J-A06024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.C., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

A.C. & L.C.,

Appellees No. 2601 EDA 2016

Appeal from the Order Entered July 19, 2016

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2007-16468

BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.

MEMORANDUM BY SHOGAN, J.: FILED MAY 11, 2017

S.C. (“Mother”) appeals from the order entered July 19, 2016, 

awarding primary physical custody and sole legal custody of her daughter, 

S.C. (“Child”), born in June of 2006, to Child’s maternal grandparents, A.C. 

and L.C. (“Grandparents”), and awarding partial physical custody of Child to 

Mother.1 We affirm.

____________________________________________

1 We advise the trial court that Child’s father is a necessary party to this 

custody action, and that our Rules of Civil Procedure require the court to 

enter an order joining him. See Pa.R.C.P. 1915.6(a)(1) (“If the court learns 

from the pleadings or any other source that a parent whose parental rights 

have not been previously terminated . . . is not a party to the action, it shall 

order that the person be joined as a party.”). However, while Mother is 

aware of Child’s father’s identity, Mother has refused to identify him. 

Complaint, 7/12/07, at 4; N.T., 6/21/16, at 123-124. Thus, we proceed to 

review the custody order at issue. 
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The trial court summarized the factual and procedural history of this 

matter as follows.

Grandparents initially received custody of [Child] when she 

was an infant through the state of New York’s family court since 

both she and Mother tested positive for drugs at the time of 

[Child’s] birth. On July 17, 2007 Mother filed a custody petition 

seeking full custody of [Child] alleging that she was the primary 

financial support and caregiver for the child. However, it does 

not appear that any further action was taken on this petition. 

On March 18, 2015 Grandparents filed an Emergency 

Petition for Custody seeking temporary and sole physical custody 

of [Child]. This filing was precipitated after Grandparents were 

contacted by Puerto Rican police informing them that [Child] had 

been seen on the beach alone for a few days and that Child 

Protective Services was opening a case.[2] Mother had taken 

[Child] to Puerto Rico for what she told Grandparents was going 

to be a one week vacation but instead remained there for seven 

weeks. Grandparents immediately flew down to Puerto Rico 

where [Child] was released into their custody. On March 18, 

2015 the undersigned entered an order granting temporary sole 

legal and sole physical custody of [Child] to Grandparents. 

Pursuant to the March 18, 2015 order, Grandparents were given 

permission to return with the child from Puerto Rico to 

Pennsylvania. Additionally, the order prohibited Mother from 

having any kind of contact with the child unless agreed to by 

Grandparents and was further prohibited from removing her 

from school. 

____________________________________________

2 Grandparents presented a slightly different account of Mother’s trip to 

Puerto Rico in their emergency petition for custody as compared to their 

testimony at the June 21, 2016 hearing. In their petition, Grandparents 

averred that Mother was in Puerto Rico for seven weeks, rather than three 

months. Emergency Petition for Custody, 3/18/15, at ¶ 5; N.T., 6/21/16, at 

43. Grandparents further averred that they learned of Child’s whereabouts 

when they received a phone call from the Puerto Rican police, rather than a 

concerned bystander. Emergency Petition for Custody, 3/18/15, at ¶ 7; 

N.T., 6/21/16, at 42, 44. It appears that the trial court accepted the former 

version. Findings of Fact, 7/19/16, at 1. 
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On June 10, 2015 Mother filed an Emergency Petition to 

Modify Custody. In her petition, Mother denied all of 

Grandparents’ allegations and asserted that she was [a] fit and 

able parent. The Court deemed Mother’s petition to not be an 

emergency. On August 6, 2015 the parties entered into a 

Temporary/Interim Agreed Order Without Prejudice. 

Grandparents retained primary physical and legal custody of 

[Child] and Mother received supervised custodial visits with 

[Child] as follows: every Monday from 7:00 p.m. until 9:00 p.m., 

every Saturday from 4:00 p.m. to 8:00 p.m. and every Sunday 

from noon to 5:00 p.m. Custodial exchanges were to occur at a 

location mutually agreed upon between the parties. Additionally, 

the parties were required to notify the other party of a schedule 

change at least 48 hours in advance unless there was an 

emergency. [C]hild was also permitted to have daily reasonable 

phone contact with Mother.

