J-A21021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.L.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
L.M.C., W.H. (DECEASED), AND D.H. : No. 369 WDA 2017
Appeal from the Order Entered February 15, 2017
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 14-007453-001
BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 21, 2017
M.L.H. (“Maternal Grandmother”) appeals from the order dated
February 13, 2017 and entered on February 15, 2017, that awarded sole
legal custody and primary physical custody of A.H. (born in August of 2010)
(“Daughter”), and B.H. (born in February of 2013) (“Son”) (collectively,
“Children”) to Mother; and partial physical custody of the Children to
Maternal Grandmother and D.H. (“Paternal Grandmother”). We affirm in
part, and remand in part, with instructions to the trial court to clarify the
caption of the February 13, 2017 final order of court, and to clarify the
custody schedule.
The Children’s father, W.H. (“Father”), passed away in May of 2014.
On July 22, 2014, Paternal Grandmother filed a complaint seeking partial
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custody. The trial court set forth the procedural history of this appeal as
follows.
. . . About a year after Father’s death [(in May of 2014)],
Paternal Grandmother and Mother entered into a consent order
that granted Paternal Grandmother partial custody every other
Saturday, from 1:30 P.M. until 7:30 P.M., and every Thursday
following the custodial Saturday, from 4:30 P.M. until 7:30 P.M.
On April 7, 2016, Maternal Grandmother filed a Third Party
Complaint for Confirmation of Custody that was then deemed a
Petition to Modify Custody. An Interim Order of Court dated
April 29, 2016 granted Maternal Grandmother and Mother shared
physical custody of the Children on a week-on, week-off
schedule, with Paternal Grandmother’s partial custody periods
remaining unchanged. Pursuant to the April 29, 2016 Interim
Order, Mother retained sole legal custody of the Children.
Finally, pursuant to Maternal Grandmother’s August 22, 2016
Emergency Motion to Maintain Status Quo - School, [on that
same date] the [c]ourt ordered that the Children should remain
enrolled in the Chartiers Valley School District, with Maternal
Step-Grandfather providing transportation during Mother’s
custody weeks.
The [c]ourt conducted a hearing in the matter on January
30, 2017. During the hearing, the [c]ourt heard testimony from
the following witnesses: Daughter’s substitute first grade
teacher, Daughter’s first grade teacher, Maternal
Step-Grandfather (N.H.), Maternal Grandmother, Maternal
Step-Grandfather’s Brother (J.H.), two Paternal Aunts (M.K. and
K.H.), the Children’s Paternal Half-Sister (L.H.), Paternal
Grandmother, and Mother. The [c]ourt admitted Maternal
Grandmother’s Exhibits 1-9 and 11-161 and [c]ourt’s Exhibit A
into the record.
The parties completed all testimony on January 30, 2017.
___________________________________________________
1 Maternal Grandmother’s counsel identified a document as
Maternal Grandmother’s Exhibit 10 but never moved to admit
this exhibit.
Trial Court Opinion, 5/8/17, at 1-2 (footnote in original).
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The trial court made the following factual findings from the testimony
at the evidentiary hearing.
Mother has admittedly struggled with issues of drug and
alcohol abuse dating back to her early adulthood. Following
Father’s death, Mother was arrested on May 19, 2014 and
January 13, 2015. These arrests resulted in guilty pleas to two
DUI charges and two counts of Endangering the Welfare of
Children.6 Mother received a sentence of probation.
In December 2015, Mother was arrested for violating her
probation. She was incarcerated at the Allegheny County Jail for
approximately one month and was released from jail to
residential drug and alcohol treatment at Family Links. Mother
successfully completed six months of treatment at Family Links.
She then obtained her own housing in Brentwood and has
maintained her sobriety since her re-entry into the community.
At the time of the hearing in this matter, Mother had achieved
over a year of sobriety, was fully compliant with the terms of her
probation, was actively involved in mental health treatment, and
had progressed to the fourth of five stages in this jurisdiction’s
DUI Court.
Despite Mother’s struggles with substance abuse, the
Children have resided with Mother for most of their lives.
Mother, Father, and the Children lived together as a family when
the Children were born. After a domestic dispute in April 2014,
Mother and the Children moved in with Maternal Grandmother.
Following Father’s death and Mother’s arrests, Mother and the
Children continued to reside with Maternal Grandmother. The
Children lived in Mother’s care and Mother’s legal custody in
Maternal Grandmother’s house until December 2015, when
Mother was incarcerated. At that point, the Children remained in
Maternal Grandmother’s care.
When Mother first entered treatment at Family Links, the
Children lived with Maternal Grandmother during the week and
stayed with Mother on the weekends. In April 2016, after
Maternal Grandmother filed for custody, the Children began
alternating between Maternal Grandmother’s care and Mother’s
care on a week-on, week-off schedule.7 This schedule remained
in effect at the time of the hearing.
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By all accounts, the Children are thriving. In 2014, while
Mother and the Children were residing together with Maternal
Grandmother, Mother enrolled Daughter in Chartiers Valley
School District, where she remained during the pendency of this
litigation.8 Daughter has performed well in school, has
maintained good attendance, and has exhibited no significant
behavioral difficulties of any kind.9
Son attended Early Enrichment Childcare during Maternal
Grandmother’s custody weeks. Shortly before Son turned three
years old, the Alliance for Infants and Toddlers evaluated him
and identified one area in which he might benefit from early
intervention services. However, no evidence was presented that
DART [(“Discovery, Assessment, Referral and Tracking”)], which
is an entity responsible for early intervention evaluation and
services beginning at age three, has ever provided services to
Son or recommended them as necessary. Son does not attend
day care during Mother’s custody weeks, and instead engages in
a variety of typical, age-appropriate activities.
