C.P. and D.P. v. S.C. and C.P.

J-A02027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.P. AND D.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
S.C. AND C.P. :
:
: No. 1277 WDA 2019
APPEAL OF: S.C. :
Appeal from the Order Entered July 18, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): FD-17-4317-003
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 19, 2020
Appellant, S.C. (“Mother”), appeals pro se from the July 18, 2019 order
granting C.P. (“Paternal Grandfather”) and D.P. (“Paternal Grandmother”)
(collectively, “Paternal Grandparents”) sole physical and legal custody of C.C.
(“Child”).1 We affirm.
The trial court set forth the relevant factual and procedural background
of this matter as follows.
Th[is] case originally came to the attention of the [trial] court
when the Office of Children Youth and Families [(“OCYF”)] filed a
dependency petition in January [] 2018. The petition alleged that
[Child] was without proper parental care or control. It was alleged
that Mother brought [Child] to a court hearing on January 19[,]
2018 and was incarcerated that day. [Child] [was] placed in the
courthouse's daycare, and an appropriate family member could
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1 Child was born in November 2016.
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not be located to retrieve [her]. While the Dependency Petition
Hearing was pending, OCYF contacted [(“Father”)], and [Child]
was placed in his care.2 Ultimately, the dependency petition was
withdrawn, and Father was granted primary custody of [Child], as
he appeared to be a ready, willing, and able parent.
The court did not have contact with the family again until May []
2018, at which time Mother sought custody of [Child] after her
release from incarceration. [When Mother filed the custody
complaint,] [she] served Father only and did not include Paternal
Grandparents as [parties] to the custody action. Mother and
Father were ordered to participate in the Generations Program.
Father retained primary custody of [Child] until July 28, 2018, at
which time he was incarcerated. Prior to his incarceration, Father
made arrangements with Paternal Grandparents to care for
[Child]. However, it was apparent from the court's interactions
with the family that Paternal Grandparents provided daily care for
[Child] from the time she was placed in Father's care in January
[] 2018. Paternal Grandparents also reported that they cared for
[Child] for extended periods of time prior to Mother's incarceration
in January [] 2018.
Mother failed to appear for the Generations educational seminar
on July 14, 2018, and her petition for modification was dismissed
on July 16[,] 2018. Mother filed a petition for reinstatement of
her custody action and the court granted her request on
September 12[,] 2018. On September 13[,] 2018, Paternal
Grandparents filed a petition for special relief custody.3 Paternal
Grandparents were granted standing and permitted to proceed in
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2 Father lived in the house of Paternal Grandparents.
3 On January 29, 2020, Mother filed an Application for Relief with this Court in
which she asserts that she was never served with Paternal Grandparents’
petition for custody and she saw it for the first time on January 29, 2020 when
she found it on the court’s electronic docket. Appellant’s Application for Relief,
1/29/2020, at 2. A review of the record belies Mother’s assertions. Not only
has she been actively involved in these proceedings from the beginning —
including participating in the custody trial, filing a notice of appeal from the
trial court’s order granting sole legal and physical custody to Paternal
Grandparents, filing a brief and appearing for oral argument before this Court
— but Mother also signed an acknowledgment of service of the custody
pleading which was filed with the trial court on October 17, 2018. Accordingly,
Mother’s Application for Relief is denied.
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the custody action. In September [] 2018, the court ordered all
parties to proceed through the Generations Program. Pending the
Generations conciliation, the court entered an interim custody
order allowing Mother periods of partial visitation with [Child] on
the weekends. After this hearing, Mother began filing monthly
motions before [the trial] court seeking additional periods of
visitation. At each motion hearing, Paternal Grandparents
expressed frustration with Mother's punctuality while transporting
[Child] to and from visits. Th[e trial] court entered an order on
October 10[,] 2018 allowing Mother a fifteen-minute grace period
to pick-up or drop-off [Child]. The court granted Mother various
additional periods of visitation including [Child’s] birthday,
Thanksgiving, and Christmas.
On February 26[,] 2019, a custody conciliation was held to
address Mother's petitions for modification to primary custody and
civil contempt and Paternal Grandparents' petition for modification
for sole custody. Mother failed to appear, and her petitions were
dismissed. Paternal Grandparents' petition was scheduled for a
judicial conciliation on March 26[,] 2019. At the conciliation,
Paternal Grandparents expressed concern for Mother's care of
[Child] during her periods of visitation. Specifically, they alleged
that Mother had returned [Child] to them with bed bug bites and
other various illnesses on several occasions. Paternal
Grandparents also reported that Mother did not have adequate
supplies for [Child] during her periods of visitation and returned
[Child] to them wearing a maxi pad. Mother reported to Paternal
Grandparents that she did not have diapers. Mother's tardiness
at drop-off and pick-up times continued to be an issue as well.
