Hamski, S. v. Jones, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SEAN J. HAMSKI : IN THE SUPERIOR COURT
: OF
: PENNSYLVANIA
v. :
:
:
ASHLEY M. JONES :
_______________________ :
MAUREEN M. WHITE :
: No. 436 EDA 2023
:
v. :
:
:
ASHLEY M. JONES AND SEAN J. :
HAMSKI :
:
:
APPEAL OF: ASHLEY M. JONES :
Appeal from the Order Entered January 25, 2023
In the Court of Common Pleas of Philadelphia County Family Court
Division at No(s): 0C0700119,
XC0700119
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 8, 2023
Ashley M. Jones (“Mother”) appeals, pro se, from the order dated and
entered January 25, 2023, awarding sole legal and primary physical custody
of her sons, Ni.M.H, born in December 2006, and Na.M.H., born in November
2009 (collectively, “Children”), to Maureen M. White (“Paternal
Grandmother”). The order awarded Mother partial physical custody as agreed
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and arranged with Paternal Grandmother and at the Children’s discretion.1 In
so awarding, the order overruled Mother’s preliminary objections and found
that Paternal Grandmother has standing as a party in loco parentis to the
Children pursuant to 23 Pa.C.S. § 5324(2). After review, we affirm.
The trial court aptly recounted the factual and procedural history in its
order as follows:
This case has a long docket history and these [C]hildren have
spent most of their childhoods in court proceedings in both
Dependency and Domestic Relations Court. Between 2007 and
2016, there were multiple court filings each year and each of the
parents had periods of supervised custody over the years as they
each struggled with domestic violence, abuse and neglect
allegations, and substance use disorders. The Children were
previously adjudicated dependent on June 22, 2016, and placed
in the care of Paternal Grandmother as neither parent was
determined to be fit to care for them at that time. The Children
were then placed into the primary custody of Father by order of
March 15, 2017, and the dependency case was closed.
On February 5, 2019, Father was awarded primary physical
custody and Mother was awarded partial physical custody, and
Mother and Father shared physical custody during the summer.
However, less than two months later, on March 27, 2019, Mother’s
partial physical custody was again ordered to be supervised.
Mother filed [a] petition to modify custody shortly thereafter on
July 18, 2019.[2]
In 2019, Father had been living with the Children at [Paternal
Grandmother’s residence]. Father moved out of the residence at
some point in 2019[,] and left the Children in the care of Paternal
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1 Father, Sean Hamski (“Father”), was additionally awarded partial physical
custody as agreed and arranged with Paternal Grandmother and at the
discretion of the Children. Father did not file a separate appeal and did not
participate in the instant appeal.
2 Mother sought primary physical custody. Petition to Modify, 7/18/19, at ¶
6.
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Grandmother, as he once again struggled with a substance use
disorder. Paternal Grandmother then filed for custody on
September 2, 2020,[3] after the Children had been living with her
for over a year without Father or Mother present. During that
time, Paternal Grandmother was the sole caregiver for the
Children, performing all parental duties.
Judge Twardy issued a temporary order on November 22, 2021,
awarding Paternal Grandmother sole legal and primary physical
custody of [Ni.M.H.], and Mother primary custody of [Na.M.H],
separating the two brothers, but without making a determination
on standing or ruling on the preliminary objections. This was after
he interviewed the Children where [Na.M.H.] expressed he wanted
to try to live with his [M]other. The case was not concluded and
was continued to another date. Judge Twardy then ended his term
in Family Court without the trial being completed.
...
On September 6, 2022, parties and counsel appeared for a
hearing on Mother’s petition to modify custody filed on July 18,
2019, Paternal Grandmother’s complaint for custody filed on
September 2, 2020, Mother’s petition for contempt filed on April
9, 2021,[4] and preliminary objections filed by Mother on April 28,
2021, on the issue of standing for Paternal Grandmother. The
time slot was not sufficient for a full trial. This court interviewed
both [C]hildren and provided detailed feedback to the parties and
counsel in the hope of providing a resolution in light of the
Children’s ages and preferences.
Mother initially tried to keep [Na.M.H.] from testifying and did not
bring him to court on that date, in violation of the order for him
to appear. Mother claimed the child had a mental health crisis
and should not be permitted to testify. This court contacted the
child by telephone, and he informed the court he did wish to
testify. He was then brought to court by another relative and []
informed this judge he wished to be reunited with his brother and
Paternal Grandmother as a result of treatment he received by []
____________________________________________
3 Paternal Grandmother sought sole legal and primary physical custody.
See
Complaint for Custody, 9/2/20, at ¶ 13. On April 28, 2021, Mother filed
preliminary objections challenging Paternal Grandmother’s standing.
4 Mother subsequently withdrew this petition on January 5, 2023. N.T.,
1/5/23, at 5.