In March of 2016, the Court entered an Order permitting 

Mother to have visitation with [Child] from 4:00 p.m. to 8:00 

p.m. on Saturdays and from noon to 5:00 p.m. on Sundays with 

all other aspects of interim order from August 6, 2015 

remaining. On May 27, 2016 Mother filed a Motion for Contempt 

alleging that Grandparents were preventing her from having 

visitation with [Child].

The parties appeared before the undersigned on June 21, 

2016 for a one day protracted hearing. 

Findings of Fact, 7/19/16, at unnumbered 1-2 (footnote omitted).

Following the hearing, on July 19, 2016, the trial court entered an 

order awarding primary physical custody and sole legal custody of Child to 

Grandparents, and awarding partial physical custody to Mother each 

Saturday from 4:00 p.m. to 8:00 p.m. and each Sunday from noon to 5:00 

p.m. In addition, the court awarded Mother an overnight visit on the third 
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weekend of each month, from Friday after school until 8:00 p.m. on 

Saturday.3 

Mother timely filed a pro se notice of appeal on August 4, 2016, along 

with a concise statement of errors complained of on appeal.4 Mother now 

raises the following issues for our review:

1. Did the Trial Court err as a matter of law in applying the 

incorrect legal standard in a child custody case where 

grandparents sought custody of a child from that child’s 

biological mother?

2. Did the Honorable Trial Court abuse its discretion in awarding 

custody of the child to the grandparents and not to her Mother in 

the absence of a specific finding of unfitness?

Mother’s Brief at 4.

We consider these issues mindful of our well-settled standard of 

review.

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 

____________________________________________

3 The trial court’s desired custody award is somewhat unclear, as the order 

on appeal contains a typographical error. The order states that when Mother 

exercises her overnight visit with Child, “the weekend visitation schedule in 

point (iii) will not apply on that weekend[.]” Order, 7/19/16, at 1. 

However, there is no “point (iii)” in the order. It appears that the court may 

have been referring to point (i), which sets forth the parties’ normal 

weekend custody schedule. Additionally, while the trial court did not 

specifically address Mother’s motion for contempt, we are satisfied that the 

trial court denied the motion in light of its conclusions. Order, 7/19/16, at 

9-10.

4 Mother was pro se during the custody hearing. However, she is 

represented by counsel on appeal. 
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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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

“When a trial court orders a form of custody, the best interest of the 

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) 

(citation omitted). The factors to be considered by a court when awarding 

custody are set forth at 23 Pa.C.S. § 5328(a):

(a) Factors.--In ordering any form of custody, the court shall 

determine the best interest of the child by considering all 

relevant factors, giving weighted consideration to those factors 

which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and 

permit frequent and continuing contact between the 

child and another party. 

(2) The present and past abuse committed by a 

party or member of the party’s household, whether 

there is a continued risk of harm to the child or an 

abused party and which party can better provide 

adequate physical safeguards and supervision of the 

child. 

(2.1) The information set forth in section 5329.1(a) 

(relating to consideration of child abuse and 

involvement with protective services).

(3) The parental duties performed by each party on 

behalf of the child. 
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(4) The need for stability and continuity in the child’s 

education, family life and community life. 

(5) The availability of extended family. 

(6) The child’s sibling relationships. 

(7) The well-reasoned preference of the child, based 

on the child’s maturity and judgment. 

(8) The attempts of a parent to turn the child against 

the other parent, except in cases of domestic 

violence where reasonable safety measures are 

necessary to protect the child from harm. 

(9) Which party is more likely to maintain a loving, 

stable, consistent and nurturing relationship with the 

child adequate for the child’s emotional needs. 

(10) Which party is more likely to attend to the daily 

physical, emotional, developmental, educational and 

special needs of the child. 

(11) The proximity of the residences of the parties. 

(12) Each party’s availability to care for the child or 

ability to make appropriate child-care arrangements. 

(13) The level of conflict between the parties and the 

willingness and ability of the parties to cooperate 

with one another. A party’s effort to protect a child 

from abuse by another party is not evidence of 

unwillingness or inability to cooperate with that 

party. 

