Barbush, R. v. Barbush, A. v. Mehaffie, B.&D. ( 2023 )

J-A20013-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ROBERT D. BARBUSH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHLEY E. BARBUSH :
:
: No. 297 MDA 2023
v. :
:
:
BRIAN K. MEHAFFIE AND DEBRA R. :
MEHAFFIE :
:
Appellants :
Appeal from the Order Entered January 18, 2023
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2019-CV-3101-CU
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 20, 2023
Brian K. Mehaffie (“Maternal Grandfather”) and Debra R. Mehaffie
(“Maternal Grandmother”) (collectively, “Grandparents”) appeal from the
January 18, 2023 order awarding Ashley E. Barbush (“Mother”) partial
physical custody and shared legal custody of her daughter, L.B., born in July
2016, and two sons, J.B., born in April 2013 and B.B., born in December 2017
(collectively, the “Children”). After careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Robert D. Barbush (“Father”) (collectively with Mother, “Parents”)
initiated the underlying custody action in April 2019, wherein he sought sole
legal and primary physical custody of the Children. Three days later,
Grandparents filed a petition to intervene requesting an emergency hearing
and seeking shared legal custody and primary physical custody of the Children
due to their concerns about Mother’s mental health, Mother’s treatment of the
Children, and Grandparents’ concerns about Mother’s unstable housing. See
Petition to Intervene, 4/29/19. Father supported Grandparents’ bid for
primary physical custody and asserted that he did not believe the Children
were safe in Mother’s custody. See id. at Exhibit “A”.
Ultimately, the parties reached an agreement regarding custody which
the court approved on July 8, 2019. The stipulated custody order awarded
Grandparents sole legal custody of the Children while permitting Parents
access to the Children’s medical, dental, religious, and school records. See
Order, 7/8/2019, at ¶ 1-2. The court also awarded Grandparents primary
physical custody of the Children, while awarding Parents respective partial
physical custody. See id. at ¶ 3-5. The order also specified that Parents would
not exercise their custodial time together. See Order, 7/8/2019, at ¶ 6.
On September 30, 2019, the court entered another stipulated order that
largely affirmed these custody awards. See Order, 9/30/2019, at ¶ 1-6.
Specifically, Mother was awarded “supervised (by Grandparents) visitation
with the [Children] at times, locations and under circumstances agreed to
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between Mother and Grandparents.” Id. at ¶ 5. On November 5, 2019, Mother
filed a petition for modification of the September 30, 2019 order, seeking legal
and primary physical custody of the Children. Following a custody conciliation,
the parties came to an agreement and the court entered an order on January
8, 2020, which amended the September 30, 2019 order in a number of ways.
Of particular note to the instant appeal, the order provided that future
conciliations between the parties would not be scheduled until all the
conditions in the January 8, 2020 order were met. These conditions included,
inter alia, family counseling between Mother and Grandparents and
completion of a parenting education program by Parents. See id. at ¶ 1-6.
Mother filed a petition to modify custody on April 13, 2022, seeking
shared legal and physical custody of the Children. On June 10, 2022, Mother
also filed a petition for contempt with respect to the September 30, 2019
order.1 On June 23, 2022, a custody conciliation conference occurred, but the
parties were unable to establish an agreement.
On October 4, 5, and 17, 2022, the trial court held a custody trial.2
Mother, proceeding pro se, testified on her own behalf and presented the
testimony of Teasha Bush, Father’s sister-in-law; Chanel De Jager,
____________________________________________
1 At the time this appeal was filed, the trial court had not rendered a decision
on Mother’s petition for contempt.
2 Although the trial occurred on three separate days, the notes of testimony
are included in one transcript with consecutive page numbers.
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Grandparents’ former au pair for the Children; Marlena Tocco, the wife of
Father’s cousin; Janelle Reinhardt, Mother’s friend; Lori McCall Forester,
Mother’s biological father’s wife; and Nicole Therit, family-based therapist at
Pennsylvania Counseling Services. During trial, Mother initially sought
overnights with the Children on the weekends, as she believed some family
members were willing to allow her to exercise her custodial time at their home.