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Mother’s partner and that he did not feel safe or welcomed in that
residence.[5]
Despite the detailed feedback from the interviews of the Children,
where both [C]hildren expressed well-reasoned preferences to be
in the custody of their [P]aternal [G]randmother, the parties were
not able to resolve any issues and this matter was then scheduled
for a semi-protracted trial on January 5, 2023, and this court
issued a temporary order on the basis of the testimony of the
Children.
Order, 1/25/23, at 1-3 (cleaned up); see also Trial Court Opinion, 3/24/23,
at 2-9.
The court then conducted a hearing on January 5, 2023. Mother and
Paternal Grandmother were each present and represented by counsel, and
testified on their own behalf.6 The court additionally spoke with both Children,
in camera, without counsel present. Notably, the Children, then sixteen and
thirteen years old, each acknowledged a tenuous relationship with Mother and
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5 Notably, Mother resided with her husband and their three young sons. N.T.,
1/5/23, at 6; N.T., 9/6/22 (Children’s sealed testimony), at 57. Na.M.H.
testified that he was scared of Mother’s husband, who would get in his face,
scream at and threaten him, and tell him he was not welcome and kick him
out of the house. See N.T., 9/6/22 (Children’s sealed testimony), at 61-66.
Ni.M.H. confirmed that Mother’s husband was abusive. See N.T., 1/5/23
(Children’s sealed testimony), at 32; N.T., 9/6/22 (Children’s sealed
testimony), at 17-19. Na.M.H. additionally described unsanitary conditions in
the household, where he was unable to sleep in his bed or shower for extended
periods of time. See N.T., 9/6/22 (Children’s sealed testimony), at 68-71.
Na.M.H. explained that one of his younger brothers urinated on and put
tomato sauce in his bed on separate occasions, as well as repeatedly smeared
feces in the bathroom. As such, Na.M.H. slept on the floor and was unable to
shower for several days until Mother cleaned up. See id.
6 Father was not represented by counsel and did not appear at this hearing.
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indicated their desire to remain with Paternal Grandmother. See N.T., 1/5/23
(Children’s sealed testimony), at 1-34.
By order dated and entered January 25, 2023, the trial court granted in
part and denied in part Mother’s petition to modify and granted Paternal
Grandmother’s complaint for custody. Specifically, the court awarded Paternal
Grandmother sole legal and primary physical custody of the Children. The
court further awarded Mother partial physical custody as agreed and arranged
with Paternal Grandmother and at the Children’s discretion. In so doing, the
court overruled Mother’s preliminary objections and found that Paternal
Grandmother has standing as a party in loco parentis to the Children pursuant
to Section 5324(2). Similarly, the court concluded that Paternal Grandmother
rebutted the presumption in favor of biological parents under Section 5327(b).
The order then proceeded to analyze each custody factor pursuant to Section
5328(a). See Order, 1/25/23, at 4-11.
On February 23, 2023, Mother, pro se, filed a timely notice of appeal,
along with a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). The court filed its Rule 1925(a) opinion on
March 24, 2023.
On appeal, Mother raises the following issues for our review:
1. Whether the trial court erred and/or abused its discretion when
it overruled Mother’s preliminary objections pursuant [to 23]
Pa.C.S. § 5324 and § 5325 averring that Paternal Grandmother
lack[ed] standing for any form of custody and its conclusion that
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Paternal Grandmother stands in loco parentis to [the] Children
despite lacking consent of the natural mother.[7]
2. Whether the trial court erred and/or abused its discretion by
denying Mother’s petition to modify custody for primary custody
against the best interest of the Children, pursuant to 23 Pa.C.S.
§ 5328(a).
Mother’s Brief at 6 (cleaned up; suggested answers omitted).8, 9, 10
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7 We find that Section 5325 would not be applicable as Paternal Grandmother
was seeking primary physical custody. See 23 Pa.C.S. § 5325 (“In addition
to situations set forth in section 5324 (relating to standing for any form of
physical custody or legal custody), grandparents and great-grandparents may
file an action under this chapter for partial physical custody or supervised
physical custody in the following situations….”).
8 As Mother does not challenge the trial court’s finding regarding legal custody,
we do not address it.
9 Preliminarily, citing to Pennsylvania Rule of Appellate Procedure 2188,
Paternal Grandmother argues that Mother’s appeal should be dismissed as her
brief was not filed with this Court in a timely manner. See Paternal
Grandmother’s Brief at 7-8; see also Pa.R.A.P. 2188 (stating, in part, “[i]f an
appellant fails to file his … brief … within the time prescribed by these rules,
or within the time as extended, an appellee may move for dismissal of the
matter”). On June 15, 2023, one day after Mother’s brief was due, Mother
requested an extension of time to file same. By order of June 20, 2023, this
Court denied Mother’s request and directed Mother to file her late brief on or
before June 21, 2023, or suffer dismissal of her appeal. Mother complied. As
such, we decline to dismiss Mother’s appeal for this reason.