The Children benefit from a large network of extended
family in the area, including many paternal relatives and
Maternal Step-Grandfather’s many relatives. In the past year,
Mother and paternal relatives have rebuilt their relationships and
cooperate well to ensure that the Children maintain their
connection to Father’s side of the family, including their older
half-siblings as well as Paternal Grandmother, cousins, and
aunts.
It was against this background that the [c]ourt evaluated
Maternal Grandmother’s request for primary custody of the
Children, which would have amounted to a significant reduction
in the time Children spent with Mother.
___________________________________________________
6 See Maternal Grandmother’s Exhibit 8.
7 See Maternal Grandmother’s Exhibit 9.
8 Tr. 88, 94 (January 30, 2017).
9 See Maternal Grandmother's Exhibit 1.
Trial Court Opinion, 5/8/17, at 3-5 (footnotes in original).
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The trial court continued its explanation of the procedural history of
this appeal as follows.
On February 6, 2017, with all parties present, the [c]ourt
announced its decision and discussed its findings related to the
custody factors that the court must consider pursuant to the
Domestic Relations Code.2 The [c]ourt awarded primary physical
custody of the Children to Mother, and partial physical custody to
Maternal Grandmother and Paternal Grandmother. The [c]ourt
maintained sole legal custody with Mother. The [c]ourt
subsequently issued its final order on February 13, 2017. The
order was entered on the docket on February 15, 2017. On
March 3, 2017, Maternal Grandmother timely filed her Notice of
Appeal.3 On March 7, 2017, the [c]ourt issued a [Pa.R.A.P.]
1925(b) order directing Maternal Grandmother to immediately
file a concise statement of matters complained of on appeal and
to serve copies on Mother, Paternal Grandmother, and the
Court.4 Maternal Grandmother filed her Concise Statement of
Matters Complained of on Appeal (“Concise Statement”) on
March 9, 2017[.]
___________________________________________________
2 Tr. 4-14 (February 6, 2017).
3The [c]ourt’s opinion is being filed after the 30-day fast track
deadline as the [c]ourt did not receive all necessary transcripts
until March 27, 2017.
4 See Rule 1925(b) Order, dated February 7, 2017.
Trial Court Opinion, 5/8/17, at 1-2 (footnotes in original).1
____________________________________________
1 See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009) (finding that the
appellant’s failure to simultaneously file a Rule 1925(b) Statement did not
result in waiver of all issues for appeal where the appellant later filed the
Statement, and there was no allegation of prejudice from the late filing);
compare J.P. v. S.P., 991 A.2d 904 (Pa. Super. 2010) (appellant waived
issues for appeal by failing to comply with trial court’s order directing her to
file a Rule 1925(b) Statement within 21 days).
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In her brief on appeal, Maternal Grandmother raises the following
issues:
I. Did the trial court err as a matter of law and abuse its
discretion in failing to address the application of the sixteen (16)
custody factors set forth in 23 Pa.C.S.A. § 5328?
II. Did the trial court err as a matter of law and abuse its
discretion in failing to author the terms of the February 13, 2017
Final Custody Order of Court in a “sufficiently specific” manner in
accordance with Pa.R.C.P. No. 1915.10(b)?
III. Did the trial court err as a matter of law and abuse its
discretion in issuing a Final Custody Order of Court that was
inconsistent with its February 6, 2017 disposition of the custody
factors under 23 Pa.C.S.A. § 5328, which was made on the
record in open court, with respect to the physical custody
schedule outlined in the Final Custody Order?
IV. Did the trial court err as a matter of law and abuse its
discretion by ignoring the best interest of the children standard
when it determined that various relevant custody factors under
23 Pa.C.S.A. § 5328 were “not applicable” despite the
undisputed admissible evidence?
V. Did the trial court err as a matter of law and abuse its
discretion when it ordered that [Mother] shall have primary
custody of the [C]hildren, when the evidence clearly revealed
that [Maternal Grandmother], despite her third-party custodian
status, has been caring for the children on a full-time basis in
her home that she owns; enrolled and continues to be the only
custodial parent active in their schooling; offers a more stable
living environment; and is the party more likely to encourage
and permit continued and frequent contact?
VI. Did the trial court err as a matter of law and abuse its
discretion when it made more than reasonable accommodations
to ensure [Mother], a pro se litigant, the opportunity to have her
matters heard in violation of Code of Jud. Conduct, Rule 2.2, 42
Pa.C.S.A?
VII. Did the trial court err as a matter of law and abuse its
discretion when it acted with impropriety, bias, and or prejudice
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in violation of Code of Jud. Conduct, Rule 2.3, 42 Pa.C.S.A, and
Rule 1.2, 42 Pa.C.S.A?
Maternal Grandmother’s Brief, at 2-3.
As the custody trial in this matter was held in January of 2017, the
Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable.
C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the
custody evidentiary proceeding commences on or after the effective date of
the Act, i.e., January 24, 2011, the provisions of the Act apply).
In custody cases, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
Id. at 443 (citation omitted).
We have stated:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
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.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard.
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section
5338 of the Act provides that, upon petition, a trial court may modify a
custody order if it serves the best interests of the child. 23 Pa.C.S.A.
§ 5338. Section 5328(a) of the Act sets forth the best interest factors that
the trial court must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa.
Super. 2011); 23 Pa.C.S.A. § 5328.
Section 5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
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(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323.