See N.T., 10/4/2022, at 9-10. However, as the trial progressed, Mother
altered her request to unsupervised time with the Children and shared legal
custody.3 See N.T., 10/5/2022, at 388, 392.
Grandparents testified on their own behalf and also adduced the
testimony of Alvin Rostolsky, the Children’s maternal great grandfather; Dr.
Nancy Patrick, Children’s therapist of three years; Laura Burnell, Maternal
Grandmother’s sister; Richard Forester, Mother’s biological father;4 Larraine
Mehaffie, Maternal Grandfather’s sister-in-law; Melissa Collins, the mother of
Mother’s friend; and Claudia Lozano, another former au pair the Grandparents
____________________________________________
3 Grandparents identify Mother’s physical custody award as “unsupervised
visitation.” In the subject order, the trial court also identifies Mother’s custody
award as “unsupervised visitation.” This term is not proper pursuant to the
Child Custody Act, which designates the following seven types of custody that
a trial court may award if in the best interest of the child: shared physical
custody; primary physical custody; partial physical custody; sole physical
custody; supervised physical custody; shared legal custody; and sole legal
custody. See 23 Pa.C.S.A. § 5323(a).
4 Maternal Grandfather adopted Mother when she was approximately eleven
years old. N.T., 10/4/2022, at 275-276.
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utilized to care for the Children. Father was present, briefly testified, but did
not produce any witnesses.5
The court also conducted an in camera interview of J.B. and L.B. without
the parties or Grandparents’ attorney present. The court did not speak with
B.B., who was four years old at the time of the trial, due to his age. See Trial
Court Opinion, 11/14/2022, at 16.
At the end of the hearing on October 17, 2023, the trial court closed the
record and stated that careful consideration would be taken in determining
what is best for the Children. However, before the court issued a decision,
Grandparents filed a motion to add testimony and a motion for leave of court
to take discovery on October 25, 2022. By order dated and entered November
14, 2022, the court denied Grandparents’ motions.
In addition, by separate order dated and entered on November 14,
2022, the court awarded Mother and Grandparents shared legal custody of
the Children. See Custody Order, 11/14/2022, at ¶ 1. Grandparents retained
primary physical custody of the Children. See id. at ¶ 2. The trial court
awarded Mother the following:
____________________________________________
5Unlike Mother, Father did not file a petition to modify the September 30,
2019 custody order. Father attended the subject proceeding pro se. At the
beginning of trial, he stated he did not want the order modified. See N.T.,
10/4/2022, at 13. At the close of trial on October 17, 2023, Father requested
additional custodial time with the Children. However, the trial court did not
modify Father’s award in its November 14, 2022 order following the hearing,
and Father did not appeal.
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3. Mother shall have visitation with the [C]hildren in accordance
with the following schedule;
A. At least one school night a week, Mother shall have
unsupervised visitation with the [C]hildren from after
school until 7:00 p.m.
...
B. Mother shall also have unsupervised visitation with the
[C]hildren on a weekend day over lunchtime.
...
C. All of Mother’s unsupervised visitation with the [C]hildren
shall include only her and the three children. Mother is
not permitted to bring any friends along to said visitation.
D. Mother shall have visitation with the [C]hildren at []
Grandparents’ house from dinnertime at approximately
5:00 p.m. until bedtime every Friday night. . . . During
this visitation, [] Grandparents shall not interfere with
Mother’s custodial time.
Id. at ¶ 3.
On December 8, 2022, Grandparents filed a motion for reconsideration
of the November 14, 2022 orders.6 Specifically, with respect to the custody
____________________________________________
6 In addition, Grandparents timely filed a notice of appeal from the November
14, 2022 orders, which this Court docketed at 1685 MDA 2022. On January
10, 2023, this Court issued a rule to show cause order as it was unclear if the
November 14, 2022 orders were final or otherwise appealable. See Pa.R.A.P.
341(b)(1) (a final order is any order that disposes of all claims and of all
parties); see also G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (a custody
order is final and appealable after the trial court has concluded its hearings on
the matter and the resultant order resolves the pending custody claims
between the parties). On February 3, 2023, following a response from
Grandparents, this Court quashed the appeal because the November 14, 2022
orders were not final or otherwise appealable.
