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C.P. and D.P. v. S.C. and C.P. ( 2020 )


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  • J-A02027-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    C.P. AND D.P.                              :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    S.C. AND C.P.                              :
    :
    :   No. 1277 WDA 2019
    APPEAL OF: S.C.                            :
    Appeal from the Order Entered July 18, 2019
    In the Court of Common Pleas of Allegheny County Civil Division at
    No(s): FD-17-4317-003
    BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY OLSON, J.:                             FILED FEBRUARY 19, 2020
    Appellant, S.C. (“Mother”), appeals pro se from the July 18, 2019 order
    granting C.P. (“Paternal Grandfather”) and D.P. (“Paternal Grandmother”)
    (collectively, “Paternal Grandparents”) sole physical and legal custody of C.C.
    (“Child”).1 We affirm.
    The trial court set forth the relevant factual and procedural background
    of this matter as follows.
    Th[is] case originally came to the attention of the [trial] court
    when the Office of Children Youth and Families [(“OCYF”)] filed a
    dependency petition in January [] 2018. The petition alleged that
    [Child] was without proper parental care or control. It was alleged
    that Mother brought [Child] to a court hearing on January 19[,]
    2018 and was incarcerated that day. [Child] [was] placed in the
    courthouse's daycare, and an appropriate family member could
    ____________________________________________
    1   Child was born in November 2016.
    J-A02027-20
    not be located to retrieve [her]. While the Dependency Petition
    Hearing was pending, OCYF contacted [(“Father”)], and [Child]
    was placed in his care.2 Ultimately, the dependency petition was
    withdrawn, and Father was granted primary custody of [Child], as
    he appeared to be a ready, willing, and able parent.
    The court did not have contact with the family again until May []
    2018, at which time Mother sought custody of [Child] after her
    release from incarceration. [When Mother filed the custody
    complaint,] [she] served Father only and did not include Paternal
    Grandparents as [parties] to the custody action. Mother and
    Father were ordered to participate in the Generations Program.
    Father retained primary custody of [Child] until July 28, 2018, at
    which time he was incarcerated. Prior to his incarceration, Father
    made arrangements with Paternal Grandparents to care for
    [Child]. However, it was apparent from the court's interactions
    with the family that Paternal Grandparents provided daily care for
    [Child] from the time she was placed in Father's care in January
    [] 2018. Paternal Grandparents also reported that they cared for
    [Child] for extended periods of time prior to Mother's incarceration
    in January [] 2018.
    Mother failed to appear for the Generations educational seminar
    on July 14, 2018, and her petition for modification was dismissed
    on July 16[,] 2018. Mother filed a petition for reinstatement of
    her custody action and the court granted her request on
    September 12[,] 2018. On September 13[,] 2018, Paternal
    Grandparents filed a petition for special relief custody.3 Paternal
    Grandparents were granted standing and permitted to proceed in
    ____________________________________________
    2   Father lived in the house of Paternal Grandparents.
    3 On January 29, 2020, Mother filed an Application for Relief with this Court in
    which she asserts that she was never served with Paternal Grandparents’
    petition for custody and she saw it for the first time on January 29, 2020 when
    she found it on the court’s electronic docket. Appellant’s Application for Relief,
    1/29/2020, at 2. A review of the record belies Mother’s assertions. Not only
    has she been actively involved in these proceedings from the beginning —
    including participating in the custody trial, filing a notice of appeal from the
    trial court’s order granting sole legal and physical custody to Paternal
    Grandparents, filing a brief and appearing for oral argument before this Court
    — but Mother also signed an acknowledgment of service of the custody
    pleading which was filed with the trial court on October 17, 2018. Accordingly,
    Mother’s Application for Relief is denied.
    -2-
    J-A02027-20
    the custody action. In September [] 2018, the court ordered all
    parties to proceed through the Generations Program. Pending the
    Generations conciliation, the court entered an interim custody
    order allowing Mother periods of partial visitation with [Child] on
    the weekends. After this hearing, Mother began filing monthly
    motions before [the trial] court seeking additional periods of
    visitation.   At each motion hearing, Paternal Grandparents
    expressed frustration with Mother's punctuality while transporting
    [Child] to and from visits. Th[e trial] court entered an order on
    October 10[,] 2018 allowing Mother a fifteen-minute grace period
    to pick-up or drop-off [Child]. The court granted Mother various
    additional periods of visitation including [Child’s] birthday,
    Thanksgiving, and Christmas.