The parties could not agree to any form of shared custody and as
such, a custody trial was scheduled for June 12[,] 2019. The
parties appeared on that date, and the court heard testimony and
accepted exhibits from the parties. Mother did not allege any
physical maltreatment of [Child] by Paternal Grandparents at this
hearing. Due to a scheduling conflict, the court was only able to
hear [90] minutes of testimony, and the hearing was continued to
July 2[,] 2019. Pending the second day of trial, the court ordered
Mother to return [Child] to Paternal Grandparents by 10[:00]
[a.m.] on Sunday, June 16[,] 2019 for Father's Day. In exchange
for shortening Mother's period of custody, the court granted her
an extended period of visitation from June 20[,] 2019 until June
25[,] 2019 so that she could take [Child] on vacation. On or about
June 15[,] 2019, Mother obtained a frivolous emergency
protection from abuse order on behalf of [Child] alleging physical
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maltreatment by Paternal Grandfather. Mother did not return
[Child] to Paternal Grandparents as outlined in the June 12[,]
2019 order. Paternal Grandmother appeared before the court on
Monday, June 17[,] 2019 to report that [Child] had not been
returned to their care. Mother failed to appear in court in a timely
fashion and the emergency protection from abuse order expired
on June 17[,] 2019. [The trial] court entered an order on June
17[,] 2019 ordering Mother to return [Child] to the care of
Paternal Grandparents immediately. The court also suspended
Mother's custodial periods as set forth in the October 10[,] 2018
and June 12[,] 2019 orders. Paternal Grandmother appeared the
following day on June 18[,] 2019 and sought assistance from the
court in obtaining [Child] from Mother's home. On June 18[,]
2019, [the trial] court gave the Allegheny County Sheriff's Office
permission to forcibly remove [Child] from Mother's care if she
was discovered at Mother's home. Members of the Allegheny
County Sheriff's Office arrived at Mother's home a short time after
the court order was signed and Mother refused to allow the
deputies into her home. The deputies had to forcefully enter
Mother's residence with their weapons drawn. Mother was
discovered to be hiding behind a couch with [Child]. [Child] was
returned to the care of Paternal Grandparents that day.
The parties next appeared on July 2[,] 2019 and were permitted
to give more testimony and provide evidence to the court.
Paternal Grandparents provided documentation to the court where
Mother made social media posts about smoking marijuana.
Mother denied drug use. The court ordered her to be drug
screened that day, and she tested positive for marijuana.
Trial Court Opinion, 10/22/19, at 2-5 (footnote in original) (superfluous
capitalization omitted).
On July 18, 2019, the trial court issued an order granting Paternal
Grandparents sole physical and legal custody of Child. Trial Court Order,
7/18/19, at 1. The trial court also granted Mother “partial periods of custody
on the first and third weekends of the month.” Id. Mother filed a notice of
appeal on August 16, 2019, without including a concise statement. See
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Pa.R.A.P. 1925(a)(2)(i). On August 19, 2019, the trial court issued an order
directing Mother to file a concise statement of matters complained of on
appeal pursuant to Pa.R.A.P 1925 within 21 days of its order. Trial Court
Order, 8/19/19, at 1. Mother filed her Rule 1925 statement on September
13, 2019, four days beyond the court-ordered 21-day period.
Preliminarily, we address Mother’s failure to comply with two provisions
of Pa.R.A.P. 1925. First, Mother failed to file a concise statement of matters
complained of on appeal contemporaneously with her notice of appeal as
required by Pa.R.A.P. 1925(a)(2)(i). This renders Mother’s notice of appeal
defective. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (holding
that an appellant’s failure to file a simultaneous concise statement and notice
of appeal violates Pa.R.A.P. 905(a)(2) and 1925(a)(2) and, as such, is
defective). K.T.E.L., however, declined to adopt a per se rule requiring
automatic quashal or dismissal of children fast track cases for such a failure.
Id. Instead, it held that the disposition must be “decided on a case-by-case
basis.” Id. Accordingly, because Rules 905(a)(2) and 1925(a)(2) are
“procedural, not jurisdictional,” we decline to dismiss Mother’s appeal on this
basis. Id.
