A.F. and S.M. v. R.F. and S.F.

J-A25015-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

A.F. AND S.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellees :
:
v. :
:
R.F. AND S.F., :
:
Appellants : No. 238 EDA 2014

Appeal from the Order entered December 20, 2013,
Court of Common Pleas, Bucks County,
Civil Division at No. A06-2009-62286-C-33

A.F. AND S.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellees :
:
v. :
:
R.F. AND S.F., :
:
Appellants : No. 1013 EDA 2014

Appeal from the Order March 21, 2014,
Court of Common Pleas, Bucks County,
Civil Division at No. A06-09-62286-C-33

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 08, 2014

Appellants, R.F. (“Grandmother”) and S.F. (“Grandfather”; collectively,

“Grandparents”), appeal from the trial court’s orders dated December 20,

2013 and March 21, 2014, granting sole legal and physical custody of A.F.

(“Child”) to Appellees, A.F. (“Mother”) and S.M. (“Father”; collectively,

“Parents”), and awarding attorneys’ fees and costs to Parents. We affirm.

*Retired Senior Judge assigned to the Superior Court.
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At the time of Child’s birth in October 2007, Father abused heroin and

had difficulty obtaining and maintaining a job, while Mother suffered from

bipolar disorder and postpartum depression. In approximately September

2008, Mother and the Child began living with Grandparents, and later that

month, after a referral to the Bucks County Children and Youth Social

Services Agency (CYS), the trial court adjudicated the Child to be dependent

and granted temporary legal custody and the right to physical custody to

Grandparents. The trial court’s order granted the Parents supervised contact

as approved by CYS. In March 2009, after a dispute between the Parents

and the Grandparents over Father’s use of a leased car used by Mother but

financed by Grandfather, the Grandparents informed Mother that she would

have to leave the Grandparents residence. On May 21, 2009, the trial court

entered an order stating that the Grandparents were meeting the needs of

the Child, that the Child was no longer dependent, and that the

Grandparents retained legal and physical custody pursuant to the Uniform

Child Custody Jurisdiction and Enforcement Act, 23 Pa.C.S.A. § 5401 et seq.

Mother filed a custody petition on July 29, 2009, requesting partial

physical custody. On September 3, 2009, the parties jointly agreed to the

entry of a custody order pursuant to which the Parents would have

supervised partial physical custody of Child (now almost two-years-old) on

Wednesday evenings, Sunday afternoons, and on holidays by agreement.

The parties agreed to make the exchanges at a local McDonald’s restaurant,

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that Grandmother would supervise the visits, and that Grandfather would

not attend. On November 12, 2009, however, the Parents filed a petition for

contempt and modification of custody. In an amended petition on November

24, 2009, the Parents alleged that the Grandparents had, among other

things, unilaterally changed the location and supervisor of the visits and had

failed to appear for three visits. On December 17, 2009, the parties

resolved these disputes by agreeing to abide by the September 3, 2009

order.

In January 2010, the parties began participating in the Court

Conciliation & Evaluation Service (CCES) process with Robert H. Menapace,

Ph.D. In his report dated May 10, 2010, Dr. Menapace observed that

Parents and Grandparents were “polarized, antagonistic, and

argumentative.” The Grandparents opposed any change in the supervised

visitation schedule, accusing Mother of failing to attend to the Child’s feeding

and hygiene and of associating with “unsavory characters.” Dr. Menapace

also indicated that Grandfather suggested sexual abuse by Father,

complaining that Father cuddled his daughter against his bare chest. The

Child’s maternal aunts, R.G. and L.F., both of whom lived with

Grandparents, also hinted at sexual abuse by Father, commenting on how

Father touched the Child’s vaginal area when changing her diaper. In his

report, Dr. Menapace did not credit these allegations, noting instead that the

Child appeared to be comfortable with the Parents. Dr. Menapace

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recommended lifting the supervision requirement and expanding the length

of the Parents’ Wednesday and Sunday visits. On July 30, 2010, the trial

court entered a custody order in accordance with Dr. Menapace’s

recommendations, with the exchanges to take place at the local police

station. The Grandparents retained sole legal custody of the Child, but the

trial court ordered them to share all pertinent information regarding the

Child’s welfare with the Parents.

On November 3, 2010, the Grandparents filed a petition for contempt,

alleging that during one visit the Parents had verbally disparaged

Grandmother, and that on another occasion Father drove with the Child in

the car while his driver’s license was suspended. On December 3, 2010, the

Parents responded by filing their own petition for contempt and a petition for

modification, alleging that the Grandparents had missed three scheduled

visits and that on another occasion Grandmother had dragged the Child out

of the police station by the arm, refusing to allow the Child to say goodbye

to Parents. A police dispatcher apparently observed this event, reporting

that the Child may have hit her head during the exchange. Following a

conference, the trial court entered an order on April 11, 2011, increasing the

Parents' time with the Child on Sundays from four hours to eight hours.

