R.E. & L.E. v. S.B. & J.W.

J-A23017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.E. AND L.E. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
S.B. AND J.W. : No. 667 MDA 2022
Appeal from the Order Entered March 30, 2022
In the Court of Common Pleas of Dauphin County Civil Division
at No(s): 2013-CV-04024-CU
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 11, 2022
In this custody matter, R.E. and L.E. (collectively, Great-grandparents)
are the paternal great-grandparents, and had sole legal custody and primary
physical custody, of the subject child, A.W. (Child), born in July of 2012.
Great-grandparents now appeal from the order entered in the Dauphin County
Court of Common Pleas, which granted the pro se petition of S.B. (Mother) for
primary physical custody and shared legal custody.1 Great-grandparents aver
the trial court erred in: (1) awarding Mother primary physical custody because
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* Former Justice specially assigned to the Superior Court.
1It appears Mother and Child’s father, J.W. (Father) were never married. Both
appeared pro se at the March 15, 2022, custody hearing, and neither has filed
a brief with this Court.
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the Section 5328(a)2 custody factors weighed heavily in their favor; (2) failing
to consider Mother’s violations of the prior custody order; and (3) excluding
testimony from Child’s counselor about his observations during Child’s play
therapy sessions. We affirm.
I. Earlier Facts & Procedural History
Mother and Father are the parents of Child. At the time of the underlying
March 15, 2022, custody hearing: Child was nine years old; Mother was 29;
Father was 37; L.E. (Great-grandmother) was 73; and R.E. (Great-
grandfather) was 77 years old. N.T. Custody H’rg, 3/15/22, at 9, 27, 87, 169.
We review the extended factual history of this case.
Upon Child’s birth, she, Mother, and Father initially lived together in
Altoona, Blair County. Three months later, in October of 2012, they moved
into the home of Father’s grandparents — Great-grandparents — in
Elizabethtown, Dauphin County. Trial Ct. Mem. Op., 3/30/22 (Mem. Op.), at
1. Sometime in 2013, Mother indicated she intended to move back to Altoona
with Child. See N.T., 3/15/22, at 15. In response, in May of 2013, “Great-
Grandparents initiated a custody action due to concern that Mother could not
adequately care for [C]hild due to an alleged drug addiction.[ ]” See Memo.
Op. at 1 (footnote omitted).
In a prior appeal, this Court summarized the ensuing procedural history:
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2 See 23 Pa.C.S. § 5328(a).
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In July 2013, the trial court granted the parties shared legal
custody, [with] primary physical custody to Great-Grandparents
and Father, who still resided with Great-Grandparents. Great-
Grandparents were to supervise Father’s custody time. Mother,
who had moved to Blair County, had partial custody every
weekend.
The custody terms were modified a few times, with minor
changes. . . . In January 2017, following a custody hearing, the
court entered a final custody order that provided that the parties
had shared legal custody. Great-Grandparents had primary
physical custody, and Mother and Father had partial physical
custody every other weekend during the school year and a two-
week vacation period for each parent in the summer.
Mother was directed to comply with a number of provisions
including that she . . . use Our Family Wizard, an information-
sharing website for separated parties. Mother also had to
maintain drug rehabilitation, attend group and individual
counseling, undergo periodic drug tests and provide quarterly
updates about test results to Father and Great-Grandparents,
obtain counseling for anger, and enroll in a 12-week parenting
program. The order had similar requirements for Father.
R. & L.E. v. S.B., 1693 MDA 2019 (unpub. memo. at 2-3) (Pa. Super. May 7,
2020).
At some point, Mother’s mother (Maternal Grandmother) made
accusations that Great-grandfather, as well as Father’s brother, Father’s
father, and another paternal relative all sexually assaulted Child. R. & L.E.,
1693 MDA 2019 at 6, 11-12. These claims were investigated by authorities
and eventually determined to be unfounded.3 Id. Nevertheless, due to this
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3 Father’s brother was in fact in prison at the time of the alleged assault, and
the fourth relative was living in Tennessee. R. & L.E., 1693 MDA 2019 at 11-
12.
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allegation against Great-grandfather, Mother initially refused to return Child
to Great-grandparents following a visit in August of 2019.