    On February 26[,] 2019, a custody conciliation was held to
    address Mother's petitions for modification to primary custody and
    civil contempt and Paternal Grandparents' petition for modification
    for sole custody. Mother failed to appear, and her petitions were
    dismissed. Paternal Grandparents' petition was scheduled for a
    judicial conciliation on March 26[,] 2019. At the conciliation,
    Paternal Grandparents expressed concern for Mother's care of
    [Child] during her periods of visitation. Specifically, they alleged
    that Mother had returned [Child] to them with bed bug bites and
    other various illnesses on several occasions.               Paternal
    Grandparents also reported that Mother did not have adequate
    supplies for [Child] during her periods of visitation and returned
    [Child] to them wearing a maxi pad. Mother reported to Paternal
    Grandparents that she did not have diapers. Mother's tardiness
    at drop-off and pick-up times continued to be an issue as well.
    The parties could not agree to any form of shared custody and as
    such, a custody trial was scheduled for June 12[,] 2019. The
    parties appeared on that date, and the court heard testimony and
    accepted exhibits from the parties. Mother did not allege any
    physical maltreatment of [Child] by Paternal Grandparents at this
    hearing. Due to a scheduling conflict, the court was only able to
    hear [90] minutes of testimony, and the hearing was continued to
    July 2[,] 2019. Pending the second day of trial, the court ordered
    Mother to return [Child] to Paternal Grandparents by 10[:00]
    [a.m.] on Sunday, June 16[,] 2019 for Father's Day. In exchange
    for shortening Mother's period of custody, the court granted her
    an extended period of visitation from June 20[,] 2019 until June
    25[,] 2019 so that she could take [Child] on vacation. On or about
    June 15[,] 2019, Mother obtained a frivolous emergency
    protection from abuse order on behalf of [Child] alleging physical
    -3-
    J-A02027-20
    maltreatment by Paternal Grandfather. Mother did not return
    [Child] to Paternal Grandparents as outlined in the June 12[,]
    2019 order. Paternal Grandmother appeared before the court on
    Monday, June 17[,] 2019 to report that [Child] had not been
    returned to their care. Mother failed to appear in court in a timely
    fashion and the emergency protection from abuse order expired
    on June 17[,] 2019. [The trial] court entered an order on June
    17[,] 2019 ordering Mother to return [Child] to the care of
    Paternal Grandparents immediately. The court also suspended
    Mother's custodial periods as set forth in the October 10[,] 2018
    and June 12[,] 2019 orders. Paternal Grandmother appeared the
    following day on June 18[,] 2019 and sought assistance from the
    court in obtaining [Child] from Mother's home. On June 18[,]
    2019, [the trial] court gave the Allegheny County Sheriff's Office
    permission to forcibly remove [Child] from Mother's care if she
    was discovered at Mother's home. Members of the Allegheny
    County Sheriff's Office arrived at Mother's home a short time after
    the court order was signed and Mother refused to allow the
    deputies into her home. The deputies had to forcefully enter
    Mother's residence with their weapons drawn.          Mother was
    discovered to be hiding behind a couch with [Child]. [Child] was
    returned to the care of Paternal Grandparents that day.
    The parties next appeared on July 2[,] 2019 and were permitted
    to give more testimony and provide evidence to the court.
    Paternal Grandparents provided documentation to the court where
    Mother made social media posts about smoking marijuana.
    Mother denied drug use. The court ordered her to be drug
    screened that day, and she tested positive for marijuana.
    Trial Court Opinion, 10/22/19, at 2-5 (footnote in original) (superfluous
    capitalization omitted).
    On July 18, 2019, the trial court issued an order granting Paternal
    Grandparents sole physical and legal custody of Child.       Trial Court Order,
    7/18/19, at 1. The trial court also granted Mother “partial periods of custody
    on the first and third weekends of the month.” 
    Id. Mother filed
    a notice of
    appeal on August 16, 2019, without including a concise statement.            See
    -4-
    J-A02027-20
    Pa.R.A.P. 1925(a)(2)(i). On August 19, 2019, the trial court issued an order
    directing Mother to file a concise statement of matters complained of on
    appeal pursuant to Pa.R.A.P 1925 within 21 days of its order.        Trial Court
    Order, 8/19/19, at 1. Mother filed her Rule 1925 statement on September
    13, 2019, four days beyond the court-ordered 21-day period.