At another custody hearing on November 4, 2011, the Parents

requested that their partial physical custody rights be expanded to include

overnights stays. At the hearing, Father demonstrated his successful

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completion of a drug treatment program, representing that he had been

drug-free for over two years, was continuing in treatment and support

groups, and had agreed to voluntarily drug testing on a weekly basis.

Mother offered evidence of her efforts to manage her mental health issues.

The Parents presented the testimony of family members, neighbors, and

friends that the Parents were now loving individuals capable of providing the

Child with a clean, properly furnished and safe home environment. Both

Parents commented negatively about having observed the Child call the

Grandparents “Mommy” and “Daddy,” and complained that the Grandparents

refused to correct the Child from doing so, even upon request.

The Grandparents opposed the Parents’ request for overnight visits,

instead arguing for the reinstatement of supervised visits. The

Grandparents accused the Parents of multiple instances of abuse, including

burning the Child and allowing her to watch “scary” movies. The

Grandparents also accused the Parents of neglect, including allegations that

they allowed the Child to be bitten by a dog and fall off a trampoline, and

saw them hitting each other. The trial court concluded, based upon the

evidence presented, that the Parents had not abused or neglected the Child

and rejected the Grandparents request to reinstate supervised visitation.

Noting that the Parents had a prior history of physical altercations, however,

the trial court also denied the Parents’ request for overnight visits.

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Less than three months later in January 2012, the Grandparents

informed CYS that the Child had seen Father’s penis during a visit. The

Parents then filed a petition for contempt, alleging the Grandparents

continued to withhold the Child from scheduled visits and that they had

refused to exchange basic health information as previously ordered by the

trial court. On March 27, 2012, CYS received another referral from the

Grandparents, reporting potential drug use by the Parents. On April 3,

2012, the Parents filed a petition to modify custody to include overnight

visits. On April 25, 2012, in response to the Grandparents’ allegations of

drug abuse, CYS made an unannounced visit to Parents home, at which time

both Parents submitted to and passed drug tests.

On June 26, 2012, the trial court conducted an evidentiary hearing on

the Parents’ petition to modify custody. The Parents again introduced

testimony of Father’s employment and his successful efforts to deal with his

prior drug problems. Mother testified that she was continuing her mental

health treatment and was abiding by the recommendations of her doctors.

In contrast, Grandmother testified, inter alia, that she, the Child and a

young female cousin were all riding in a car when the Child blurted out that

she had seen her father’s “private parts.” Again finding no support for the

allegations of the Grandparents against the Parents, the trial court granted

the Parents’ request for overnight visits, to take place on Saturday nights on

every other weekend. These overnight visits would not begin, however,

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until after the submission of written proof of Father’s sobriety and Mother’s

compliance with recommended treatments. The trial court also ordered both

Parents to submit to additional tests, including hair follicle drug testing every

ninety days, Father to complete an anger management class, and Mother to

undergo a medical examination to confirm that she was physically able to

care for a four-year-old child in light of the fact that she was receiving Social

Security Disability payments. The trial court also ruled that the

Grandparents had failed to abide with the directive to communicate with the

Parents regarding the Child’s medical issues, and ordered the parties to

participate in counseling to combat the acrimonious nature of their

relationship.

On December 21, 2012, the Parents filed a petition for contempt and

modification alleging, inter alia, Grandparents had failed to provide

information regarding the Child’s schooling and outside activities, failed to

advise parents of medical visits, and made false reports to CYS. The Parents

requested legal and primary physical custody with periods of partial custody

by Grandparents. On January 22, 2013, the Grandparents filed an

emergency petition for modification, alleging that during an overnight visit,

the Parents had permitted the Child to view pornographic movies. The

Grandparents also submitted to the trial court a note from Sue Cornbluth,

Psy.D. (“Dr. Cornbluth”), a clinical psychologist retained by the

Grandparents, who advised that the Child had reported to her that “Daddy”

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was sexually abusing her and that she had seen pornographic movies on

Mother’s telephone on two occasions. In the note, Dr. Cornbluth offered her

professional opinion that all visits with Father be terminated immediately

and that visits with Mother be supervised. The Parents then filed their own

petition for emergency relief and for contempt, claiming that the

Grandparents had failed to appear at the most recent custody exchange

location.

In response to these filings, the trial court entered an order

suspending the Parents’ visitations pending a conference before the master

on January 24, 2013, and an emergency hearing was scheduled for February

1, 2013. Following a conference with counsel, the trial court suspended

further action to permit the District Attorney’s Office and CYS to continue

with their active investigations into the multiple allegations. The trial court

also entered an emergency shelter care order, placing the Child in Christ’s

Home for Children (“Christ’s Home”).

During custody hearings on May 15-16, 2013, the trial court, counsel,

and Detective Kevin Cornish of the Bensalem Township Police Department

viewed, in camera, video recordings of the Child taken by Parents as well as

photographs and video recordings of the Child found on Grandfather’s iPad.

