J.F.T. v. T.A.B., H.M.B., & C.D.C.

J-S94023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.F.T., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
T.A.B, H.M.B., & C.D.C.
No. 1312 MDA 2016
Appeal from the Order entered July 8, 2016,
in the Court of Common Pleas of York County,
Civil Division, at No(s): 2016-FC-11-03.
BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY RANSOM, J., FILED MARCH 06, 2017
Appellant, J.F.T. (“Grandmother”) appeals pro se from the order
entered on July 8, 2016, in the Court of Common Pleas of York County,
granting sole legal and primary physical custody of S.D. and K.B. to
Appellee, T.A.B. (“Mother”). After review, we affirm.
The pertinent facts and procedural history are as follows: Mother has
two daughters, S.D, born in 2005, and K.B., born in 2007 (“Children”).
S.D.’s father is C.D.C., and K.B.’s father is Grandmother’s son, H.M.B.
Mother and H.M.B. married in 2007, and Mother lived with Grandmother
from 2007 until 2009. At that time, she entered inpatient treatment for her
heroin addiction. During her treatment, Children remained in Grandmother’s
custody pursuant to a temporary guardianship that Mother and H.M.B. had
executed. When Mother returned from treatment in 2014, she moved in
* Former Justice specially assigned to the Superior Court.
J-S94023-16
with Grandmother and Children and stayed there for approximately one
year.1 Mother then moved to York and refused to return Children from her
custody following the 2015 December holidays.
In January 2016, Grandmother filed a complaint pro se for custody of
Children. A custody trial was held over three days in June 2016. At the
time of trial, Mother had moved in with her paternal aunt and uncle, who
had raised her after her father died. At trial, both Grandmother and Mother
appeared with counsel. H.M.B. and C.D.C. appeared and testified as
witnesses for Grandmother but informed the trial court that neither was
seeking custody rights.
By opinion and order entered July 8, 2016, the trial court awarded
shared legal and physical custody of Children to the parties for the
remainder of the summer period. Beginning August 26, 2016, the trial court
awarded Mother sole legal custody and primary physical custody of Children,
subject to Grandmother’s rights of partial physical custody. Grandmother
filed this timely appeal. Both Grandmother and the trial court have complied
with Pa.R.A.P. 1925.
On appeal, Grandmother raises the following issues for our review:
1. Did [the] Trial Court abuse [its] discretion, commit [an] error
of law and/or its record lacks/against [sic] [the] weight of
____________________________________________
1
H.M.B. was incarcerated.
-2-
J-S94023-16
evidence to support the findings of fact/conclusions of law of
23 Pa.C.S. Section 5328(a) (1,2,3,4,7,8,9,10, and 14)?
2. Did [the] Trial Court abuse [its] discretion, commit [an] error
of law and/or its record lacks/against [sic] weight of evidence
to support the findings of fact/conclusions of law of award of
legal, primary and partial physical custody[?]
3. Did [the] Trial Court abuse [its] discretion, commit [an] error
of law and/or its record lacks/against [the] weight of the
evidence to support the findings of fact/conclusions of law of
application of and not bursting [sic] rebuttable presumption of
parent over grandparent acting in loco parentis?
4. Did [the] Trial Court abuse [its] discretion, and/or its record
lacks/against [the] weight of the evidence to support the
findings of fact of age[s] of children?
5. Did [the] Trial Court abuse [its] discretion, commit [an] error
of law and/or its record lacks/against [the] weight of [the]
evidence to support the findings of fact/conclusions of law of
credibility of Mother, Mother’s witnesses and Mother’s missing
witnesses?
Grandmother’s Brief at 4-5. Because each of Grandmother’s issues
essentially challenges the trial court’s consideration of the statutory custody
factors, we will address them together.
Our scope and standard of review of an appeal from a custody order is
as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
-3-
J-S94023-16
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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citation omitted).
[T]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012) (quoting Ketterer v.
Seifert, 902 A.2d 533, 540 (Pa. Super. 2006)).
If competent evidence supports the trial court’s findings, we will affirm
even if the record could also support the opposite result. In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
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.
S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (quoting Robinson v.
Robinson, 645 A.2d 836, 838 (Pa. 1994)).