The prior Superior Court panel summarized:
On August 21, 2019, Great-Grandparents filed an emergency
petition for special relief asserting . . . Mother had failed to return
Child [to them]. Great-Grandparents also filed a petition for
contempt asserting Mother violated the prior court order by failing
to return Child and in failing to comply with terms of the January
2017 order, including failing to use Our Family Wizard, undergo
drug tests and provide quarterly updates, enroll in counseling for
anger, and enroll in a 12-week parenting program.
The trial court granted Great-Grandparents’ petition for
emergency relief, directing Mother to return Child. It scheduled a
hearing on the petition for contempt.
On August 26, 2019, Great-Grandparents filed a second
emergency petition for special relief[, arguing] Mother had failed
to transfer custody as directed in the prior order. The court
granted the petition and again directed Mother to return Child to
Great-Grandparents. The court also suspended Mother’s custody
rights.
In September 2019, Mother filed[, inter alia,] a petition for
modification of custody, seeking primary physical custody. . . .
R. & L.E., 1693 MDA 2019 at 3.
II. September 27 Custody Hearing & October 2, 2019, Order
On September 27, 2019, the Honorable Jeannine Turgeon conducted a
hearing on Great-grandparents’ petition for contempt as well as Mother’s
petition for modification of custody. The court heard testimony from Great-
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grandparents, Mother, Father, and Maternal Grandmother.4 At this time,
Mother also had a one-year old daughter (Sister), with whom she lived in a
two-bedroom apartment in Altoona.5 N.T., 9/27/19, at 22. Mother testified
she had been drug-free for almost seven years and was working at a call
center. Id. at 21. Father was a truck driver and lived with his girlfriend in an
apartment in Altoona; his girlfriend has children, with whom Child got along
well. Id. at 28-29. Father stated “pretty much all of” his family, with whom
he was close, also lived in Altoona. Id. at 29-30.
Dr. Jaeme Schwartz-Bogrette, who owned the counseling center Child
had attended since 2017, testified to the following:
[Child was diagnosed] with oppositional defiant disorder,
generalized anxiety disorder, and post-traumatic stress disorder.
[T]he PTSD stemmed from “the trauma from being removed
from . . . a parental unit.” N.T., 9/27/19, at 61[.]
. . . Child behaves differently immediately after she spends time
with Mother and Father[.] Specifically, . . . after having contact
with Mother and Father, Child displays an increase in self-
negativity, swearing, and aggression. [T]his type of behavior is
often [a] mark[ ] of a child experiencing trauma and raises
concerns about future self-harm. [Dr. Schwartz-Bogrette]
believes that changes in the dynamics of Child’s visitations with
Mother and Father are necessary to avoid continuation of this
behavior.
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4 Mother was represented by counsel at this hearing. Additional witnesses
called to testify were: Mother’s brother, M.B.; Father’s mother, J.W. (Great-
grandmother’s daughter); and Child’s kindergarten teacher.
5 Sister’s father passed away before Sister as born. N.T., 3/15/22, at 14.
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R. & L.E., 1693 MDA 2019 at 6-7 (record citation omitted).
On October 2, 2019, the trial court issued a custody order, which
primarily maintained the status quo: Great-Grandparents were granted
primary physical custody, Mother and Father partial physical custody every
other weekend, and Mother and Father each two weeks’ custody in the
summer. The court also granted Great-Grandparents sole legal custody,
whereas previously they shared it with Mother and Father.
The trial court considered the rebuttable statutory presumption, at
Section 5327(b) of the Custody Act,6 which favors custody with a parent over
a third party.7 Nevertheless, the court found a “plethora of clear and
convincing evidence to rebut the presumption,” and concluded it was in Child’s
best interest to remain in Great-grandparents’ primary physical custody. R.
& L.E., 1693 MDA 2019 at 18 (record citation omitted). In support, the court
examined each of the 17 statutory factors at Section 5328;8 this review was
discussed in detail in this Court’s prior memorandum. Id. at 18-21. The court
also found Maternal Grandmother — who had made the allegations of sexual
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6 23 Pa.C.S. §§ 5321-5340.
7 See 23 Pa.C.S. § 5327(b) (“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.”)
8 Section 5328 includes a subsection (2.1), in addition to subsections (1)
through (16).
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assault — showed “assaultive” and “aggressive behavior” herself, and the
court forbade unsupervised visits between her and Child. Id. at 19 (record
citation omitted). Mother appealed from the October 2019 custody order, and
this Court affirmed on May 7, 2020.