In a series of videos, the Child told Parents that her Grandfather was “saying

disgusting crap” and was performing sexual acts on dolls. Detective Cornish

also described the information viewed on Grandfather’s iPad for the record,

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including a number of photographs and videos taken with the iPad that

appeared to have resulted from the Child playing with the camera. Three of

the photographs are of the Child’s genital area (with underwear) and depict

the Child exposing herself to the camera and making sexually suggestive

statements. Finally, Detective Cornish testified that forensic examination of

Grandfather’s iPad showed that the device had been used to access

numerous pornographic websites, and that some of these pages were still

open (providing instant access) while in the Child’s possession. The trial

court also heard testimony that the Child, now five years of age, had

approached a maintenance man at Christ’s Home and acted like she was

“hitting on him.”

The trial court found that the Child had, at a minimum, been exposed

to pornography and needed immediate professional help. It was determined

that the Child would remain at Christ’s Home while the trial court contacted

the solicitor for CYS to locate appropriate treatment options, and that the

parties would be allowed only supervised visitation. The Child subsequently

began treatment with Veronique N. Valliere, Psy.D, a Licensed Psychologist

(“Dr. Valliere”). The Parents filed a motion to resume the custody hearing

adjourned on May 17, 2013. At a hearing on November 8, 2013, the trial

court ordered the Child to remain at Christ’s Home until the completion of

the custody proceedings. The custody hearings resumed on November 25,

2013 and continued on December 6, 9, 11, and 12, 2013. On December 20,

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2013, the trial court issued its order granting the Parents sole legal and

physical custody of the Child, superseding all prior orders. On December 27,

2013, the Parents filed a motion for attorneys’ fees and costs, and on March

21, 2014, the trial court entered an order awarding the Parents $14,225.00

in attorneys’ fees and $134.00 in costs, to be paid within ninety days.

On appeal, Grandparents raise eleven issues for our consideration and

determination:

1. Did the trial judge [] err as a matter of law and
abuse her discretion in denying Grandparents’ July
31, 2013, motion to recuse her?

2. Did the trial judge [] err as a matter of law and
abuse her discretion in improperly defining,
allocating, and applying the burden of proof, and the
criteria, for the Parents to be granted sole legal and
physical custody of the Child?

3. Did the trial judge [] err as a matter of law and
abuse her discretion in failing to award custody
based on full consideration of the best interest
factors set forth in 23 Pa.C.S.A. § 5328?

4. Did the trial judge [] err as a matter of law and
abuse her discretion in finding that awarding sole
legal and physical custody of the Child to the Parents
was in the Child’s best interest?

5. Did the trial judge [] err as a matter of law and
abuse her discretion in either ignoring,
misconstruing, or giving insufficient weight to all of
the video evidence introduced, including the CAC
interviews with the Child, and the videos retrieved
from Parents’ phone?

6. Did the trial judge [] err as a matter of law and
abuse her discretion in relying on purported facts

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and circumstances which were not of record in her
various rulings during the trial?

7. Did the trial judge [] err as a matter of law and
abuse her discretion in failing to set forth her ratio
decidendi under 23 Pa.C.S. § 5328(a), as required
by 23 Pa.C.S.A. § 5328(d), for the change of custody
to the Parents at or near December 20, 2013, when
she rendered judgment, and prior to the deadline for
Appellant Grandparents to notice their appeal?

8. Did the trial judge [] err as a matter of law and
abuse her discretion in granting the
motion/application for attorney’s fees without first
conducting an evidentiary hearing at which
Grandparents could contest the motion?

9. Did the trial judge [] err as a matter of law and
abuse her discretion in granting the
motion/application for attorney’s fees, when such
pleading failed to allege facts entitling the movants
to such relief?

10. Did the trial judge [] err as a matter of law and
abuse her discretion in finding that Grandparents
acted in bad faith, made false allegations, filed
frivolous motions, or otherwise engaged in conduct
which was “dilatory, obdurate and vexation?”

11. Did the trial judge [] err as a matter of law and
abuse her discretion in awarding the attorney’s fees
and costs in the amount of $14,225.00 and 134.00?

Grandparents’ Brief at 3-5. On March 20, 2014, the trial court issued an

initial written opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of

Appellate Procedure. On or about October 2, 2014, this Court remanded the

case to the trial court, requesting the preparation of a supplemental opinion

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addressing all of the factors set forth in 23 Pa.C.S.A. § 5328(a). On October

29, 2014, the trial court issued the requested supplemental opinion.

For their first and sixth issues on appeal, Grandparents contend that

the trial judge erred in refusing to recuse herself after her receipt of a fax

correspondence from Brad M. Jackman, the solicitor for CYS (hereinafter, the

“CYS Solicitor”), and in relying on the information contained in the fax in

granting custody to the Parents.1 The Grandparents contend that the fax

constituted an ex parte communication and that the trial court’s decision to

suspend the Grandparents visitation rights after its receipt constituted a

violation of Canon 3(A)(4) of the Code of Judicial Conduct. Grandparents’

Brief at 22. According to the Grandparents, the trial judge’s refusal to

recuse herself caused them to suffer prejudice and bias in the subsequent

custody proceedings, resulting in an adverse custody ruling against them.