Section 5323(d) provides that the court shall delineate the reasons for
its decision on the record in open court or in a written opinion or order. 23
Pa.C.S.A. § 5323(d).
Section 5322 of the Act defines the relevant forms of custody as
follows:
§ 5322. Definitions
(a) This chapter.— The following words and phrases when
used in this chapter shall have the meanings given to them in
this subsection unless the context clearly indicates otherwise:
***
“Legal custody.” The right to make major decisions on behalf
of the child, including, but not limited to, medical, religious and
educational decisions.
***
“Partial physical custody.” The right to assume physical
custody of the child for less than a majority of the time.”
“Physical custody.” The actual physical possession and
control of a child.
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“Primary physical custody.” The right to assume physical
custody of the child for the majority of time.
***
“Shared legal custody.” The right of more than one individual
to legal custody of the child.
“Shared physical custody.” The right of more than one
individual to assume physical custody of the child, each having
significant periods of physical custodial time with the child.
“Sole legal custody.” The right of one individual to exclusive
legal custody of the child.
“Sole physical custody.” The right of one individual to
exclusive physical custody of the child.
***
23 Pa.C.S.A. § 5322.
Section 5328(a) of the Act provides as follows:
§ 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.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement
with protective services).
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(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(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.
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(16) Any other relevant factor.
23 Pa.C.S.A. § 5328.
In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained
the following:
“All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). . . . The record must be clear on appeal that the
trial court considered all the factors. Id.
Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record or in open court or in a
written opinion or order.” 23 Pa.C.S.A. 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). Section
5323(d) applies to cases involving custody and relocation.
A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013).
In expressing the reasons for its decision, “there 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 custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
denied, [620 Pa. 710], 68 A.3d 909 (2013). A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
Id.
A.V., 87 A.3d at 822-823.
Both Maternal Grandmother and the trial court grouped Maternal
Grandmother’s issues 1, 4, and 5 together, as these issues comprise a
challenge to the trial court’s assessment of the facts and weighing of
evidence regarding the Children’s best interests under the section 5328(a)
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best interest factors. In her summary of argument section of her brief,
Maternal Grandmother argues that, despite the presumption against
awarding physical custody to her as a third-party custodian, the clear and
convincing evidence at the evidentiary hearing, when properly weighed
against the sixteen section 5328(a) best interest factors, demonstrated that
the best interest of the Children would be served by awarding her shared
legal and substantial partial physical custody. Maternal Grandmother’s Brief,
at 9. Maternal Grandmother contends that the trial court’s findings with
regard to the section 5328(a) factors that the court did not weigh in her
favor were not in the Children’s best interests. Id.
Maternal Grandmother argues that Mother has a significant history of
dangerous substance and alcohol abuse, and has been in and out of
substance and alcohol rehabilitation, as well as incarceration. Id. at 10.
Maternal Grandmother asserts that she has always supported and
encouraged Mother with her struggle with substance and alcohol abuse, and
she has always supported the Children’s best interests and relationship with
Mother. Id. Maternal Grandmother alleges “Mother did not present one
scintilla of evidence that indicated she has truly rehabilitated herself [and]
improved her parenting abilities.” Id. Maternal Grandmother asserts that
Mother has never safely had sole legal and primary physical custody of the
Children. Id. In her prayer for relief, Maternal Grandmother requests
shared legal and shared physical custody of the Children with Mother, and an
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order returning the Children to Chartiers Valley Primary School. Id. at 11,
38.2
The trial court prefaced its analysis of Maternal Grandmother’s issues
by discussing the presumption favoring parents over third parties in custody
disputes and the trial court’s process of weighing the evidence set forth in
the Act, 23 Pa.C.S.A. § 5327(b). Section 5327(b) of the Act provides:
§ 5327. Presumption in cases concerning primary
physical custody
(a) Between parents.— In any action regarding the
custody of the child between the parents of the child, there shall
be no presumption that custody should be awarded to a
particular parent.
(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.
(c) Between third parties.—In any action regarding the
custody of the child between a nonparent and another
nonparent, there shall be no presumption that custody shall be
awarded to a particular party.
23 Pa.C.S.A. § 5327.
____________________________________________
2 We observe that Maternal Grandmother argues that it is in the Children’s
best interests for the court to award her substantial partial physical custody.
She requests an award of shared physical custody with Mother, and Paternal
Grandmother’s partial physical custody time to remain the same. See 23
Pa.C.S.A. § 5322, set forth supra. Thus, it appears that Maternal
Grandmother concedes that she and Mother cannot have a 50-50 split of all
of the custodial time, and that she is seeking an award more akin to the
50-50 split that she shared with Mother under the April 29, 2016 interim
order, with Paternal Grandmother’s partial custodial time undisturbed.
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The trial court stated as follows.
The dispute in this matter lies between Mother and
Maternal Grandmother, a third party custodian.11 It is well
established that in a custody dispute between a third party and a
parent, the burden of proof is not evenly balanced. In such
cases, “the [parent has] a ‘prima facie right to custody,’ which
will be forfeited only if ‘convincing reasons’ appear that the
[children’s] best interest[s] will be served by an award to the
third party.”12 “Thus, even before the proceedings start, the
evidentiary scale is tipped, and tipped hard, to the [biological
parent’s] side.”13 “What the judge must do, therefore, is first,
hear all evidence relevant to the [children’s] best interest[s],
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.”14
The Pennsylvania General Assembly recently codified the
presumption favoring the parent, providing that “[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.”15
The [c]ourt evaluated the evidence in light of this presumption
and awarded primary physical custody of the Children to Mother.
