Truax, A. v. Zych, E. & S. ( 2023 )

J-S27045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ANN TRUAX : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
EDMUND RYAN ZYCH A/K/A RYAN :
ZYCH AND SIOBHAN E. ZYCH :
:
:
EDMUND RYAN ZYCH A/K/A RYAN : No. 344 MDA 2023
ZYCH :
v. :
:
SIOBHAN E. ZYCH :
:
:
SIOBHAN ZYCH :
:
v. :
:
RYAN ZYCH :
:
:
APPEAL OF: EDMUND RYAN ZYCH :
Appeal from the Order Entered January 30, 2023
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2021-07784
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN: FILED: OCTOBER 26, 2023
Appellant, Edmund Ryan Zych a/k/a Ryan Zych (“Father”), appeals from
the order denying his petition for sole legal custody of his child, K.Z. (“Child”),
born December 2016; granting the petition of Siobhan E. Zych (“Mother”), for
shared physical custody of Child, and granting the petition of maternal
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grandmother Ann Truax (“Grandmother”), for partial physical custody of
Child.1 We affirm.
Father and Mother (collectively, “Parents”) commenced custody
proceedings concerning Child in October 2019 following their marital
separation.2 By agreement of the parties, the trial court awarded Father and
Mother shared legal custody of Child, Mother primary physical custody, and
Father partial physical custody. See Order 12/5/19.
In December 2020, following Father’s petition for a custody
modification, the court granted Father primary physical custody on an interim
basis, and limited Mother to only supervised physical custody, based on
Mother’s drug tests indicating her addiction to alcohol and cocaine. The
December 2020 order named Grandmother and her husband, Timothy Truax
(“Step-Grandfather”), as the custodial supervisors for Mother. The order also
directed Mother to attend drug and alcohol counseling with Mary Pat Melvin
Scarantino, L.S.W., C.D.A.C., M.S. (“Scarantino”), and follow all
recommendations. See Order 12/8/20, at 1-2.
In April 2021, Mother moved for a custody modification, and the trial
court increased her supervised custody periods. The April 2021 order required
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1 The trial court consolidated the parties’ child custody petitions. It entered
subsequent amended orders correcting typographical errors.
2 Father and Mother filed separate divorce actions in October 2019, both of
which included a child custody count. The trial court consolidated those
actions.
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Mother to submit to another drug and alcohol test and to continue drug and
alcohol counseling with Scarantino.
In May 2021, Father filed a petition for contempt and special relief,
alleging that Mother violated the custody order by exercising unsupervised
physical custody in April 2021, and Mother had recently tested positive for
cocaine and its metabolite coca-ethylene. See N.T., 11/21/22, at 193-196.
Father requested the court remove Grandmother and Step-Grandfather as
custodial supervisors and appoint someone else as Mother’s custodial
supervisor. See id. at 197. The trial court temporarily suspended Mother’s
supervised physical custody in May 2021, pending a hearing in June 2021 on
Father’s petition. Mother did not appear at the June 2021 hearing. Following
Mother’s failure to appear at the hearing, the trial court suspended Mother’s
supervised physical custody but allowed her phone contact with Child. See
Trial Court Order, 1/30/23, at 10.
In August 2021, Grandmother and Step-Grandfather filed a custody
action against Parents seeking shared legal, and partial physical, custody of
Child. Father raised preliminary objections to Step-Grandfather’s standing.
The court removed Step-Grandfather from the action. See Trial Court Order,
1/30/23, at 10.3 Mother petitioned for supervised physical custody in March
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3 The parties agreed that Grandmother had standing to seek partial physical
custody pursuant to 23 Pa.C.S.A. § 5325(2) (granting standing to
grandparents seeking partial physical custody). Because Grandmother later
(Footnote Continued Next Page)
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2022. See N.T. 11/21/22, at 197. The court entered an agreed-upon order
granting Mother have supervised visits at LOTUS Therapeutic and
Empowerment Services, LLC (“LOTUS”), provided Child’s therapist and the
LOTUS supervisor agreed the visits were in Child’s best interests. See Trial
Court Opinion, 3/24/23, at 4. Mother’s supervised physical custody began in
April 2022. See N.T. 11/21/22, at 98-99.
In April 2022, Father petitioned for a modification of the custody order
seeking sole legal custody of Child. Mother filed an answer and counterclaim
requesting continued shared legal custody and shared physical custody.