(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.
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23 Pa.C.S. § 5328(a).

Instantly, the trial court addressed each of the Section 5328(a) factors 

in its findings of fact accompanying the order on appeal. The court 

summarized its decision to award primary physical and sole legal custody of 

Child to Grandparents as follows: 

It is obvious to the Court that despite the immense tension 

and resentment that characterizes the parties’ relationships with 

each other, they are united in their deep love and affection for 

[Child].

The Court understands Mother’s desire as [Child’s] 

biological parent to retain primary custody of her child. The 

Court appreciates Mother’s free spirit and her unique approach 

to life. However, at this time the Court finds that it is not in 

[Child’s] best interest to grant Mother primary and/or sole 

physical and legal custody. The Court has serious doubts about 

Mother’s ability to provide [Child] with a stable living 

environment and attend to her daily needs since she appears 

neither to have steady employment nor reliable and/or 

permanent housing. It is also evident to the Court that Mother 

has chosen to exercise her visitation with [Child] based on her 

own convenience. Furthermore, Mother presented little to no 

evidence that she undertakes any kind of parental obligation on 

[Child’s] behalf (i.e. assisting with homework or attending 

[Child’s] parent teacher conferences, extracurricular events or 

doctor’s appointments) or has ever made any effort to do so. 

Grandparents have provided [Child] with the solid family 

structure and stable home environment that a young, developing 

child needs. The Court commends Grandparents for their 

exemplary efforts in raising [Child] and their willingness to allow 

Mother to be a part of [Child’s] life despite the high level of 

conflict between them. The Court urges Grandparents to 

continue to accommodate Mother’s requests to visit with [Child] 

as much as they reasonably can and promote [Child’s] bond with 

her Mother.

The Court would like to emphasize that the significant 

efforts Grandparents have made to care for [Child] is borne not 

only out of a love for their granddaughter but for their daughter 
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as well. Regardless of Mother’s feelings towards Grandparents, 

she is incredibly fortunate to have parents who are so committed 

to ensuring that [Child] has the resources she needs to excel in 

school and her extracurricular activities. 

Findings of Fact, 7/19/2016, at 9-10 (footnote omitted). 

In her first issue on appeal, Mother argues that the trial court erred by 

failing to apply the presumption that custody should be awarded to her 

rather than Grandparents who are third parties. Mother’s Brief at 9-12. 

Mother waived this issue by failing to include it in her concise statement of 

errors complained of on appeal. Krebs v. United Refining Co. of Pa., 893 

A.2d 776, 797 (Pa. Super. 2006) (citations omitted) (“[A]ny issue not raised 

in a statement of matters complained of on appeal is deemed waived.”).5

In her second issue, Mother argues that the trial court abused its 

discretion by awarding custody of Child to Grandparents. Mother’s Brief at 

12-18. Mother challenges several of the court’s factual findings, including 

that Mother does not have an appropriate living arrangement and lacks 

stability. Id. at 12-14. Mother also claims that the court overlooked 

evidence showing that she did well raising Child for the first ten years of 

____________________________________________

5 Mother is correct 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.” Mother’s Brief at 9. However, 

the presumption in favor of the parent may be rebutted “by clear and 

convincing evidence.” 23 Pa.C.S. § 5327. Thus, even if Mother had not 

waived this issue, the record contains overwhelming evidence in support of 

the trial court’s decision to award primary physical and sole legal custody of 

Child to Grandparents rather than Mother. We detail this evidence infra. 
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Child’s life. Id. at 14-16. Mother contends that the court improperly based 

its decision on Grandparents’ superior financial resources. Id. at 16-17. 

Our review of the record belies Mother’s claim. During the custody 

hearing, Child’s grandfather, A.C. (“Grandfather”), testified at length 

concerning Mother’s history of instability and erratic behavior, which 

culminated in her trip to Puerto Rico in December of 2015. N.T., 6/21/16, at 

43. Mother initially informed Grandfather that she and Child would be 

travelling to Puerto Rico for one week, but they stayed for several weeks. 

