J-A23017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.G., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

A.L.

v.

O.W. No. 647 WDA 2019

Appeal from the Order Entered March 29, 2019

In the Court of Common Pleas of Allegheny County

Family Court at No(s): FD 17-009449-010

BEFORE: BENDER, P.J.E., KUNSELMAN, J. and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 8, 2019

J.G. (Paternal “Grandmother”) appeals from the March 29, 2019 order

awarding A.L. (“Mother”) sole legal custody and primary physical custody of

Z.P., born in March of 2012, and Q.P., born in January of 2017 (collectively

“Children”). Grandmother was awarded partial physical custody of Children

and O.W. (“Father”), who was named as a defendant in this matter along with

Mother, was ordered to have no contact with Children at the time the order

was issued.1 After review, we affirm.

____________________________________________

1 Father declined to participate in the proceedings below and has not taken

any action with regard to the appeal before the Court.
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On December 5, 2017, Grandmother filed the complaint for custody that

began this litigation that eventually resulted in two days of trial, held on

January 17, 2019, and on March 15, 2019. On March 29, 2019, the court

issued its ruling, giving Mother sole legal and primary physical custody of the

two Children. The order also provided for Grandmother to have partial

physical custody of Children every other Saturday from noon to 4:00 p.m.

Although Grandmother could attend school and athletic events and, during her

custody time, she could take them to activities in the community, she was

prohibited from taking Children to her residence. Additionally, Grandmother

was afforded telephone contact with Children. The court also ordered that

Father and A.G. (“Paternal Aunt”) were to have no contact with Children.

In its opinion, the trial court listed the eight witnesses from whom it

heard testimony at trial. The witnesses were:

[S.P.], half-sibling to Z.P. and Q.P. and granddaughter of

[Grandmother]; Roxie Robinson, family friend of Grandmother;

Joyce Stoudemire, friend of Grandmother and former minister at

Holliday Memorial AME Zion, Braddock PA; Grandmother; Lily

VanDyk, LSW and therapist for Three Rivers Adoption Council; []

Child Z.P.; Keri Vanderpool, Casework Supervisor Allegheny

County Office of Children Youth and Families (OCYF); and Mother.

Trial Court Opinion (TCO), 5/2/19, at 1. Notably, the trial court’s opinion is

concise and essentially only provides an overview of its final order and

Grandmother’s issues raised in this appeal. The court relies on its recitation

of the facts in relation to the factors to be considered in awarding custody
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pursuant to 23 Pa.C.S. § 5328. The court also relies on its extensive findings

of fact that support its decision, which we reproduce here in pertinent part:

6. In addition to [Z.P.] and [Q.P.], Mother has another child,

[S.S.], who was born [i]n March [of] 2003. He is 16 years old.

7. In addition to [Z.P.] and [Q.P.], Father has another Child,

[S.P.], who is a college student and is approximately twenty-one

years old.

8. [Z.P.] and [Q.P.] reside with ... Mother, ... and their half- brother[,] [S.S.]. 9. This case began when eight-year-old [J.S.] was murdered by

[Father] on June 20, 2016. [J.S.] died of head injuries caused by

inflicted trauma. [J.S.] [was] the son of ... [Mother] and the half- sibling of [Z.P.] and [Q.P.]. 10. [Father], the father of [Z.P.] and [Q.P.], was convicted of first

degree murder in the death of [J.S.]. He was sentenced to life

without parole. His conviction is being appealed.

11. Mother was also charged with Endangering the Welfare of

Children for failure to seek prompt medical attention for [J.S.].

12. OCYF filed petitions for dependency as to [Z.P.] and his half- sibling [S.S.]. [Both] were adjudicated dependent on August 24,

2016. [Z.P.] was placed in kinship foster care with ...

[Grandmother]. [Grandmother] cared for [Z.P.] until he was

returned to the care of ... Mother on August 15, 2017.

13. On February 8, 2017, OCYF filed a petition for dependency as

to [Q.P.]. The adjudicatory hearing was held on August 4, 2017.

The court found that [Q.P.] was not dependent and dismissed the

petition. [Q.P.] has resided with ... Mother for his entire life.

14. On December 5, 2017, after [Z.P.] was returned to Mother’s

care and before the closure of the dependency case,

Grandmother[] filed a complaint for primary physical custody of

[] [C]hildren, and alleged that Mother was not providing proper

care for her Children.

15. [The court] find[s] that Grandmother has standing as a party

in the custody action, as her relationship with [] Children began

with the consent of Mother and Father; she was willing and able

to assume responsibility for [] [C]hildren[;] [] Children had been

adjudicated dependent by the [c]ourt and that [] Children were at

risk due to parental neglect.

16. The [O]CYF case was closed on February 13, 2018. At that

hearing[,] the court made the following findings of fact.
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a. [Z.P.] was returned to the care of ... [M]other on

August 15, 2017.

b. Mother is meeting all of his needs.

c. [Z.P.] wishes to remain with ... Mother. He does not

want to have visitation with ... paternal [G]randmother

or ... [P]aternal [A]unt because they are mean to his

Mother.

d. [Z.P.] says that “he can visit ... [G]randmother (if

ordered) but not in her home”. e. Father was convicted of 1st degree murder for the

death of [Z.P.’s] half-sibling. Prior to the trial,

paternal [G]randmother was pressuring [Z.P.] about

the case.

f. Mother states (and others have confirmed) that

paternal aunt is “stalking her[.”]

g. Mother attempted to get a PFA against the aunt,

but the aunt is not a family or intimate party who can

be a defendant in a PFA proceeding.

h. Mother did obtain a PFA on behalf of the children

against Father.

i. Paternal [G]randmother has filed a complaint for

custody. She is alleging [] Mother is not meeting the

needs of the Children. OCYF has investigated and

KidsVoice has been in the home. Neither has concerns

for [] Child’s safety in Mother’s care[;] both are

recommending case closure.

j. Mother has a confidential address and is asking to

move to another county. The custody trial is

scheduled for April 19, 2018.