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order, Grandparents requested additional provisions be included to address
specific circumstances that were contained in the record. On December 22,
2022, the trial court directed Parents to provide responses to the proposed
changes by Grandparents. On January 17, 2023, upon consideration of
Grandparents’ motion for reconsideration, and the responses by Parents, the
trial court amended the November 14, 2022 custody order by adding and
clarifying provisions, none of which altered Mother’s partial physical custody
award. In all other respects, the November 14, 2022 custody order remained
in full force and effect.
On January 18, 2023, Grandparents again filed a motion for
reconsideration, this time of the January 17, 2023 order, and requested
clarification of said order. Accordingly, by order dated and entered on January
18, 2023, the court modified the January 17, 2023 order, with respect to
Grandparents’ prepaid vacation with the older two children, and provided that
the January 17, 2023 order otherwise remained in full force and effect.7
On February 17, 2023, Grandparents filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On March 9, 2023, the trial court submitted a short
opinion pursuant to Pa.R.A.P. 1925(a) stating that Grandparents’ concise
____________________________________________
7 As the January 18, 2023 order fully disposes of all issues presented during
the custody hearings, we find the order to be a final or otherwise appealable
custody order. See Pa.R.A.P. 341(b)(1); see also G.B., 670 A.2d at 714.
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statement is in violation of Pa.R.A.P. 1925(b)(4)(ii) as they set forth lengthy
explanations for each alleged error. The court further stated that it would be
relying upon the reasoning provided in its opinion accompanying the
November 14, 2022 order.
Grandparents present the following issues for review:
1. Whether the trial court erred as a matter of law and abused its
discretion in entering the custody order dated November 14,
2022 inasmuch as the trial court’s decision is against the
weight of the uncontroverted testimony presented at trial[?]
2. Whether the trial court erred as a matter of law and abused its
discretion with its decision as Mother failed in her burden of
proving that the trial court’s 2019 order, which limited Mother’s
periods of visitation to non-overnight supervised visitation,
should be modified to unsupervised time in light of the
overwhelming evidence that established that affording Mother
unsupervised time was not in the [C]hildren’s best interests
and subjects them to ongoing risk of harm[?]
3. Whether the trial court erred as a matter of law and abused its
discretion in denying [Grandparents’] Motion to Add Testimony
and Motion for Leave of Court to Take Discovery by Order dated
November 14, 2022[?]
4. Whether the trial court erred as a matter of law and abused its
discretion in interviewing two (2) of the children, where the
children’s preference were irrelevant to determining whether
affording Mother unsupervised partial physical custody
subjected the [C]hildren to ongoing risk of harm[?]
5. Whether the trial court erred as a matter of law and abused its
discretion in admitting/considering Mother’s packet of text
messages, Facebook messages and writing that were not
authenticated or relevant to the issues of expanding Mother’s
supervised time to unsupervised time or considering her
request for shared legal custody[?]
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Grandparents’ Brief at 4-5 (issues reordered for ease of disposition; suggested
answers omitted).
We will begin by addressing the trial court’s contention that
Grandparents waived their arguments on appeal due to their prolix Rule
1925(b) statement. Grandparents’ concise statement is voluminous and
repetitive. Our Supreme Court has explained that raising a staggering number
of issues is not effective appellate advocacy and is “borderline abuse of the
legal system.” Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa.
2004). The Court stated that, “multiplying assignments of error will dilute and
weaken a good case and will not save a bad one.” Id. (emphasis omitted and
citation omitted).
Here, we observe that Grandparents’ Rule 1925(b) Statement is ten
pages and consists of numerous headings, subheadings, and sub-
subheadings. The statement is voluminous and repetitive. The crux of
Grandparents’ arguments appear to be regarding the Section 5328(a) custody
factors. While not clear and concise, we are able to discern Grandparents’
purported allegations of error. However, we remind counsel that a Rule
1925(b) Statement “must be concise and coherent as to permit the trial court
to understand the specific issues being raised on appeal.” Tucker v. R.M.
Tours, 939 A.2d 343, 346 (Pa. Super. 2007) (internal quotation marks
omitted).