III. March 15 Custody Hearing & March 30, 2022, Order
On November 12, 2021, Mother filed the underlying pro se petition for
modification of custody, averring she had no drug or other issues and she was
fit to have custody of Child. On March 15, 2022, the Honorable Andrew
Dowling conducted a custody hearing. The trial court interviewed Child in
camera; she was nine years old and in fourth grade. Father, Great-
grandparents, and Mother’s stepfather D.R. testified.9
Mother appeared pro se and testified to the following:
[S]he rents a five-bedroom house in Altoona where she lives with
her four-year old daughter, who is [Child’s half-sister]. When the
Child visits on the weekends, she sleeps in the attic, which is
finished with two bedrooms. . . . Child is very happy in Altoona
and has numerous relatives that she likes to see and spend time
with. Furthermore, . . . Child wants to be babied and taken care
of by [M]other with respect to bathing, brushing teeth, and being
put to sleep at night. Mother believes that this is because the
Child does not receive this type of care with Great-Grandparents.
Both Mother and Father live in Altoona along with Mother’s
stepfather, [D.R.,] Mother’s brother and nephew, and Father’s
parents, siblings, and cousins. Mother is not currently working.
Her last job was a temporary job in December of 2021.
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9 Great-grandparents’ two children, G.E. and T.K., also testified briefly.
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Mother stated that the current custody schedule does not
allow her sufficient time to spend with Child and for the Child to
spend time with her extended family in Altoona. Mother asserts
that the Child is very happy being with her . . . and [S]ister. They
play video games together, go shopping, and just hang out
together. The Child also has several friends in Altoona.
Mother . . . thinks that it is important for the Child to maintain
a relationship with Great-Grandparents. Although Mother wants
primary physical custody[, s]he suggested that Great-
Grandparents get physical custody . . . every other weekend . . . .
Mem. Op. at 3-4. Furthermore, “Mother credibly testified that she had drug
issues in the past but has been clean for . . . the last eight years.” Id. at 12.
Mother now “has very little contact with [Maternal Grandmother] and would
only allow the Child to be around her if [Maternal Grandmother were] in a
proper frame of mind and did not pose a risk of harm to the Child.” Id. at 8.
The trial court summarized Great-grandparents’ testimony as follows:
[Child] lives with Great-grandparents in a four-bedroom house
where she has two bedrooms for herself. The Child has lived in
this house since she was three months old. There was testimony
that the Child enjoys a close relationship with both of her Great-
Grandparents, and has many friends in Elizabethtown.
Both Great-Grand[parents] are retired. They have enrolled
the Child into several extra-curricular activities, including cello,
karate, and tutoring [for] math and reading comprehension.
Great-Grandmother testified that she encourages the Child to
have a relationship with Mother and Father and gives her extra
time with them on occasion.
Mem. Op. at 4-5.
Additionally, Great-grandparents presented the testimony of Child’s
counselor, Brent Johnson, who had a total 18 sessions with Child. Mr. Johnson
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initially diagnosed the Child with generalized anxiety disorder, but
later changed that diagnosis to unspecified anxiety disorder. He
testified that the Child [had] angry outbursts, speculatively as a
result of her upbringing and how her primary caretakers were
modeling behavior and speaking with her.
However, after counseling, [Child] has been having less angry
outbursts and has been communicating her thoughts and
emotions in a better way. As a result, he was going to discharge
the Child from counseling at the end of March of [2022].
Mem. Op. at 5 (paragraph break added).
On March 30, 2022, the trial court issued the underlying order, granting
Mother’s petition. The order provided that beginning in June of 2022, following
the end of Child’s school year, Mother would have primary physical custody
and Great-grandparents partial custody every other weekend. Furthermore,
Mother and Great-grandparents would share legal custody.
In support, the trial court reviewed the Section 5328 custody factors
anew and found the following: 10 factors did not weigh in favor of either
party. Two factors weighed in Mother’s favor — the availability of extended
family and the Child’s sibling relationships. The court reasoned that although
the parties were “equally able to maintain a loving[ and] stable” relationship
with Child, it could not “ignore the innate connection between a mother and
daughter that is more adequate for the Child’s emotional needs[.]” Mem. Op.
at 10-11.