Grandmother’s August 2021 petition, Father’s April 2022 petition, and
Mother’s subsequent answer and counterclaim to Father’s April 2022 petition,
were all pending before the trial court when it held a trial in November 2022.
The trial court heard the following evidence at the November 2022 trial:
Mother, who lived with her partner, testified she had turned to drugs and
alcohol to relieve the pain of separating from Father, but never used drugs in
the presence of Child or G.T., Child’s cousin, whom she has been raised to
believe is her sibling. See N.T., 11/21/22, at 14, 88-89, 92, 121-22.4 Mother
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withdrew her request for shared legal custody, see N.T., 11/21/22, at 147,
we do not address her standing to make that request under 23 Pa.C.S.A. §
5324.
4 G.T. is the daughter of Child’s maternal aunt and is approximately twenty-
two months older than Child. G.T.’s father is deceased, and her mother was
incarcerated when she was eight days old. See id. at 92; N.T., 11/22/22, at
(Footnote Continued Next Page)
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testified she had been sober from drugs since September 2021, and only
“occasionally ha[s] a drink at dinner.” Id. at 20. Mother said she stopped
seeing a court-ordered counselor in 2021 because she could not face lying to
the counselor about her continued drinking and drug use. See id. at 16-17,
24. Mother also admitted drinking in violation of a January 2020 Accelerated
Rehabilitative Disposition (“ARD”) order. See id. at 28. Mother asserted her
new job and therapy were giving her a renewed feeling of respect and helping
her examine how she handles stressful situations. See id. at 15-16. She
stated that in therapy she learned she used drugs and alcohol as a coping
mechanism and has learned new coping mechanisms for her depression and
anxiety. See id. at 81-82.
Jill Schappert (“Schappert”), Mother’s childhood friend and Child’s
godmother, testified about Mother’s retreat into drugs and alcohol during her
divorce, and her improvement as a result of counseling and her new job.
Schappert testified that Mother had become a “homebody” who no longer had
____________________________________________
240. Grandmother and Step-Grandfather were awarded custody of G.T, but
after Child’s birth, Father and Mother raised G.T. with Child in their home. Id.
at 240-41. Although G.T. knows her biological mother, she identifies Mother
and Father as her mother and father. See id.
In 2021, Father initiated a custody action regarding G.T. against Mother,
Grandmother, Step-Grandfather, and G.T.’s natural mother, and a different
court granted him in loco parentis status. See N.T., 11/21/22, at 200. In
March 2022, the court entered an agreed-upon order in G.T.’s case awarding
all of the parties except Mother shared legal and physical custody of G.T. See
id. at 134.
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anything “wild” going on, but instead kept regular dinner times and bedtimes.
Id. at 110-12. Grandmother also testified that Mother had made a renewed
commitment to her physical and mental health. See id. at 148.
Kristen Baer (“Baer”), the LOTUS therapist who supervised Mother’s
visits with Child, testified Child and G.T. attended those visits together. See
id. at 101. Baer testified that Father told her that the girls engaged in
imaginative play together, and Baer herself observed Child’s and G.T.’s deep
sense of connectedness to each other and to Grandmother’s large extended
family, which was rare in Baer’s experience. See id. at 102-04.
Father testified he was seeking sole legal custody because of Mother’s
“out of control lifestyle,” failure to make “wise decisions about herself,” and
possible continued use of intoxicants. N.T., 11/21/22, at 212-13. He testified
that he assumed virtually all parental responsibilities when Mother was using
drugs and alcohol, that Grandmother recognized that Mother was not fulfilling
her responsibilities, and that Mother did not follow up on her promise of
Christmas presents for Child. See id. at 160-70, 183-86. He expressed
concern for Child’s safety. See id. at 213.
Joann James, Father’s aunt who assists him with childcare, testified
Father was a good caregiver. See N.T., 11/22/22, at 343-46.5 Kelly Leicht,
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5 The notes of testimony from the November 22, 2022 trial are consecutively
numbered to the previous day’s transcript and begin on page 238 of that
transcript.
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Father’s friend, a teacher and his occasional intimate partner, testified that
Father encouraged Child to speak to Mother on FaceTime calls, and is an
exemplary Father. See id. at 374. Samantha Wielgopolski (“Wielgopolski”),
Child’s counselor, testified Child had a very strong bond with Father. See id.
at 356, 362.