17. Since case closure, both Children have remained in the care

of Mother.

18. On April 20, 2018, the court entered an interim custody order,

which specified that Mother should maintain primary physical

custody and legal custody of the children. The court awarded

partial physical custody of [Q.P.] every other Saturday from 10:00

A.M. until 11:30 A.M. at the Wilkinsburg Library [to

Grandmother]. 19. The court also ordered for Grandmother to begin supervised

partial custody with [Z.P.] through the Family Reconnections

program at Three Rivers Adoption Council (TRAC). TRAC was to

recommend a duration and frequency for Grandmother’s partial

custody.
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20. Grandmother was also ordered to schedule a meeting with

George White, [Z.P.’s] therapist from Wesley Spectrum, and to

engage in therapeutic sessions with [Z.P.] and Mr. White until the

supervised visitation with TRAC was in place.

21. The custody [trial] was continued until June 21, 2018.

22. Mother was less than cooperative with the sessions with

George White. On June 21, 2018, [the court] ordered the

following:

a. Mother shall attend her intake appointment at

Three Rivers Adoption Council (TRAC).

b. Mother shall ensure that the child, [Z.P.], attends

all scheduled therapeutic visitations at TRAC with

Paternal Grandmother.

c. Mother shall encourage [Z.P.] to attend all

visitations with Paternal Grandmother.

d. Mother shall refrain from making inappropriate

statements to [Z.P.] about [] [C]hild’s father (i.e.[,]

paternity).

e. Paternal Grandmother and Mother shall

communicate in a respectful manner using email. The

parties shall exchange email addresses.

f. The parties shall consult the therapist at TRAC as to

whether it is appropriate for Paternal Grandmother to

bring gifts for [Z.P.] to the visitation and if

appropriate, what types of gifts are appropriate. A

judicial conciliation was scheduled for August 30,

2018. See Order of Court filed and of record.

23. Mother’s non-compliance with [the court’s] order continued.

Per letter of George White on August 29, 2018, no reunification

sessions with Grandmother and [Z.P.] occurred due to Mother[’s]

cancelling the sessions.

24. On August 30, 2018, after conciliation[,] no agreement was

reached. A one-day custody trial was scheduled for January 17,

2019. [The court] also ordered for Grandmother to have partial

custody of [] Children every other Saturday from noon until 1:30

P.M. at a location as agreed upon by the parties. If the parties

cannot agree upon a location, then Grandmother’s partial custody

time shall occur at the Wilkinsburg Library. Paternal Grandmother

shall not bring other persons to her partial custody time with []

Children. See Order of Court dated August 30, 2018, filed and of

record.
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25. The custody trial began on January 17, 2019 as scheduled.

The trial could not be completed in one day and a second day was

held on March 15, 2019. ...

26. Father was present by telephone for the first day of the trial,

but declined to attend the second day of the trial. He stated that

he would like [] Children to be placed with [Grandmother]. 27. [S.P.] is the 18-year old half-sister of [Z.P.] and [Q.P.]. She

is a freshman at California University of Pennsylvania. She

testified that when [Z.P.] lived with ... Father ... and [Mother], she

visited the[m] every weekend and in the summer. She testified

that [Mother] was more of a “friend to her and to [S.S.,”]

[Mother’s] now 16-year old son.

28. [S.P.] testified that [S.S.] smokes marijuana and that she saw

gang[-]related photos on his phone (drugs and guns). She

testified that [S.S.] was rough with the other [C]hildren. She also

stated that [] Children’s hygiene was poor (not clean or bathed,

not brushing teeth, etc.)[.]

29. [S.P.] described ... Grandmother as very loving and stated that

Grandmother helped her through a lot of situations. She testified

that the last time she saw [Z.P.] and [Q.P.] was in August of 2018,

when [Mother] brought them to her job. She would like to have

more contact with her siblings.

30. Roxie Robinson is a family friend of Grandmother and her

family. She is also acquainted with Mother having known her since

April 2017. Ms. Robinson resides in a home owned by

Grandmother with the paternal aunt, [A.G.]. 31. Roxie Robinson described Mother as a “distant parent who did

not seem concerned about the well-being of her children (feeding,

bathing, etc.).[”] She testified that Mother frequently used

profanity and inappropriate language [and] that she yelled a lot

and at times was intoxicated. [The court] did not assign much

weight to this testimony as [the court] felt Ms. Robinson was

unduly harsh on Mother and failed to assign any responsibility to

Father.

32. Joyce Stoudemire is a friend of Grandmother and former

member of Holiday Memorial AME Zion Church. Reverend

Stoudemire testified that she has observed [] Children with

Grandmother in Grandmother’s home and at church. She is

acquainted with Mother through Grandmother and Father. She

described Grandmother as a loving disciplinarian. She stated that

[] Children were comfortable with Grandmother.

33. Reverend Stoudemire described Mother as loving but senses

a “laxness” in parenting when [G]randmother and the paternal

family were around.
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34. Lily VanDyk is a therapist for Three Rivers Adoption Council

(TRAC). She was assigned to provide therapeutic family sessions

with Grandmother and [Z.P.]