Pertinently, the trial court also had “concerns about the physical
condition of Great-grandparents to effectively parent the Child as she
grows[.]” Mem. Op. at 13. The court considered their ages — 73 and 77 —
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and that both wore hearing aids and had trouble hearing at the custody
proceeding. See id. The court further noted Great-grandparents turned off
their hearing aids at night when they sleep. Meanwhile, Mother appeared to
be in good health with no current mental or physical issues.
The trial court found two factors weighed in Great-grandparents’
favor — first, the parental duties they have performed on behalf of Child.
However, this was the result of their role as the primary caregivers for a
lengthy period and the fact the parties lived three hours apart, as it would be
unreasonable for Mother to drive six hours round-trip to attend a one-hour
parent/teacher conference or medical appointment. Mem. Op. at 9.
Furthermore, Mother performed parental duties during her periods of custody,
including, bathing and dressing Child and taking her to the doctor if necessary.
Id. at 8. Second, the need for stability and continuity in Child’s education,
family life and community life weighed “moderately” in Great-grandparents’
favor. Id. at 9. The court reasoned it was in Child’s best interest to stay in
her current school district through the end of the school year, and the
modification to custody would not start until thereafter. Id.
The trial court acknowledged the changes in circumstances over time
and the appropriateness to focus on Child’s present needs:
We heard testimony from various witnesses about incidents
that happened when [Child] was a baby. Since all of that occurred
prior to the most recent custody Order, it is not necessarily
relevant to our current decision. Rather, the question being
presented to the Court is simply this: What is in the best interest
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of the Child at this moment in time?
Mem. Op. at 5. The court concluded that presently,
Mother was very organized, well-spoken and authentic in her
desire to obtain primary custody of her daughter. Although
Mother has had problems in the past, we do not believe that those
problems persist today. There was no evidence that Mother has
abused any drugs or alcohol within the past several years.
Additionally, [M]aternal [G]randmother has been an issue in the
past, but Mother recognizes this fact and will not allow the Child
to be around her maternal grandmother unsupervised, and even
those visits will only occur when [M]aternal [G]randmother is in a
good headspace.
Moreover, Mother’s past issues should not forever preclude
her from having primary custody of her daughter. As noted in the
above factors, they do not significantly favor Great-Grandparents
at this point in time. Thus, Great-Grandparents have not rebutted
the presumption that Mother is a fit parent with clear and
convincing evidence.
Id. at 13.
Great-grandparents filed a timely notice of appeal, along with a
Pa.R.A.P. 1925(a)(2)(i) concise statement of errors complained of on appeal.
As stated above, neither Mother nor Father have filed a brief with this Court.
IV. Statement of Questions Involved
On appeal, Great-grandparents present three issues for review:10
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10 Great-grandparents present all three of their issues together under one
heading, and intermingles arguments for the first two issues. We remind
Great-grandparents’ counsel: “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[.]” See Pa.R.A.P. 2119(a).
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1. Did the trial court err and abuse its discretion by awarding
[Mother] primary physical custody of [C]hild when the custody
factors weighed heavily in favor of [Great-grandparents], who
have had primary physical custody of the [C]hild since 2013?
2. Did the trial court err and abuse its discretion by failing to
consider [Mother’s] numerous violations of the October 2, 2019
Order of Court-Parenting Plan including, but not limited to,
paragraphs 93 through 95, which specifically addresses
modifications to or disputes about the parenting plan?
3. Did the trial court err and abuse its discretion by excluding
certain testimony from the [C]hild’s counselor specifically his
observations during the [C]hild’s play therapy sessions?
Great-grandparents’ Brief at 3.
V. Standard of Review, Section 5328(a) & Statutory Presumption
Preliminarily, we note the relevant standard of review:
This Court reviews a custody determination for an abuse of
discretion. We will not find an abuse of discretion “merely because
a reviewing court would have reached a different conclusion.”
Rather, “[a]ppellate courts will find a trial court abuses its
discretion if, in reaching a conclusion, it overrides or misapplies
the law, or the record shows that the trial court’s judgment was
either manifestly unreasonable or the product of partiality,
prejudice, bias or ill will.”