Id.

We must first recap the relevant factual and procedural background

relating to this discrete issue. On June 14, 2013, the CYS Solicitor sent a

fax to the trial court attaching a memorandum from a caseworker after

contact with Dr. Valliere. According to the memorandum, Dr. Valliere

advised that the Child had disclosed to her that, during one of Grandparents

1
While the Grandparents’ sixth issue on appeal is broadly stated, their
appellate brief makes clear that the “purported facts and circumstances
which were not of record” are limited to those related to the recusal motion
(i.e., the contents of the fax from the CYS Solicitor). Grandparents’ Brief at
45.

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visits to Christ’s Home, her “Pop-Pop” had “said he’s gonna be good now”

and “[h]e’s not going to touch me anymore.” Motion to Recuse Judge

Gibbons, 7/31/2013, Exhibit A. The fax cover sheet indicated that in light of

the contents of the memorandum, the CYS Solicitor had contacted counsel

for the parties and had suspended all visits pending further instructions from

the trial court. The fax cover sheet further informed the trial judge that

although counsel for Grandparents had denied that the Child ever referred to

Grandfather as “Pop-Pop,” the Child had subsequently identified a picture of

Grandfather as the person to whom she was referring. Id.

On June 18, 2013, counsel for Grandparents sent a letter to the trial

court requesting a hearing or conference regarding the suspension of visits,

and on June 23, 2013, the Grandparents filed a petition to reinstate their

visits with the Child at Christ’s Home, requesting an evidentiary hearing.

Later on June 23, 2013, the trial court issued an order suspending

Grandparents’ visits with Child pending further orders of court. Order,

6/23/2013, at 1. On July 26, 2013, new counsel entered his appearance on

behalf of the Grandparents, and on July 31, 2013, the Grandparents filed a

motion for recusal. On September 9, 2013, the Court entered an order

setting a hearing on the motion for recusal for November 7, 2013. On that

date, after oral argument, the trial court denied the motion.

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The Grandparents argue that the trial judge’s decision to suspend

visitation upon receipt of the fax constituted a violation of Canon 3(A)(4) of

the Code of Judicial Conduct:

Canon 3. Judges should perform the duties of their office
impartially and diligently

The judicial duties of judges take precedence over all
their other activities. Their judicial duties include all
the duties of their office prescribed by law. In the
performance of these duties, the following standards
apply:

* * *

A. Adjudicative responsibilities.

* * *

(4) Judges should accord to all persons who are
legally interested in a proceeding or their lawyers,
full right to be heard according to law, and, except
as authorized by law, must not consider ex parte
communications concerning a pending matter.

CODE OF JUDICIAL CONDUCT, Canon 3(A)(4) (2011).2 The Grandparents

argue that the violation of Canon 3(A)(4) required the trial court to recuse

itself pursuant to Canon 3(C)(1)(a), which provides that a judge should

recuse himself or herself if his or her impartiality might reasonably be

questioned. CODE OF JUDICIAL CONDUCT, Canon 3(C)(1)(a) (2011).

2
Since the time of the events at issue here, the Code of Judicial Conduct
has been extensively modified (effective July 1, 2014). The tenets of prior
Canon 3(A)(4) are now incorporated into Canon 2, Rules 2.6(A) and 2.9.

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The trial court insists that no violation of the Code of Judicial Conduct

occurred because, inter alia, the parties (via counsel) agreed in advance that

the trial court could and would discontinue visitations at Christ’s Home

immediately upon receipt of any negative reports from CYS. Trial Court

Opinion, 3/20/2014, at 19. Based upon our review of the certified record on

appeal, the trial court did in fact warn of the possibility that it might take

such unilateral action. At the conclusion of the hearing on May 16, 2013,

the trial court stated:

Both of you should also understand that my concern
is not whether you have contact with this child at all.
The only reason I am entering this order [permitting
supervised visitation] is not for you. I really don’t
care about you, sir, and I really don’t care about the
grandmother and I don’t really care about the father.
I don’t care about the mother.

This is not about you having contact with this child.
This is about this child feeling abandoned. …

If I have to cut everybody off because there is a
problem at Christ’s Home, I will do it in a heartbeat.
They will call me at home. Everybody has my home
phone number in this County that is involved in
emergency services.

N.T., 5/16/2013, at 78-79 (emphasis added).

The record does not, however, reflect any express agreement by

counsel to this approach. Neither counsel responded on the record to the

trial court’s warning. The trial court followed its warning by stressing the

need for the parties to work together to help the Child recover from the

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abuse she had suffered to date. Id. at 79. In response, Father said, “Yes,

Your Honor,” and both counsel thanked the trial court. Id. at 79-80.

In any event, this warning is not dispositive of the issue of compliance

with Canon 3(A)(4), since nothing in the record indicates (or even suggests)

that counsel for the parties agreed in advance to waive their clients’ due

process rights to be heard in response to unilateral action by the trial court.

