J-A09031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

P.P.D., : IN THE SUPERIOR COURT OF

 : PENNSYLVANIA

Appellant :

:

v. :

:

M.T.G., :

:

Appellee : No. 1482 MDA 2015

 

Appeal from the Order Entered July 29, 2015, 

in the Court of Common Pleas of Dauphin County

Civil Division at No.: 2013-CV-05921-CU

BEFORE: FORD ELLIOTT, P.J.E., JENKINS, and PLATT, JJ. 

MEMORANDUM BY PLATT, J.: FILED JULY 11, 2016

P.P.D. (Grandmother) appeals from the custody order entered in the 

Court of Common Pleas of Dauphin County (trial court) on July 29, 2015,1

that grants primary physical and sole legal custody of O.G. (Child), born in 

August of 2011, to M.T.G. (Father), and grants Grandmother partial physical 

custody. We affirm.

Grandmother filed a complaint in custody against Father on July 8, 

2013. Father was the husband of Grandmother’s daughter, C.G. (Mother), 

who died after a long battle against brain cancer in June of 2013. 

 



 Retired Senior Judge assigned to Superior Court.

1 A review of the docket entries reveals that the trial court’s order and 

opinion were docketed on July 29, 2015. We have changed the caption 

accordingly. 
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Mother and Father married in May of 2004, and lived at or near Fort 

Bragg in North Carolina for about four years before relocating to Hershey, 

Pennsylvania, in June 2008. They stayed in Hershey for about one year until 

Father accepted a position with the Federal Bureau of Investigation and he 

and Mother moved to Bloomsbury, New Jersey. They resided there until 

January of 2012, when Mother’s brain tumor was diagnosed.

Mother underwent treatment for her cancer in North Carolina. During 

that time, she stayed at the home of Child’s maternal aunt and uncle. 

Grandmother and other members of Grandmother’s family also stayed in the 

residence, as did Father and members of his family.2

In preparation for the hearings in this matter, Grandmother arranged 

for a computer expert to examine several computers in the residence in 

North Carolina that were alleged to have been used by Father. According to 

the expert’s report, some of the websites visited by users of those 

computers were pornographic. Messages recovered by the expert, 

particularly those to and from Father and his brother, contained references 

to Hitler, and to racially inflammatory words and topics, but were largely 

conversations between Father and his brother or others. According to the 

trial court, “The only other notable characteristic of those text messages or 

conversations was that they seemed to evidence a degree of immaturity and 

 

2

 The trial court states that Mother stayed in the home of friends in North 

Carolina. Grandmother states that they stayed with Child’s maternal aunt 

and uncle. (See Grandmother’s Brief, at 11, 22 n.4).
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lack of respect for others far greater than one would have hoped an FBI 

agent would have used in any conversation.” (See Trial Court Amended 

Memorandum Opinion, 9/22/15, at 3).3

When Father was questioned about the conversations between himself 

and his brother, he claimed that he had no recollection of any of the 

conversations whatsoever, even those in which his phone number or other 

identifying information was included in the materials the expert had 

recovered. Father refused to admit or deny that any of the conversations or 

parts of those conversations had ever taken place; he simply stated that he 

had no recollection of those conversations. According to the trial court: 

If the purpose of Grandmother was to prove that Father 

was a pornographer or of low character, there was simply too 

little direct evidence of Father’s having been the sole user of any 

such device for us to accept the evidence as proof of Father’s 

having accessed the various pornographic websites listed in the 

computer forensic expert’s report. Instead, however, we were 

so unimpressed by Father’s lack of candor under questioning 

that his credibility on all topics was severely damaged almost to 

the point of total destruction. He refused to state where his 

office was located, claiming that information (and all other 

information about his job title and employment) to be 

‘proprietary’ to his employer and that he could not answer such 

questions, no matter how seemingly insignificant. Later in the 

hearings, other FBI employees testified of their employment 

without raising any objections such as those claimed by Father.

(Id. at 3-4).

 

3

 The trial court mistakenly filed an unedited draft of its memorandum on 

July 29, 2015, and corrected that filing by entering the corrected, final draft 

on September 22, 2015. There are no substantive differences between the 

two filings. 
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The trial court held hearings on Grandmother’s complaint on December 

16 and 17, 2014, February 12 and 26, 2015, March 18, 2015, and April 17, 

2015. During those hearings, the trial court heard the testimony of 

Grandmother, Father, other family members, friends of the parties, coworkers and the computer expert hired by Grandmother. 