35. Ms. VanDyk observed that Grandmother was consistently

warm and affectionate with [Z.P.] Grandmother gave appropriate

praise to [Z.P.]

36. [Z.P.] reciprocated engagement. He greeted Grandmother

with affection.

37. Grandmother did not bring up the death of [J.S.] or anything

relating to this topic. She used age-appropriate language and

maintained clear boundaries.

38. On December 17, 2018, Grandmother brought [S.P.] to the

visit to sit in the waiting area. Mother became upset by this.

39. Ms. VanDyk recommended for Grandmother to receive

unsupervised visitation with [Z.P.], and that prior to visitation

becoming unsupervised, the parties engage in conflict resolutions

services.

40. Keri Vanderpool is a casework supervisor for Allegheny County

OCYF. Ms. Vanderpool testified that after the dependency case

was closed in February of 2018, the agency received another

referral for Mother. In October of 2018, the agency received a

report that [S.S.] was abusing [Z.P.]. The agency found that

[Z.P.] seemed happy in the home and there was no evidence that

[] Child was being abused. The case was closed on December 6,

2018.

41. The agency also received a referral concerning truancy for

[Z.P.]. He ha[d] 26 absences for the 2018-2019 school year.

Mother told the caseworker and she also testified that she had

kept [Z.P.] out of school because the Paternal Aunt was stalking

[Z.P.]. 42. Each time that OCYF staff was in Mother’s home they found

no safety concerns. The home was clean, there was sufficient

food, and all utilities were working. Mother appeared to be

affectionate with [] Children and in the words of Ms. Vanderpool, “the family is bonded.” 43. [Z.P.] testified that he wants to live with ... Mother and his

brothers. At this time he would like to continue to visit ...

[G]randmother. It should be noted that [Z.P.] is very articulate.

He has a good vocabulary and it is obvious that he is being

appropriately engaged.

44. Paternal Grandmother testified that she believes that [Mother]

is not providing appropriate care for her Children. She testified

that [] Children were often dirty and unkempt. Grandmother

introduced photographs showing what she believed were burns on
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[Z.P.’s] finger and foot and on [Q.P.’s] arm; a photograph showing

[Q.P.’s] dirty legs; and a series of photographs showing feces in

[Q.P.’s] car seat, a dirty playpen, the dry and scaly condition of

[Q.P.’s] skin and scalp, and [S.S.] smoking.

45. Grandmother also testified that she feels that she can take

better care of [] Children and that she is there to help Mother.

She also testified that in 2016-2017, Mother and Father worked a

night shift and that she often kept [] Children at night.

46. Grandmother also expressed concern for sixteen-year-old

[S.S.’s] behaviors and the affect that this may have on her

grandchildren. Grandmother states that [S.S.] smokes marijuana

and is involved in gang[-]related activity. Grandmother

introduced photographs that show [S.S.] smoking, holding guns

and making “gang signs” with his friends.

47. Grandmother also recounted an incident where [S.S.] broke

into her daughter’s home resulting in [his] being adjudicated

delinquent and going to placement.

48. [S.S.] also stole a gun from a friend of Mother and took it to

school in a back pack.

49. There is currently a high-level of distrust and antagonism

between Mother and Paternal Grandmother. Both Mother and

Grandmother introduced emails that demonstrated this.

50. Grandmother has a highly stable lifestyle. She is gainfully

employed at Highmark as a tech assistant, earning about $65,000

per year. She has resided in the same home and community for

many years.

51. Grandmother is surrounded by family members who love and

respect her.

52. Mother testified that she is also concerned about [S.S.’s]

behaviors but stated that [S.S.] has a positive relationship with

his younger brothers. She was concerned that [S.S.’s] behaviors

may have contributed to his getting shot. Mother is planning to

relocate to a safer neighborhood.

53. Mother does not have the same level of housing and lifestyle

stability as [G]randmother. Mother has moved several times. Her

latest planned move will cause a school change for [Z.P.]

54. Mother has no support other than her advocates at the

Women’s Center and Shelter.

55. Mother loves her Children. They are still grieving from the

death of [J.S.]

56. Mother does not oppose [] Children having contact or

visitation with Grandmother. She is not willing, however, for []

[C]hildren to have contact with Father at this time. Mother

believes that it is not the right time to explain to [] Children about
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the circumstances of their Father’s incarceration, a decision with

which [the court] concur[s]. 57. Mother does not want [] Children to have visitation in

Grandmother’s home as the [P]aternal Aunt, [A.G.,] lives on the

same street. Mother does not want [] Children to have contact

with [P]aternal [A]unt, as she is genuinely afraid of [] Aunt.

Mother introduced Facebook postings from [] [A]unt, which are

very intimidating and threatening. [The court] concur[s] with

Mother’s judgment in this regard.

58. [The court] find[s] that both Mother and Grandmother love []

Children and genuinely have their best interests at heart. Both

can provide adequate care for the Children.

59. Without a doubt, Grandmother’s lifestyle is more stable than

Mother’s. She has the financial resources to provide [] Children

with activities, opportunities and experiences to stimulate their

minds and provide enjoyment. 60. [The court] also find[s] that Children would benefit from a

continued relationship with their Grandmother who loves them

and is concerned for their well-being.

61. While [the court] do[es] have some concerns about the

behavior of sixteen-year-old [S.S.], [its] concerns are not so

compelling to rule that Mother should not retain primary custody

of ... Children.

62. Mother is meeting the needs of ... Children. There is no

credible evidence that [] Children are being or have been abused

or neglected.