The trial court, relying upon the information in the fax from the CYS

Solicitor, entered an order terminating the Grandparents’ right to continued

visitations. The Grandparents responded by filing a petition to reinstate

visitations and a request for a hearing on the same. The trial court took no

action on the Grandparents’ petition, however, until September 9, 2013, at

which time it scheduled a hearing for November 7, 2013.

Whether the trial court’s failure to provide the Grandparents with a

timely opportunity to be heard on the contents of the fax constitutes a

violation of Canon 3(A)(4) is not for this Court to decide. Interpretation and

enforcement of the Code of Judicial Conduct is beyond the jurisdiction of this

Court, and instead belongs exclusively with our Supreme Court. As the

Supreme Court has explained:

In furtherance of our exclusive right to supervise the
conduct of all courts and officers of the judicial
branch of government pursuant to Article V, Section
10(c) of our Constitution, we have adopted rules of
judicial conduct for ourselves and all members of the
judicial branch. (See Rules of Judicial Conduct,
effective January 1, 1974, and reported at 455 Pa.

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XXXIX.) The enforcement of those rules, however, is
beyond the jurisdiction of the Superior Court and to
the extent that it has attempted to interpret Canon 3
C, by creating new standards of review on recusal
motions, procedures for raising recusal questions, or
for enforcement of violations of the Code, they are
without effect, as unwarranted intrusions upon this
Court's exclusive right to supervise the conduct of all
courts and officers of the judicial branch.

Reilly v. SEPTA, 489 A.2d 1291, 1298 (Pa. 1985), overruled on other

grounds as recognized by Gallagher v. Harleysville Mut., 617 A.2d 790,

794 (Pa. Super. 1992). In Reilly, our Supreme Court also added:

Canon 3C, like the whole of the Code of Judicial
Conduct, does not have the force of substantive law,
but imposes standards of conduct upon the judiciary
to be referred to by a judge in his self-assessment
of whether he should volunteer to recuse from a
matter pending before him. The rules do not give
standing to others, including the Superior Court, to
seek compliance or enforcement of the Code because
its provisions merely set a norm of conduct for all
our judges and do not impose substantive legal
duties on them.

Id. (emphasis in original).

When a party requests that a trial judge recuse herself, whether based

upon an alleged violation of the Code of Judicial Conduct or otherwise, the

jurist must make a conscientious determination of her ability to assess the

case in an impartial manner, and whether her continued involvement in the

case would create an appearance of impropriety or tend to undermine public

confidence in the judiciary. See, e.g., Commonwealth v. Kearney,

92 A.3d 51, 61 (Pa. Super. 2014) (quoting Commonwealth v. Abu–Jamal,

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720 A.2d 79, 89 (Pa. 1998)), appeal denied, 2014 WL 5097404 (Pa. Sept.

30, 2014). In this case, the trial court represents that it conducted a self-

assessment and decided that it remained free of personal bias or interest in

the outcome at all times. Trial Court Opinion, 3/20/2014, at 19-20.

On appeal, our standard of review is limited to a review of the certified

record to determine whether the appellant received a fair and impartial trial

on the merits of the case. Reilly, 489 A.2d at 1300. As our Supreme Court

emphasized in Reilly, if the appellant received a fair and impartial trial, “the

alleged disqualifying factors of the trial judge become moot.” Id.

(emphasis in original); see also In re Zupsic, 893 A.2d 875, 891 (Pa. Ct.

Jud. Disc. 2005) (intermediate appellate courts do not review the propriety

of trial judges’ denials of recusal motions).

We have reviewed the record of the custody proceedings conducted by

the trial court, including in particular those sessions taking place after the

trial court denied the Grandparents’ motion for recusal (i.e., on November

25, 2013 and December 6, 9, 11, and 12, 2013). Based upon our review of

the certified record on appeal, we conclude that these proceedings were fair

in all respects. The trial court did not limit the Grandparents’ opportunities

to call witnesses or to cross-examine those called by the Parents. Moreover,

the trial court’s evidentiary and other rulings throughout the proceedings do

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not reflect any partiality towards either party.3 On appeal, the Grandparents

do not direct our attention to any particular irregularities in the proceedings,

and instead (in their sixth issue on appeal) contend only that they were

prejudiced by the trial court’s consideration of the contents of the ex parte

fax from the CYS Solicitor. We cannot agree. At the evidentiary hearing on

November 25, 2013, Dr. Valliere testified at length, relating her

conversations with the Child over time, including those described in the

memorandum attached to the CYS Solicitor’s fax. N.T., 11/25/2013, at 4-

100. Dr. Valliere also testified about the use of photographs and other

information used to identify the individual who had touched her

inappropriately as Grandfather (“Pop-Pop” or “Poppy”), as originally related

in the CYS Solicitor’s fax cover page. Id. at 14, 74-78. Counsel for the

Grandparents had a full and fair opportunity to cross-examine Dr. Valliere in

all respects, including on all issues related to the June 14, 2013 fax. Id. at

32-94.