Second, Mother failed to timely comply with the trial court’s August 19,
2019 order directing her to file a Rule 1925(b) statement within 21 days. This
failure may “constitute[] waiver of all objections to the order, ruling, or other
matter[s] complained of on appeal.” J.P. v. S.P., 991 A.2d 904, 908 (Pa.
Super. 2010) (distinguishing the effect of failing to file a contemporaneous
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notice of appeal and concise statement and the failure to timely comply with
the trial court’s order). “In a civil case,” however, “Rule 1925(b) implicates
the notice procedure set forth in Pa.R.C.P. 236.” J.P. v. S.P., 991 A.2d at
908. Thus, before we may conclude that Mother waived her claims, we must
determine whether the following procedural steps were adhered to:
(1) the court must order the Rule 1925(b) statement; (2) the
order must be filed with the prothonotary; (3) upon receipt of an
order from a judge, the prothonotary must immediately docket
the order and record in the docket the date it was made; and (4)
the prothonotary must furnish a copy of the order to each party
or attorney and must record in the docket the giving of the notice.
Id. (citation omitted). “If any one of these procedural steps is missing, the
appellant’s failure to comply with Rule 1925(b) will not result in waiver of the
issues raised.” Id.
Herein, the certified docket reveals that the trial court’s Rule 1925(b)
order was filed with the prothonotary on August 19, 2019. That same day,
the prothonotary entered the order on the docket and recorded the date it
was issued. The prothonotary, however, did not record the date that it served
the Rule 1925(b) order upon Mother. As such, we are disinclined to conclude
that Mother waived her claims for failure to comply with Rule 1925(b).
Accordingly, we will address the issues raised by Mother on appeal.
Mother raises the following issues on appeal:
I. [Whether the trial court erred by holding that Paternal
Grandparents had standing to pursue a custody action?]
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II. [Whether the trial court abused its discretion by granting
Paternal Grandparents sole physical and legal custody of
Child?]
See generally Mother’s Brief at *9-12 (Un-paginated).4
In custody cases, our standard of review 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 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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012).
In Mother’s first issue, she argues that Paternal Grandparents lacked
standing to sue for custody. The trial court held that Paternal Grandparents
____________________________________________
4 Currently, Mother raises 13 issues on appeal. See Mother’s Brief at *9-12
(Un-paginated). These claims, however, are different than those raised by
Mother in her 1925(b) statement. See Mother’s 1925(b) Statement of Matters
Complained of on Appeal, 9/13/19, at 1-2. Moreover, in Mother’s appellate
brief, she only develops one issue. See Mother’s Brief at *31 (Un-paginated).
Because of these errors, we could hold that Mother waived her claims on
appeal. See Pa.R.A.P. 1925(b)(4)(vii) (“[I]ssues not included in the [Rule
1925(b) s]tatement ... are waived.”); see also Commonwealth v. Roche,
153 A.3d 1063, 1072 (Pa. Super. 2017) (“The failure to properly develop a
claim renders an issue waived.”). This Court, however, is permitted to
“liberally construe materials filed by a pro se litigant.” Commonwealth v.
Williams, 896 A.2d 523, 534 (Pa. 2006). Accordingly, upon review of the
trial court’s opinion, we conclude that the trial court addressed the substance
of Mother’s claims and, as such, we will consider the issues we identified
above.
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had standing to pursue custody of Child under the doctrine of in loco parentis.
Upon review, we agree with the trial court’s conclusion.
Pursuant to 23 Pa.C.S.A. § 5324, if a person “stands in loco parentis to
the child,” he or she has standing to “file an action under this chapter for any
form of physical custody or legal custody. 23 Pa.C.S.A. § 5324. In Peters
v. Costello, 891 A.2d 705, 710 (Pa. 2005), our Supreme Court outlined the
relevant principles as follows:
The term in loco parentis literally means “in the place of a parent.”
The phrase “in loco parentis” refers to a person who puts
oneself [sic] in the situation of a lawful parent by assuming
the obligations incident to the parental relationship without
going through the formality of a legal adoption. The status
of in loco parentis embodies two ideas; first, the assumption
of a parental status, and, second, the discharge of parental
duties. … The rights and liabilities arising out of an in loco
parentis relationship are, as the words imply, exactly the
same as between parent and child.
Id. (internal citations omitted).
Herein, the custody trial began on June 12, 2019. Prior to its
commencement, the following exchange occurred.
[Trial court]: Grandfather, when [Child] was placed with your
son[,] who is [Father], he was residing in your home; correct?
[Paternal Grandfather]: Yes.
[Trial court]: When was that, approximately? What year and
date?