10 We additionally note with disapproval procedural deficiencies related to the
organization of Mother’s brief. Specifically, the argument section of Mother’s
brief is not separated by the issues raised with distinct headings. While Mother
offers some form of what can be deemed sub-headings and/or separation
within her first issue, these are inconsistent and not distinctive. See Pa.R.A.P.
2101 (stating, “Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the circumstances
of the particular case will admit, otherwise they may be suppressed, and, if
the defects are in the brief or reproduced record of the appellant and are
substantial, the appeal or other matter may be quashed or dismissed”); see
(Footnote Continued Next Page)
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We review custody orders for an abuse of discretion. See R.L. v. M.A.,
209 A.3d 391, 395 (Pa. Super. 2019). We will not find such an abuse merely
because we would have reached a different conclusion. See id. Rather, an
abuse of discretion occurs only if the trial court overrode or misapplied the law
in reaching its conclusion, or the record shows the trial court’s judgment was
manifestly unreasonable or the product of partiality, prejudice, bias, or ill will.
See id.Moreover, our scope of review is broad. See id. Because this Court
does not make independent factual determinations, however, we must accept
findings of the trial court that are supported by competent evidence of record.
See S.C.B. v. J.S.B., 218 A.3d 905, 913 (Pa. Super. 2019). Importantly, we
defer to the trial court on matters of credibility and weight of the evidence, as
the trial court viewed and assessed witnesses firsthand. See id. We are not,
however, bound by the trial court’s deductions or inferences. See id.“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.” E.D. v. M.P., 33 A.3d 73, 76 (Pa.
____________________________________________
also Pa.R.A.P. 2119(a) (stating, “The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the head of each
part—in distinctive type or in type distinctively displayed—the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent”). However, as we discern the general issues raised and
related arguments, we proceed with the merits of Mother’s appeal.
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Super. 2011) (quoting A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa. Super.
2010)). As we stated in King v. King, 889 A.2d 630 (Pa. Super. 2005), “[i]t
is not this Court’s function to determine whether the trial court reached the
‘right’ decision; rather, we must consider whether, ‘based on the evidence
presented, given [sic] due deference to the trial court’s weight and credibility
determinations,’ the trial court erred or abused its discretion….” Id. at 632(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)).
With her first issue, Mother contests the trial court’s overruling her
preliminary objections and finding Paternal Grandmother had standing as a
party who stood in loco parentis pursuant to Section 5324(2). See Mother’s
Brief at 14-16. Mother vehemently denies that she consented to Paternal
Grandmother’s custody of the Children. She suggests that, in fact, Paternal
Grandmother illegally usurped her custodial rights to the Children, and
insinuates that Father and Paternal Grandmother actively misled the court by
not disclosing that Father no longer resided in the home with Paternal
Grandmother and the Children. Mother further contends that she made
numerous attempts to secure physical custody and/or visitation. See id. at
15-16.
As to the relevant standard and scope of review, we have stated,
“[t]hreshold issues of standing are questions of law; thus, our standard of
review is de novo and our scope of review is plenary.” Raymond v.
Raymond, 279 A.3d 620, 627 (Pa. Super. 2022) (citation omitted).
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Pursuant to 23 Pa.C.S. § 5324, the following may file an action for any
form of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis to the
child:
(i) whose relationship with the child began either with the
consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for
the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent
child under 42 Pa.C.S. Ch. 63 (relating to juvenile
matters);
(B) the child is substantially at risk due to parental
abuse, neglect, drug or alcohol abuse or incapacity;
or
(C) the child has, for a period of at least 12
consecutive months, resided with the grandparent,
excluding brief temporary absences of the child from
the home, and is removed from the home by the
parents, in which case the action must be filed within
six months after the removal of the child from the
home.
23 Pa.C.S. § 5324 (italics added).
For purposes of the instant matter, we focus on Section 5324(2) and in
loco parentis. On this topic, this Court has stated:
“The term in loco parentis literally means ‘in the place of a
parent.’” Peters v. Costello, … 891 A.2d 705, 710 ([Pa.] 2005)
(citing Black’s Law Dictionary, 791 (7th Ed. 1991)). A person
stands in loco parentis with respect to a child when he or she
“assum[es] the obligations incident to the parental relationship
without going through the formality of a legal adoption. The
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status of in loco parentis embodies two ideas; first, the
assumption of a parental status, and, second, the discharge of
parental duties.” Id. (quoting T.B. v. L.R.M., … 786 A.2d 913,
916-17 ([Pa.] 2001)). Critical to our discussion here, “in loco
parentis status cannot be achieved without the consent and
knowledge of, and in disregard of[,] the wishes of a parent.” E.W.
v. T.S., 916 A.2d 1197, 1205 (Pa. [Super.] 2007) (citing T.B.,
supra).