As required by the Domestic Relations Code, the [c]ourt
reached its determination regarding the Children’s best interests
by considering each of the 16 custody factors delineated in 23
Pa.C.S. § 5328(a). While the [c]ourt found that two of the
custody factors weighed in Maternal Grandmother’s favor, the
evidence on these factors was insufficient to overcome the
presumption in Mother’s favor, particularly in light of the
[c]ourt’s findings that three custody factors favored Mother and
that 12 factors were either neutral between the two parties or
were not applicable.
Maternal Grandmother’s strongest evidence in favor of her
request for primary custody was the evidence regarding Mother’s
struggles with substance abuse. These struggles have been
longstanding, and the [c]ourt recognizes that it will not serve the
Children’s best interests for Mother to experience a significant
relapse. However, the evidence demonstrated to the [c]ourt
that Mother is succeeding at maintaining sobriety and at caring
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for the Children while she does so. Case law demonstrates that
in circumstances such as these, Mother’s history need not cause
her to lose custody of the Children.
The Superior Court’s decision in Jordan v. Jackson,
provided useful guidance to this [c]ourt.16 In Jordan, the child’s
grandparents exercised custody of the child while the mother
was struggling with a period of substance abuse and
incarceration. In affirming the trial court’s decision to award the
mother primary custody, the Superior Court stated:
Admirably, it is clear that grandparents have provided a
home and have provided emotionally for the child for a
significant period of time while mother was unable to do so.
. . . All evidence, however, indicates mother has been
providing the same since shortly after she was released
from jail. She is ready, willing, and able to provide a home,
and to provide financially and emotionally for the child. The
child has continued to do well academically while the parties
have shared custody.17
The Jordan Court emphasized that while a parent’s past
substance abuse and criminal history, as well as a parent’s
rehabilitation, are very pertinent considerations, the focus of the
case is still the current best interests of the children.18 The child
in Jordan had been cared for exclusively by the grandparents in
excess of two years. The Jordan Court nevertheless found it
within the trial court’s discretion to apply the presumption in
Mother's favor and award her primary custody. What Jordan
demonstrates is that it is well within the [c]ourt’s discretion to
reach the conclusion reached here.
Maternal Grandmother emphasized the Children’s
educational needs and believes she is more likely to attend to
these needs. The evidence, however, did not support this belief.
Daughter is excelling in the first grade. Mother and Maternal
Grandmother have been sharing custody for the entire school
year. There is no indication that Mother is inattentive to
Daughter’s education. Daughter does not have issues with
tardiness, absences, incomplete homework, or behavior.
Maternal Grandmother made much of Mother’s lack of in-person
participation at school and Mother’s choice not to use what
appears to be a non-mandatory, supplemental web-based
program. The [c]ourt sees these as legitimate parental choices
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regarding a child who is succeeding, not an indication of flawed
parenting.
Outside of Factor 4 (relating to stability) and Factor 14
(relating to substance abuse), the [c]ourt rated the custody
factors in favor of Mother, neutral, or not applicable. On
February 6, 2017, with all parties present, the [c]ourt discussed
its finding concerning all the factors on the record and now
incorporates those findings into this opinion.19 Based on these
findings, as well as the above discussion, the Superior Court
should conclude that this [c]ourt properly applied the
presumption in favor of Mother and properly exercised its
discretion.
___________________________________________________
11Paternal Grandmother is also a named party, but because no
party sought to alter Paternal Grandmother’s partial custody
periods, the [c]ourt focuses on the dispute between Mother and
Maternal Grandmother only.
12K.B. v. C.B.F., 833 A.2d 767, 771 (Pa. Super. 2003) (citing
Charles v. Stehlik, 744 A.2d 1255 (Pa. 2000)).
13 Id.
14 McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super[.] 2000),
citing Ellerbe v. Hooks, 416 A.2d 512, 513-514 (Pa. 1980),
appeal denied, 566 Pa. 665, 782 A.2d 547 (Pa. 2001).
15 23 Pa.C.S. 5327(b).
16 876 A.2d 443 (Pa. Super. 2005).
17 Id. at 452.
18 Id. at 450.
19 Tr. 4-14 (February 6, 2017).
Trial Court Opinion, 5/8/17, at 6-9 (footnotes in original).
Maternal Grandmother essentially contends that the trial court should
have found that the evidence on behalf of herself, as a third party, was
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weighty enough to bring the scale up to even, and then down on her side.
Maternal Grandmother’s Brief, at 17. In her first issue, Maternal
Grandmother argues that the trial court erred as a matter of law and abused
its discretion in failing to address the application of the sixteen (16) custody
factors set forth in 23 Pa.C.S.A. § 5328. Id. at 12-18.
In her related fourth issue, Maternal Grandmother argues that the trial
court erred and abused its discretion when it determined that various
custody factors under section 5328 were not applicable. Specifically,
Maternal Grandmother points to the trial court’s oral disposition on February
6, 2017, and its May 8, 2017 opinion, wherein the trial court stated that
section 5328(a)(2) and (2.1) is not applicable in this case. She asserts that
the conclusion is erroneous, in light of Mother’s most recent convictions for
endangering welfare of children and driving under the influence, as well as
Mother’s prior criminal history, history of involvement with domestic abuse,
and struggles with substance and alcohol abuse, and previous unsuccessful
rehabilitation. Maternal Grandmother’s Brief, at 18-21.