    Preliminarily, we address Mother’s failure to comply with two provisions
    of Pa.R.A.P. 1925. First, Mother failed to file a concise statement of matters
    complained of on appeal contemporaneously with her notice of appeal as
    required by Pa.R.A.P. 1925(a)(2)(i). This renders Mother’s notice of appeal
    defective. See In re K.T.E.L., 
    983 A.2d 745
    , 747 (Pa. Super. 2009) (holding
    that an appellant’s failure to file a simultaneous concise statement and notice
    of appeal violates Pa.R.A.P. 905(a)(2) and 1925(a)(2) and, as such, is
    defective).     K.T.E.L., however, declined to adopt a per se rule requiring
    automatic quashal or dismissal of children fast track cases for such a failure.
    
    Id. Instead, it
    held that the disposition must be “decided on a case-by-case
    basis.”   
    Id. Accordingly, because
    Rules 905(a)(2) and 1925(a)(2) are
    “procedural, not jurisdictional,” we decline to dismiss Mother’s appeal on this
    basis. 
    Id. Second, Mother
    failed to timely comply with the trial court’s August 19,
    2019 order directing her to file a Rule 1925(b) statement within 21 days. This
    failure may “constitute[] waiver of all objections to the order, ruling, or other
    matter[s] complained of on appeal.” J.P. v. S.P., 
    991 A.2d 904
    , 908 (Pa.
    Super. 2010) (distinguishing the effect of failing to file a contemporaneous
    -5-
    J-A02027-20
    notice of appeal and concise statement and the failure to timely comply with
    the trial court’s order). “In a civil case,” however, “Rule 1925(b) implicates
    the notice procedure set forth in Pa.R.C.P. 236.” J.P. v. 
    S.P., 991 A.2d at 908
    . Thus, before we may conclude that Mother waived her claims, we must
    determine whether the following procedural steps were adhered to:
    (1) the court must order the Rule 1925(b) statement; (2) the
    order must be filed with the prothonotary; (3) upon receipt of an
    order from a judge, the prothonotary must immediately docket
    the order and record in the docket the date it was made; and (4)
    the prothonotary must furnish a copy of the order to each party
    or attorney and must record in the docket the giving of the notice.
    
    Id. (citation omitted).
    “If any one of these procedural steps is missing, the
    appellant’s failure to comply with Rule 1925(b) will not result in waiver of the
    issues raised.” 
    Id. Herein, the
    certified docket reveals that the trial court’s Rule 1925(b)
    order was filed with the prothonotary on August 19, 2019. That same day,
    the prothonotary entered the order on the docket and recorded the date it
    was issued. The prothonotary, however, did not record the date that it served
    the Rule 1925(b) order upon Mother. As such, we are disinclined to conclude
    that Mother waived her claims for failure to comply with Rule 1925(b).
    Accordingly, we will address the issues raised by Mother on appeal.
    Mother raises the following issues on appeal:
    I.   [Whether the trial court erred by holding that Paternal
    Grandparents had standing to pursue a custody action?]
    -6-
    J-A02027-20
    II.    [Whether the trial court abused its discretion by granting
    Paternal Grandparents sole physical and legal custody of
    Child?]
    See generally Mother’s Brief at *9-12 (Un-paginated).4
    In custody cases, 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).
    In Mother’s first issue, she argues that Paternal Grandparents lacked
    standing to sue for custody. The trial court held that Paternal Grandparents
    ____________________________________________
    4 Currently, Mother raises 13 issues on appeal. See Mother’s Brief at *9-12
    (Un-paginated). These claims, however, are different than those raised by
    Mother in her 1925(b) statement. See Mother’s 1925(b) Statement of Matters
    Complained of on Appeal, 9/13/19, at 1-2. Moreover, in Mother’s appellate
    brief, she only develops one issue. See Mother’s Brief at *31 (Un-paginated).