Grandmother testified she has been a part of Child’s life since birth. See
N.T. 11/21/22, at 121. She described vacations that she took with Child,
Father, and Mother in 2017, 2018, and 2019. See id. at 127, 132.
Grandmother testified that when Parents separated in September 2019,
Mother and Child lived with her and Step-Grandfather until December 2020.
See id. at 124. Grandmother testified that since February 2022, she has only
seen Child at soccer games, a dance recital, and in the driveway when picking
up G.T., and Child has “been kept from . . . all kinds of extended family”
including her immediate family members and that Child has been “a[] part of
their life since the day she was born.” Id. at 124-27. Grandmother expressed
her goal to communicate and cooperate better with Father. See id. at 130-
31. Grandmother also presented the testimony of Arnold Terry Shienvold,
Ph.D (“Dr. Shienvold”), who testified that he did not perceive a pattern of
neglectful parenting that would warrant keeping Child from Grandmother, and
that, in his opinion, Grandmother is a “loving[,] competent caregiver,” and
Father, in contrast, was lacking in self-insight and had a suspicious nature.
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N.T. 11/22/22, at 253-55, 259, 264, 293-94, 300.6 Dr. Shienvold additionally
testified that,
when [the parties] all got along, [Child] and [G.T.] were being
raised as siblings, and frequently traveled together with respect
to the time spent with the various parties. . . . My understanding
from what they told me was that even after . . . [Mother’s] and
[Father]’s separation, [Child] was on a custody schedule [between
Father and Mother] at that point that [G.T.] and [Child] were
spending that time together.
Id. at 241. Dr. Shienvold reiterated, “generally [Father] had a position that
he wanted [Child] and [G.T.] together” and that, prior to the dispute, there
was the four/three [day custody] schedule that was being employed and
[Child] was on the same schedule.” Id. at 242. On redirect examination by
Grandmother’s counsel, Dr. Shienvold testified that he disagreed with Father’s
conclusion that Grandmother was untrustworthy, although she had made an
error of judgment previously with Mother: “I just didn’t believe that there was
a pattern of neglect[ful] parenting that warranted them being restricted from
their grandchild.” Id. at 293-94 (emphasis added).
During the course of the custody proceedings, Grandmother’s and
Father’s relationship deteriorated and became hostile. Father testified that
after visits at Grandmother’s home, Child would come home “biting . . . kicking
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6 Dr. Shienvold performed an evaluation in the custody action concerning G.T.,
but not in the action concerning Child. As part of the evaluation concerning
G.T., Dr. Shienvold conducted psychological testing of Father, Mother, and
Grandmother. See N.T., 11/22/22, at 239-240.
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. . . [and] angry at me. She would spit at me. And I had concerns over what
was being told to her in regard to why she couldn’t see [Mother].” N.T.,
11/22/22, at 261. Father testified he stopped Child’s contact with
Grandmother in February 2022 because Grandmother was sometimes not at
home when he dropped Child off for visits, and there was one occasion when
Child “came home starving,” causing broken trust with Grandmother. N.T.,
11/21/22, at 204. Father testified that he opposed Grandmother’s request for
partial physical custody because, in part, “I can’t trust her because of all the
lies” Grandmother told about Mother’s condition, and at least one time when
Grandmother left Child in Mother’s care. Id. at 195-98, 204, 213.
Wielgopolski, Child’s counselor, testified Child is diagnosed with
adjustment disorder with a depressed mood. See N.T., 11/22/22, at 355.
Child began counseling with Wielgopolski in August of 2021, for anger and
aggressive behavior and issues involving “loss and adjustment.” Id. at 352-
53. Child’s treatment goals include “learning to verbalize her emotions,” as
well as “[l]earning positive coping skills” and “engaging in family sessions as
needed” with Father or Mother. Id. at 355. Wielgopolski testified that,
because Child was progressing in treatment goals, her sessions were reduced
from weekly to bimonthly. See id. at 354. Wielgopolski testified that Child
loves both Father and Mother. Id. at 362. She described Child’s bond with
Father as “very strong.” Id.