We first consider Maternal Grandmother’s assertion that the trial court
should have found pursuant to 23 Pa.C.S.A. § 5329 that Mother’s criminal
history involving endangering welfare of Children, 18 Pa.C.S.A. § 4304,
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tipped the custody scale in Maternal Grandmother’s favor.3 Maternal
Grandmother’s Brief, at 18, 22-23. Maternal Grandmother ignores the fact
that the trial court did consider Mother’s history of substance and alcohol
abuse, and the criminal offenses and history of incarceration. Ultimately,
the court determined that, despite Mother’s past struggles, she did not
commit the acts of abuse contemplated in section (a)(2) and (2.1). The trial
court also gave Mother’s involvement with the child endangerment offense
due consideration. The weight assigned to Mother’s history of child
endangerment is within the trial court’s discretion. We will not disturb the
weight that the trial court assigned to Mother’s history under sections
5328(a)(2) and (2.1), and 5329.
Moreover, Maternal Grandmother argues that the factual scenario in
the instant appeal is distinguishable from Jordan, upon which the trial court
relied, as Mother failed to present evidence regarding her rehabilitation and
improved capacity to parent. Id. at 22. Maternal Grandmother ignores the
fact that, as a third-party to this custody matter against a parent, she had
the burden of proof, not Mother. K.B., 833 A.2d at 771.
____________________________________________
3 Section 5329 provides that, where a party seeks any form of custody, the
court shall consider whether the party or member of that party’s household
has been convicted of or has pleaded guilty or no contest to any listed
offenses, which include endangering welfare of children, 18 Pa.C.S.A.
§ 4304, and determine that the party does not pose a threat of harm to the
child before making any order of custody to that party.
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Moreover, with regard to her related fifth issue, Maternal Grandmother
argues that the evidence regarding factors 5328(a)(3), (6), (9), (10), and
(13), does not support the trial court’s conclusions. Maternal Grandmother
argues that the evidence clearly revealed that she has been caring for the
Children on a full-time basis in a home she owns, and that she enrolled the
Children in school, and continues to be the only custodial party active in
their schooling (factors 5328(a)(3) and (10)); she offers a more stable living
environment than Mother (factor 5328(a)(9)); she tends to the Children’s
daily physical, emotional, developmental, educational, and special needs,
(factor 5328(a)(10)); and she is the party who is more likely to encourage
and permit continued and frequent contact (factor 5328(a)(13)). See
Maternal Grandmother’s Brief at ii, 2-3, 23-26, and 27-30. Additionally,
Maternal Grandmother contends that both parties support the Children’s
relationship with their paternal minor, female sibling, L.H. Id. at 26-27.
Again, Maternal Grandmother ignores the trial court’s February 6, 2017 oral
explanation of its weighing of the various best interest factors against the
competent evidence of record. See N.T., 2/6/17, at 4-14.
In its May 8, 2017 opinion, the trial court stated as follows.
1. The [c]ourt addressed the application of the 16 custody
factors set forth in 23 Pa.C.S. § 5328 on the record with all
parties present.
In Issue 1, Maternal Grandmother claims the [c]ourt failed
to address the application of the 16 custody factors set forth in
23 Pa.C.S. § 5328.20 When awarding any form of custody, the
Court must consider the best interest of the children. 21 23
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Pa.C.S. § 5328(a) requires the [c]ourt to consider 16 specifically
enumerated factors in reaching this determination.22 Further, 23
Pa.C.S. § 5323(d) requires the [c]ourt to “delineate the reasons
for its decision on the record in open court or in a written opinion
or order.”23 The Superior Court has held that merely listing the
factors24 or simply stating that the court considered the factors
without further explanation25 are both insufficient under the
statute.
On February 6, 2017, with all parties present, the [c]ourt
announced its decision on the record in open court and explained
its findings with regard to each individual custody factor.26 The
Superior Court should reject Maternal Grandmother’s Issue 1
because the record clearly shows the [c]ourt addressed the
application of the 16 custody factors listed in § 5328(a) in
making its decision.
2. The [c]ourt considered all custody factors when determining
the best interests of the Children.
In Issue 4, Maternal Grandmother claims the [c]ourt
ignored the best interests of the Children when determining
various custody factors were “not applicable.”27 The Superior
Court should reject Maternal Grandmother’s Issue 4 because the
[c]ourt considered the evidence presented relating to all custody
factors when determining the Children’s best interests. The
[c]ourt indeed identified certain factors as “not applicable” to the
[c]ourt’s determination of the Children’s best interests. The
[c]ourt reached this conclusion based on consideration of the
evidence presented, and the record supports the [c]ourt’s
conclusion.
In relation to Factor 2 (present and past abuse committed
by a party), the [c]ourt found that this factor was not applicable
in this case. No party presented any evidence concerning
present or past abuse committed by a party or a member of the
party’s household.28 Likewise, in relation to Factor 2.1 (whether
the child is the subject of an indicated or founded report of child
abuse), no party presented evidence of any indicated or founded
reports of child abuse.29 The [c]ourt also found Factor 7 (the
well-reasoned preference of the Children), not to be applicable in
this case because of the Children’s ages. At the time of trial,
Daughter was six and Son was three.30
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The [c]ourt also found Factor 8 (the attempts of a party to
turn the child against the other party) not to be an applicable
factor in its decision. Upon review of the admissible evidence,31
the [c]ourt was not persuaded that either party was actively
trying to turn the Children against another party. Both parties
testified as to some negative things the Children may say. The
[c]ourt believes that such comments are likely the result of the
Children’s awareness of the tension between the parties, not the
result of an active effort to turn the Children against another
party. Consequently, this factor did not weigh in favor of or
against either party.