    Because of these errors, we could hold that Mother waived her claims on
    appeal. See Pa.R.A.P. 1925(b)(4)(vii) (“[I]ssues not included in the [Rule
    1925(b) s]tatement ... are waived.”); see also Commonwealth v. Roche,
    
    153 A.3d 1063
    , 1072 (Pa. Super. 2017) (“The failure to properly develop a
    claim renders an issue waived.”). This Court, however, is permitted to
    “liberally construe materials filed by a pro se litigant.” Commonwealth v.
    Williams, 
    896 A.2d 523
    , 534 (Pa. 2006). Accordingly, upon review of the
    trial court’s opinion, we conclude that the trial court addressed the substance
    of Mother’s claims and, as such, we will consider the issues we identified
    above.
    -7-
    J-A02027-20
    had standing to pursue custody of Child under the doctrine of in loco parentis.
    Upon review, we agree with the trial court’s conclusion.
    Pursuant to 23 Pa.C.S.A. § 5324, if a person “stands in loco parentis to
    the child,” he or she has standing to “file an action under this chapter for any
    form of physical custody or legal custody. 23 Pa.C.S.A. § 5324.       In Peters
    v. Costello, 
    891 A.2d 705
    , 710 (Pa. 2005), our Supreme Court outlined the
    relevant principles as follows:
    The term in loco parentis literally means “in the place of a parent.”
    The phrase “in loco parentis” refers to a person who puts
    oneself [sic] in the situation of a lawful parent by assuming
    the obligations incident to the parental relationship without
    going through the formality of a legal adoption. The status
    of in loco parentis embodies two ideas; first, the assumption
    of a parental status, and, second, the discharge of parental
    duties. … The rights and liabilities arising out of an in loco
    parentis relationship are, as the words imply, exactly the
    same as between parent and child.
    
    Id. (internal citations
    omitted).
    Herein, the custody trial began on June 12, 2019.             Prior to its
    commencement, the following exchange occurred.
    [Trial court]: Grandfather, when [Child] was placed with your
    son[,] who is [Father], he was residing in your home; correct?
    [Paternal Grandfather]: Yes.
    [Trial court]: When was that, approximately? What year and
    date?
    [Paternal Grandfather]: My son, he [has] been living with me
    since [Child] was born. He [has] been here [from] 2015 until
    [three weeks before the June 12, 2019 hearing].
    ***
    -8-
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    [Trial court]: [When Father was living with you] was he working
    or contributing to the household bills or any expenses related to
    the care of [Child]?
    [Paternal Grandfather]: No.
    [Trial court]: D[id] you have an agreement or an understanding
    about who was going to be providing primary care for [Child]?
    [Paternal Grandfather]: [Father] was supposed to, but it
    always fell back on me and my wife.
    [Trial court]: Even though you did [not] have an actual
    agreement, you and your wife were pretty much the primary
    caretakers?
    [Paternal Grandfather]: Yes.
    [Trial court]: What was [Father’s] involvement?
    [Paternal Grandfather]: Little.
    [Trial court]: Tell me what you and your wife were actually doing
    for the care of [Child] versus what [Father] was doing.
    [Paternal Grandfather]: Me and my wife, we pay for her day
    care five days a week. [We] pitch in and get [Child’s] hair done
    every two weeks.
    [Paternal Grandmother]: Clothes.
    [Paternal Grandfather]: Clothes. She [will] get clothes one
    week or I [will] get clothes on my pay day week. We just make
    sure she [is] kept nice.
    [Trial court]: And you bought all the food?
    [Paternal Grandfather]: We bought food. I took her back and
    forth to get her shots, dental, anything that had to do with -- she
    [has] been fighting bed bugs at [Mother’s] house. I got paperwork
    showing that she had pink eye on several occasions from
    [Mother’s] house and I took her -- me and my wife took her to the
    doctors or the emergency room.
    [Trial court]: So [Father] did [not] provide much care at all?
    [Paternal Grandfather]: No.
    [Trial court]: How about [Mother]?
    -9-
    J-A02027-20
    [Paternal Grandfather]: None. We have [not] gotten anything
    from her. We never asked her for anything. Even if we were to
    ask, we probably would [not] have got it, because she can[not]
    even get [Child] home on the day she [is] supposed to bring her
    back to us. So I [am] picking [Child] up because she could [not]
    even drop [Child] off.
    [Trial court]: So [Mother] was [not] involved in taking [Child]
    for her medical appointments or getting her hair done or buying
    her clothes or anything like that?