Accordingly, when the trial court reached its decision to grant custody

to the Parents, it had the benefit of the entirety of Dr. Valliere’s testimony,

and thus had no need to rely on the prior fax correspondence. As a result,

3
As the trial court correctly notes, its eventual decision to grant custody to
the Parents is not, in and of itself, evidence of bias or partiality. See, e.g.,
Commonwealth v. Travaglia, 661 A.2d 352, 367 (Pa. 1995) (“[S]imply
because a judge rules against a defendant does not establish any bias on the
part of the judge against that defendant.”), cert. denied, 516 U.S. 1121
(1996).

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the trial court’s receipt of the June 14, 2013 fax did not preclude the

Grandparents from receiving a fair and impartial trial on the merits of the

case. Reilly, 489 A.2d at 1300. Thus, while we do not condone the trial

court’s failure to provide the Grandparents with an earlier opportunity to be

heard on the contents of the fax, no basis exists on this record to grant relief

on their first and/or sixth issues on appeal.

For their second issue on appeal, the Grandparents argue that the trial

court erred in applying a rebuttable presumption in favor of the Parents

when awarding custody in this case. The Grandparents contend that

although 23 Pa.C.S.A. § 5327(b) specifies that a rebuttable presumption

exists in favor of the natural parents over third parties in custody disputes,

the presumption should not have been applied in this case because the

Grandparents had previously been awarded permanent legal custody of the

Child (in May 2009). Grandparents’ Brief at 27. When “the question [is]

one of statutory interpretation, our scope of review is plenary and the

standard of review is de novo. ” Commonwealth v. Kerstetter, 94 A.3d

991, 997 (Pa. 2014). “[O]ur paramount interpretative task is to give effect

to the intent of our General Assembly in enacting the particular legislation

under review.” Commonwealth v. Spence, 91 A.3d 44, 46 (Pa. 2014).

Section 5327(b) provides as follows:

§ 5327. Presumption in cases concerning primary
physical custody

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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.

23 Pa.C.S.A. § 5327(b). For purposes of a custody dispute, persons other

than the natural or birth parents are considered to be “third parties.”

McDonel v. Sohn, 762 A.2d 1101, 1105 (Pa. Super. 2000), appeal denied,

782 A.2d 547 (Pa. 2001).

This Court has described the methodology for application of this

presumption:

In Charles, our Supreme Court reasoned,

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.

[Charles v. Stehlik, 744 A.2d 1255, 1258 (Pa.
2000) (internal quotations and brackets omitted)].
Our legislature recently codified this principle in
23 Pa.C.S § 5327(b), which states in pertinent part,
“In any action regarding the custody of the child
between a parent of the child and a nonparent, there
shall be a presumption that custody shall be awarded
to the parent. The presumption in favor of the
parent may be rebutted by clear and convincing
evidence.” 23 Pa.C.S. § 5327(b). We have

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explained, “The standard of clear and convincing
evidence means testimony that is so clear, direct,
weighty, and convincing so as to enable the trier of
fact to come to a clear conviction, without hesitation,
of the truth of the precise facts in issue.” In re
B.C., 36 A.3d 601, 605–606 (Pa. Super. 2012).

Addressing the appropriate methodology in the
context of the common law presumption, we
elucidated

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 (1980)). In Ellerbe, supra 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.” Ellerbe,
supra at 514.

V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa. Super 2012).

According to the Grandparents, the rebuttable presumption in section

5327(b) should apply only in initial custody determinations, but not in

proceedings for custody modifications after a prior determination in a

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dependency adjudication granting a permanent legal custodianship based

upon a finding that the parents were unfit and neglectful. Grandparents’

Brief at 28. In support of this interpretation of section 5327(b), the

Grandparents rely primarily upon cases from sister states. Id. at 31-33.

The Grandparents also reference a statement in a footnote in a recent case

from this Court involving a custody dispute between parents and

grandparents, to the effect that “parents will only be able to obtain primary

custody upon a showing that it serves the best interest of the Child.” In re

S.H., 71 A.3d 973, 983 n.5 (Pa. Super. 2013).

We conclude that the trial court did not err in applying the

presumption in favor of the Parents in this case. Contrary to the

Grandparents’ attempts to find inconsistencies in the relevant statutory

provisions, the language of section 5327(b) provides that the presumption

applies “in any action regarding the custody of the child between a parent

of the child and a nonparent.” 23 Pa.C.S.A. § 5327(b) (emphasis added).

In ascertaining the intent of the General Assembly, the best indication “is

the plain language of the statute,” and “when the words of a statute are

clear and unambiguous, we may not go beyond the plain meaning of the

language of the statute under the pretext of pursuing its spirit.” In re

D.M.W., __ A.3d __, 2014 WL 5088797, at *2 (Pa. Super. Oct. 10, 2014)

(quoting Commonwealth v. Walter, 93 A.3d 442, 450 (Pa. 2014)). The

language of section 5327(b) is clear and unambiguous, instructing that the

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presumption applies in all custody proceedings between parents and third

parties, and this language offers no basis for exceptions of the sort now

proffered by the Grandparents. Our decision in In re S.H. is not

inconsistent with this conclusion, since the best interest of the child remains

the sine qua non of every custody proceeding, whether or not the

presumption in section 5327(b) applies.