Finally, the [c]ourt also noted that Factor 15 (the mental
and physical condition of a party or a member of a party’s
household), was not applicable in its decision making. In noting
this, the [c]ourt stated that it recognized Mother’s history of
drug and alcohol abuse, but had already fully discussed this
issue under Factor 14 (history of drug or alcohol abuse). There
was no evidence presented to persuade the [c]ourt that a party
or member of a party’s household has any other mental or
physical health conditions that were not addressed under Factor
14.
3. Maternal Grandmother did not overcome the presumption in
favor of Mother by proving that the Children’s best interest
would be served by awarding Maternal Grandmother primary
custody.
In Issue 5, Maternal Grandmother claims the [c]ourt erred
in awarding Mother primary physical custody of the Children.32
The [c]ourt found three custody factors weighed in favor of
Mother, two weighed in favor of Maternal Grandmother, and 12
were neutral or not applicable. As discussed above, because
Maternal Grandmother is a third party custodian, there is a
presumption in favor of Mother.
Maternal Grandmother first claims the evidence clearly
revealed that she has been caring for the Children on a
“full-time” basis in her home that she owns [(factor
5328(a)(3))].33 This is simply incorrect. As discussed in Section
II, the Children have resided with Mother for most of their lives.
There have been only brief periods in the Children’s lives where
Maternal Grandmother cared for them on a full-time basis.
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Maternal Grandmother also claims that the evidence
clearly revealed that she enrolled and continues to be the only
custodial adult active in their schooling [(factor 5328(a)(3) and
(10)].34 Again, the evidence does not support this assertion.
Daughter has maintained good grades, a good attendance
record, and good behavior while being in Mother’s custody every
other week. No current evaluation identifies Son as having
special needs that Mother is ignoring. While Maternal
Grandmother may not agree with Mother’s choices concerning
the Children’s education, the evidence revealed Mother’s choices
as legitimate parental decisions.
Maternal Grandmother next claims that the evidence
revealed she offers a more stable living environment [(factor
5328(a)(9))].35 As discussed above and on the record, the
[c]ourt did find that Factor 4 weighed in favor of Maternal
Grandmother.36
Maternal Grandmother finally claims that the evidence
clearly revealed that she is the party more likely to encourage
and permit continued and frequent contact [(factor
5328(a)(13))]. 37 Again, the evidence presented directly
contradicts this assertion. The record is replete with evidence
that Maternal Grandmother does not communicate with the other
parties. Maternal Grandmother did not provide Mother or
Paternal Grandmother and her family with a copy of Daughter’s
softball schedule or any information that would allow them to
attend her games.38 Maternal Grandmother did not allow the
Children to spend any time with Mother or Paternal Grandmother
on Thanksgiving or Christmas.39 Paternal relatives try to speak
to Maternal Grandmother during custody exchanges, but
Maternal Grandmother will not greet or otherwise acknowledge
them.40 Maternal Grandmother also testified that she does not
respond to Mother at custody exchanges.41 While Maternal
Grandmother has always followed the [c]ourt’s custody orders,
the [c]ourt could not find she is the party more likely to
encourage and permit continued and frequent contact when she
herself refuses even to speak to the other parties in front of the
Children.
___________________________________________________
20See Concise Statements of Matters Complained of on Appeal,
¶ 1.
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21 23 Pa.C.S. § 5238(a).
22 Id.
23 23 Pa.C.S. § 5323(d).
24 M.P. v. M.P., 4 A.3d 950, 955-956 (Pa. Super. 2012).
25 C.B. v. J.B., 65 A.3d 946, 950-951 (Pa. Super. 2013).
26 Tr. 4-14 (February 6, 2017).
27See Concise Statements of Matters Complained of on Appeal,
¶ 4.
28The [c]ourt recognizes that Mother moved in with Maternal
Grandmother following a domestic dispute with Father. Mother
was charged with domestic simple assault, but these charges
were then withdrawn.
29 The [c]ourt is well aware that Mother pled guilty to two counts
of Endangering Welfare of Children in relation to her May 19,
2014 and January 13, 2015 arrests. See Maternal
Grandmother’s Exhibit 8. The [c]ourt is also aware that
Allegheny County Office of Children, Youth and Families (“CYF”)
twice received referrals for the family. See Court’s Exhibit A,
Stipulations 14 and 15.
30 No party sought to call the Children as witnesses.
31 Because two of the three parties were proceeding pro se, the
[c]ourt warned the parties that while there may not be
objections, the [c]ourt would disregard any inadmissible
hearsay.
32See Concise Statements of Matters Complained of on Appeal,
¶ 5.
33 Id.
34 Id.
35 Id.
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36 Tr. 6-7 (February 6, 2017).
37See Concise Statements of Matters Complained of on Appeal,
15.
38 Tr. 64-66 (January 30, 2017). Mother, on the other hand,
testified that Maternal Grandparents, as well as anyone that
wished to support the Children were welcome to attend their
activities and events. She testified that both sides of the family
would be provided with schedules and information concerning
activities. Tr. 367-368 (January 30, 2017).
39 Tr. 159 (January 30, 2017).
40 Tr. 211-212 (January 30, 2017); Tr. 234 (January 30, 2017).
41 Tr. 150 (January 30, 2017).
Trial Court Opinion, 5/8/17, at 9-13 (footnotes in original).