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In January 2023, the trial court denied Father’s request for sole legal
custody of Child. Instead, the court awarded Father and Mother shared legal
custody, Father primary physical custody, Mother partial physical custody, and
Grandmother partial physical custody. Mother received periods of
unsupervised custody weekly from Monday at 5:30 p.m. until Wednesday drop
off at school, and once every month from Saturday at 7:00 p.m. until Monday
drop off at school, and Grandmother received physical custody of Child on the
fourth weekend of every month in “an effort to keep Child with her cousin,
G.T”; Father received all other periods of custody. See Trial Court Order,
1/30/23, at 2-3.7
Father timely filed a notice of appeal, and both he and the trial court
complied with Pa.R.A.P. 1925.
Father presents the following two issues for review:
1. Did the trial court abuse its discretion or commit an error of
law. . . by awarding Mother significant unsupervised partial
physical custody[,] despite a lack of any substantive
evidence demonstrating that she was treating for an
admitted addiction?
2. Did the trial court abuse its discretion or commit an error of
law. . . by awarding []Grandmother one full weekend per
month[,] when her prior contact with . . . Child always
occurred during Mother’s periods of custody?
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7 The court made additional provisions for holidays and weekends. See Order,
1/31/22, at 3-5.
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Father’s Brief at 6.8
We review Father’s custody issues according to the following scope and
standard of review:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it. . . . However, this broad
scope of review does not vest in the reviewing court the
duty or the privilege of making its own independent
determination. . . . Thus, an appellate court is empowered
to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may
not interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings;
and thus, represent a gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (citation
omitted). Moreover,
[o]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
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8 Father identifies Mother’s custody award as “unsupervised partial physical
custody.” In the subject order, the trial court identifies Mother’s custody
award as “periods of unsupervised custody.” Neither term is included in the
Child Custody Act. See 23 Pa.C.S.A. § 5323(a). Accordingly, we refer to
Mother’s custody award as “partial physical custody.”
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R.M.G., Jr., 986 A.2d at 1237. The test is whether the evidence of record
supports the trial court’s conclusions. A.V. v. S.T., 87 A.3d 818, 820 (Pa.
Super. 2014). In addition,
the discretion that a trial court employs in custody matters should
be accorded the utmost respect, given the special nature of the
proceeding and the lasting impact the result will have on the lives
of the parties concerned. Indeed, the knowledge gained by a trial
court in observing witnesses in a custody proceeding cannot
adequately be imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
The paramount concern in custody cases, “including those in which
grandparents are seeking rights, is the best interests of the child.” D.R.L. v.
K.L.C., 216 A.3d 276, 279 (Pa. Super. 2019) (citation omitted). “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.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super.
2006) (citation omitted).
The Child Custody Act requires that trial courts consider sixteen best
interest factors when awarding custody, 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.
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(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)
(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.
(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
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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).
In addition, the trial court must consider the following factors regarding
Grandmother’s partial physical custody request.
(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 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.A. § 5328(c)(1).
While the trial court must consider all of the above factors, “there is no
required amount of detail for the trial court’s explanation”; rather, “all that is
required is . . . that the custody decision is based on those considerations.”
D.R.L., 216 A.3d at 280 (internal citations and quotation marks omitted).
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Father’s first issue pertains to the award of partial physical custody to
Mother. Father asserts Mother presents a safety risk to Child, the trial court’s
order failed to address that risk, and the trial court erred in its findings
concerning section 5328(a)(14), relating to Mother’s history of drug abuse,
which Father asserts was dispositive, because Mother failed to prove her
sobriety. See Father’s Brief at 19-29. Father maintains that “the court
completely ignored the fact that Mother provided no evidence to indicate she
was or had ever actually taken steps to address [her substance abuse] and
admitted that she continued to drink alcohol.” Father’s Brief at 28. Father
also argues that an August 2022 letter written by Mother’s therapist, Laura
Loomis (“Loomis”), MA, LPC, about Mother that he introduced at trial does not
address Mother’s drug and alcohol abuse. See id. at 22. Father finally asserts
that the court failed to properly weigh section 5328(a)(2), (3), (4), (12), and
(14). See id. at 25-29.
Concerning Father’s claims relating to Mother’s drug and alcohol history,
section 5328(a)(14), the court concluded that that factor weighed against
Mother. The trial court declared, however, “the past is not so heavily weighted
against Mother that it outweighs all 16 factors and a finding that it is in the
best interest of [C]hild to expand Mother’s custodial rights.” Trial Court Order,
1/30/23, at 27. The court found no evidence that Mother continued to engage
in illegal drug use, and it credited Mother’s testimony, corroborated by her
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friend, Schappert, and Grandmother that she has not used illicit drugs since
September of 2021. See id. at 26-27.