63. Although Grandmother can provide ... Children with more

“things” and more “opportunities” and a better living environment,

[the court] ha[s] no serious concerns for the safety or well-being

of [] Children in the care of Mother: The dependency case was

successfully closed with [] Children having been returned to the

care of ... Mother. OCYF has been inside of Mother’s home on

several occasions since case closure and saw no concerns for ...

Children’s safety.

. . . 65. In this case, [the court] find[s] that Mother is adequately

caring for ... Children. Accordingly, in the absence of abuse or

neglect, [the court] find[s] that Mother’s right to custody of ...

Children is superior to Grandmother’s right to custody of ...

Children.
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Trial Court’s Finding of Facts (“FOF”), 4/29/19 (citations to the parties’ exhibits

contained in the record omitted).

Grandmother appealed and now raises the following nine issues for our

review:

1. The [t]rial [c]ourt abused its discretion and committed an error

of law by only awarding [P]aternal Grandmother very limited

partial physical custody and legal custody of the subject

Children in effect by failing to objectively analyze and properly

weigh the sixteen (16) factors listed in 23 Pa.C.S.[] § 5328(a).

2. The [t]rial [c]ourt abused its discretion by entering a custody

order which on its face appears to punish Paternal

Grandmother for the mere filing of her custody complaint as

evidenced by the [t]rial [c]ourt’s analysis of factors 8 and 13

as outlined in 23 Pa.C.S.[] § 5328(a).

3. The [t]rial [c]ourt abused its discretion by not properly

considering the risk of harm that [] [C]hildren’s half-brother

poses to them, given his drug use, gang involvement, and

criminal activity.

4. The [t]rial [c]ourt abused its discretion by not considering and

properly weighing Mother’s alienation of [] [C]hildren from

Paternal Grandmother and her family, which was clearly

demonstrated by the evidence presented in the case.

5. The [t]rial [c]ourt abused its discretion by taking into

consideration Z.P.’s wishes given the child’s young age and lack

of sound or well-reasoned judgement.

6. The [t]rial [c]ourt abused its discretion by finding that Mother

is able to attend to the daily physical, emotional, and

developmental, educational, and special needs of [] [C]hildren

when the evidence presented at the trial clearly contradicts

such a finding.

7. The [t]rial [c]ourt abused its discretion by allowing the

submission of Mother’s Exhibit D, “Facebook posts from

Paternal Aunt directed towards Defendant [Mother]” over the
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objection of Paternal Grandmother’s counsel due to lack of

foundation and improper authentication.

8. The [t]rial [c]ourt abused its discretion in ordering that

Paternal Grandmother is not permitted to exercise custody of

[] [C]hildren at her home when there was no evidence that

Paternal Grandmother or any members of Paternal

Grandmother’s household pose any risk of harm to []

[C]hildren.

9. The [t]rial [c]ourt abused its discretion by not assigning weight

to the testimony of Roxie Robinson, not because the [t]rial

[c]ourt did not find the testimony to be credible, but merely

because Roxie Robinson did not assign any responsible [sic] to

[] [C]hildren’s Father and because the [t]rial [c]ourt felt that

Roxie Robinson was unduly harsh in her criticism of Mother,

and without looking at the facts to which Roxie Robinson

testified too [sic]. Grandmother’s brief at 6-8.

When presented with child custody matters, we are guided by the

following scope and standard of review:

[O]ur scope is of the broadest type and our standard is abuse of

discretion. This Court 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, this Court must defer to the trial judge who presided

over the proceedings and thus viewed 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.

E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989

A.2d 32, 35-36 (Pa. Super. 2010)). Furthermore, we note that:
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The discretion that a trial court employs in custody

matters should be accorded the utmost respect, given

the special nature of the proceeding and the lasting

impact the result will have on the lives of the parties

concerned. Indeed, the knowledge gained by a trial

court in observing witnesses in a custody proceeding

cannot adequately be imparted to an appellate court

by a printed record.

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

(quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super.

2004)).

A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012).

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 that 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) (citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa.

Super. 2004)). Furthermore, we recognize that the Child Custody Act (“Act”),

23 Pa.C.S. §§ 5321-5340, governs all proceedings commenced after January

24, 2011. The specific factors that a court must consider are listed at 23

Pa.C.S. § 5328(a)(1)–(16). See E.D., 33 A.3d at 79-80 (holding that “best

interests of the child” analysis requires consideration of all section 5328(a)

factors).

Moreover, in a matter dealing with custody litigation between a parent

and a third party, we are further guided by the provisions in 23 Pa.C.S. §

5327(b). Section 5327(b) provides:
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(b) Between a parent and third party.—In any action

regarding the custody of the child between a parent of the child

and a nonparent, there shall be a presumption that custody shall

be awarded to the parent. The presumption in favor of the parent

may be rebutted by clear and convincing evidence.

In V.B. v. J.E.B., 55 A.3d 1193 (Pa. Super. 2012), this Court discussed

this principle, noting initially that,

where the custody dispute is between a biological parent and a

third party, the burden of proof is not evenly balanced. In such

instances, the parents have 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. Thus,

even before the proceedings start, the evidentiary scale is tipped,

and tipped hard, to the biological parents’ side.

Id. at 1199 (quoting Charles v. Stehlik, 744 A.2d 1255, 1258 (Pa. 2000)

(internal quotations and brackets omitted)). The V.B. court further instructed

that:

What the judge must do, therefore, is first, 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.

McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000)

(quoting Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512, 513-514

(Pa. 1980)). In Ellerbe, supra [416 A.2d] at 514, our Supreme

Court noted that “these principles do not preclude an award of

custody to the non-parent. Rather they simply instruct the

hearing judge that the non-parent bears the burden of production

and the burden of persuasion and that the non-parent’s burden is

heavy.” Essentially, the Supreme Court determined, “where

circumstances do not clearly indicate the appropriateness of

awarding custody to a non-parent, we believe the less intrusive

and hence the proper course is to award custody to the parent or

parents.” V.B., 55 A.3d at 1199.
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In her first claim of error, Grandmother sets forth the factors listed in

23 Pa.C.S. § 5328(a) and identifies the facts that she believes the court

erroneously failed to consider. Initially, we recognize that section 5328(a)

directs that “[i]n 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[.]”

Therefore, in light of Grandmother’s argument, we provide the trial court’s

responses to each of the 16 factors, as follows:

(1) Which party is more likely to encourage and permit

frequent and continuing contact between the child and

another party.

There is currently distrust and antagonism between

Mother and Paternal Grandmother. Without an order of

court, it is doubtful that either party would encourage and

permit frequent and continuing contact between []

Children and the other parties. Father is currently serving

a life-sentence for killing the half-sibling of [] Children.

Mother is not willing for contact to occur at this time, a

decision with which [the court] concur[s]. (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.

Father is currently serving a life-sentence for killing the

half-sibling of [] Children. [Z.P.] was present in the home

when this occurred. There is no evidence [] Mother or

Grandmother has committed abuse.

(3) The parental duties performed by each party on behalf of

the child.
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Mother currently performs all parental duties on behalf of

[] Children.

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

education, family life and community life.

Father is currently serving a life-sentence for killing the

half-sibling of [] Children. Mother has a history of moving

around, resulting in changing schools and community.

Mother plans another move in the near future. Without a

doubt, Grandmother could provide a more stable living

environment. She has resided in the same home and

community for many years. Several family members

reside in the same community.

(5) The availability of extended family.

Father and Grandmother have a lot of extended family to

assist in the care of [] [C]hildren, if needed. Mother does

not have extended family to assist her.

(6) The child’s sibling relationships.

[] Children have a close sibling bond with their half- brother, [S.S.]

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

child’s maturity and judgment.

[Q.P.] is too young to state or have an opinion. [Z.P.]

would like to continue living with his Mother and have

some visitation with his Grandmother.

(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.

Despite the fact that Father is currently serving a life- sentence for killing the half-sibling of [] Children, there is

no evidence that Mother has attempted to turn the

[C]hildren against him. Mother is also willing for []

Children to have reasonable contact with Paternal

Grandmother. The filing of this complaint for custody by
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Grandmother and her assertion that Mother is not a fit

parent, in and of itself demonstrates an attempt to turn

[] Children against their Mother.

(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.

Both Mother and Grandmother are able to do this and

would continue to do this if either was the primary

custodian. Father, due to his incarceration, is unable to

do this at this time.

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

emotional, developmental, educational and special needs

of the child.

Both Mother and Grandmother are able to do this and

would continue to do this if either was the primary

custodian. Father, due to his incarceration, is unable to

do this at this time.

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

Mother and Grandmother, at this time, are in reasonable

proximity to one another.

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

make appropriate child-care arrangements.

Both Mother and Grandmother are able to do this and

would continue to do this if either was the primary

custodian. Father, due to his incarceration, is unable to

do this at this time.

(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.

There is currently a high-level of distrust and antagonism

between Mother and Paternal Grandmother. Without an

order of court, it is doubtful that either party would
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encourage and permit frequent and continuing contact

between [] Children and the other parties. Father is

currently serving a life-sentence for killing the half- sibling of [] Children. Mother is not willing for contact to

occur at this time, a decision with which [the court]

concur[s]. (14) The history of drug or alcohol abuse of a party or member

of a party’s household.

There was evidence presented that the half-sibling of []

Children smokes marijuana.

(15) The mental and physical condition of a party or member

of a party’s household.

Both Mother and Grandmother appear to possess

sufficient mental and physical stability that would enable

them to adequately parent [] Children.

(16) Any other relevant factor.

There is a high level of conflict between [M]other and the

[P]aternal [A]unt who resides in close proximity. Mother

is not willing for the Aunt to have contact with her

Children (which is her right). Mother is concerned that if

the Children are visiting in the home of Grandmother,

that contact will occur. Mother appears to have a real

fear of the Aunt to the point where she attempted to file

a Petition for Protection from Abuse.

Trial Court’s Responses to Section 5328(a) Custody Factors, 4/2/19. With regard to Factor (1), Grandmother asserts that the trial court failed

to consider her care of Z.P. for almost a year when Mother was considered

unable by OCYF and her caring for Mother and Q.P. after Father’s arrest.

Grandmother also claims that the record contains no evidence to support a

finding that she would not facilitate contact between Mother and Children if
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they were in her care. Thus, Grandmother contends that this factor should

weigh in her favor.

As to Grandmother’s claim that Factor (2) should weigh in her favor, she

relates that J.S. was murdered while under Mother’s care and that Mother was

found guilty of endangering the welfare of children, receiving a sentence of

two years’ probation. Grandmother also relies on her own testimony centering

on actions by S.S. in that he physically and sexually abused J.S. (deceased

child) and Z.P., facts that she claims the trial court did not mention. She also

cites the court’s discounting of Roxie Robinson’s testimony, not because Ms.

Robinson was not found credible, but due to Ms. Robinson’s failure to blame

Father for the actions he took. See FOF at Nos. 30-31. Grandmother also

points out that no member of her household is a risk to Children.