K.W. v. S.L., 157 A.3d 498, 504-05 (Pa. Super. 2017).
Moreover,
while it is presumed that a child’s best interest is served by
maintaining the family’s privacy and autonomy, that presumption
must give way where the child has established strong
psychological bonds with a person who, although not a biological
parent, has lived with the child and provided care, nurture, and
affection, assuming in the child’s eye a stature like that of a
parent. Where such a relationship is shown, our courts recognize
that the child’s best interest requires that the third party be
granted standing so as to have the opportunity to litigate fully the
issue of whether that relationship should be maintained even over
a natural parent’s objections.
T.B., 786 A.2d at 917 (citation omitted).
In overruling Mother’s preliminary objections and finding that Paternal
Grandmother had standing as a party in loco parentis to the Children, the trial
court highlighted Paternal Grandmother’s long-standing care of the Children,
both with and without Father. The court stated:
The preliminary objections filed by Mother on April 28, 2021[,] are
overruled. This court finds that Paternal Grandmother has
standing as a party who has been in loco parentis to the Children
pursuant to 23 Pa.C.S.[] Section 5324(2). Paternal Grandmother
acted in the role of a parent to both [C]hildren with the consent
of the Children’s father when [he] voluntarily left the Children in
her care and vacated her home in 2019, which was one year prior
to the filing of her complaint. Mother’s preliminary objections aver
that she did not give permission for the Children to live with
Paternal Grandmother without Father present. However, the
permission/consent of both parents is not required to determine
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that a party has standing where the third party has performed
parental duties with the consent and acquiescence of at least one
parent. … The record and credible testimony from Paternal
Grandmother and the Children strongly support this finding that
Paternal Grandmother has been a parental caregiver performing
these duties for many years. She has taken a primary role with
respect to education, medical and all other caregiving duties. As
of the time of trial, the Children had been living in the primary
custody of Paternal Grandmother for over four years.
Order, 1/25/23, at 3 (cleaned up).
As the court further explained in its Rule 1925(a) opinion:
This court found [Paternal Grandmother] to have standing
pursuant to 23 Pa.C.S. § 5324(2) as a third party who stands [in
loco parentis] to the Children as she has been the primary
caregiver for both [C]hildren continuously and exclusively for a
full year as of the time of her filing. [Paternal Grandmother] had
solely performed all parental responsibilities for the Children
including physician visits, dental care, schoolwork, therapy
appointments, cooking, housing and financially supporting the
Children from the summer of 2019 to the time of her filing in
September 2020.
Prior to 2019, [Paternal Grandmother] had been a court-ordered
kinship caregiver through the dependency case involving the
children in 2016. [Paternal Grandmother] also testified credibly,
as confirmed by both [C]hildren, that they had lived with [Paternal
Grandmother] for most of their lives. In 2019, [Father] consented
to her acting in loco parentis when he, as the parent with primary
physical custody, left the Children in the sole care of [Paternal
Grandmother] and moved away from the Children. … In 2019[,]
when [Father] left the Children in the care of [Paternal
Grandmother], [Mother] only had supervised physical custody as
set forth in the final order of March 22, 2019. Even after [Mother]
filed for expedited relief on August 19, 2019, alleging she only had
“sporadic contact” with the Children, the court did not lift the
provision for [Mother]’s custody to be supervised in the order of
November 15, 2019. [Mother]’s standing issue raised on appeal
specifically turns on the question of her consent to [Paternal
Grandmother’s] acting as a parent to the Children. It is
uncontested that [Paternal Grandmother] had in fact acted in the
place of a parent to both [C]hildren over the years. Here, [Father]
co-parented the Children with [Paternal Grandmother] when he
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was residing in her home and [Paternal Grandmother] parented
them once [Father] moved out of her home. [Mother] claimed in
her preliminary objections she did not consent to this. However,
grandparents and other third parties have been found to be in loco
parentis where that relationship began with the consent or
acquiescence of a parent. Similar to the present case, in both
M.J.S. v. B.B.[, 172 A.3d 651 (Pa. Super. 2017),] and McDonel
v. Sohn, [762 A.2d 1101 (Pa. Super. 2000),] third parties were
found to have stood in loco parentis where the third party and one
of the parents together co-parented the children during a period
of their lives.
...