Further, when this Court reviews a trial court’s “best
interests” analysis in custody matters, our scope of review is
broad, but we are “bound by findings supported in the record, and
may reject conclusions drawn by the trial court only if they involve
an error of law, or are unreasonable in light of the sustainable
findings of the trial court.” Importantly, “[o]n issues of credibility
and weight of the evidence, we defer to the findings of the trial
judge who has had the opportunity to observe the proceedings
and demeanor of the witnesses.” We can only interfere where the
“custody order is manifestly unreasonable as shown by the
evidence of record.”
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R.L. v. M.A., 209 A.3d 391, 395 (Pa. Super. 2019) (citations omitted). This
Court has stated:
It 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 due deference to the trial
court’s weight and credibility determinations,” the trial court erred
or abused its discretion in awarding custody to the prevailing
party.
King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citation omitted).
The Custody Act requires a trial court to consider all of the Section
5328(a) factors when reviewing a custody petition. See 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.” [See] 23 Pa.C.S. § 5323(a)[,] (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.”
“The paramount concern in child custody cases is the best
interests of the child.” “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.”
R.L., 209 A.3d at 395 (some citations omitted).
Section 5328(a) states:
(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
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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. § 5328(a)(1)-(16).
We further note the following authority governing a custody matter
between a parent and third party. Section 5327 provides: “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.” 23 Pa.C.S. § 5327(b).
This Court has 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.” . . . 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.”
Accordingly, “even before the proceedings start, the
evidentiary scale is tipped, and tipped hard, to the biological
parents’ side.” When making a decision to award primary physical
custody to a 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.”
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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. 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.” “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.”
R.L., 209 A.3d at 396 (emphasis & some citations omitted).
VI. Great-grandparents’ Arguments: Custody Factors
We address Great-grandparents’ first two issues together. First, they
aver they have shown by clear and convincing evidence that primary physical
custody with them is in Child’s best interest. Great-grandparents’ Brief at 28.
They argue the majority of the Section 5328 factors weigh in their favor, and
present the following discussion:11 first, Great-grandparents are more likely
to encourage continuing contact between Child and Mother, where: (1) they
“have always made the Child available to Mother and Father[;]” (2) Mother
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11 Great-grandparents state two statutory factors are neutral: (1) the eighth
factor, where neither party presented evidence that the other attempted to
turn Child against them; and (2) the eleventh factor, as the parties live
approximately three hours from each other. Great-grandparents’ Brief at 19,
21.
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withheld Child from them in 2019 due to Maternal Grandmother’s accusations
of sexual assault; and (3) and Mother and Father do not exercise the weekday
visits granted them in the October of 2019 custody order. Id. at 14. With
regard to the second factor, Great-grandparents have never abused Child or
anyone else; meanwhile, the reason why they “initially filed for custody in
2013 [was that] Mother and Father took sleeping pills all day and could not
care for the Child.” Id. at 15-16.
With respect to both the third and tenth factor, Great-grandparents
assert they: (1) have performed all parental duties for Child; and (2) are more
likely to attend to Child’s daily physical, emotional, developmental, and
educational needs. Great-grandparents’ Brief at 16, 20. In support, Great-
grandparents aver Mother has not attended Child’s medical appointments or
parent/teacher conferences, has not had much involvement with Child’s
school, or even knew the teacher’s name. See id. at 16, 20. They contest
the trial court’s reasoning that Mother’s failure to attend Child’s medical and
teacher appointments was excusable due to the long drive. Great-
grandparents insist it was Mother’s “choice” to move back to Altoona in May
of 2013 after residing in Elizabethtown for eight months, and “[a]t any time,
Mother could have moved closer to the Child.” Id. at 24. Great-grandparents
also reason Mother could have attended the appointments by phone or video.
Great-grandparents maintain this Court is not bound by the trial court’s
inferences or deductions. Id. at 23-24.
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Great-grandparents contend the fourth factor — Child’s need for stability
and continuity in her education, family life, and community life — weighs
heavily in their favor because: Child has lived with them since the age of
three months, has attended the same school since kindergarten, and received
tutoring at Great-grandparents’ expense; and Great-grandparents
communicate with her teacher and ensure homework is complete, but the
homework is not completed when Child is with Mother. Great-grandparents’
Brief at 17.