Although Grandmother acknowledges with regard to Factor (3) that

Mother performs the parental duties for Children, she contends that the court

did not consider the manner and level at which Mother did perform those

duties. Grandmother notes Z.P.’s numerous unexcused absences from school

and the drop in his grades since his return to Mother’s care and Mother’s failure

to see to Children’s regular medical care. Grandmother emphasizes her

testimony about her care of Children and especially her care of Z.P. solely

from 2016 to 2017.

Even though the court found Factor (4) in Grandmother’s favor,

Grandmother asserts that it should have weighed heavily in her favor in light
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of the stability of her life, i.e., living in same home for 35 years, married for

25 years, and having the same job for 26 years. Comparing these facts to

Mother’s stability, Grandmother identifies Mother’s moving often causing the

changing of schools for Z.P. and his drop in grades. As for Factor (5),

Grandmother has extended family in the area, while Mother has no extended

family in the area.

In addressing Factor (6), Grandmother takes issue with the court’s

weighing S.S., Z.P. and Q.P.’s relationships as a factor in Mother’s favor.

Instead, Grandmother contends that the court erred in not consider Children’s

relationship with S.P., their half-sister on the paternal side of the family, who

would be a positive influence in Children’s lives, unlike the influence that S.S.

has on the two younger Children. As for a child’s preference listed as Factor

(7), Grandmother argues that the court did not consider Z.P.’s age, six years

old, or his failure to give any compelling reasons for preferring to live with

Mother. Grandmother also quotes some of Z.P.’s responses to the court’s

questions, claiming that it was obvious that he was coached.

The court, in finding that Factor (8) weighed against Grandmother, relied on the fact that because Grandmother had filed the custody complaint

she was attempting to turn Children against Mother. However, Grandmother

asserts that no evidence was presented showing that Grandmother had

spoken negatively about Mother or in any way attempted to alienate Children
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from Mother. Rather, Grandmother contends that she initiated this action due

to her concern for the welfare of Children.

Although the court found Factors (9) and (10) were essentially neutral,

Grandmother cites her witnesses’ testimony about Mother’s behavior toward

Children, identifying it as borderline verbally and physically abusive.

Grandmother also cites Mother’s testimony about not recalling when she last

took Children for a checkup, that she does not tuck Children into bed at night,

and that despite the fact that Children need counseling, she has failed to set

up appointments for them. Additionally, Grandmother relies on her own

evidence about Children’s lack of hygiene when they are in Mother’s care.

Factors (11) and (12) are not in contention; however, in discussing

Factor (13) the court found a high level of distrust and antagonism between

Mother and Grandmother, which would limit any encouragement to permit

frequent and continuing contact between Children and either party.

Grandmother again cites the court’s reference to her filing of the custody

complaint which created conflict between the parties. Grandmother also

contends that the record reveals how rigid Mother is when Grandmother is

attempting to exercise her partial custody rights.

In connection with Factor (14), Grandmother’s assertion references

S.S.’s actions, his gang affiliations and his smoking of marijuana, which she

contends poses a risk of harm to Children. As to Factor (15), Grandmother

identifies Mother’s admission that she required mental health treatment, a fact
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that the trial court did not consider. At the same time, Grandmother counters

that nothing in the record reveals that she has any mental or physical

condition that negates her ability to care for Children. As to the final factor, Factor (16) relates to the high level of conflict between Mother and Paternal

Aunt so that the court ordered Aunt to have no contact with Children. In this

regard, Grandmother recognizes that Mother and Paternal Aunt do not get

along; however, Grandmother asserts that the record contains no evidence

that Paternal Aunt poses a risk of harm to Children.

This extensive discussion of the section 5328(a) custody factors

presented to us by Grandmother is essentially taking issue with the trial

court’s credibility determinations and its decisions about the weight it afforded

the testimony and evidence from the various witnesses it heard from during

the two-day trial. We are compelled to “determine whether the trial court’s

incontrovertible factual findings support its factual conclusions, but [we] may

not interfere with those conclusions unless they are unreasonable in view of

the trial court’s findings and are, therefore, an abuse of discretion.” K.B. II

v. C.B.F., 833 A.2d 767, 770 (Pa. Super. 2003). Moreover, in light of the

credibility determinations formulated by the trial court, which are supported

by the record, we cannot and will not re-find and/or reweigh the evidence.

See C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (stating that

our standard of review requires that we “accept findings of the trial court that

are supported by competent evidence of record, as our role does not include
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making independent factual determinations”). Taking into consideration the

entire record, we conclude that the trial court did not abuse its discretion by

concluding that Grandmother had not rebutted the presumption of custody in

favor of Mother. Accordingly, we conclude that Grandmother’s first issue does

not afford her any relief. In her second issue, based upon the trial court’s responses to Factors

(8) and (13), Grandmother claims that the court appears to punish

Grandmother simply because she filed the custody complaint and asserted

that Mother was not a fit parent. In other words, Grandmother contends that

the court erroneously concluded that the filing of the complaint was evidence

that Grandmother was attempting to create a conflict between Mother and

Children. Grandmother points out that by utilizing this reasoning, these

factors could weigh against any plaintiff who files a custody action. Moreover,

Grandmother claims that hostilities between the parties are only relevant if

they are a threat to Children or their welfare and that nothing in the record

evinces that Grandmother has perpetrated such animosity.