[Paternal Grandmother] in the present case had assumed the role
of parent in the Children’s lives. [Paternal Grandmother] was the
one who attended the daily needs of the Children consistently and
exclusively from the summer of 2019 until the filing of her
complaint in September 2020. [Father] was absent as he left both
[C]hildren in her care. [Mother] petitioned the court in August
2019, as she only had “sporadic contact” with the Children, and
the court denied her petition for expedited relief. Both parents
have consented to [Paternal Grandmother]’s role by their action
and inaction over the years as [Paternal Grandmother] has had to
take on increased responsibility for the Children due to [Father]’s
substance use disorder and the parents’ increasing
disengagement and mistreatment of the Children over the years
as the procedural history in this case illustrates. Moreover,
[Mother] has failed to consistently exercise even the very limited
partial custody she had pursuant to this court’s [] temporary order
for partial physical custody of Na.M.H. entered on September 6,
2022. [Mother] only exercised one of her weekend visits between
September 2022 and January 2023 because her partner [] denied
the child entry to his home where [Mother] resides.[11]
Trial Court Opinion, 3/24/23, at 20-22 (cleaned up).
With this, we agree. Upon review, the record supports the trial court’s
determination as to Paternal Grandmother’s standing pursuant to Section
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11 Na.M.H. refused to visit with Mother thereafter. See N.T., 1/5/23, at 65-
70.
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5324(2) as a party in loco parentis to the Children. In McDonel, this Court
affirmed the in loco parentis standing of a maternal aunt and uncle, over the
father’s objection, where they had extensive involvement in the life of the
child. McDonel, 762 A.2d at 1105-06. Despite the father’s being unaware of
the maternal aunt and uncle’s involvement, we rejected his argument that he
therefore did not consent to their role, as he failed to take actions which
prevented their relationship from developing. Id. at 1106.
Similarly, in M.J.S., this Court also affirmed that a grandmother had in
loco parentis status where she lived with the mother and child for five years
and “either shared or assumed parenting responsibility for the entirety of the
child’s life” and the child’s father did not oppose her assumption of parental
duties at any point. M.J.S., 172 A.3d at 656-67. We reasoned:
Stated plainly, [the f]ather failed to oppose [the g]randmother’s
assumption of parental duties. Instead, he allowed [the
g]randmother to share the parental responsibilities with [the
m]other. [The f]ather not only declined to protest [the
g]randmother’s emergent role, he did not attempt to intercede in
[the g]randmother’s assumption of parental duties, and he failed
to perform any parental obligations beyond exercising partial
physical custody. Through his own inaction, [the f]ather
acquiesced to the development of the in loco parentis relationship
between [the g]randmother and [the child].
Id. at 657.
In the case sub judice, analogous to McDonel and M.J.S., Mother
acquiesced to the development of Paternal Grandmother’s relationship with
the Children. The record establishes that Paternal Grandmother enjoyed a
long-standing, care-giving relationship with the Children which included
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shared and/or assumed parenting responsibilities. See N.T., 1/5/23, at 78-
80; N.T., 9/6/22 (Children’s sealed testimony), at 29, 32. Mother, however,
failed to oppose Paternal Grandmother’s assumption of parental duties and
the development of an in loco parentis relationship. In fact, Mother does not
dispute shared responsibilities between Father and Paternal Grandmother.
Rather, Mother’s argument is that she was unaware that Father was no longer
living in the residence with Paternal Grandmother and the Children. Thus, she
asserts any assumption of parental duties was in defiance of her wishes and
without her consent. Notwithstanding, Mother’s inaction belies any such
argument. Moreover, and significantly, given Paternal Grandmother’s
enduring relationship with the Children, she was a “stabilizing force” and a
source of consistency for the Children. M.J.S., 172 A.3d at 657. As such,
Paternal Grandmother stood in loco parentis to the Children pursuant to
Section 5324(2).12
To the extent Mother relies on B.A. v. E.E., 741 A.2d 1227 (Pa. 1999),
to support her assertion of lack of consent, we find B.A. inapposite. In B.A.,
our Supreme Court found prospective adoptive parents failed to attain in loco
parentis standing where, despite the mother’s consent, their care and control
of the child began in defiance of the express wishes of the father, who refused
to consent and filed for custody shortly after the child’s birth and placement.
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12 Even if Paternal Grandmother failed to attain in loco parentis status, we
would determine that she had standing pursuant to Section 5324(3)(i-iii)(B),
given the abuse and neglect in Mother’s household and Father’s substance
abuse.
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Id. at 1228. Here, however, as stated above, Mother did not oppose Paternal
Grandmother’s assumption of parental duties. Consequently, Mother’s
challenge to Paternal Grandmother’s standing fails.
Having found the trial court did not err in concluding that Paternal
Grandmother had standing as a party who stood in loco parentis pursuant to
Section 5324(2), we next review Mother’s second issue, her substantive
challenge to the trial court’s custody order. Significantly, “[w]hen a trial court
orders a form of custody, the best interest of the child is paramount.” S.W.D.
v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014). “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). To that end, the Child
Custody Act sets forth sixteen factors that a court must consider before
making any custody determination. See E.B. v. D.B., 209 A.3d 451, 460 (Pa.