[Paternal Grandfather]: My son, he [has] been living with me
since [Child] was born. He [has] been here [from] 2015 until
[three weeks before the June 12, 2019 hearing].
***
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[Trial court]: [When Father was living with you] was he working
or contributing to the household bills or any expenses related to
the care of [Child]?
[Paternal Grandfather]: No.
[Trial court]: D[id] you have an agreement or an understanding
about who was going to be providing primary care for [Child]?
[Paternal Grandfather]: [Father] was supposed to, but it
always fell back on me and my wife.
[Trial court]: Even though you did [not] have an actual
agreement, you and your wife were pretty much the primary
caretakers?
[Paternal Grandfather]: Yes.
[Trial court]: What was [Father’s] involvement?
[Paternal Grandfather]: Little.
[Trial court]: Tell me what you and your wife were actually doing
for the care of [Child] versus what [Father] was doing.
[Paternal Grandfather]: Me and my wife, we pay for her day
care five days a week. [We] pitch in and get [Child’s] hair done
every two weeks.
[Paternal Grandmother]: Clothes.
[Paternal Grandfather]: Clothes. She [will] get clothes one
week or I [will] get clothes on my pay day week. We just make
sure she [is] kept nice.
[Trial court]: And you bought all the food?
[Paternal Grandfather]: We bought food. I took her back and
forth to get her shots, dental, anything that had to do with -- she
[has] been fighting bed bugs at [Mother’s] house. I got paperwork
showing that she had pink eye on several occasions from
[Mother’s] house and I took her -- me and my wife took her to the
doctors or the emergency room.
[Trial court]: So [Father] did [not] provide much care at all?
[Paternal Grandfather]: No.
[Trial court]: How about [Mother]?
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[Paternal Grandfather]: None. We have [not] gotten anything
from her. We never asked her for anything. Even if we were to
ask, we probably would [not] have got it, because she can[not]
even get [Child] home on the day she [is] supposed to bring her
back to us. So I [am] picking [Child] up because she could [not]
even drop [Child] off.
[Trial court]: So [Mother] was [not] involved in taking [Child]
for her medical appointments or getting her hair done or buying
her clothes or anything like that?
[Paternal Grandfather]: Nothing like that.
N.T. Custody Trial, 6/12/19, at 4-6. Based upon this exchange, the trial court
concluded that the Paternal Grandparents stood in loco parentis to Child. Id.
at 7. Upon review, we agree with the trial court’s determination. Paternal
Grandfather’s testimony established that they continuously cared for Child’s
needs and discharged all parental duties since Mother’s incarceration in
January 2018, and Father’s subsequent incarceration in July 2018.
Accordingly, Mother’s claim that Paternal Grandparents lack standing is
meritless.
Next, Mother claims that the trial court erred in granting Paternal
Grandparents sole physical and legal custody of Child. We disagree.
“The paramount concern in child custody cases is the best interests of
the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018). “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).
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“The specific factors that a court must consider are listed in 23 Pa.C.S.A.
§ 5328(a)(1)-(16).5 Id. at 112.
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5 The factors listed in 23 Pa. C.S. § 5328(a)(1)-(16) are as follows.
(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) (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.
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Further:
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. v.
B.B. v. B.B., 172 A.3d 651, 660 (Pa. Super. 2017) (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
nonparent, the trial court must “hear all evidence relevant to the
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(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.
Id.
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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 v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000).
R.L. v. M.A., 209 A.3d 391, 395-396 (Pa. Super. 2019).
In its July 18, 2019 order and opinion, the trial court discussed each of
the Section 5328(a) factors as follows.
I. Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party? The [Paternal Grandparents] have continued to
make concessions for [Child] to attend her custodial periods with
[Mother]. In addition, Father often stays in the home of [Paternal
Grandparents] and they do not restrict contact within their home.
Mother has exhibited an unwillingness to foster the relationship
between [Child] and [Paternal] Grandparents by filing false
protection orders against them alleging physical abuse.
II. Is there, or has there been in the past, abuse committed by
a party or a member of the party’s household? This is not a
factor as it relates to Mother or [Paternal Grandparents].
Although it should be noted that Mother was often exercising her
custodial periods at Maternal Grandfather’s home. Maternal
Grandfather had previously been investigated by OCYF for using
harsh physical discipline on [Child’s] siblings. During the
pendency of the custody trial, Maternal Grandfather [was]
arrested and charged criminally for using extreme physical
discipline on [Child’s] older brother.