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Grandparents’ first and second claims challenge the trial court’s findings
regarding the Children’s best interests and the trial court’s examination of the
Section 5328(a) custody factors.
Our standard of review of these claims is deferential:
Our standard of review over a custody order is for a gross
abuse of discretion. Such an abuse of discretion will only be found
if the trial court, in reaching its conclusion, overrides or misapplies
the law, or exercises judgment which is manifestly unreasonable,
or reaches a conclusion that is the result of partiality, prejudice,
bias, or ill-will as shown by the evidence of record.
In reviewing a custody order, 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 trial court 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.
Rogowski v. Kirven, 291 A.3d 50, 60-61 (Pa. Super. 2023) (internal
citations, brackets, and quotation marks omitted).
As with all custody-related matters, this Court’s “paramount concern is
the best interest of the child involved.” Id. at 61 (internal citation, brackets,
and quotation marks omitted). Indeed, Pennsylvania law provides that the
trial court is only empowered to change an existing custody order if the
modification will “serve the best interest of the child.” 23 Pa.C.S.A. § 5338(a).
To that end, the Child Custody Act sets forth sixteen factors at 23 Pa.C.S.A. §
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5328(a) that a court must consider prior to modifying an existing custody
order. See E.B. v. D.B., 209 A.3d 451, 460 (Pa. Super. 2019). While a court’s
consideration of these factors is mandatory, “[i]t is within the trial court’s
purview as the finder of fact to determine which factors are most salient and
critical in each particular case.” Id. (citation omitted). Furthermore, 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 and citation omitted).
In order to evidence its consideration of these required elements, a trial
court must set forth a discussion of these best-interest factors “prior to the
deadline by which a litigant must file a notice of appeal.” A.V. v. S.T., 87
A.3d 818, 820 (Pa. Super. 2014). However, the trial court’s discussion is not
required to explicitly address each factor:
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. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
Id. at 822-823 (citations and internal quotation marks omitted).
Instantly, the court weighed the following custody factors in favor of
Mother: Section 5328(a)(1), (2), (4), (7), (9), (10), (13), and (14). See Trial
Court Opinion, 11/14/2022, at 11-23. The court weighed (3) and (12) in
Grandparents’ favor. See id. The court further determined that (5) and (15)
weighed neutrally between the parties, and found (6), (8), (11), and (16)
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inapplicable. See id. The court emphasized that the evidence proffered weighs
in favor of Grandparents retaining primary physical custody, but Mother no
longer required supervised custody periods. See id.At their core, we interpret Grandparents’ first two issues as a dispute to
the trial court’s findings of fact and determinations regarding credibility and
weight of the evidence. Grandparents’ Brief at 17-24 (“The trial court erred
and abused its discretion by improperly weighing the custody factors;”
“Mother failed in her burden of proving that the trial court’s 2019 [o]rder
should be modified to unsupervised time.”). Grandparents, in essence,
question the trial court’s conclusions and assessments and asks this Court to
re-find facts, re-weigh evidence, and/or re-assess credibility to his view of the
evidence. This we cannot do.
We cannot disturb the trial court’s findings of fact and determinations
regarding credibility and weight of the evidence absent an abuse of discretion.
See Rogowski, 291 A.3d at 60-61. “It is not our function to determine
whether the trial court reached the ‘right’ conclusion . . . . Rather, we consider
whether, based on the evidence presented and giving due deference to the
trial court’s weight and credibility determinations, the trial court erred or
abused its discretion. . . .” Hanson v. Hanson, 878 A.2d 127, 129 (Pa.
Super. 2005).
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Grandparents have challenged the trial court’s findings with respect to
factors (1), (2), (5), (7), (13), (14), (15), and (16), which we will address in
sequence.
Factor (1) requires consideration of which party is more likely to
encourage and permit frequent and continuing contact between the Children
and other interested parties. See 23 Pa.C.S.A. § 5328(a)(1). Here, the trial
court found that this factor favored Mother and stressed that, under the prior
custody arrangement, Grandparents had “sole discretion as to when, where
and how Mother may have contact with the Children, including visitation time
and whether said visitation is supervised or unsupervised.” Trial Court
Opinion, 11/14/2022, at 11.