Super. 2019). “It 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). The statutorily required factors are 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) and
(2) (relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
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(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
A trial court must “delineate the reasons for its decision when
making an award of custody either on the record or in a written
opinion.” S.W.D.[, 96 A.3d at 401]. See also 23 Pa.C.S. §
5323(a) and (d). However, “there is no required amount of detail
for the trial court’s explanation; all that is required is that the
enumerated factors are considered and that the custody decision
is based on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331,
336 (Pa. Super. 2013).
R.L., 209 A.3d at 395.
Further, as it relates to parents and third parties, we have further
explained:
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.[, 172
A.3d at 660] (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
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nonparent, the trial court must “hear all evidence relevant to the
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[, 762 A.2d at 1107]).
These principles do not preclude an award of custody to the
nonparent but simply instruct the trial court that the nonparent
bears the burden of production and the burden of persuasion and
that the nonparent’s burden is heavy. Jones v. Jones, 884 A.2d
915, 918 (Pa. Super. 2005). It is well settled, “[w]hile this
Commonwealth places great importance on biological ties, it does
not do so to the extent that the biological parent’s right to custody
will trump the best interests of the child. In all custody matters,
our primary concern is, and must continue to be, the well-being
of the most fragile human participant—that of the minor child.”
Charles, 744 A.2d at 1259. “Once it is established that someone
who is not the biological parent is in loco parentis, that person
does not need to establish that the biological parent is
unfit, but instead must establish by clear and convincing evidence
that it is in the best interests of the children to maintain that
relationship or be with that person.” Jones, 884 A.2d at 917(emphasis in original).
R.L., 209 A.3d at 396 (emphasis in original).13
Instantly, the trial court addressed and analyzed the custody factors
pursuant to Section 5328(a). See Order, 1/25/23, at 4-11. The court
determined that Section 5328(a)(1), (2), (2.1), (3), (4), (6), (7), (9), and
(10) strongly favor Paternal Grandmother and (8), (11), and (14) favor
Paternal Grandmother. The court found Section 5328(a)(5), (12), (13), and
(15) are neutral. Most critical to the court, however, was Section 5328(a)(7),
the well-reasoned preference of the child, based on the child’s maturity and
judgement. The court noted, “[t]his factor strongly favors Paternal
____________________________________________
13 Mother does not oppose the trial court’s finding that Paternal Grandmother
rebutted the presumption in favor of biological parents in Section 5327(b).
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Grandmother and is the most significant factor [in] this case in light of the
Children’s ages.” Order, 1/25/23, at 6 (unnecessary capitalization omitted).
Mother assails the court’s determinations as to Section 5328(a)(1), (2),
(3), (4), (6), (8), (9), (10), (14), and (15). As to these factors, the trial court
stated:
1. WHICH PARTY IS MORE LIKELY TO ENCOURAGE AND PERMIT
FREQUENT CONTACT AND CONTINUING CONTACT BETWEEN THE
CHILD AND ANOTHER PARTY.
This factor strongly favors Paternal Grandmother. She has not
denied the Children access and communication with their [M]other
or [F]ather. In contrast, Mother denied [Na.M.H.] access to his
phone and other electronics to prevent him from communicating
with his brother and Paternal Grandmother and cut him off from
contact during the time she had [him] in her primary physical
custody. This resulted in the expedited relief and contempt
petitions.
2. THE PRESENT OR PAST ABUSE BY A PARTY [AND] WHETHER
THERE IS A CONTINUED RISK OF HARM TO THE CHILD OR AN
ABUSED PARTY.
This factor strongly favors Paternal Grandmother based upon past
abuse. See 2.1 below.
2.1. THE INFORMATION SET FORTH IN SECTION 5329.1(A)(1)
AND (2) (RELATING TO CONSIDERATION OF CHILD ABUSE AND
INVOLVEMENT WITH PROTECTIVE SERVICES).
While there are no active open investigations involving the
Department of Human Services currently, the Children have been
seriously impacted by their history in past cases. Now that they
are teenagers, this has been apparent to each of them. Based
upon this history, this factor strongly favors Paternal
Grandmother. Mother’s and Father’s prior history and
involvement with the Department of Human Services [(“DHS”)],
resulted in the removal of the Children from their care in 2016[,]
based upon valid reports of child abuse and neglect. An order of
protective custody removed the Children from the care of the
parents and placed the Children with the Paternal Grandmother
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on June 2, 2016. Previously in 2012 and 2013, DHS was involved
with the Children due to domestic violence between Mother and
Father.
3. THE PARENTAL DUTIES PERFORMED BY EACH PARTY ON
BEHALF OF THE CHILD.