In response, Mother relies on statements in Grandmother’s complaint

and various other documents that Grandmother was requesting sole legal

custody and either sole, or at a minimum, primary physical custody with

Mother only being granted partial physical custody as Grandmother would

agree. Mother also relies on documentation and testimony in the record that

supports the court’s finding as to the level of conflict between Mother and
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Grandmother. Mother further responds that Grandmother has not supported

her argument with anything in the record that shows that the court placed

more weight on these two factors. We agree and do not conclude that the

trial court abused its discretion by commenting on what it determined was the

basis for Grandmother’s request for sole physical and legal custody.

Throughout the record there is evidence of the high-level of conflict between

the parties, whether or not Grandmother was attempting to turn Children

away from Mother by filing the custody complaint.

Grandmother’s third issue centers on Children’s half-brother, S.S., and

his gang involvement and his drug use, which was testified to by

Grandmother. She also notes Mother’s admission that S.S. uses drugs and

has twice stolen guns. Grandmother contends that the trial court disregarded

the testimony about S.S., even though S.S.’s actions could have an impact on

the well-being of Children. Mother responds by pointing to evidence from

OCYF and KidsVoice in the dependency action that eventually resulted in the

closure of the dependency action. Further, Mother notes that by June 2018

no more safety concerns were evident. We reiterate that we must accept the

court’s credibility determinations that are supported by the record and we

cannot reweigh the evidence. See C.R.F., III, supra. Therefore, we are

compelled to conclude that this issue does not provide relief to Grandmother

in that the court’s findings and conclusions are supported by evidence of

record.
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In Grandmother’s fourth argument, she contends that the court abused

its discretion by not properly considering and weighing Mother’s actions that

caused the alienation between Children and Grandmother. Essentially,

Grandmother bases this error by the court on its failure to consider

Grandmother’s care of Z.P. for almost a year from 2016 to 2017, during which

time Mother had contact with Z.P. on a daily bases. Grandmother also

mentions her care of Mother and Q.P. after Father’s arrest. Despite these

actions by Grandmother, she claims that Mother cut off all contact and was

not cooperative in scheduling visits with George White and setting up TRAC, which would have aided in resuming interaction between Z.P. and

Grandmother, allowing for her periods of custody. Essentially, Mother’s

response to this issue identifies evidence about her concern for Children’s well- being, yet notes that Grandmother provided evidence in her favor. Again, the

determination as to this issue rests on the court’s credibility decisions and the

weight it applied to the evidence presented. We must defer to the trial court

and do not conclude that its decision here was unreasonable in keeping with

the sustainable findings of fact.

Grandmother’s next issue concerns the court’s consideration of Z.P.’s

stated preference to live with Mother.2In her brief, Grandmother cites

responses Z.P. gave when questioned by the trial judge, asserting that “it

____________________________________________

2 At the time of trial, Q.P. was too young to testify and state his preference.
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became obvious that someone ha[d] likely discussed the ongoing custody

proceeding with him.” Grandmother’s brief at 54. Although the court found

this factor weighed in Mother’s favor, Grandmother contends this was in error

because Z.P. did not provide any compelling reasons for this preference and

was only six years old at the time.

“One of the factors a trial court must consider when making any award

of custody is ‘[t]he well-reasoned preference of the child, based on the child’s

maturity and judgement.’ 23 Pa.C.S. § 5328(a)(7).” E.B. v. D.B., 209 A.3d

451, 468 (Pa. Super. 2019). “The weight to be accorded a child’s preference

varies with the age, maturity and intelligence of that child, together with the

reasons given to the preference. Moreover, as children grow older, more

weight must be given to the preference of the child.” Id. (quoting B.C.S. v.

J.A.S., 994 A.2d 600, 604 (Pa. Super. 2010)).

As noted in its findings of fact, the court recognized Z.P.’s stated

preference to live with his Mother and brothers and to visit with Grandmother.

The court also found that Z.P. was articulate, had a good vocabulary, and that

“he [was] being appropriately engaged.” FOF at No. 43. However, our review

reveals nothing in the court’s findings, its responses to the list of factors, or

in either its opinion or statements on the record at the end of the trial, that it

put much emphasis on the preference factor. Rather, we conclude that the

court’s finding and conclusion as to Z.P.’s preference, which is supported by
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the evidence, is not unreasonable. Therefore, we conclude again that this

issue does not merit any relief.

Grandmother next argues that the trial court abused its discretion by

finding that based upon the evidence of record Mother is able to properly care

for Children on a daily basis. Grandmother mentions Z.P.’s drop in his grades

at school, Mother’s failure to keep up with Children’s medical care, and though

acknowledging Children’s need for counseling, no follow-through with this

need has been addressed by Mother. Grandmother also cites Mother’s inability

to provide good hygiene for Children. Thus, Grandmother asserts that Mother

does not provide for the daily physical, emotional, developmental, and

educational needs of Children.

Mother’s response centers on this Court’s scope and standard of review,

citing Hanson v. Hanson, 878 A.2d 127 (Pa. Super. 2005). Specifically, in

awarding a father primary physical custody, the Hanson decision provides

that

[i]t is not our function to determine whether the trial court reached

the “right” conclusion, or whether [the father]] sustained his ...

burden of proof. Rather, we consider whether, based on the

evidence presented and giving due deference to the trial court’s

weight and credibility determinations, the trial court erred or

abused its discretion in determining that it is in the children’s best

interest for [the father] to have primary physical custody.

Id. at 129.

Mother then discusses the testimony from the OCYF’s caseworker

relating to a home visit in October of 2018. The testimony indicated that
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Children were clean and neat and that the home had food and working utilities.