Id. Grandfather explained that he began receiving phone calls from Child’s 

school due to her lengthy absence. Id. Grandfather attempted to call 

Mother on her cellphone, but she failed to return his calls. Id. When Mother 

did return Grandfather’s calls, she claimed that she and Child would be 

returning to Pennsylvania in two days. Id. However, they did not return. 

Id.

According to Grandfather, he remained unable to locate Mother and 

Child until he received a telephone call from a woman in Puerto Rico who 

informed him that she had seen Child alone on the beach “for a couple of 

days,” and that she reported it to the police. N.T., 6/21/2016, at 42, 44. 

Grandfather spoke with the police in Puerto Rico, and a police officer 

informed Grandfather that he had received a complaint concerning Child, but 

that “he didn’t have a chance to go pick her up because she was on the 

beach on an island and she couldn’t go anywhere except by ferry.” Id. at 
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42, 47. The officer informed Grandfather that Child would be sent to social 

services and probably placed in foster care. Id. at 44, 47. Grandfather 

obtained a custody order and flew immediately to Puerto Rico in order to 

retrieve Child. Id. at 42, 44, 47. Grandfather spoke to Child after this 

incident; Child informed Grandfather that she was not attending school while 

in Puerto Rico, and that “we were just staying on the beach all day. I sleep 

on the beach.” Id. at 45. Meanwhile, Mother remained in Puerto Rico for 

another month, until Grandfather paid for her return trip to Pennsylvania. 

Id. at 47. 

Grandfather further testified that Mother has failed to remedy her 

instability and erratic behavior since her return from Puerto Rico. 

Grandfather explained that Mother is no longer allowed to visit his home 

because she “always starts an argument, starts yelling and screaming[.]” 

N.T., 6/21/16, at 35. When Grandfather informed Mother that she could no 

longer visit, she became violent and attacked him. Id. Grandfather 

recalled, “[Mother] started pushing me and she says if you don’t let me in, 

I’m going to beat you up. She spit in my face and she says as a matter of 

fact, I’m going to have somebody beat you up.” Id. at 35-36. Because 

Mother is no longer allowed to visit his home, Grandfather insists that 

Mother obtain custody of Child in a public place, such as a park or shopping 

center. Id. at 10, 37. Nonetheless, Mother continues to arrive at 

Grandfather’s home seeking custody of Child. Id. at 12, 34-35. 
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Grandfather described an incident on June 18, 2016, after Mother informed 

him that she would pick up Child “at a specific place[.]” Id. at 82. Mother 

stated that she would call Grandfather when she arrived at the exchange 

location. Id. Instead, Mother went directly to Grandfather’s home, 

demanded to see Child, and even called the police. Id. at 35, 82. 

Grandfather reported that Mother does not appear to have a place to live, 

other than sleeping occasionally at the home of Grandfather’s sister. Id. at 

46.

Further, L.C. (“Grandmother”) testified that Mother has often been late 

to her visits with Child and failed to attend some visits entirely. For 

example, Grandmother testified that Mother missed visits on April 2, 2016, 

April 3, 2016, April 9, 2016, April 10, 2016, April 16, 2016, April 17, 2016, 

and April 23, 2016. N.T., 6/21/2016, at 92; Exhibit GP-2 (Calendar of 

Visits). On April 18, 2016, Mother arrived for a visit at 9:10 p.m., after Child 

was asleep. Id. at 92; Exhibit GP-2 (Calendar of Visits). 

The record supports the trial court’s decision to award primary physical 

and sole legal custody of Child to Grandparents. The testimony presented 

during the hearing establishes that Mother has a history of instability and 

erratic behavior. More concerning, Mother has a history of neglecting Child 

and placing her in danger, as demonstrated by the fact that Mother left Child 

alone to wander a beach in Puerto Rico. Mother appears to have made little 

progress in terms of remedying these issues. Mother is uncooperative and 
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hostile. Mother also fails to attend her visits with Child consistently, and she 

barely visited with Child at all during April of 2016. The court was well 

within its discretion when it concluded that Mother lacks the stability 

necessary to care for Child and to ensure her best interests. Accordingly, we 

affirm the trial court’s July 19, 2016 order awarding primary physical and 

sole legal custody of Child to Grandparents and awarding partial physical 

custody to Mother. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2017
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