On this point, Mother testified that Grandparents withheld the Children,
except for some limited video calls, from September 2021 to February 2022.
See N.T., 10/4/2022, at 82-83. The trial court concluded that “we did not hear
any testimony that justified [Grandparents’] decision to withhold all visitation.
. . .” Trial Court Opinion, 11/14/2022, at 12. Rather, Maternal Grandmother
testified that the decision to prevent the Children from seeing Mother was for
Grandparents’ own benefit:
Q: If you’re there, supervising, during the time period of fall of ’21
through February of ’22, why did you cut that off?
A: Because she makes it very miserable in our home. This is my
home, and we are grandparents who are mere volunteers. And we
are doing everything for these [C]hildren.
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We don’t get a dime of child support; we never asked for it. We’re
doing everything. And I’m not gonna have [Mother] come in my
home and disrespect me, undermine me, and undo everything
that we’re doing for these [C]hildren, which she does on a regular
basis.
Id. at 462. Furthermore, the Children’s therapist, Dr. Nancy Patrick, testified
on direct examination that L.B.’s behavior deteriorated during this time period.
See N.T., 10/4/2022, at 197-198. Accordingly, we find that the record
supports the trial court's finding that Section 5328(a)(1) favors a set schedule
that does not provide Grandparents with unfettered discretion as to how,
when, and where Mother can exercise custodial time with the Children.
Factor (2) requires consideration of 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. See
23 Pa.C.S.A. § 5328(a)(2). Grandparents argue that evidence “could have
been offered” that Mother’s behaviors put the Children at risk of harm. The
trial court determined that this factor favored Mother because there was no
evidence that she posed a current risk to the Children and the court included
a provision in the custody order that Mother’s custodial time shall only include
the Children. Trial Court Opinion, 11/14/2022, at 13.
As discussed more fully below, Grandparents’ argument that the trial
court erred in denying their motions to add testimony and take discovery is
waived for failure to provide a discussion with citation to the relevant law and
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develop the issues in a manner allowing for meaningful review. See In re
W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011). Further, we discern no error
by the trial court as the record supports the court’s finding that no evidence
was presented that Mother posed a continued risk of harm to the Children.
Factor (5) requires consideration of the availability of extended family.
See 23 Pa.C.S.A. § 5328(a)(5). Grandparents argue that the trial court erred
in determining this factor is neutral because Grandparents provided evidence
of available extended family. See Grandparents’ Brief at 20. They further
argue that none of the extended family are willing to permit Mother to have
visitation in their homes. See id.
We reiterate that “[i]t is within the trial court’s purview as the finder of
fact to determine which factors are most salient and critical in each particular
case.” E.B., 209 A.3d at 460 (citation omitted). In its opinion, the trial court
found that the evidence at trial was not as definitive as Grandparents believed:
There are numerous family members who are involved in this case
and testified at the trial. All of these family members have
provided care for the Children at times and likely will in the future.
It is possible that Mother may be able to exercise overnights with
the Children at the home of one of these family members, but it
does not appear that any of the family members will agree to a
specific schedule of overnights. This factor does not weigh in favor
of any party.
Trial Court Opinion, 11/14/2022, at 15. It is clear from its opinion that the
trial court did not find Section 5328(a)(5) salient to the case. Further, in
contrast to Grandparents, who indicated that none of the extended family are
willing to permit Mother custodial time at their homes, we note that Larraine
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Mehaffie testified Mother could exercise some custody at her home, but she
could not commit to a regular schedule. See N.T., 10/4/2022, at 296-297.
Therefore, we find the record supports the trial court’s determination.
Factor (7) requires the court to consider the well-reasoned preference
of the child, based on the child's maturity and judgment. See 23 Pa.C.S.A. §
5328(a)(7). Grandparents argue that the J.B.’s and L.B.’s testimony was not
relevant, and that the court was required to focus on whether unsupervised
time with Mother was in the Children’s best interest. Notably, Grandparents
do not assert that the Children were too immature or incapable of expressing
their well-reasoned opinion. Our case law provides that trial courts are
required to consider “[a]ll of the factors listed in section 5328(a) . . . when
entering a custody order.” J.R.M., 33 A.3d at 652 (emphasis omitted).