After a careful review of the record in this matter, we find that the trial
court’s conclusions are not unreasonable as shown by the evidence of
record. As stated above, 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, and we may reject the conclusions of the
trial court only if they involve an error of law, or are unreasonable in light of
the sustainable findings of the trial court. C.R.F., 45 A.3d at 443. Here, we
discern no error of law or abuse of the trial court’s consideration of the
section 5328(a) factors and its weighing process. Thus, we affirm the trial
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court’s custody determination on the basis of its discussion relating to
Maternal Grandmother’s issues 1, 4, and 5.4
Next, Maternal Grandmother and the trial court grouped Maternal
Grandmother’s second and third issues, regarding whether the trial court’s
February 13, 2017 final custody order lacked sufficient specificity, and
whether the February 13, 2017 order was inconsistent with the order that
was announced orally on February 6, 2017.5 See Maternal Grandmother’s
____________________________________________
4 Further, we note that the trial court did not specifically address section
5328(a)(6) in its May 8, 2017 opinion. At the hearing on February 6, 2017,
at which the trial court orally announced its disposition, however, the trial
court stated that, with regard to factor 6, 23 Pa.C.S. § 5328(a)(6), the
evidence weighed in favor of Mother as the party more likely to facilitate the
Children’s relationship with their paternal half-sibling, L.H. N.T., 2/6/17, at
7. The trial court found that Maternal Grandmother was less likely than
Mother to spend time with the Children’s paternal extended family. Id.
Given the trial court’s conclusions with regard to factor 13, 23 Pa.C.S.A.
§ 5328(13), based on the evidence concerning Maternal Grandmother’s
interaction with the Children’s paternal relatives, we find its conclusion
regarding section 5328(a)(6) supported by the competent evidence of
record.
5 Maternal Grandmother requests this Court to remand the February 13,
2017 order to the trial court for proper specificity to ensure its enforceability.
See Maternal Grandmother’s Brief, at 34. The trial court suggests that
Maternal Grandmother has waived her second, third, sixth, and seventh
issues for failure to specify them with clarity in her concise statement. See
Trial Court Opinion, 5/8/17, at 13-16.
In Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), our
Supreme Court “re-affirm[ed] the bright-line rule first set forth in
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)] that in order
to preserve their claims for appellate review, [a]ppellants must comply
whenever the trial court orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised
(Footnote Continued Next Page)
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Brief, at i, 31-34. Maternal Grandmother asserts that four weekend dates
listed in the final custody order for Maternal Grandmother’s exercise of
physical custody, February 17-19, 2017, March 17-19, 2017, April 28-30,
2017, and May 12-14, 2017, presented a direct conflict with Paternal
Grandmother’s weekend partial custodial time. See Maternal Grandmother’s
Brief, at 31-34, citing Trial Court Order, 2/13/17, Section II, B.2.a-d.
Maternal Grandmother alleges that, when her counsel contacted the trial
court about the order, counsel was told that the trial court had been
receiving phone calls about the order. Id. at 34 n.20. Maternal
Grandmother cites Section 5323(f) of the Act and Pennsylvania Rule of Civil
Procedure (“Pa.R.C.P”) 1915.10(b) in support of her argument. Maternal
Grandmother also complains that the caption section of the final order states
Interim Order of Court, whereas the Order below is titled Final Order of
Court.
(Footnote Continued) _______________________
in a Pa.R.A.P. 1925(b) statement will be deemed waived.” Castillo, 585 Pa.
at 403, 888 A.2d at 780 (internal quotations and citations omitted). Cf.
Commonwealth v. LaBoy, 936 A.2d 1058, 1059-1060 (Pa. Super. 2007)
(finding the appellant’s sufficiency of the evidence issue raised in his concise
statement had adequate specificity for appellate review).
We find Maternal Grandmother’s concise statement sufficiently specific to
encompass her arguments and requests in issues 2 and 3. Thus, we reject
the trial court’s suggestion that these issues are waived for lack of
specificity. We appreciate the trial court’s willingness to clarify its order
should this court not find the issues waived and decide to remand the
matter. See Trial Court Opinion, 5/8/17, at 16.
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Section 5323(f) of the Act provides, “In awarding custody, the court
shall specify the terms and conditions of the award in sufficient detail to
enable a party to enforce the court order through law enforcement
authorities.” 23 Pa.C.S.A. § 5323(f). Similarly, Pa.R.C.P. 1915.10(b)
provides with regard to custody orders, “[t]he terms of the order shall be
sufficiently specific to enforce the order.”
Maternal Grandmother’s request for a correction of the trial court’s
caption of its undisputedly final order is more appropriately directed to the
trial court. It appears that the trial court made a clerical error in copying the
caption of “Interim Order of Court” from a previous interim order in the
case. Likewise, the schedule under Section II.B.2 of the final custody order,
which set forth Maternal Grandmother’s partial custodial time, so that her
scheduled custodial days and times will not interfere with any particular days
and times during which Paternal Grandmother is scheduled to exercise her
partial custody time, is a matter for the trial court to clarify. As we are not a
fact-finding court, we will remand the final custody order to the trial court to
clarify its caption of the February 13, 2017 final order of court, and to clarify
the custody schedule set forth in section II.B.2.a-d so that the order is more
readily discernible and enforceable, and that there will be no overlapping
custodial times, if such time and date conflicts do exist.
Finally, Maternal Grandmother and the trial court also grouped
Maternal Grandmother’s sixth and seventh issues for purposes of discussion.
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In her sixth issue, Maternal Grandmother argues that the trial court erred as
a matter of law and abused its discretion when it ensured Mother, who
appeared at the custody evidentiary hearing pro se, had an opportunity to
have her matters heard by affording Mother “more than reasonable
accommodations,” in violation of Code of Judicial Conduct (the “Code”) 2.2.
