with regard to PGM’s challenge to the HO’s failure to analyze
the factors under 23 Pa.C.S. § 5328(c) (factors pertinent to assessing custody
claims advanced by grandparents), the trial court stated as follows:
First and foremost, [the trial court] did not address the issue of
HO Valles’ error/abuse of discretion in failing to analyze the
custody factors set forth in 23 Pa.C.S.A. § 5328(c), identified
above as issue #3, because that issue was waived by PGM.
Pursuant to Pa.R.C.P. Rule 1915.4-2(b)(4), “[w]ithin twenty days
after the date of the hearing officer’s report . . . any party may
file exceptions. . . . Matters not covered by exceptions are
deemed waived unless . . . leave is granted.”
The issue of HO Valles’ failure to address the custody factors set
forth in Section 5328(c) was not included in PGM’s exceptions. It
was not until PGM filed her brief in support of her exceptions that
she first raised the issue of HO Valles’ failure to address the
custody factors set forth in Section 5328(c). Because PGM failed
to raise the issue at the time of filing her exceptions, and because
she did not seek leave of court to file additional exceptions, [the
trial court] considered the issue to have been waived and, thus,
did not address it.
Trial Court Opinion, 6/17/19, at 6 (certain capitalization omitted).
For the reasons stated by the trial court, we agree with the trial court
that PGM waived the challenge to the HO’s failure to consider section 5328(c)
as an issue for our review. Nevertheless, recognizing that PGM had standing
under section 5325(1), the trial court did consider the section 5328(c)(1)
factors, specifically, the amount of personal contact between the Children and
- 19 -
J-A26043-19
PGM prior to the filing of the action; whether the award of partial physical
custody would interfere with any parent-child relationship; and whether the
award was in Children’s best interest. The trial court ruled against PGM on
these factors, as set forth, supra. The trial court, through adopting the HO’s
findings, determined that, although there had been contact between PGM and
D.C. prior to Father’s death, Mother and Father had begun to withhold contact
between D.C. and PGM prior to Father’s death. Father and Mother were
ignoring PGM, avoiding her, blocking her calls, and severing her contact with
D.C. The trial court also found that there was a tumultuous relationship
between Father and PGM, and that PGM had been verbally abusive toward
Father. Further, as I.G. was not born until after Father’s death, PGM had
never had any contact with her.
Moreover, the trial court found that the award of partial physical custody
to PGM would interfere with Mother’s parent-child relationship with the
Children. Mother credibly feared that PGM would allow PGF to have contact
with the Children, as she had done in the past, although PGF did not have an
order allowing him to have contact with the Children. The trial court also
determined that Mother’s fears that PGM would interfere with her wishes as
to how to care for and raise the Children were credible, as PGM had previously
disregarded Mother’s child care instructions in the past. Further, the trial court
found that PGM had not been forthcoming with Mother about her activities
with D.C. while D.C. was in PGM’s care. Additionally, the trial court
- 20 -
J-A26043-19
determined that Mother possessed credible fears that PGM and/or PGF, if given
contact with the Children unsupervised by Mother, would influence the
Children to believe that Mother caused Father’s suicide. The trial court
acknowledged that Mother offered PGM visits with D.C. in public settings, but
PGM refused the offers.
Based on the animosity between Mother and PGM and the high level of
conflict between the parties, the trial court determined that it would not be in
the best interest of the Children for the trial court to award partial physical
custody to PGM, but only such partial physical custody as Mother was willing
to provide, at Mother’s discretion.
We conclude that the trial court’s discussion and conclusions regarding
the section 5328(a)(1) factors (that contained the section 5328(c)(1) factors)
was not unreasonable as shown by the evidence of record. C.R.F., 45 A.3d
at 443.
Nevertheless, separate and apart from the consideration of the section
5328(a)(1) and (c) factors, and the evidence with regard to those factors, the
trial court refused to afford PGM her requested relief on the basis that the
court would not interfere with the established case law regarding the award
of partial physical custody to a grandparent when there is a fit and capable
parent who is alive. The trial court reviewed PGM’s first, second, and fourth
issues (see supra at 4) together, stating as follows.