The trial court summarized the testimony at those hearings:

Both Father and Grandmother were present in the 

residence made available for Mother’s use in North Carolina over 

a period of months. Given the nature of Mother’s illness, one 

can only imagine how trying those months were for 

Grandmother and her family who must have felt enormous 

frustration at watching Mother’s condition deteriorating despite 

all efforts of the health care system and despite all the prayers 

of those who knew and loved Mother and her family. We also 

cannot imagine the stress on Father who was simultaneously 

watching his wife’s condition worsen while he was helpless to do 

anything to stop the disease’s progression and his wife’s death.

Under such circumstances, it would be understandable that 

tempers would become short, emotions would run high and 

persons could be excused for feelings of guilt or of anger for the 

situation. The feeling of frustration would understandably run 

high. The waiting must have caused heightened tension and 

stress for all who were present. It would not surprise anyone if 

those who all loved Mother could lash out at each other under 

these conditions, even if they were to have blamed one another 

for what appears to have been an unavoidable end of Mother’s 

life. We would wager that neither Father nor Grandmother were 

immune from such tension, nor failed to feel and to express 

anger seemingly aimed at each other during Mother’s last 

months.

To the extent that each expressed that anger in difficult 

times, it is likely that each caused ill feelings and each said 

things he or she would, in candor, wish he or she had not said. 

Whatever the cause, it was patently obvious to the [c]ourt that 

Father and Grandmother hold each other in some degree of 

contempt. Grandmother criticized Father’s behavior during the 
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vigil in North Carolina. Father appeared to show little 

appreciation for Grandmother’s care for Mother in Grandmother’s 

home during the last year of Mother’s illness.

All that having been noted during the evidentiary portion 

of the hearings, the question being presented to the [c]ourt, 

however, is simply this: What is in the best interest of the Child?

(Id. at 4-5).

The trial court entered its order granting Father primary physical and 

sole legal custody of Child on July 29, 2015. Grandmother filed her notice of 

appeal and concise statement of errors complained of on appeal on August 

28, 2015. See Pa.R.A.P. 1925(a)(2)(i). The trial court entered its opinion 

on September 28, 2015. See Pa.R.A.P. 1925(a)(2)(ii).

Grandmother presents the following questions for our consideration:

1. Whether the trial court erred by failing to address whether 

[Grandmother] has standing to seek shared legal and primary 

physical custody of the minor child pursuant to 23 Pa.C.S.[A.] § 

5324(2) (in loco parentis) and/or § 5324(3), and as such, 

abused its discretion by entering a custody order that is not in 

the best interest of [Child?]

2. Whether the trial court’s determination granting [Father] sole 

legal and primary physical custody of the minor child, especially 

given the trial court’s finding that his “credibility on all topics 

was severely damaged almost to the point of total destruction,” 

is against the weight of the evidence of record, contrary to the 

trial court’s factual findings during its analysis of the best 

interest factors, and is not in the best interest of [Child?]

3. Whether the trial court erred by failing to rule on the finality 

of [Father’s] Petition for the Immediate Entry of an Order 

Sealing the Record and Gagging the Participants filed on April 

18, 2014, and as result, by failing to lift the [o]rder of April 24, 

2014, which temporarily sealed the record pending further 

hearing on the matter, as [Father] did not meet his burden of 

proof pursuant to Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 
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1374 (1986) and Zdrok v. Zdrok, 2003 Pa. Super. 265, 829 

A.2d 697 (2003)[?]

4. Whether the trial court erred by appointing Kasey Shienvold, 

Psy.D., to assist the parties in resolving any disputes or 

disagreements regarding the custodial arrangement, as the 

appointment is inconsistent with Pa.R.C.P. 1915.11-1[?]

(Grandmother’s Brief, at 5-7).

Preliminarily, we note we did not address Grandmother’s third issue 

because it is not germane to disposing of the custody issues in this children’s 

fast track appeal. See Pa.R.A.P. 102 (defining a children’s fast track appeal 

as “[a]ny appeal from an order involving dependency, termination of 

parental rights, adoptions, custody or paternity.”).

Our scope and 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., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted). 

We have stated, 

[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 
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the lives of the parties concerned. Indeed, the knowledge 

gained by a trial court in observing witnesses in a custody 

proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation 

omitted). 

The primary concern in any custody case 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.” Saintz v. Rinker, 

902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). 

We must accept the trial court’s findings that are supported by 

competent evidence of record, and we defer to the trial court on issues of 

credibility and weight of the evidence. See id.

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)). 

Our Supreme Court has stated: 

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 
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and liabilities arising out of an in loco parentis relationship are, 

as the words imply, exactly the same as between parent and 

child.