    [Paternal Grandfather]: Nothing like that.
    N.T. Custody Trial, 6/12/19, at 4-6. Based upon this exchange, the trial court
    concluded that the Paternal Grandparents stood in loco parentis to Child. 
    Id. at 7.
    Upon review, we agree with the trial court’s determination. Paternal
    Grandfather’s testimony established that they continuously cared for Child’s
    needs and discharged all parental duties since Mother’s incarceration in
    January      2018,   and   Father’s   subsequent   incarceration   in   July   2018.
    Accordingly, Mother’s claim that Paternal Grandparents lack standing is
    meritless.
    Next, Mother claims that the trial court erred in granting Paternal
    Grandparents sole physical and legal custody of Child. We disagree.
    “The paramount concern in child custody cases is the best interests of
    the child.” C.G. v. J.H., 
    193 A.3d 891
    , 909 (Pa. 2018). “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.” M.J.N. v. J.K., 
    169 A.3d 108
    , 112 (Pa. Super. 2017).
    - 10 -
    J-A02027-20
    “The specific factors that a court must consider are listed in 23 Pa.C.S.A.
    § 5328(a)(1)-(16).5 
    Id. at 112.
    ____________________________________________
    5   The factors listed in 23 Pa. C.S. § 5328(a)(1)-(16) are as follows.
    (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.
    (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.
    - 11 -
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    Further:
    The parent has 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.” 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). Section 5327 of the
    Custody Act pertains to cases “concerning primary physical
    custody” and provides 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. § 5327(b). This
    Court has defined clear and convincing evidence “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.” M.J.S. v.
    B.B. v. B.B., 
    172 A.3d 651
    , 660 (Pa. Super. 2017) (citations and
    internal quotation marks omitted).
    Accordingly, “even before the proceedings start, the evidentiary
    scale is tipped, and tipped hard, to the biological parents' side.”
    
    V.B., 55 A.3d at 1199
    , quoting 
    Charles, 744 A.2d at 1258
    . When
    making a decision to award primary physical custody to a
    nonparent, the trial court must “hear all evidence relevant to the
    ____________________________________________
    (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.
    
    Id. - 12
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    J-A02027-20
    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.” 
    Id., quoting McDonel
    v. Sohn, 
    762 A.2d 1101
    , 1107 (Pa. Super. 2000).
    R.L. v. M.A., 
    209 A.3d 391
    , 395-396 (Pa. Super. 2019).
    In its July 18, 2019 order and opinion, the trial court discussed each of
    the Section 5328(a) factors as follows.
    I.   Which party is more likely to encourage and permit
    frequent and continuing contact between the child and
    another party? The [Paternal Grandparents] have continued to
    make concessions for [Child] to attend her custodial periods with
    [Mother]. In addition, Father often stays in the home of [Paternal
    Grandparents] and they do not restrict contact within their home.
    Mother has exhibited an unwillingness to foster the relationship
    between [Child] and [Paternal] Grandparents by filing false
    protection orders against them alleging physical abuse.
    II.   Is there, or has there been in the past, abuse committed by
    a party or a member of the party’s household? This is not a
    factor as it relates to Mother or [Paternal Grandparents].
    Although it should be noted that Mother was often exercising her
    custodial periods at Maternal Grandfather’s home. Maternal
    Grandfather had previously been investigated by OCYF for using
    harsh physical discipline on [Child’s] siblings.    During the
    pendency of the custody trial, Maternal Grandfather [was]
    arrested and charged criminally for using extreme physical
    discipline on [Child’s] older brother.
    III.   What are the paternal duties performed by each party on
    behalf of the child? [Paternal Grandparents] provide for all
    [Child’s] daily needs. They have enrolled [Child] in daycare and
    ensure that all of her medical needs are met. They provide
    clothing, food[,] and shelter, and act in a paternal capacity on a
    day[-]to[-]day basis. Neither Mother nor Father attend medical
    appointments or provide daily care for [Child]. Mother does not
    know the name of [Child’s] pediatrician. Mother does provide
    shelter and food for the periods she exercises custody[,] but does
    not transport [Child] to daycare or any medical appointments.
    - 13 -
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    IV.   Which party can best provide for stability and continuity in
    the child’s education, family life and community life?
    [Paternal] Grandparents [act] as constant support for [Child].