This factor strongly favors Paternal Grandmother. She has been
the most consistent caregiver in the lives of the Children as both
parents struggled through the majority of the Children’s lives.
This was supported by credible testimony from [Ni.M.H].
4. THE NEED FOR STABILITY AND CONTINUITY IN THE CHILD’S
EDUCATION, FAMILY LIFE AND COMMUNITY LIFE.
This factor strong[ly] favors Paternal Grandmother. Neither
Mother nor Father has been able to offer the Children any stability.
Paternal Grandmother has consistently been involved in the
Children’s lives and provided them with stability and continuity
that they could not get from their parents. With respect to
education, Mother claims she can better provide for education
because … [Na.M.H.] was in in[-]person school when he was in
her care[,] and both [C]hildren are now in virtual school based
upon the problems they each faced[,] testified to by Paternal
Grandmother and the Children. However, this in [sic]
disingenuous because [Ni.M.H.] is suffering with limited options
for his education as a direct result of actions Mother took to
expressly interfere with his ability to obtain an education. As
detailed below, Mother testified against [Ni.M.H.] at the expulsion
hearing for New Foundations School and [] took action to interfere
with his acceptance to Girard College.
...
6. THE CHILD’S SIBLING[] RELATIONSHIPS.
This factor strongly favors Paternal Grandmother having primary
custody of both [Ni.M.H.] and [Na.M.H]. The boys are bonded to
each other as siblings and other than the brief period when they
were separated as a result of Judge Twardy’s temporary custody
order [sic]. Both [C]hildren testified that the temporary
arrangement that separated then [sic] was difficult and not in their
best interests.
[Na.M.H.] previously said he was having conflicts with his brother
[Ni.M.H.] and Paternal Grandmother. He said [he] got mad at
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them and he made up stuff to get back at them. He admitted that
he lied to Judge Twardy when he told him that his [P]aternal
[G]randmother was mistreating him and not feeding him enough.
He said he and [Ni.M.H.] have been getting along much better
now when he is there for the weekends and that he wants to go
home. He stated home for him has always been Paternal
Grandmother’s residence.
[Ni.M.H.] and [Na.M.H.] have strained relationships with their
three younger brothers, especially [Na.M.H.], for the reasons set
forth in number 7 below.
...
8. THE ATTEMPTS OF A PARENT TO TURN THE CHILD AGAINST
THE OTHER.
This factor favors Paternal Grandmother. Mother and her partner
[] have attempted to alienate [Na.M.H.] against Paternal
Grandmother by regularly speaking negatively against Father and
Paternal Grandmother to [Na.M.H.] and denying him
communication with them. However, this has resulted in
[Na.M.H.’s] not wanting to remain in Mother’s household rather
than turning him against Paternal Grandmother.
[9]. WHICH PARTY IS MORE LIKELY TO MAINTAIN A LOVING,
STABLE, CONSISTENT AND NURTURING RELATIONSHIP WITH
THE CHILD ADEQUATEFOR THE CHILD’S EMOTIONAL NEEDS.
This factor strongly favors Paternal Grandmother. Paternal
Grandmother has been the most consistent caregiver throughout
the Children’s lives. For all the reasons set forth herein, Mother
has acted in ways that are extremely damaging to the Children’s
emotional needs.
[10]. WHICH PARTY IS MORE LIKELY TO ATTEND TO THE DAILY
PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL AND
SPECIAL NEEDS OF THE CHILD.
This factor strongly favors Paternal Grandmother. Mother has
actively interfered with the education of [Ni.M.H.] in a way that
has limited his options. This court finds Mother’s actions and
inactions warrant an award of sole legal custody to Paternal
Grandmother. For all the reasons set forth herein, Mother has
acted in ways that are extremely damaging to the Children’s
emotional needs.
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13. THE HISTORY OF DRUG OR ALCOHOL ABUSE BY A PARTY OR
MEMBER OF A PARTY’S HOUSEHOLD.
This factor favors Paternal Grandmother based on the history of
the parents. Father continues to struggle with substance use
disorder but is seeking help now in Florida.
14. THE MENTAL AND PHYSICAL CONDITION OF A PARTY OR
MEMBER OF A PARTY’S HOUSEHOLD.
This factor favors neither party. Mother testified that Paternal
Grandmother has physical impairments and disabilities that
impact her ability to care for the Children. However, this was not
credible based upon Paternal Grandmother’s testimony and the
testimony of the Children.
Order, 1/25/23, at 4-11 (cleaned up).