For their third and seventh issues on appeal, the Grandparents

contend that the trial court failed to award custody based upon the factors

set forth in 23 Pa.C.S.A. § 5328(a), and failed to set forth its analysis on the

record prior to the expiration of the 30 day appeal window after its award of

custody on December 20, 2013. C.B. v. J.B., 65 A.3d 946, 951-52 (Pa.

Super.), appeal denied, 70 A.3d 808 (Pa. 2013).

No relief is due on these issues. With respect to the third issue on

appeal, on March 20, 2014 the trial court issued a comprehensive 43-page

opinion pursuant to Pa.R.A.P. 1925(a) setting forth in detail the reasons for

its custody decision. While it is true that this Court remanded for a

supplemental Rule 1925(a) opinion on the section 5328(a) factors, we did so

only to allow the trial court to provide a factor-by-factor review to aid in our

appellate review. In remanding the case, we did not conclude that the trial

court had failed to consider all of the section 5328(a) factors, but rather only

requested only that the trial court revise its analysis to offer us a seriatim

review of each of the fifteen listed factors.

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With respect to the seventh issue on appeal, this issue is waived for

failure to include it either in the Grandparents’ initial Rule 1925(b) statement

filed on January 21, 2014 or their amended Rule 1925(b) statement filed on

April 28, 2014. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph are waived.”). Even if it had not been waived, however, we

would not grant relief. In announcing its decision at the conclusion of the

hearing on December 20, 2013, the trial court set forth the fundamental

bases for its custody decision, including that the Parents drug abuse and

mental health issues had largely been resolved, that the Parents’ and

Grandparents’ differences were irreconcilable and their hatred and animosity

towards each other was so palpable that it had infected all aspects of the

Child’s life, that the Child’s last reports of sexual abuse identified

Grandfather as the perpetrator, and that the Grandparents displayed a lack

of supervision over the Child and a loss of perspective and ability to analyze

situations involving the Child. N.T., 12/20/2013, at 22-28. This explication

of the trial court’s reasons for its custody decision was sufficiently detailed to

permit the Grandparents to file their appeal and comply with the dictates of

Pa.R.A.P. 1925(b). See M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.)

(“[T]here is no required amount of detail for the trial court’s explanation; all

that is required is that the enumerated factors are considered and that the

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custody decision is based on those considerations.”), appeal denied, 68 A.3d

909 (Pa. 2013).

For their fourth and fifth issues on appeal, the Grandparents argue

that the trial court erred as a matter of law and abused its discretion in

awarding custody of the Child to the Parents. Grandparents’ Brief at 34-42.

The Grandparents specifically contend that the trial court ignored,

misconstrued, or gave insufficient weight to certain “smoking gun” video

evidence in which the Child, inter alia, said “My Daddy tried to do sex with

me,” and was allegedly coached by Parents to accuse Grandfather of

molesting her while absolving Father of any responsibility for the same. Id.

at 42-43.

We begin with our scope and 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 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.

With any child custody case, the paramount concern
is the best interests of the child. This standard

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requires a case-by-case assessment of all the factors
that may legitimately affect the physical, intellectual,
moral and spiritual well-being of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super.) (quoting J.R.M. v. J.E.A.,

33 A.3d 647, 650 (Pa. Super. 2011), appeal denied, 68 A.3d 909 (Pa. 2013).

Pursuant to the Child Custody Act, a trial court must consider specific

factors when entering or modifying a custody order:

§ 5328. Factors to consider when awarding custody

(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.

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

(4) The need for stability and continuity in the child’s
education, family life and community life.

(5) The availability of extended family.

(6) The child's sibling relationships.

(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.

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(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.

23 Pa.C.S.A. § 5328(a).4

4
Pursuant to the Act of Dec. 18, 2013, P.L. 1167, No. 107, § 1, the
legislature added an additional factor, numbered 2.1, relating to
consideration of child abuse and involvement with protective services.
M.E.V. v. F.P.W., 100 A.3d 670, 671 n.2 (Pa. Super. 2014). Because the
trial court granted sole legal and physical custody of Child to the Parents on
December 20, 2013, and because the amendment adding section 2.1 did not

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In its initial and supplemental Rule 1925(a) opinions, the trial court

comprehensively reviewed every factor in section 5328(a), setting forth its

determination on each factor and the evidence relied upon for each such

determination. Pursuant to our review of the record, we conclude that

substantial evidence supports the findings of the trial court. The trial court’s

analysis of those factors related to the Child’s safety, including in particular

the conflicting allegations of sexual abuse, was particularly thorough, and as

the introductory language of section 5328(a) requires, the trial court gave

weighted consideration to these factors.