    Both are invested in [Child’s] life and have demonstrated an ability
    to provide stability in all aspects of [Child’s] life. [Child] is only in
    daycare[,] so education is not a factor.                Mother’s prior
    incarceration as well as her marijuana use brings into question her
    stability to provide long term care for [Child].
    V.    The availability of the extended family.                    [Paternal
    Grandparents] have allowed [Child] to [] contact [] extended
    family[,] noting that she often plays with cousins and other young
    relatives. Mother reports that [Child] is in contact with her siblings
    and maternal relatives.
    VI.   The child’s sibling relationships. [Paternal Grandparents] do
    not interfere[] with Mother’s custodial periods. Mother reports
    that her two other children see [Child] during [Mother’s] custodial
    periods.
    VII.   The well-reasoned preference of the child based on the
    child’s maturity and judgment. The child is two and [one] half
    years old. This is not a factor.
    VIII.   The attempts of a parent to turn the child against the other.
    This is not a factor. Although it should be noted that Mother
    falsely accused [Paternal] Grandfather of physical abuse. This
    factor will be a future concern.
    IX.   Which party is more likely to maintain a loving, stable,
    consistent, and nurturing relationship with the child
    adequate for the child’s emotional needs?       [Paternal
    Grandparents].
    X.    Which party is more likely to attend to the daily physical,
    emotional, and educational development, and special
    needs of the child? [Paternal Grandparents].
    XI.   The proximity of the residences of the parties. The parties
    [] live a significant distance from [each other]. Mother reports to
    having to take multiple buses to transport [Child] to and from
    [Paternal Grandparents’] home.
    - 14 -
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    XII.   Each party’s availability to care for the child or ability of
    the parties to cooperate with one another.               [Paternal
    Grandparents] have arranged their work schedules to ensure that
    [Child] is in daycare a few days a week. [Paternal Grandparents]
    are able to coordinate between themselves to ensure [Child] is on
    a daily routine and all her needs are being met. Mother claims
    that she is employed but that is relatively new for her. [Mother]
    is available on a day[-]to[-]day basis to care for [Child].
    Communication is difficult for both parties.             [Paternal
    Grandparents] tend to be slightly more cooperative than Mother
    in this regard.
    XIII.   The level of conflict and the willingness and ability of the
    parties to cooperate with one another. Mother can be
    vindictive at times and has created unnecessary conflict with
    [Paternal Grandparents]. Mother’s frustration with Father has
    caused her to target [Paternal Grandparents] on many occasions.
    [Paternal Grandparents] have grown increasingly frustrated with
    Mother which has also caused friction in the relationship.
    However, [the trial court] believes that with a little patience,
    [Paternal Grandparents] can successfully communicate with
    Mother.
    XIV.    The history of drug or alcohol abuse of a party or a member
    of the party’s household. Mother has a history of [m]arijuana
    use. Father has a history of drug-related arrests and also a history
    of marijuana use.
    XV.    The mental and physical condition of a party or a member
    of a party’s household. This is not a factor.
    XVI.    Any other relevant factors. None.
    Trial Court Order and Opinion, 7/18/19, at *4-8 (Un-paginated). Based upon
    its assessment of the aforementioned factors, the trial court determined that
    Paternal Grandparents, by the presentation of clear and convincing evidence,
    rebutted the presumption that Mother should be awarded custody. See 23
    Pa.C.S.A. § 5327(b); see also Trial Court Opinion, 10/22/19, at 9. Herein,
    we discern no abuse of discretion, as the evidence presented supports the trial
    - 15 -
    J-A02027-20
    court’s custody award to Paternal Grandparents. We therefore affirm the trial
    court’s July 18, 2019 order granting Parental Grandparents sole legal and
    physical custody.6
    Order affirmed. Appellant’s application for relief is denied.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/19/2020
    ____________________________________________
    6In its July 18, 2019 order, the trial court also granted Mother “partial periods
    of custody on the first and third weekends of the month.” Trial Court Order,
    7/18/19, at 1. At oral argument, we inquired as to whether Mother was
    exercising her custodial rights. Mother indicted that she was not. As stated
    during oral argument, we encourage Mother to comply with the trial court’s
    order.
    - 16 -
    

Document Info

Docket Number: 1277 WDA 2019

Filed Date: 2/19/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024