Peters v. Costello, 891 A.2d 705, 710 (Pa. 2005) (citation omitted). 

The in loco parentis basis for standing recognizes that the need 

to guard the family from intrusions by third parties and to 

protect the rights of the natural parent must be tempered by the 

paramount need to protect the child’s best interest. Thus, while 

it is presumed that a child’s best interest is served by 

maintaining the family’s privacy and autonomy, that 

presumption must give way where the child has established 

strong psychological bonds with a person who, although not a 

biological parent, has lived with the child and provided care, 

nurture, and affection, assuming in the child’s eye a stature like 

that of a parent. Where such a relationship is shown, our courts 

recognize that the child’s best interest requires that the third 

party be granted standing so as to have the opportunity to 

litigate fully the issue of whether that relationship should be 

maintained even over a natural parent’s objections.

Id. at 711 (citation omitted). 

In her first issue, Grandmother claims that the trial court erred in 

failing to find that she was entitled to seek primary physical custody of Child 

by dint of the fact that she had achieved the status of in loco parentis to 

Child. (See Grandmother’s Brief, at 17-27).

We begin by noting that, in its amended memorandum, filed 

September 22, 2015, the trial court discussed each of the sixteen statutory 

custody factors in 23 Pa.C.S.A. § 5328 and concluded that it was in the best 

interest of Child for Father to retain primary custody. (See Trial Ct. Op., 

9/22/15, at 7-16). After examining our law regarding in loco parentis, the 

trial court, in its Rule 1925(a) opinion, explained:
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In the instant matter, we similarly found that the evidence 

demonstrates that [Grandmother] acted as no more than a 

caretaker, and the care that she provided is consistent with what 

would be expected to be used by a parent whose health is 

declining due to a fatal disease. Additionally, the evidence 

presented at the [h]earing supported a finding that 

[Grandmother] was not the only caretaker during the time 

period that Mother and the Child were living with 

[Grandmother]. There was testimony that numerous other 

relatives, as well as hired caregivers, provided care to the Child 

during the time period that [Grandmother] alleges she achieved 

in loco parentis status. Thus, this situation appeared to be one 

where an entire family worked together to care for a child while 

her mother’s health declined, rather than one where 

[Grandmother] assumed parental status and discharged parental 

duties. As such, we did not find that [Grandmother] had 

provided sufficient evidence to show that she obtained in loco 

parentis status.

We made this finding prior to the issuance of the July 29, 

2015 [o]rder. However, we did not include this explicit analysis 

in the [a]mended [m]emorandum [o]pinion, as it was clear that 

[Grandmother] had standing to seek some form of visitation 

and/or physical custody pursuant to 23 Pa.C.S.[A.] §[ ]5325(1), 

and it was superfluous in this instance to state that 

[Grandmother] had standing under one statute, but not under a 

different statute.

Additionally, case law is clear that, even in cases where a 

party has achieved in loco parentis status, there is still a 

presumption that the biological parent should be awarded 

primary custody, and that presumption can only be rebutted by 

clear and convincing evidence. Jones v. Jones, 884 A.2d 915, 

917 (Pa. Super. 2005); see also Kellogg v. Kellogg, [] 646 

A.2d 1246, 1249 ([Pa. Super. ]1994) (a third party who has 

established standing via in loco parentis status is not elevated to 

natural parent status in determining a custody dispute). We 

cited to this proposition in our [a]mended [m]emorandum 

[o]pinion, and analyzed the factors in accordance with same. 

We ultimately found that [Grandmother] did not provide clear 

and convincing evidence to rebut the presumption that [Father], 

as the Child’s sole biological parent, should be the primary 

custodian, and entered an [o]rder in accordance with that 

finding. We respectfully request that our [o]rder be affirmed.
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(Trial Court Opinion, 9/28/15, at 3-4).

We quote the trial court with approval. Our examination of the record 

reveals that Grandmother was only one of many people, including Father, 

who cared for Child during Mother’s fatal illness. We emphasize that, even if 

the trial court had found that Grandmother stood in loco parentis to Child, 

Grandmother would still have to overcome the presumption that Father, 

Child’s biological parent, was entitled to primary physical custody. See 

Jones, supra at 917. Grandmother’s argument does not address, no less 

attempt to rebut, this presumption. Grandmother’s first issue is without 

merit. 

In her second issue, Grandmother claims that the trial court abused its 

discretion in finding that any of the sixteen custody factors weigh in Father’s 

favor because it found that Father was not a credible witness. (See

Grandmother’s Brief, at 30). Our examination of the record reveals that 

Grandmother has waived this issue for her failure to develop a coherent 

argument. See Pa.R.A.P. 2101 (providing for waiver or dismissal where 

briefs do not comply with rules); Pa.R.A.P 2119(a)-(c).