Mindful of the substantial deference due to the trial court’s fact-finding,
we conclude the evidence of record supports the trial court’s conclusion. See
Ketterer, 902 A.2d at 540. Mother admitted prior drug and alcohol abuse
but explained that she had benefited from a new job and therapy and had
been drug-free for fourteen months. See N.T. 11/21/22, at 14-16, 88-89.9
Mother’s friend Schappert also testified to Mother’s recovery from her slide
into substance abuse. See id. at 110-12.10 Mother admitted that she stopped
court-ordered therapy shortly after the trial court’s April 2021 order, stopped
seeing her counselor because she was embarrassed about lying about her drug
use, and did not participate again in counseling until April 2022. See id. at
26. Mother testified, however, when she began seeing Loomis, see id. at 17,
19, she gained significant insight into her use of drugs and alcohol as self-
medication for anxiety and depression and learned “the correct mechanisms
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9 Mother testified that she drinks only occasionally and does not self-medicate.
See N.T., 11/21/22, at 83.
10Additionally, Grandmother testified to Mother’s improvement in the past
year. See N.T., 11/21/22, at 148.
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to cope without using those things. How to manage my anxiety. How to
manage my depression without using substance[s].” Id. at 81-82.11
Additionally, Loomis’s letter stated she had updated Mother’s diagnosis
to generalized anxiety disorder; Mother was attending weekly cognitive
behavioral, and dialectical behavior therapy; and Mother “displays appropriate
behavior, and takes responsibility,” has “made great improvements in gaining
and utilizing appropriate coping skills and reducing her levels of stress and
anxiety,” and does not appear to be a risk to herself or Child. See Exhibit D-
2. Dr. Shienvold, who performed the August 2021 custody evaluation in G.T.’s
custody case, testified to the same effect. See N.T., 11/22/22, at 239, 266,
286. Dr. Shienvold opined to the appropriateness of Loomis’s treatments and
was unsurprised that it had produced Mother’s insight about self-medication.
See id. at 288-89.12
Based on the testimony of Mother, Ms. Schappert, Grandmother, and
Dr. Shienvold, there was a clear factual basis for the court’s rejection of
Father’s claim that Mother presented no evidence of drug and alcohol
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11 Mother testified Loomis left the practice in August 2022, and the first
available appointment with a counselor who could accommodate her work
schedule was in January 2023. See N.T., 11/21/22, at 19.
12 To the extent Father argues the court erred in failing to find section
5328(a)(14) dispositive based solely on Mother’s admission about occasional
drinking, we reject it. Dr. Shienvold testified that not all theories on treatment
of alcohol use disorder demand complete abstinence. See N.T., 11/22/22, at
281-22.
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treatment and posed a present safety risk to Child. Accordingly, the trial court
did not abuse its discretion in how it weighed Mother’s prior drug use as a
factor.
Father further asserts in his first issue that the court improperly weighed
the following section 5328(a) custody factors: (a)(2) (as slightly against
Father); and (a)(3) and (12) (as neutral). Concerning Section 5328(a)(2),13
Father argues that the trial court, in its finding that he erected “overprotective
safeguards,” and “took the word ‘safeguard’ from the statutory language and
twisted the factor against” him. Father’s Brief at 25. Father asserts the court
should have weighed the factor neutrally because there is no evidence in this
case of any abuse by Father or Mother.
The court reasoned, “Father’s provision of safeguards and supervision
of Child have been extraordinary and have hindered Mother from spending
appropriate amounts of quality time with their daughter.” Trial Court Order,
1/30/23, at 22. The trial court acted within its discretion insofar as it found,
contra Father’s position, that Mother’s substance abuse posed no present risk
of harm to Child. However, even had the court abused its discretion in
weighing the factor slightly against Father, that factor is not determinative of
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13 As noted, section 5328(a)(2) addresses present and past abuse committed
by a party or member of the party’s household, whether there is a continued
risk of harm, and which party can better provide adequate physical safeguards
and supervision of the child. See 23 Pa.C.S.A. § 5328(a)(2).