Second, [the trial court] did not address issues #1, #2, and #4
set forth above because it concluded that court-ordered visitation
- 21 -
J-A26043-19
would be an unconstitutional infringement on Mother’s
fundamental right to make decisions concerning the care, custody,
and control of her children. “Parents have a fundamental liberty
interest in raising their children as they see fit.” D.P. v. G.J.P.,
146 A.3d 204, 206 (Pa. 2016), quoting Troxel v. Granville, 530
U.S. 57, 65 (2000) (plurality). “[A]bsent factors such as abuse,
neglect, or abandonment, the law presumes parents are fit and,
as such, that their parenting decisions are made in their children’s
best interests.” D.P., 146 A.3d at 214. “[W]here there is no
reason to believe presumptively fit parents are not acting in their
children’s best interests, the government’s interest in allowing a
third party to supplant their decisions is diminished.” Id. at 214.
In this case, there was no allegation that Mother was anything but
a fit parent. In fact, PGM testified on cross-examination that she
believed Mother to be a fit parent. See [N.T., 8/27/18, at 167].
There were also no allegations made, and “[n]o testimony was
given[,] regarding Mother’s present or past abuse” of the
[C]hildren. HO Report, 10/5/18, at 3.
Furthermore, after hearing all of the testimony and
considering all of the evidence, HO Valles found that Mother “has
performed all parental duties on behalf of the child,”. . . “is able
to provide stability and continuity in the [C]hildren’s education,
family life, and community life,”. . . “has been the primary
caretaker and has attended to the daily physical, emotional,
developmental, educational and any special needs of each child
since their birth,” . . . and “has shown her ability to care for the
[C]hildren and the ability to make appropriate childcare
arrangements.” Id. at 4-6.
In short, there was nothing in the record to [suggest] that Mother
was anything but a fit parent. As such, “if a fit parent’s decision
of the kind at issue here becomes subject to judicial review, the
court must accord at least some special weight to the parent’s own
determination.” Troxel, 530 U.S. at 70. Moreover, “whenever a
custody dispute arises between the parents and a third party, the
evidentiary scale is tipped, and tipped hard, to the parents’ side.”
D.P., 146 A.3d at 212. On that issue, HO Valles’ Report is
instructive:
Pursuant to Mother’s testimony considering the past
relationship between [PGM] and Father and the various
hostile situations Mother witnessed between Father and
- 22 -
J-A26043-19
[PGM], Mother and Father began limiting [PGM’s] exposure
to the child, [D.C]. Prior to Father’s death, Mother and
Father were in agreement to limit [PGM’s] time with [D.C.].
In fact, Mother and Father did not visit [PGM] on the baby’s
first Christmas in 2017[,] as evidenced by a text sent to
Father from [PGM]. Numerous exhibits were presented
indicating texts from [PGM] requesting time with her
grandson and asking both Father and Mother why they
were ignoring her, avoiding her, blocking her calls, and
severing her contact with her grandson.
HO Report, 8/5/18, at 3.
Thus, [the trial court] concluded, as did HO Valles, that even
before Father’s death, the parents chose to limit PGM’s contact
with D.C. However, it was evident that Mother and Father did not
fully cut off contact with PGM. And[,] even after Father’s death,
Mother continued to offer to set up visits for PGM to see D.C. In
her complaint for custody, and again in her petition for special
relief, PGM admitted that Mother offered to meet with her on
multiple occasions in public locations to effectuate visits. The fact
that PGM did not like the types of visits that Mother proposed to
arrange does not give her, or [the trial court], justification to
interfere in Mother’s decision-making.