With regard to the fifth factor, the availability of extended family, Great-
grandparents maintain that their two children — Child’s great uncle and great
aunt — testified at the hearing that they regularly see and have a good
relationship with Child. Great-grandparents’ Brief at 18. Although Mother
testified about having extended family in Altoona, she did not “present any
testimony, other than from her stepfather . . . of any other family member’s
relationship with the Child.” Id. at 17. Meanwhile, Mother has acknowledged
Maternal Grandmother is “argumentative and a danger in the past[,]” and
furthermore, Maternal Grandmother “has a criminal history of DUI and trying
to fill someone else’s prescription.” Id. at 17-18. With respect to the sixth
factor — the Child’s sibling relationships, which the trial court found weighed
“heavily in favor of Mother”12 — Great-grandparents argue, in sum: “The Child
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12 Mem. Op. at 10.
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has a four . . . year old half-sister at Mother’s residence. There were concerns
raised in prior hearings concerning the Child being left alone to care for her
half-sister.” Id. at 18.
The seventh factor for a trial court to consider is the Child’s “well-
reasoned preference[,] based on [their] maturity and judgment.” 23 Pa.C.S.
§ 5328(a)(7). Here, Great-grandparents maintain Child told the court that
she enjoyed, inter alia, her school, playing with her dog, karate, and playing
cello. Great-grandparents’ Brief at 18. However, Great-grandparents concede
the trial court observed “Child was very shy and was not comfortable talking
to him.” Id. at 19.
Great-grandparents further contend the ninth factor — which party is
“more likely to maintain a loving, stable, consistent and nurturing relationship
with the child adequate for the child’s emotional needs” — weighs in their
favor. See Great-grandparents’ Brief at 19. In support, they cite the fact that
Child has lived with them since she was three months old, she has two
bedrooms at their home, “numerous pets, and . . . everything she could ever
want or need.” Id. Great-grandparents also rely on Child’s counselor Mr.
Johnson’s testimony that: (1) Great-grandparents participated in sessions
with Child, but Mother and Father have never contacted him; (2) he suspected
Child had “an avoidance attachment disorder, meaning that she had a hard
time trusting adults and trusting her own emotions and feelings[;]” and (3)
he “was told that [Father] would sometimes belittle the Child and any amount
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of berating paired with neglect from an adult would explain her symptoms.”
Id. at 19-20.
Next, Great-grandparents contend, pursuant to the twelfth factor, that
they are better suited to make child-care arrangements, “as they are retired
and available at all times[ ]” and have stable pension and Social Security
retirement income. Great-grandparents’ Brief at 21-22. Mother, however,
they point out, is unemployed and she did not present any testimony about
her ability to obtain childcare. Id. at 22. Great-grandparents’ also cite
Mother’s present unemployment under the sixteenth, “catchall” factor,” which
directs a court to consider “[a]ny other relevant factor.” See 23 Pa.C.S. §
5328(a)(16); Great-grandparents’ Brief at 22-23.
With regard to the thirteenth factor, Great-grandparents maintain
“[t]here is a high level of conflict between the parties[, and] Mother admitted
to disliking Great-grandparents.” Great-grandparents’ Brief at 22.
Relevant to the fourteenth factor, Great-grandparents reiterate they
have no history of drug or alcohol abuse, and to the fifteenth factor (the
parties’ mental and physical condition), that they are healthy and physically
capable of caring for Child. Great-grandparents’ Brief at 22. With respect to
the trial court’s discussion of their limited hearing, Great-grandparents explain
“they failed to turn their hearing aids up prior to the hearing and” the court
itself acknowledged the “terrible” acoustics in the courtroom. Id. at 27.
Meanwhile, Great-grandparents cite Mother’s use of “opiates, pills and
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heroin . . . prior to getting pregnant with Child,” and the fact “Child was born
addicted to drugs.” Id. at 22.
In sum, Great-grandparents conclude the trial court “failed to consider
the impact [of] moving the Child three . . . hours from the only home she has
known [and] ripping her from” her school and friends, and instead the court
allowed Mother’s right to custody trump” Child’s best interests. Great-
grandparents’ Brief at 25. Great-grandparents challenge the trial court’s
finding that the “innate connection between a mother and daughter” will
benefit Child, where “Mother has only played a minimal role in the Child’s life
. . . and chosen to be absent for all the important events in the Child’s
upbringing.” Id. at 25-26. Great-grandparents argue, “It is naïve of [the trial
court] to believe that Mother will suddenly step up and perform parental
duties[.]” Id. at 24.