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the court’s custody decision, and, accordingly, does not warrant reversal. See
Swope v. Swope, 689 A.2d 264, 266 (Pa. Super. 1997) (noting that no
“single factor” in the custody analysis is controlling and this Court must affirm
a custody order “[a]bsent proof of a gross abuse of discretion or manifest
error”). Therefore, this claim fails.
With respect to section 5328(a)(3), the parental duties performed by
each party on behalf of the child, Father argues that the court abused its
discretion in concluding this factor was neutral rather than weighing it in his
favor due to his exercise of “primary physical, and almost sole custody, of
[Child] for three years. Mother was not able to perform any parental duty
outside her supervised visits.” Father’s Brief at 26. Father further asserts:
The trial court was free to find, as it did with respect to [s]ection
5328(a)(10), that Mother was capable of performing such duties
on behalf of Child, but it erred with respect to [s]ection
5328(a)(3)[,] because that factor examined her duties relevant to
the time of trial, and at that time she had performed them only
on an extremely limited basis.
Id. Father provides no case law to support his claim, and we are not aware
of any. Therefore, to the extent the court, which saw the parties and was able
to evaluate their credibility, weighed the factor neutrally based on Mother’s
previous parental duties performed for Child, and we will not disturb it. See
Trial Court Order, 1/30/23, at 23. See also O.G. v. A.B., 234 A.3d 766, 774
(Pa. Super. 2020) (noting where a parent is “equally capable” of caring for a
child, and in fact performs some duties, the trial court does not abuse its
discretion by declining to weigh section 5328(a)(3) against that parent even
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though the other parent asserts a prior lack of performance of parental
duties).
Concerning section 5328(a)(4), relating to the need for stability and
continuity in all aspects of the child’s life, Father asserts that the trial court
referenced factors that supported a finding of Mother’s stability, it failed to
consider other factors, like the newness of her job, her period away from
therapy, her lack of substance abuse counseling, and her use of alcohol. See
Father’s Brief at 27.
The trial court found that this factor weighed slightly more for Father
because he has provided stability for Child. However, the trial court found
Mother credible concerning her acceptance of responsibility for her actions and
her taking of actions to change her life for the better, and the court saw no
indication going forward that Mother will not be able to provide the necessary
stability for Child. See Trial Court Order, 1/30/23, at 23; Trial Court Opinion,
3/24/23, at 14.
The record supports the court’s findings with respect to section
5328(a)(4). It showed that Mother had learned from her past mistakes and
therapy, had insight into how to avoid resorting to drug and alcohol self-
medication, and had made significant changes in her daily routine. Because
the record supports the trial court’s determination, we perceive no abuse of
discretion.
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Finally, Father argues that the court abused its discretion by neutrally
weighing section 5328(a)(12), each party’s availability to care for the child or
ability to make appropriate child-care arrangements. Specifically, he asserts,
“the trial court erred in finding both parties were available on an equivalent
basis for [C]hild. . . .” Father’s Brief at 27. Father states that Mother works
more hours per week than he, so he “was clearly free for [C]hild on a
significantly greater basis.” Id. at 28.
In weighing the factor neutrally, the court found that “[b]oth families
have a significant amount of family support and an extended family willing to
help the parents when they are unavailable.” Id. at 26. The trial court was
free to conclude that Parents, considering their familial support, were equally
able to care for Child or make appropriate arrangements for Child’s care.
Because the record supports the court’s findings with respect to section
5328(a)(12), we will not disturb it. That the trial court did not weigh the
factors as Father would have liked does not demonstrate an abuse of
discretion. As Father has failed to show the trial court abused its discretion in
its weighing of the custody factors, he is due no relief.
In his second issue, Father asserts the evidence does not support
Grandmother’s receipt of partial physical custody awarded on the fourth
weekend of every month pursuant to section 5328(c)(1)(i) (amount of
personal contact) and (ii) (interference with parent-child relationship). Before
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addressing the merits of this issue, we must determine whether Father has
properly preserved it.
Issues not included in an appellant's statement of questions involved
and concise statement of errors complained of on appeal are waived.” See
In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2017). We observe that
while the trial court filed its mandatory assessment of the Section 5328(a)
factors with respect to Father, Mother, and Grandmother simultaneously with
the custody order, see Trial Court Order, 1/30/23, at 21-27, the trial court
did not assess three mandatory section 5328(c)(1) factors relating to
Grandmother. However, Father did not assert error arising from the omission
of these factors in his concise statement of errors complained of on appeal or
in the statement of questions involved in his brief. See Father’s Brief at 6.