Even if we were so inclined to do so (which we are not), we could not

grant relief based upon the Grandparents’ contention that the trial court

gave insufficient weight to certain video evidence. This evidence was only a

small part of the quantum of evidence introduced during the custody

proceedings, and in any event, our standard of review necessitates that

“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.” J.R.M., 33 A.3d at 650.

For their final four issues on appeal, the Grandparents claim that the

trial court erred as a matter of law or abused its discretion in awarding the

Parents attorneys’ fees and costs. Grandparents’ Brief at 46-51. The

become effective until January 1, 2014, factor 2.1 has no application in this
case.

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Grandparents argue that the trial court could not award attorneys’ fees and

costs without a separate evidentiary hearing, and that the trial court’s

findings of fact (including its refusal to reach a final determination on

whether Grandfather sexually molested the Child) do not in any event

support such an award. Id.

The trial court awarded attorneys’ fees and costs here under 42

Pa.C.S.A. § 2503(7) and 23 Pa.C.S.A. § 5339. Pursuant to section 2503(7),

a participant is “entitled to a reasonable counsel fee as part of the taxable

costs of the matter ... as a sanction against another participant for dilatory,

obdurate or vexatious conduct during the pendency of a matter.” 42

Pa.C.S.A. § 2503(7). Pursuant to section 5339, in a custody matter “a court

may award reasonable interim or final counsel fees, costs and expenses to a

party if the court finds that the conduct of another party was obdurate,

vexatious, repetitive or in bad faith.” 23 Pa.C.S.A. § 5339. Obdurate is

defined as unyielding or stubborn. Scalia v. Erie Insurance Exchange,

878 A.2d 114, 116 (Pa. Super. 2005).

Our standard of review when considering an award of attorneys’ fees

and costs is as follows:

The trial court has great latitude and discretion with
respect to an award of attorneys' fees pursuant to a
statute. Cummins v. Atlas R.R. Construction Co.,
814 A.2d 742, 746 (Pa. Super. 2002). In reviewing
a trial court's award of attorneys' fees, our standard
is abuse of discretion. Lucchino v.
Commonwealth, 570 Pa. 277, 284, 286, 809 A.2d

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264, 269-70 (2002); Miller v. Nelson, 768 A.2d
858, 861 (Pa. Super. 2001). If there is support in
the record for the trial court's findings of fact that
the conduct of the party was obdurate, vexatious or
in bad faith, we will not disturb the trial court's
decision.

In re Padezanin, 937 A.2d 475, 483-84 (Pa. Super. 2007) (quoting Scalia,

878 A.2d at 116). While a separate evidentiary hearing is often the

preferred course, State Farm Mut. Auto. Ins. Co. v. Allen, 544 A.2d 491,

494 (Pa. Super. 1988), “[i]f the record supports a trial court’s finding of fact

that a litigant violated the conduct provisions of the relevant statute

providing for the award of attorney’s fees, such award should not be

disturbed on appeal.” Kulp v. Hrivnak, 765 A.2d 796, 799 (Pa. Super.

2000) (quoting Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996)).

The trial court awarded attorneys’ fees and costs to the Parents for the

following reasons:

In the instant case, this [c]ourt finds that
[Grandparents] acted in bad faith by making and
pursuing numerous false allegations against Parents,
including false allegations of sexual abuse, in order
to obtain sole physical custody of Parents’ six-year-
old daughter (the Child) and to retain sole legal
custody of the Child. This [c]ourt further finds that
Grandparents’ conduct during the course of the
custody litigation was dilatory, obdurate and
vexatious. The bases of these findings are set forth
in detail in this [c]ourt’s Opinion dated March 20,
2014, and will, therefore, not be reiterated here.

Trial Court Memorandum Opinion and Order, 3/21/2014, at 1.

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In its March 20, 2014 opinion, the trial court reviewed the evidence

supporting the Grandparents’ repeated allegations of physical abuse and

neglect by the Parents over time, including claims that the Child, while in the

Parents’ temporary custody during visits, had been bitten by a dog, suffered

a concussion while falling off a trampoline, was allowed to watch scary

movies, and was burned. The trial court concluded that these claims were

all either false or unsupported by substantial evidence. The trial court also

reviewed the evidence to support the Grandparents’ allegations that Father

sexually molested the Child, concluding (as CYS had already done) that

these allegations were baseless. Trial Court Opinion, 3/20/2014, at 34. In

addition, the trial court noted that there was substantial evidence to prove

that the “evidence” relied upon by Grandparents in support of these

allegations, including for example the Child’s statement that “Daddy tried to

do sex with me,” was false and manufactured by the Grandparents. Id. at

34-35. The trial court found, and the certified record on appeal supports,

that the Child was merely parroting words she did not understand and that

she had been coached to say them by Grandmother, Grandfather, or both.

Id. at 35.

As we conclude that the record in this case supports the trial court’s

findings of fact that the conduct of the Grandparents was obdurate,

vexatious or in bad faith, we will not disturb the trial court’s decision to

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award attorneys’ fees and costs to the Parents. No relief is due on the

Grandparents’ final four issues on appeal.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2014

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