III. What are the paternal duties performed by each party on
behalf of the child? [Paternal Grandparents] provide for all
[Child’s] daily needs. They have enrolled [Child] in daycare and
ensure that all of her medical needs are met. They provide
clothing, food[,] and shelter, and act in a paternal capacity on a
day[-]to[-]day basis. Neither Mother nor Father attend medical
appointments or provide daily care for [Child]. Mother does not
know the name of [Child’s] pediatrician. Mother does provide
shelter and food for the periods she exercises custody[,] but does
not transport [Child] to daycare or any medical appointments.
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IV. Which party can best provide for stability and continuity in
the child’s education, family life and community life?
[Paternal] Grandparents [act] as constant support for [Child].
Both are invested in [Child’s] life and have demonstrated an ability
to provide stability in all aspects of [Child’s] life. [Child] is only in
daycare[,] so education is not a factor. Mother’s prior
incarceration as well as her marijuana use brings into question her
stability to provide long term care for [Child].
V. The availability of the extended family. [Paternal
Grandparents] have allowed [Child] to [] contact [] extended
family[,] noting that she often plays with cousins and other young
relatives. Mother reports that [Child] is in contact with her siblings
and maternal relatives.
VI. The child’s sibling relationships. [Paternal Grandparents] do
not interfere[] with Mother’s custodial periods. Mother reports
that her two other children see [Child] during [Mother’s] custodial
periods.
VII. The well-reasoned preference of the child based on the
child’s maturity and judgment. The child is two and [one] half
years old. This is not a factor.
VIII. The attempts of a parent to turn the child against the other.
This is not a factor. Although it should be noted that Mother
falsely accused [Paternal] Grandfather of physical abuse. This
factor will be a future concern.
IX. Which party is more likely to maintain a loving, stable,
consistent, and nurturing relationship with the child
adequate for the child’s emotional needs? [Paternal
Grandparents].
X. Which party is more likely to attend to the daily physical,
emotional, and educational development, and special
needs of the child? [Paternal Grandparents].
XI. The proximity of the residences of the parties. The parties
[] live a significant distance from [each other]. Mother reports to
having to take multiple buses to transport [Child] to and from
[Paternal Grandparents’] home.
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XII. Each party’s availability to care for the child or ability of
the parties to cooperate with one another. [Paternal
Grandparents] have arranged their work schedules to ensure that
[Child] is in daycare a few days a week. [Paternal Grandparents]
are able to coordinate between themselves to ensure [Child] is on
a daily routine and all her needs are being met. Mother claims
that she is employed but that is relatively new for her. [Mother]
is available on a day[-]to[-]day basis to care for [Child].
Communication is difficult for both parties. [Paternal
Grandparents] tend to be slightly more cooperative than Mother
in this regard.
XIII. The level of conflict and the willingness and ability of the
parties to cooperate with one another. Mother can be
vindictive at times and has created unnecessary conflict with
[Paternal Grandparents]. Mother’s frustration with Father has
caused her to target [Paternal Grandparents] on many occasions.
[Paternal Grandparents] have grown increasingly frustrated with
Mother which has also caused friction in the relationship.
However, [the trial court] believes that with a little patience,
[Paternal Grandparents] can successfully communicate with
Mother.
XIV. The history of drug or alcohol abuse of a party or a member
of the party’s household. Mother has a history of [m]arijuana
use. Father has a history of drug-related arrests and also a history
of marijuana use.
XV. The mental and physical condition of a party or a member
of a party’s household. This is not a factor.
XVI. Any other relevant factors. None.
Trial Court Order and Opinion, 7/18/19, at *4-8 (Un-paginated). Based upon
its assessment of the aforementioned factors, the trial court determined that
Paternal Grandparents, by the presentation of clear and convincing evidence,
rebutted the presumption that Mother should be awarded custody. See 23
Pa.C.S.A. § 5327(b); see also Trial Court Opinion, 10/22/19, at 9. Herein,
we discern no abuse of discretion, as the evidence presented supports the trial
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court’s custody award to Paternal Grandparents. We therefore affirm the trial
court’s July 18, 2019 order granting Parental Grandparents sole legal and
physical custody.6
Order affirmed. Appellant’s application for relief is denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2020
____________________________________________
6In its July 18, 2019 order, the trial court also granted Mother “partial periods
of custody on the first and third weekends of the month.” Trial Court Order,
7/18/19, at 1. At oral argument, we inquired as to whether Mother was
exercising her custodial rights. Mother indicted that she was not. As stated
during oral argument, we encourage Mother to comply with the trial court’s
order.
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