Therefore, as the trial court was required to consider the Children’s well-
reasoned preferences, Grandparents’ argument is without merit.
Grandparents further argue that the trial court erred regarding Section
5328(a)(13). Factor (13) concerns the level of conflict between the parties
and the willingness and ability of the parties to cooperate with one another.
See 23 Pa.C.S.A. § 5328(a)(13). Grandparents claim that Mother’s testimony
was not credible, but do not specify what portion of Mother’s testimony they
are referencing. See Grandparents’ Brief at 20. They further contend that
there was no evidence that Grandparents are harming the Children. See id.
Finally, Grandparents allege that the trial court ignored evidence that the
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Children “completely change” with Mother, that she is not capable of managing
the Children, and this puts them at risk. See id. at 20-21.
We again emphasize that “we must defer to the trial court who viewed
and assessed the witnesses first-hand.” Rogowski, 291 A.3d at 60 (citation
and brackets omitted). Further, we note that the trial court heard three days
of testimony and was well within its discretion to make credibility
determinations.
More importantly, our review of the trial court’s discussion of factor (13)
does not reveal any specific finding that Grandparents are harming the
Children. Rather, the trial court’s discussion focused on Grandparents’ actions
with regard to Mother and their inability to allow Mother to parent during her
custodial time by micromanaging her. See Trial Court Opinion, 11/14/2022,
at 18-22. We find that the record supports the court’s findings.
Grandparents often had issues with Mother when she attempted to care
for the Children. On one occasion, while Mother was driving L.B. from her
dance class to the pool, she stopped at Turkey Hill to get some snacks for L.B.
N.T., 10/17/2022, at 617-618. Grandparents did not approve of this stop and
provided this event as an example of Mother lying. Id. at 618. Further,
Grandparents described Mother’s parenting style as “chaos.” Id. at 597.
When questioned by the court, Maternal Grandfather testified that he
needs to be present for Mother’s custodial time to help her manage the
Children:
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Q: Have you ever considered you and [Maternal Grandmother]
leaving your house when [Mother is] there with the [Children]?
A: No.
Q: Why not?
A: It’s my house.
Q: I understand.
A: I need to be there in case something needs to be done.
Q: What do you mean, needs to be done?
A: Like, if she can’t manage the [Children]. I want to be there to
help make sure the [Children] are safe and not running around
obnoxiously. I mean, I pull back and try to let her do it. It’s not
like I’m visible all the time. I will be, you know, in the living room
or go out to the garage or go upstairs or trying to leave where
she’s by herself, and it’s -- it doesn’t go well.
Q: Any other concerns? With respect to leaving her alone with the
[Children] in the house?
A: I don’t -- I don’t know about concerns. I don’t want to leave
my own home. I just got off work, so . . . .
Id. at 625-626. In contrast, Lozano, Grandparents’ former au pair, testified
that what Grandparents described as “chaos,” was better described as the
Children being excited to see Mother:
Q: When [Mother] came to the house to be with the [Children],
did you have an opportunity to observe the style of parenting, the
way she parented the [Children]?
A: Yeah. Some of the times, yeah, I did.
Q: And how would you describe that?
A: Well, I think it was -- I mean, she was trying to get involved
with them, but they were, like, too excited to see her. So I think
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that they were not listening to her, and she was trying to get them
to listen to her. But it was very hard.
Q: They were excited to see her?
A: Yes, I’m sorry.
Q: How would you -- did you see a difference in the [C]hildren’s
behavior when [Mother] was not there versus when [Mother] was
there?
A: Yes. Because when they were with [Grandparents] or with me,
yeah. They were, like, listening better or they were doing what
they were supposed to do.
But sometimes, when [Mother] was there, they were like too
excited to be with her that they were all three of them fighting
over playing with her or getting her attention. So it was different,
because they were not, like, behaving as they usually did with us.
N.T., 10/5/2022, at 540-541. The record supports the trial court’s finding that
Grandparents’ supervision of Mother’s custodial times have led to conflict
between the parties. Accordingly, we can determine no error in the trial court’s
conclusion that this factor favored providing with Mother unsupervised
custodial times with the Children.