In arguing her claim that the trial court abused its discretion, 

Grandmother examines the testimony of the various witnesses and asks us 

to reach a different conclusion than that reached by the trial court. Her 

argument, however, aside from a few citations to general principles of our 

custody law, contains no citation to any legal authority. (See 
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Grandmother’s Brief, at 27-48). Grandmother makes no effort whatsoever 

to link the facts of her case to the law; she simply claims that the evidence 

does not support the trial court’s determinations. In sum, Grandmother 

does not attempt to develop a coherent legal argument to support her 

conclusion that the trial court erred in awarding primary physical custody to 

Father, and, therefore, she has waived that argument. 

“The failure to develop an adequate argument in an appellate brief 

may result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v. 

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007), appeal denied, 982 A.2d 

509 (Pa. 2007) (case citation omitted). “[A]rguments which are not 

appropriately developed are waived. Arguments not appropriately 

developed include those where the party has failed to cite any authority in 

support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. 

Super. 2006) (citations omitted); see Chapman-Rolle v. Rolle, 893 A.2d 

770, 774 (Pa. Super. 2006) (“It is well settled that a failure to argue and to 

cite any authority supporting any argument constitutes a waiver of issues on 

appeal.”) (citation omitted). 

In addition, we may not, as Grandmother asks, examine the evidence 

and reach a conclusion different from that reached by the trial court. See

S.M., supra at 623. Absent an abuse of discretion or an error of law on the 

part of trial court, it is the sole judge of the credibility of witnesses. See id.
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Here, the trial court has expressed concern about Father’s credibility, 

but after hearing all the testimony and observing all the witnesses, has 

rendered a decision based on the totality of the evidence as it observed that 

evidence. Even if the evidence could possibly lead us to reach a different 

conclusion, we would not disturb the decision of the trial court. See id. 

Grandmother has failed to demonstrate that the trial court has abused its 

discretion or committed an error of law and our examination of the record 

reveals that it supports the trial court’s determination to grant Father 

primary physical and sole legal custody of Child. See C.R.F., III, supra at 

443. Grandmother’s second issue is waived and would not merit relief. 

In her final issue, Grandmother complains, “The trial court abused its 

discretion by appointing Kasey Shienvold, Psy.D., to resolve disputes or 

disagreements between the parties, as the appointment is inconsistent with 

Pa.[]R.C.P. 1915.11-1.” (Grandmother’s Brief, at 52; see id. at 52-53). We 

disagree.

Preliminarily, we note that Grandmother has not cited any legal 

authority, aside from the rule, and has failed to develop an argument in 

support of her contention that Dr. Shienvold’s appointment was an abuse of 

discretion. (See id.). Accordingly, she has waived this issue. See

Pa.R.A.P. 2101, 2119(a)-(c); Beshore, supra at 1140.

Moreover, it would not merit relief. Pennsylvania Rule of Civil 

Procedure 1915.11-1 provides, in pertinent part, “Courts shall not appoint 
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any other individual [beyond masters and hearing officers] to make 

decisions or recommendations or alter a custody order in child custody 

cases.” Pa.R.C.P. 1915.11-1. The custody order at issue here provides: 

“Disputes or disagreements regarding the times, dates and places of 

custodial exchanges and any matters related to transportation of the Child 

shall be submitted to Kasey Shienvold, Psy.D., for his assistance in helping 

the parties to resolve any such differences and disputes.” (Order of 

Custody, 7/29/15, at 2).

Rule 1915.11-1 bars anyone but a master or a hearing officer from 

making any decision or recommendation that affects a custody order. See

Pa.R.C.P. 1915.11-1. The provision in the July 29, 2015 custody order 

requiring the parties to consult Dr. Sheinvold does not empower him to 

make “decisions or recommendations or alter [the] custody order.” Id. Dr. 

Shienvold is charged simply with helping the parties to resolve disputes that 

might arise within the existing structure of the custody order; he has no 

power to make a decision or recommendation that affects the order itself. 

The trial court order’s reference to Dr. Scheinvold does not violate the 

prohibition expressed in Rule 1915.11-1. Grandmother’s final issue is 

without merit. 

 Accordingly, we affirm the order of the Court of Common Pleas of 

Dauphin County in this matter entered July 29, 2015, that grants Father 
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primary physical and sole legal custody of Child and grants Grandmother 

periods of partial physical custody. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2016