Specifically, as to Section 5328(a)(1), which party is more likely to
encourage and permit frequent and continuing contact between the child and
another party, and (8), the attempts of a parent to turn the child against the
other, Mother contends that Paternal Grandmother has withheld the Children,
specifically Na.M.H., from her by failing to transport Na.M.H. for Mother’s
partial physical custody. See Mother’s Brief at 19, 23. As to Section
5328(a)(2), the present or past abuse by a party and whether there is a
continued risk of harm to the child or an abused party, and (2.1), the
information set forth in section 5329.1(a)(1) and (2) (relating to consideration
of child abuse and involvement with protective services), Mother indicates no
existing record relating to either her or her husband is in a statewide abuse
database and that all DHS reports concerning her and her fiancé were
unfounded. See id. at 19-20. As to Section 5328(a)(3), the parental duties
performed by each party on behalf of the child; (4), the need for stability and
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continuity in the child’s education, family life and community life; (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; and (10),
which party is more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child, Mother maintains
that Paternal Grandmother neglects the Children’s educational, medical,
dental, and mental health needs. Conversely, she contends that she
consistently provides for such needs, as demonstrated by Na.M.H.’s time in
her primary physical custody. See id. at 20-27. As to Section 5328(a)(6),
the child’s sibling relationships, Mother references the Children’s three
younger half-siblings who reside with her. See id. at 23. As to Section
5328(a)(13), the history of drug or alcohol abuse by a party or member of a
party’s household, Mother states that she has not failed any drug tests, while
recognizing Father’s “long history of drug abuse.” See id. at 27. Finally, as
to Section 5328(a)(14), the mental and physical condition of a party or
member of a party’s household, Mother asserts that Paternal Grandmother
has a medical condition. See id. at 27-28.
We, however, conclude that any assertion of error is waived for failure
to address this issue in a meaningful way with citation to pertinent legal
authority and/or the record. See Pa.R.A.P. 2119(c)-(d); see also In re
W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (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
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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) (citation omitted) (reiterating that a claim is waived where an appellate
brief fails to provide any discussion of the claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion capable
of review). Mother provides a rambling, repetitive argument that each of
these factors should be determined to be in her favor without any citation to
relevant law other than regurgitating the statutory language and, critically,
without any citation to the record. See Mother’s Brief at 19-28.
Notwithstanding, even if not waived, Mother’s claim fails. As stated
above, with regard to the custody factors, we have stated that the trial court
is required to consider all such factors. A.V., 87 A.3d at 822-23. Although
the court is required to give “weighted consideration to those factors which
affect the safety of the child” pursuant to 23 Pa.C.S. § 5328(a), we have
acknowledged that the amount of weight a court gives any one factor is almost
entirely discretionary. M.J.M., 63 A.3d 331 at 339. As we stated in M.J.M.,
It 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. See A.D.[, 989 A.2d at 35-36] (“In
reviewing a custody order ... 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.”). Our decision here does not change that.
M.J.M., 63 A.3d 331 at 339 (emphasis added). However, while not
controlling, a child’s wishes are of critical consideration. McMillen v.
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McMillen, 602 A.2d 845, 847 (Pa. 1992) (stating, “[a]lthough the express
wishes of a child are not controlling in custody decisions, such wishes do
constitute an important factor that must he carefully considered in
determining the child’s best interest”).
As we construe Mother’s claim, we interpret the issue raised at its core
to be a dispute as to the trial court’s findings of fact and determinations
regarding credibility and weight of the evidence. Mother, in essence,
questions the trial court’s conclusions and assessments and seeks this Court
to re-find facts, re-weigh evidence, and/or re-assess credibility to his view of
the evidence. This we cannot do. Under the aforementioned standard of
review applicable in custody matters, the trial court’s findings of fact and
determinations regarding credibility and weight of the evidence are not
disturbed absent an abuse of discretion. See C.R.F., 45 A.3d at 443; see
also E.R., 129 A.3d at 527. We reiterate, “[i]t is not this Court’s function to
determine whether the trial court reached the ‘right’ decision; rather, we must
consider whether, ‘based on the evidence presented, given [sic] due deference
to the trial court’s weight and credibility determinations,’ the trial court erred
or abused its discretion….” King, 889 A.2d at 632. After a thorough review
of the record, we find no abuse of discretion. Further, to the extent Mother
challenges the weight attributed to any factor by the trial court, we likewise
find no abuse of discretion. As stated above, the amount of weight that a trial
court gives to any one factor is almost entirely within its discretion. See
M.J.M., 63 A.3d at 339.
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Here, the trial court analyzed and addressed each of the custody factors
pursuant to Section 5328(a). See Trial Court Opinion, 1/25/23, at 4-11. After
careful review of the record, and in deference to the trial court’s
determinations as to credibility and weight of the evidence, we conclude 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.
We, therefore, will not disturb them. See C.R.F., 45 A.3d at 443; see also
E.R., 129 A.3d at 527.
For the foregoing reasons, we affirm the trial court’s order.
Order affirmed.
Date: 11/8/2023
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