Pursuant to factor (14), the court was required to consider, the history
of drug or alcohol abuse of a party or member of a party's household. See 23
Pa.C.S.A. § 5328(a)(14). Grandparents argue that the trial court failed to
consider evidence that Mother is involved in drug trafficking and her
associations with people who abuse alcohol and drugs. See Grandparents’
Brief at 21, 23. Here, the trial court determined that “there was no indication
that [Mother] ever abused alcohol or drugs while the Children were in her
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custody.” Trial Court Opinion, 11/14/2022, at 22. Further, since Mother only
requested unsupervised time with the Children, the court fashioned its
analysis on “whether Mother is a danger to the Children during short periods
of visitation.” Id. at 23.
We begin by noting that Grandparents’ allegations of drug dealing was
hotly contested by Mother. Despite Grandparents’ allegations, Mother denied
having ever sold drugs. See N.T., 10/4/2022, at 138-139. And, as the trial
court found, there is nothing in the record to suggest that Mother abuses
alcohol or drugs when she is with the Children. Similarly, Grandparents cite to
no evidence of record to refute the trial court’s conclusion that there was no
evidence presented that Mother brings the Children around anyone under the
influence of drugs or alcohol during her custodial times. Therefore, we discern
no error by the trial court.
In addressing Section 5328(a)(15), the mental and physical condition
of a party or member of a party's household, Grandparents argue that the trial
court ignored testimony from the May 1, 2019 emergency hearing that
“proved Mother’s mental health issues.” Grandparents’ Brief at 21, 23-24.
According to Grandparents, Mother’s mental health issues prevent her from
making good choices. See id. at 23. Grandparents also argued, again, that
Mother lacked credibility as she lied about where she lived and regarding her
continued involvement with her abusive ex-paramour. Id.
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We find Grandparents’ argument concerning alleged testimony from the
May 1, 2019 emergency hearing waived. As related previously, Grandparents
did not provide any citation to the record pursuant to Pa.R.A.P. 2119(d).
Further, Grandparents’ argument regarding Mother’s credibility is without
merit as “we must defer to the trial court who viewed and assessed the
witnesses first-hand.” Rogowski, 291 A.3d at 60 (citation and brackets
omitted).
Grandparents focus on testimony from Burnell, Maternal Grandmother’s
sister, who stated that Mother “struggles with her mental health.” N.T.,
10/4/2022, at 214. However, Burnell was not presented as an expert witness
and the trial court was well within its discretion to discount this testimony,
especially considering Mother presented successful discharge documentation
from her individual therapist. Accordingly, we discern no error in the trial
court’s determination that Section 5328(a)(15) did not favor either party.
Finally, factor (16) required the court to consider any other relevant
factor. See 23 Pa.C.S.A. § 5328(a)(15). Grandparents contend that there is
evidence suggesting that there are ongoing safety concerns with Mother’s
associates. See Grandparents’ Brief at 21. Grandparents further argue that
the trial court failed to hold Mother accountable and that the court improperly
blames Grandparents who are merely attempting to do what is best for the
Children. See id. at 21-23. Overall, they argue that the court should have
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afforded Grandparents the option to select a different location for Mother’s
Friday evening visits. See id.
Here, the trial court stated that its most salient concern is whether
Mother “can visit with the Children without having to be supervised.” Trial
Court Opinion, 11/14/2022, at 24. The court concluded that “[t]here was no
evidence that Mother has ever put the Children in danger during her
supervised visits. There is also no evidence that the Children were ever in
danger during the times that Mother had unsupervised time with them.” Id.
Once again, “[i]t is within the trial court’s purview as the finder of fact
to determine which factors are most salient and critical in each particular
case.” E.B., 209 A.3d at 460 (citation omitted). The court focused on the
safety of the Children, and utilizing the certified record, determined it did not
have any safety concerns in merely providing Mother with unsupervised
custodial time with the Children. Therefore, we find no error in the trial court’s
analysis of Section 5328(a)(16).
The trial court analyzed and addressed each of the custody factors
pursuant to Section 5328(a). See Trial Court Opinion, 11/14/2022, at 11-24.