As for a visit in March of 2019, which occurred due to Z.P.’s truancy, the

caseworker testified that food was available and the home had working

utilities, that Mother’s interaction with Children was appropriate, that Z.P.’s

grades were either satisfactory or needed improvement, and that Z.P. was

scheduled to complete first grade. The caseworker found no safety issues and

no concerns about Mother’s care of Children. Mother also provides an

extensive discussion about her care of Children and the bond she has with

them. Again, Grandmother has not provided a basis upon which we can

overturn the trial court’s conclusion. Although there is evidence to support

both parties’ claims, there is no basis to overturn the trial court’s reasonable

decision.

Grandmother next argues that the trial court abused its discretion by

admitting Mother’s Exhibit D, purportedly a printout of Paternal Aunt’s

Facebook page, without a foundation and proper authentication. The reason

Mother wished to admit the exhibit was her belief that the printouts were

threatening to her. Additionally, Mother identified the printouts as belonging

to Paternal Aunt because they had previously been friends, pictures on the

posts were of Paternal Aunt, and the posts also contained her name.

Grandmother overlooks this Court’s recognition that “the admission or

exclusion of evidence is within the sound discretion of the trial court.” Blumer

v. Ford Motor Co., 20 A.3d 1222, 1226 (Pa. Super. 2011). “In reviewing a
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challenge to the admissibility of evidence, we will only reverse a ruling by the

trial court upon a showing that it abused its discretion or committed an error

of law.” Id. Moreover, our review of the transcript from the March 15, 2019

trial shows that when Grandmother’s attorney objected to the admission of

the printouts, contending that Mother should have subpoenaed Paternal Aunt

to authenticate them, the trial court responded, stating:

THE COURT: Well, I mean, just as you admitted the photographs

with S.S., you know, you could have called S.S. So she had

indicated that she had previously been friends with her on

Facebook. Her photograph is on here. So I’m going to allow them.

Objection overruled.

N.T., 3/15/19, at 279.

The court’s reference to the admission of the photographs of S.S.,

holding a gun and smoking, that were admitted over objection, were not

authenticated by the person who took them. However, in support of their

admission, Grandmother contended that the pictures were available on the

internet and that she could identify S.S. as the individual in the photographs.

Therefore, the court allowed their admission. The court ruled that this was

akin to Mother’s identification of Paternal Aunt’s pictures on the printout of

Paternal Aunt’s Facebook page and allowed that admission as well. Because

it is apparent that in both situations, the witnesses, S.S. and Paternal Aunt, who could have authenticated the exhibits, were available to testify, we

conclude that the court did not abuse its discretion by admitting the exhibits
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and, therefore, Grandmother’s argument relating to the admission of Mother’s

Exhibit D is without merit.

Grandmother’s next issue concerns her allegation that the court abused

its discretion by ordering that she was not permitted to have Children at her

home in that no member of her household poses any harm. Rather, she

contends that because she is only permitted to spend time with Children in

public places, an undue burden on her was created. Grandmother

acknowledges that the trial court set this limitation because Paternal Aunt lives

across the street. However, Grandmother testified that Paternal Aunt would

not be in contact with her or Children when they would be in her custody.

In response, Mother relies on facts gleaned from her own testimony and

emphasizes her concern as to the safety of Children. She further relies on

K.B. II, wherein this Court with reliance on Troxel v. Granville, 530 U.S. 57

(2000), indicated that “the United States Supreme Court cautioned that if a

fit parent’s decision regarding his or her child ‘becomes subject to judicial

review, the court must accord at least some special weight to the parent’s own

determination.’” K.B. II, 833 A.2d at 776 (quoting Troxel, 530 U.S. at 70).

The trial court in announcing its decision at the end of the trial made

particular note of this concept, stating:

And while I would say that due to [G]randmother’s stability,

financial resources, yes, she could provide probably a nicer home

and nicer things and more resources for [] [C]hildren, but that’s

not the standard by which the [c]ourt should judge a custody case

when one of the parties is not a parent.
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It has been widely recognized by the courts, including, the United

States Supreme Court, that there is a fundamental right of parents

to make decisions concerning the care, custody, and control of

their children.

So as long as a parent adequately cares for his or her children -- and that’s the operative term, “adequate care,” doesn’t have to

be the best care -- there is no reason for the state to inject itself

into the private realm of the family to further question the ability

of the parent to make the best decisions concerning the rearing of

the parents’ children.

So absent proof of abuse or neglect or emotional harm, the rights

of the parent trump the rights of a grandparent. Their rights are

superior over the right of any other person seeking custody of a

child.

N.T., 3/29/19, at 357-58. We rely on the trial court’s reasoning and conclude

this argument provides Grandmother with no relief.

In her last issue, Grandmother contends that the trial court abused its

discretion by not assigning the proper weight to Roxie Robinson’s testimony. See FOF at Nos. 30 and 31. Although Grandmother’s brief describes

numerous facts about which Ms. Robinson testified with citations to the notes

of testimony, she overlooks this Court’s limitation relating to the weight and

credibility determinations made by the trial court. As to both, we defer to the

trial court who observed the proceedings and the demeanor of the witnesses.

See A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014). Thus, Grandmother’s

final issue is without merit.
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For the reasons stated above, we conclude that Grandmother’s issues

are devoid of merit and, therefore, we affirm the trial court’s custody order.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/2019

____________________________________________

3 Although some of the discussions, relating to the issues Grandmother has

raised in her brief, were not accompanied by citations to the record or

supported by authority, a fact that is contrary to Pa.R.A.P. 2119(b), we have

been able to discern the thrust of Grandmother’s arguments and have

therefore chosen to respond to the issues and have not found waiver.