Maternal Grandmother’s Brief, at ii, 35-37. Rule 2.2 provides, “[a] judge
shall uphold and apply the law, and shall perform all duties of judicial office
fairly and impartially.” Maternal Grandmother acknowledges Comment 4 to
Rule 2.2, which provides, “It is not a violation of this Rule for a judge to
make reasonable accommodations to ensure pro se litigants the opportunity
to have their matters heard fairly and impartially.” Maternal Grandmother’s
Brief, at 35. Maternal Grandmother argues, however, that the trial court
acted with “more than reasonable accommodations in that the trial court
acted as both the trier of fact and Mother’s attorney.” Id. at 36.
The trial court explained its conduct of the evidentiary hearing as
follows:
Maternal Grandmother does not specify what
accommodations were “more than reasonable” and the record
does not contain any objections concerning accommodations.
Based on the record, the [c]ourt’s best guess is that Maternal
Grandmother is referring to the [c]ourt’s questioning of Mother’s
witnesses. Because Mother chose to proceed pro se, the [c]ourt
felt it necessary to engage in more questioning of Mother’s
witnesses than it typically would in a case where all parties were
represented.
A similar issue arose in Jordan v. Jackson.59 In Jordan,
the mother proceeded pro se in a custody case and the
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grandparents challenged the trial court’s direct examination of
mother’s witnesses. The Superior Court rejected the
grandparents’ argument, noting that “the trial court had the duty
to question the witnesses as it did in order to extract/clarify
information it needed to make a decision as to the best interests
of the child.”60 The Superior Court also noted:
[a] trial judge has the right if not the duty to interrogate
witnesses in order to clarify a disputed issue or vague
evidence. Unless the party can establish the judge’s
questions constituted an abuse of discretion, resulting in
discernible prejudice, capricious disbelief, or
prejudgment, a new trial will not be granted.61
Here, Mother called three witnesses besides herself - two of the
Children’s paternal aunts and the Children’s paternal
half-sister.62 The [c]ourt asked these three witnesses questions
about the Children and the parties in order to extract information
necessary to reach a decision in the Children’s best interests.
Maternal Grandmother’s Issue 6 should be dismissed if this is the
“more than reasonable” accommodation to which Maternal
Grandmother refers.
___________________________________________________
59 876 A.2d 443 (Pa. Super 2005).
60 Id. at 454.
61Id. at 453-454 (quoting Mansour v. Linganna, 787 A.2d
443, 446 (Pa. Super. 2001)).
62 Paternal Grandmother and Mother also testified. The [c]ourt
similarly engaged in questioning of Paternal Grandmother and
Mother to order to determine the best interests of the Children.
Trial Court Opinion, 5/8/17, at 16-17 (footnotes in original).
For the reasons expressed by the trial court in its opinion, we discern
no merit to Maternal Grandmother’s argument that the trial court was biased
against her, and violated Rule 2.2 of the Code.
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In her seventh issue, Maternal Grandmother contends that the trial court
acted with impropriety, bias, and/or prejudice in favor of Mother in
conducting the evidentiary hearing. Id. at ii, 37-38. Specifically, she
alleges that the trial court presided over the hearing so as to combine its
fact-finding responsibility with serving as counsel for Mother. Id. at 36-37.
Maternal Grandmother alleges, “the trial court had prejudged or adjudicated
this case long prior to trial and was simply rushing through Maternal
Grandmother’s rights to presentment of the facts regarding the custody
factors.” Id. In support of her argument, Maternal Grandmother cites Rule
1.2 of the Code, which provides, “A judge shall act at all times in a manner
that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance
of impropriety.” Maternal Grandmother also cites Comment 5 to Rule 1.2 of
the Code for the following: “[t]he test for appearance of impropriety is
whether the conduct would create in reasonable minds a perception that the
judge violated this Code or engaged in other conduct that reflects adversely
on the judge’s honesty, impartiality, temperament, or fitness to serve as a
judge.” We find no evidence suggesting such conduct on the part of the trial
court here.
Maternal Grandmother also contends that the trial court violated Rule
2.3(B) of the Code, citing that rule for the proposition that a trial court’s
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words and or conduct are scrutinized for bias or prejudice. Maternal
Grandmother’s Brief, at 36.
Maternal Grandmother has taken the guidance set forth in Rule 2.3(B)
out of context. The rule provides:
(B) A judge shall not, in the performance of judicial duties, by
words or conduct manifest bias or prejudice, or engage in
harassment, including but not limited to bias, prejudice, or
harassment based upon race, sex, gender identity or expression,
religion, national origin, ethnicity, disability, age, sexual
orientation, marital status, socioeconomic status, or political
affiliation, and shall not permit court staff, court officials, or
others subject to the judge’s direction and control to do so.
Pa. Code of Judicial Conduct, Rule 2.3.
For the reasons expressed by the trial court in its opinion, supra, we
discern no merit to Maternal Grandmother’s argument that the trial court
was biased against her, or that the court violated Rules 1.2 and 2.3(B) of
the Code. Clearly, the trial court considered Child’s best interests in
fashioning its custody award and final custody order; however, its schedule
and caption bear clarification. C.R.F., 45 A.3d at 443. The trial court
properly considered the presumption set forth in section 5327(b) of the Act,
the sixteen custody/best interest factors set forth in section 5328(a) of the
Act, and the definitions of the various forms of custody under the Act. Id.
Accordingly, we affirm the trial court’s February 13, 2017 final custody
order on appeal, in part, to the extent of the custody award made therein.
We remand the custody order, in part, however, with instructions to the trial
court to clarify the caption of the February 13, 2017 final order of court, and
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to clarify the custody schedule set forth in section II.B.2.a-d so that the
order is more readily discernible and enforceable
Order affirmed in part, and remanded in part, with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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