After careful review of the record, we determine that the trial court’s findings
and determinations regarding the custody factors set forth in Section 5328(a)
are supported by competent evidence in the record, and we will not disturb
them. See Rogowski, 291 A.3d at 60-61.
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Finally, we conclude that Grandparents’ third, fourth, and fifth issues
are waived for failure to develop any meaningful argument. To begin, we note
that their argument on issue three covers the better part of two pages, their
arguments on issues four and five combined cover only a single page. Within
these three arguments, Grandparents make numerous factual assertions, but
wholly fail to cite the certified record. They further fail to provide a discussion
with citation to the relevant law and develop the issues in a manner allowing
for meaningful review. W.H., 25 A.3d at 339 n.3 (quoting In re A.C., 991
A.2d 884, 897 (Pa. Super. 2010)) (“[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.”); see also In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super.
2017). We, therefore, find these issues waived.
Even if these issues were not waived, each fail separately on the merits.
In their third issue, Grandparents argue that the court failed to consider the
Children’s safety and that the proffered evidence in their motions to add
testimony and to take discovery would show that Mother continues to
associate with her ex-paramour, B.D. See Grandparents’ Brief at 15-17. Our
Supreme Court has stated that “the decision of whether to admit or exclude
evidence is within the sound discretion of the orphans’ court. A reviewing court
will not disturb these rulings absent an abuse of discretion. Discretion is
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abused if, inter alia, the orphans’ court overrides or misapplies the law.” In
re A.J.R.-H., 188 A.3d 1157, 1166–67 (Pa. 2018) (internal citations omitted).
In denying Grandparents’ motions by order dated November 14, 2022,
the trial court determined that the additional testimony and discovery were
not relevant as the custody order stated Mother’s custodial time would only
be “her and the [Children].” Custody Order, 11/14/2022, at 4 (unpaginated).
The custody order also contained a separate provision that stated, “The
[C]hildren are to have no contact whatsoever with [B.D.].” Id. at 5
(unpaginated) (emphasis omitted). Additionally, Grandparents sought to add
testimony from De Jager, another former au pair, whom they disparaged
during the trial and had testified already on October 4, 2022. Accordingly, it
was within the trial court’s purview to deny Grandparents’ post-trial motions,
and we discern no abuse of discretion.
In their fourth issue, Grandparents argue that the trial court erred in
interviewing two of the children, J.B. and L.B., because their preferences were
irrelevant in determining whether awarding Mother unsupervised partial
physical custody posed a risk of harm to the Children. See Grandparents’ Brief
at 25. Primarily, our case law provides that trial courts are required to consider
“[a]ll of the factors listed in section 5328(a) . . . when entering a custody
order.” J.R.M., 33 A.3d at 652 (emphasis and citation omitted). Additionally,
“[t]he court may interview a child in open court or in chamber.” Pa.R.Civ.P.
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1915.11. Therefore, the court’s decision to interview the two older children
does not amount to error and Grandparents’ argument fails.
In their final issue, Grandparents baldly assert that the trial court erred
in admitting Mother’s packet of text messages, Facebook messages, and
writings that were not authenticated or relevant. See Grandparents’ Brief at
25. As related previously, “the decision of whether to admit or exclude
evidence is within the sound discretion of the orphans’ court.” A.J.R.-H., 188
A.3d at 1166–67 (citation omitted). Further, it appears that the court did not
admit the exhibits Grandparents are referring to because they do not appear
in the certified record.8 As we discern no error, Grandparents’ contention fails.
Based on the testimony, and our review of the certified record, we
conclude that the court reasonably weighed the Section 5328(a) factors. As
we find Grandparents’ other issues waived, or otherwise without merit, we
conclude that the trial court’s consideration of the best interest of the Children
was careful and thorough, and we discern no abuse of discretion. Accordingly,
we affirm the order.
Order affirmed.
____________________________________________
8 At the close of trial on October 17, 2022, the trial court stated that, regarding
the exhibits Grandparents objected to, only those parts of the exhibits that
were specifically testified to would be admitted. See N.T., 10/17/2022, at
673-674. Grandparents’ counsel at the time indicated that this was
acceptable. See id.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/20/2023
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