Accordingly, he has waived this issue for our review.
Father, in the alternative, asserts a preserved issue, namely that,
[w]hile the court ascribed keeping [Child] together with her cousin
as a factor favoring Grandmother, its argument is an error of law.
The fact that Father, Mother, and Grandmother have shared a
parental role in [G.T.]’s life did not create the same situation in
this case by default. The trial court created the same situation
into this matter by force, reasoning that creating similar situations
would keep the two children together more frequently.
Father’s Brief at 35-36. Further, Father maintains that, even if Grandmother’s
partial physical custody award were proper, “it should have been carved from
one of Mother’s weekends, which was historically when Grandmother was in
contact” with Child. Id. at 32.
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The trial court relied upon Dr. Shienvold’s testimony in weighing the
following factors in Grandmother’s favor: section 5328(a)(5), the availability
of extended family; (a)(6), the child’s sibling relationships;
(a)(10), which party is more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child; and (a)(16), any
other relevant factor. See Trial Court Opinion, 3/24/23, at 8. Informed by
Dr. Shienvold’s testimony, the trial court made the following findings, in
relevant part.
Section 5328(a)(6):
[C]hild was raised with a biological first cousin . . . who was always
held out to be her “sister.” . . . There was undisputed testimony
with regard to the strong “sibling” bond between the two children.
This factor weighs against Father for contributing to the
separation of the siblings whereby [Child] is unable to go
to Grandmother’s with her cousin which is against [Child]’s
best interests.
****
Section 5328(a)(10):
Father has attempted to stifle the mother-daughter and
grandmother-granddaughter relationship in the name of child
safety. In fact, this has risked alienation from two family
members [who] love [C]hild and have been very involved in
[C]hild’s life.
Father has been providing for these needs because Grandmother
has been prevented from seeing [C]hild and Mother has
supervised visits, although independent witnesses have testified
that [C]hild loves Mother and does not want to leave her when
supervised visits end.
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While Father has been very involved in [C]hild’s education and has
been present at the school, it still does not counterbalance the
emotional needs of [C]hild who is being alienated from another
parent (and in this case grandparent). “The stated goal (of
fostering the grandparent-child relationship) is not insignificant.
D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016) (emphasis added).
Here, while [C]hild has been relegated to having only supervised
visits with Mother, she is also having to lose her relationship with
Grandmother who was very involved in [C]hild’s life and who also
is the custodian of [G.T.] when [G.T.] is not with [Father]. This
has created a potentially unhealthy situation where the
Grandmother takes [G.T.] for visitation (usually for a four[-]day
period) but does not take [C]hild for visitation.
It should further be noted that the Child Custody Act[,] whereby
Grandmother seeks partial custody[,] has an underpinning of the
state’s interest in protecting the health and emotional welfare of
children, which includes ensuring that children are not deprived of
beneficial relationships with their grandparents. See Hiller v.
Fausey, 904 A.2d 875, 886 (Pa. 2006).
This factor weighs against Father.
****
Section 5328(a)(16):
By expanding the custodial rights of Mother and removing any
restriction on any contact between Grandmother and [C]hild,
[C]hild will be able to spend more time with her cousin as a family
unit with Mother and Grandmother[,] when [G.T.] is not with
[Father]. This will only enrich [C]hild’s life and provide a healthy
familial relationship with all family members instead of the current
restrictions imposed by Father.
Id. at 23-25, 27 (emphases in original).
Upon careful review of the certified record, we discern no abuse of
discretion by the trial court regarding Father’s preserved issues. Further,
Baer’s testimony about the strong connections between Child and G.T.—who
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calls Parents “Mom” and “Dad”—and with Grandmother’s family supports the
court’s partial custody award to Grandmother. See N.T., 11/21/22, at 98-99,
101-04. Therefore, we cannot conclude that the court abused its discretion in
considering Child’s relationship with G.T. in fashioning the award to
Grandmother.
Because the trial court carefully and thoughtfully considered Child’s best
interests in light of the record and the applicable law, and we discern no abuse
of discretion, we affirm the custody order.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/26/2023
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