The primary concern in any custody case is the best interest of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902
-4-
J-S94023-16
A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674,
677 (Pa. Super. 2004)).
Section 5328 of the Child Custody Act sets forth certain factors a trial
court must consider in order to determine the best interest of the child when
awarding custody. Specifically, Section 5328 provides as follows.
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
-5-
J-S94023-16
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a)(1)-(16).
Initially, we note that the trial court’s July 8, 2016 opinion presented a
complete assessment of the 16 best interest factors enumerated in Section
5328(a).2 See C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super 2013) (holding
____________________________________________
2
The trial court did not discuss separately factor 2.1 and factor 16.
-6-
J-S94023-16
that the trial court must set forth its assessment of the 16 best interest
factors outlined in 23 Pa.C.S.A. § 5328(a)). On several occasions during the
custody trial, the court emphasized the well-established legal principal that
natural parents have a rebuttable presumption against third parties in
custody disputes. See 23 Pa.C.S.A. § 5327(b) (codifying the then-existing
common law presumption). Regarding this presumption, the Child Custody
Act states provides:
§ 5327. Presumption in cases concerning primary
physical custody.
…
(b) Between a parent and third party.—In 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.
Id. “The standard of clear and convincing evidence means testimony 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.” V.B., 55 A.3d at 1199 (citation omitted).
Regarding this presumption, we have concluded as follows.
[O]ur Supreme Court [has] noted that “these principles do not
preclude an award of custody to the non-parent. Rather they
simply instruct the [trial] judge that the non-parent bears the
burden of production and the burden of persuasion and that the
non-parent’s burden is heavy.”
Id. (quoting Ellerbe v. Hooks, 416 A.2d 512, 514 (Pa. 1980)).
What the [trial] judge must do, therefore, is first, hear all
evidence relevant to the child’s best interest, and then, decide
-7-
J-S94023-16
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.
V.B., 55 A.3d at 1199 (citation omitted). Further, we recognize that when a
grandparent is involved in a custody dispute with a parent, the grandparent
is a third party and bears this heightened burden. Id. at 1198-99 (citation
omitted).
Grandmother asserts that she “presented clear and convincing
evidence to burst [the] presumption in favor of Mother against in loco
parentis Grandmother for seven years, if not for ten years (since children’s
birth), in her household.” Grandmother’s Brief at 14. She therefore
contends that “the interim status quo [custody arrangement] before trial
should have been confirmed and ratified rather than the dramatic paradigm
flip, or, in the alternative, at least provide substantial custody [to her].” Id.
at 15.
As noted above, the trial court considered the sixteen custody factors.
The court explained its factual findings and conclusions of law as to each
relevant factor as follows:
(1) Encouragement of Continuing Contact Between the
Other Party
The Court finds that both parties are likely to
encourage and permit continuing contact between
Children and the other party. As such this factor, is
neutral.
(2) Present and Past Abuse
-8-
J-S94023-16
The Court finds that there was no significant
testimony regarding any present or past abuse by
either party. As such, this factor is neutral.
(3) Parental Duties
The Court finds that both parties are currently
performing parental duties on behalf of Children
during their custody time. However, Grandmother
had primary physical custody of Children for several
years while Mother was dealing with an admitted
drug addiction. The Court commends Grandmother
for her care of Children over those years. Testimony
established that Mother shared in the parental duties
for Children during the time that she was living with
Grandmother after her recovery. Overall, due to
Grandmother’s role as primary caregiver to Children
during Mother’s recovery, this factor weighs slightly
in favor of Grandmother.
(4) Stability in Children’s Education, Family Life and
Community Life
The Court finds that both parties are currently able
to provide stability and continuity in Children’s lives.
Testimony established that Mother has had steady
employment for several years and now has stable
housing with [paternal] aunt and uncle who acted as
parental figures to Mother as a teenager after the
death of her father. [Paternal] aunt and uncle
testified that Mother is allowed to remain in their
home with Children indefinitely. Throughout
Children’s lives, Grandmother has provided
consistency and stability while Mother dealt with her
drug addiction. The Court believes that Mother has
successfully addressed her addiction issues and is
able to ensure stability for [C]hildren going forward.
As such, this factor is neutral.