In their second issue, Great-grandparents assert the trial court erred in
failing to consider that Mother committed numerous violations of the October,
2, 2019, custody order. They assert that Mother “admitted [she was] in
contempt of several provisions of the October 2, 2019 Order” — by not
providing “quarterly updates . . . concerning her rehabilitation, group and
individual, and periodical drug testing[,] enroll[ing] in a [12] week parenting
course, although she did allege that she completed a shorter course[,]” nor
having her counselor communicate with Child’s counselor about “issues
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related to the Child[.]” Great-grandparents’ Brief at 23. After careful review,
we conclude no relief is due.
VII. Analysis: Custody Factors
We observe that in arguing the Section 5328(a) statutory factors weigh
in their favor, Great-grandparents cite past circumstances — including
Mother’s drug use, Maternal Grandmother’s unfounded allegations of sexual
assault as well as her own conduct, and Mother’s failure to return Child to their
care in August of 2019. See Great-grandparents’ Brief at 14-16. Two years
and five months passed between the September of 2019 and March of 2022
custody hearings. Great-grandparents ignore the trial court’s discussion that
while past evidence informed prior custody orders, they were not as relevant
to the instant custody decision. See Mem. Op. at 5. Great-grandparents do
not refute the court’s specific point that “[t]here was no evidence that Mother
has abused any drugs or alcohol within the past several years.” See id. at
13. Great-grandparents likewise ignore the court’s discussion that the issues
surrounding Maternal Grandmother’s behavior were no longer significant, as
Mother has recognized those issues, has “very little contact with her,” “and
will not allow the Child to be around [her] unsupervised[.]” See id. at 8, 13.
Finally, although Dr. Schwartz-Bogrette testified at the September 2019
hearing that Child acted aggressively following visits with Mother and Father
and that “changes in the dynamics of Child’s visitations with Mother and Father
[were] necessary[,]” Mr. Johnson testified at the March 2022 hearing that
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after counselling, Child had less outbursts and was communicating in a better
way, and thus he would discharge Child from counseling. R. & L.E., 1693
MDA 2019 at 6-7; Mem. Op. at 5. We conclude the court properly focused its
review on what would be in Child’s best interests “at this moment in time[.]”
See Mem. Op. at 5.
We further note Great-grandparents cite the evidence favorable to
them, with an implicit request for this Court to reweigh the evidence in their
favor, and to supplant the trial court’s findings with our own. This we cannot
do, as we give due deference to the court’s weight and credibility
determinations. See King, 889 A.2d at 632. Furthermore, “we are ‘bound
by findings supported in the record, and may reject conclusions drawn by the
trial court only if they involve an error of law, or are unreasonable in light of
the sustainable findings of the trial court.’” R.L., 209 A.3d at 395.
Here, contrary to Great-grandparents’ position, the trial court found the
majority of the Section 5328(a) factors did not weigh in either party’s favor.
Pertinently, it found: (1) “there does not seem to be any indication that any
party is preventing contact with the Child,” see 23 Pa.C.S. § 5328(a)(1); (2)
there no risk of harm to the Child when in Mother’s care, see 23 Pa.C.S. §
5328(a)(2); (3) the court did not ask Child where she preferred to live due to
her young age, see 23 Pa.C.S. § 5328(a)(7); (4) “both parties credibly
testified that it was important for the Child to have a good relationship with”
the other, see 23 Pa.C.S. § 5328(a)(8); (5) although the parties were “equally
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able to maintain a loving, stable, consistent and nurturing relationship with
the Child,” the court could not “ignore the innate connection between a mother
and daughter that is more adequate for the Child’s emotional needs than her
relationship with her Great-Grandparents[,]” see 23 Pa.C.S. § 5328(a)(9);
(6) the parties were “equally able to attend to [Child’s] daily physical,
emotional, developmental, educational, and special needs[,]” although again,
“there is an innate connection between a mother and daughter that is more
likely to nurture the needs of the Child[,]” see 23 Pa.C.S. § 5328(a)(10); and
(7) any conflict inherent in “the adversarial nature of the custody proceeding”
did not appear to affect the parties’ ability to cooperate with one another, see
23 Pa.C.S. § 5328(a)(13). Mem. Op. at 7-8, 10-12.
We reiterate Great-grandparents’ challenge to the trial court’s finding,
under the third factor, that their performance of parental duties for Child was
a natural product of their being the primary caregivers, as well as the long
distance the parties lived from one another. See Mem. Op. at 8-9. Great-
grandparents focus on Mother’s decision, almost nine years earlier, to leave
Elizabethtown after living with them for nine months, to return to Altoona.