“[T]he Due Process Clause does not permit a State to infringe on
the fundamental right of parents to make child rearing decisions
simply because a state judge believes a ‘better’ decision could be
made.” Troxel, 530 U.S. at 72-73. Here, by seeking court-
ordered visitation in the face of Mother’s decision to limit contact
between PGM and D.C. to public visits, PGM was asking the court
to supplant her preferences for those of an otherwise fit parent,
which was something [the trial court] could not constitutionally
do.
CONCLUSION
Because [the trial court] concluded that court-ordered visitation
would be an unconstitutional infringement on Mother’s
fundamental right to make decisions concerning the care, custody,
and control of her children, its decision should be affirmed.
- 23 -
J-A26043-19
Trial Court Opinion, 6/17/19, at 6-9.5
We observe that our case law has established public policy regarding
the award of partial physical custody to a grandparent where at least one of
the child’s natural parents is alive and the other is deceased. This Court has
stated that Pennsylvania has a strong public policy “favoring grandparent
involvement in a child’s life.” K.T. v. L.S., 118 A.3d 1136, 1164 (Pa. Super.
2015); see also Hiller v. Fausey, 904 A.2d 875, 886 (Pa. 2006) (stating,
“[W]e refuse to close our minds to the possibility that in some instances a
court may overturn even the decision of a fit parent to exclude a grandparent
from a grandchild’s life, especially where the grandparent’s child is deceased
and the grandparent relationship is longstanding and significant to the
grandchild”)6; Commonwealth ex rel. Goodman v. Dratch, 159 A.2d 70,
71 (Pa. Super. 1960) (stating, “Unless there [is] some compelling reason, we
do not believe that a grandchild should be denied visitation to his
____________________________________________
5 In her brief, PGM complains about the trial court’s reliance on D.P. as being
misplaced. We find her argument lacks merit, as the trial court did not rely
on D.P. as being factually similar to the instant case, and cited only general
legal principles from the case.
6 In Hiller, our Supreme Court addressed the United States Supreme Court’s
plurality decision in Troxel to determine the constitutionality of a
Pennsylvania statute, 23 Pa.C.S. § 5311 (repealed effective January 24, 2011,
and replaced by the Act), that governed the award of partial custody or
visitation to grandparents upon the death of their child who is also the
grandchild’s parent. The Pennsylvania Supreme Court in Hiller held that the
trial court’s application of the statute was constitutional. In the instant appeal,
PGM does not challenge the constitutionality of the trial court’s application of
the current statute, 23 Pa.C.S. § 5328(c).
- 24 -
J-A26043-19
grandparents”). In Commonwealth ex rel. Williams v. Miller, 385 A.2d
992 (Pa. Super. 1978), this Court stated:
Except under unusual circumstances, no child should be cut off
entirely from one side of [his or her] family. [V]isits with a
grandparent are often a precious part of a child’s experience and
there are benefits which devolve upon the grandchild from the
relationship with his grandparents which cannot derive from any
other relationship. If animosities continue between the parties,
and result in adverse [e]ffects on [the child] . . . , a visitation
order may be revised, even to the extent of retracting visitation.
Id. at 995 (internal citations omitted) (reversing trial court order denying
maternal grandmother visitation with grandchild following mother’s death;
father’s “mistrust” of maternal grandmother was not valid reason for denying
grandmother visitation; and, if enforcing visitation away from child’s home
presents harmful effects on child, trial court may specify place and conditions
of visitation). However, there may be instances in which the facts and
circumstances support a finding that a grandparent’s claim for visitation is not
appropriate. This is one of those cases.
In this case, particularly the facts discussed above, Father’s suicide, and
the animosity between PGM, Father, and Mother prior to (and following)
Father’s death, present grounds to sustain the trial court’s order denying PGM
partial physical custody. Because Mother was a fit parent and because she
presented credible concerns regarding the Children’s visitation with PGM, the
trial court did not err or abuse its discretion in determining that it would not
be in the best interest of the Children for PGM to have unsupervised partial
- 25 -
J-A26043-19
physical custody. Hence, PGM’s visits were properly left to Mother’s discretion.
We affirm the trial court order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2020
- 26 -