(5) Availability of Extended Family
The Court finds that both Grandmother and Mother
have extensive extended family members who are
involved with Children. As such, this factor is
neutral.
-9-
J-S94023-16
(6) Sibling Relationships
The Court finds that Children have no other sibling
relationships. This factor is neutral.
(7) Well-reasoned Preference of the Children
The Court interviewed Children in camera. Children
expressed love for both parties and a desire to spend
time with both parties. This factor is neutral.
(8) Attempt of Party to Turn Children Against Other
Party
The Court finds that there was no direct credible
testimony regarding attempts by either party to turn
Children against the other party. As such, this factor
is neutral.
(9) Maintenance of Loving and Stable Relationship with
Children
The Court believes that both Grandmother and
Mother are able to maintain loving and nurturing
relationships with Children. Testimony established
the Mother is more consistent with her discipline of
Children which benefits their emotional development.
As such, this factor weighs slightly in favor of
Mother.
(10) Attendance to Children’s Daily Needs
The Court finds that both parties are capable of
meeting Children’s daily physical needs but that
Mother’s current environment provides more stability
for Children. Testimony established that, while
Grandmother is very dedicated to Children, both her
and [her live-in daughter’s] work schedules create
inconsistency in Children’s daily care at
Grandmother’s residence in that Children sleep at
two (2) different residences throughout the week
and sometimes share a bed with two (2) minor male
cousins. Additionally, there was significant
testimony regarding [S.D.] being bullied at her
current school while in Grandmother’s custody.
Therefore, the Court finds that Mother is able to
- 10 -
J-S94023-16
provide daily stability for Children and this factor
weighs in favor of Mother.
(11) Proximity of Residences
Grandmother currently resides [in] Hanover,
Pennsylvania[.] Mother currently resides [in]
Wellsville, Pennsylvania[.] Presently, the parties
reside approximately twenty (20) miles apart. This
distance is conducive to regular custody exchanges.
(12) Availability to Care for Child or Make Child Care
Arrangements
The Court finds that both parties are able to care for
Children or make appropriate child care
arrangements. This factor is neutral.
(13) Level of Conflict Between Parties and Willingness to
Cooperate
The Court finds that there is a moderate level of
conflict between the parties and that they are able to
cooperate regarding custody of Children. This factor
is neutral.
(14) History of Drug or Alcohol Abuse
Mother admitted to a history of drug abuse. The
Court believes that she is determined in remaining
free of unlawful drugs. There was no credible
testimony to contradict Mother’s testimony that she
has been clean for more than three (3) years.
Overall, this factor weighs slightly in favor of
Grandmother.
(15) Mental and Physical Condition of Party or Member of
Party’s Household
The Court finds that both parties have conditions
which are controlled by medications and do not
affect their ability to care for Children. This factor is
neutral.
Trial Court’s Opinion, 7/8/16, at 6-9.
- 11 -
J-S94023-16
The fact that the trial court found that a majority of the factors did not
weigh in favor of either party readily supports a conclusion that both
Grandmother and Mother are fit parties to continue to care for Children. In
awarding sole legal and primary physical custody of Children to Mother, the
trial court essentially concluded that Grandmother did not meet her heavy
burden of overcoming the statutory presumption in favor of Mother.
Grandmother’s assertion that she “burst” the presumption because a
majority of these factors actually weighed heavily in her favor is largely
based on her testimony as well as that of her witnesses. Her claims
challenge the trial court’s credibility determinations and the weight it
afforded the custody factors. As noted above, a party cannot dictate the
amount of weight the trial court places on evidence. S.M., supra.
Our review of the trial court’s opinion, together with the certified
record in this matter, supports the trial court’s custody finding in favor of
Mother. Considering the totality of the testimony presented, we conclude
that the trial court’s finding that Grandmother failed to meet her burden by
clear and convincing evidence is reasonable as shown by the evidence of
record. See In re V.B., 55 A.3d at 1202 (holding that evidence maternal
grandparents presented during custody hearings failed to rebut the
presumption of custody in favor of the father).
Accordingly, the trial court did not err in its custody determination.
We therefore affirm the July 8, 2016 order granting Mother sole legal and
primary physical custody of Children.
- 12 -
J-S94023-16
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2017
- 13 -