Great-grandparents’ Brief at 24. In advancing this argument, however, Great-
grandparents ignore the court’s findings that: both Mother and Father have
an extensive, supportive family network in Altoona; Child’s younger half-sister
lives with Mother; and Father lives in Altoona as well and his girlfriend and her
children are also a part of Child’s life. See Mem. Op. at 9-10.
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Furthermore, with regard to Great-grandparents’ contention that a
sudden and “extreme” change in custody would be disruptive to Child’s life,
the trial court acknowledged it was in “Child’s best interest to stay in her
current school district until the end of the school year[,]” and thus the new
custody schedule would not take effect for a few months, until June of 2022.
See Great-grandparents’ Brief at 25; Mem. Op. at 9. Great-grandparents also
overlook it was Mother’s desire that, if granted primary physical custody, Child
would maintain a relationship with Great-grandparents and Great-
grandparents should have custody every other weekend. See Mem. Op. at 4.
We conclude the trial court properly considered the effects of a custody
modification on Child.
Finally, as discussed above, the trial court specifically considered that
the Section 5327(b) statutory presumption “tipped hard” in favor of custody
with Mother. See Mem. Op. at 6-7. The court found Great-grandparents did
not present clear and convincing evidence to rebut that presumption. See
R.L., 209 A.3d at 396. We conclude the trial court’s findings are supported
by the record, and the court did not abuse its discretion in granting primary
physical custody to Mother, with shared legal custody to Mother and Great-
grandparents. We incorporate the above discussion to conclude no relief is
due on Great-grandparents’ arguments that Mother has violated portions of
the prior October 2, 2019, custody order by, inter alia, allegedly not providing
updates on her counseling or completing a full 12 week-parenting course.
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VIII. Preclusion of Counselor’s Testimony
Next, Great-grandparents challenge the trial court’s preclusion of
testimony, by Child’s counselor Mr. Johnson, as to his observations of Child’s
play therapy sessions.13 See Great-grandparents’ Brief at 27-28. Their sole
argument, after briefly setting forth the relevant context is, in sum: “It is
believed that Mr. Johnson’s testimony concerning his observations during the
Child’s play therapy sessions would have help[ed to] shed light on several of
the custody factors.” Id. at 28.
We conclude this issue is waived for failure to properly develop a
cohesive argument. See Pa.R.A.P. 2119(a) (argument shall include “the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent”). Great-grandparents’ one-sentence
statement offers no explanation what Mr. Johnson’s testimony would have
been, nor which custody factors they would have related to. Without any
discussion whatsoever, this Court cannot review their bald claim.
Furthermore, Great-grandparents ignore the trial court’s discussion
that: (1) they did not present Mr. Johnson as an expert witness; (2) they
____________________________________________
13 Great-grandparents called Mr. Johnson as a witness at the March 15, 2022,
hearing. See Pa.R.A.P. 1925(a) Op., 5/17/22, at 2-3 (unpaginated). Great-
grandparents’ attorney asked Mr. Johnson if he were “able to determine[,
through the counselling sessions,] who [Child] feels closest to[.]” N.T.,
3/15/22, at 119. Mother objected, and the trial court sustained the objection,
finding the question improperly “[got] into a custody opinion which [Great-
grandparents] said [they] weren’t going to do.” Id.
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specifically stated at the hearing that Mr. Johnson would not be giving an
opinion on custody; and (3) Mr. Johnson did not provide any type of custody
evaluation. Pa.R.A.P. 1925(a) Op. at 2-3 (unpaginated). On appeal, Great-
grandparents now assert Mr. Johnson should have been permitted to give
testimony that “would have help shed light on several of the custody factors.”
Great-grandparents’ Brief at 28. Even if the issue were not waived, we would
agree with the trial court that no relief is due.
IX. Conclusion
For the foregoing reasons, we conclude no relief is due on Great-
grandparents’ claims. We thus affirm the order granting Mother’s petition for
modification of custody, granting Mother primary physical custody, Great-
grandparents partial physical custody, and the parties shared legal custody.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2022
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