T.J.M. v. N.H.M.

J-S27015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.J.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
N.H.M. : No. 57 WDA 2019

Appeal from the Order Entered November 27, 2018
In the Court of Common Pleas of Warren County Civil Division at No(s):
A.D. 204 of 2018

BEFORE: OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY OLSON, J.: FILED JULY 15, 2019

Appellant, T.J.M. (“Father”), appeals from the order entered on

November 27, 2018.1 The order awarded Father and N.H.M. (“Maternal Aunt”)

shared legal custody of Father’s male child with N.D.W. (“Mother”),2 T.D.M.,

born in July 2014 (“Child”). The order further awarded Maternal Aunt primary

____________________________________________

1 The subject order was dated November 26, 2018. However, notice pursuant
to Pa.R.C.P. 236(b) was not provided until November 27, 2018. Our appellate
rules designate the date of entry of an order as “the day on which the clerk
makes the notation in the docket that notice of entry of the order has been
given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our
Supreme Court has held that “an order is not appealable until it is entered on
the docket with the required notation that appropriate notice has been given.”
Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).

2Mother died in June of 2018 due to liver failure. N.T., 11/26/18, at 9, 27,
and 210.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S27015-19

physical custody and Father partial physical custody of Child. After review,

we affirm the trial court’s order.

Child was born two months premature to Mother and Father in July

2014. N.T., 11/26/18, at 8. Following a 28-day stay in the hospital as a result

of fetal alcohol syndrome,3 Child resided with Mother and Father in the home

of paternal grandparents, B.L.M. and J.L.M. (“Paternal Grandparents”) in

Warren County, Pennsylvania.4 Id. at 10-11, 76, and 214-216. During the

time following Child’s birth, Mother and Father drank heavily and often argued.

Id. at 108-109, 147-149, and 215-217. Mother would take Child and leave

the home, going back and forth between relatives’ homes and Paternal

Grandparents’ home. Id. at 145-47. In October 2016, Father was involved

in a work-related accident requiring significant rehabilitation due to injury to

his legs.5 Id. at 11-12. Father was hospitalized for two weeks and thereafter
____________________________________________

3 Maternal Aunt reported that Child weighed two pounds and 11 ounces at
birth. N.T., 11/26/18, at 214.

4Father continued to reside in Paternal Grandparents’ home at the time of the
hearing. Id. at 7.

5 Father described his injuries as follows:

well, they said dislocated knee. But, the bone was sticking out
the back side of my leg. And I had nerve damage on both sides
and a femur. I broke my femur right above my knee. Put titanium
in above my bone there. . . . And elbows, and the grill’s [sic]
stuck through my right hand.

Id. at 12.

-2-
J-S27015-19

remained in a nursing home for six months before discharge to Paternal

Grandparents’ home. Id. at 12-13 and 79.

At the time of Father’s accident, Mother and Child moved out of Paternal

Grandparents’ home.6 Id. at 13 and 146-147. Mother fell ill and, after

traveling with Child to Hamburg, New York7 and then to Pittsburgh, Mother

was hospitalized in Pittsburgh in January 2018. At the time, Maternal Aunt

was working as a traveling surgical technician in Pittsburgh, and Mother and

Child began staying with her on January 2, 2018. Id. at 34-35 and 210.

Mother was hospitalized from January 12, 2018 until February 15, 2018.

Mother was then in a nursing home back in Warren, Pennsylvania, near Father,

for two-and-a-half weeks, after which time she was released to Father’s home

with Paternal Grandparents for a week-and-a-half.

On March 24, 2018, after presenting to the hospital in Warren, Mother

was transported to the hospital in Erie. After a subsequent stay in a nursing

home in Erie, Mother was re-admitted to the hospital in Erie in mid-May and

passed away in June 2018. Id. at 35-37, 39-41, and 222-234. Throughout

this time, Child remained with Maternal Aunt, initially in Pittsburgh, and, since

____________________________________________

6Father testified that, except for a month where Mother kept Child from him,
he still saw Child frequently. Id. at 32-33.

7Child’s maternal grandmother resided in Hamburg, New York. Maternal Aunt
returned to Hamburg in summers and used this address as her permanent
address while working as a traveling surgical technician. Id. at 211.

-3-
J-S27015-19

approximately April 21, 2018, at her current address in Hamburg, New

York.8, 9 Father acknowledged that he originally agreed for Child to stay with

Maternal Aunt because he “wanted [Child] close to his mother. I didn’t want

to have him that far away from [Mother].” Id. at 34. However, Father

indicated that he expressed his ability to care for Child and that he felt

Maternal Aunt was going to transfer custody back to him at Easter. Id. at

43-45 and 225.

The trial court set forth the following procedural history:

This matter was initiated by the father filing a pro se
Complaint for Custody against [Maternal Aunt] on May 10,
2018. That complaint was referred to the court hearing
officer for proceedings in compliance with Pa.R.C.P.
1915.4-2. Counsel followed up with the filing of a Petition for
Special Relief on June 11, 2018. On June 12, 2018, the court
entered an order scheduling an evidentiary hearing on the
Petition for Special Relief for June 20, 2018. Father appeared
at the hearing with counsel and advised the court that
[Maternal Aunt] had not been served with notice of the
hearing. The court entered an order that date rescheduling
the hearing for July 24, 2018. The order indicated that the
court would first hear testimony regarding jurisdiction and
venue as [Maternal Aunt] had resided with [Child] for some
____________________________________________

8 Maternal Aunt testified that she terminated her work assignment in
Pittsburgh and returned to Hamburg “[b]ecause my sister got sick, and I
realized that I had to get a stable environment for my nephew.” Id. at 211.
Before moving into her own home, she, her husband, and Child resided with
Maternal Grandmother. Id. at 235.

9 Father visited Mother frequently and saw Child, particularly while Mother was
in Pittsburgh. In fact, on at least one occasion, Maternal Aunt paid for a motel
room for Father in Pittsburgh. Id. at 36, 225-26, 233. In addition, Father
kept in touch with Maternal Aunt through text and Facebook Messenger. Id.
at 43, 224, 227-29.

-4-
J-S27015-19

period of time in both Allegheny County and New York
State.[10]

The court conducted an evidentiary hearing on July 24, 2018.
Again[, Maternal Aunt] did not appear, however, proper
service of notice of the hearing had been made.[11] At the
conclusion of the hearing[,] the court entered an order
finding that Pennsylvania had initial child custody jurisdiction
over the matter, that Warren County had proper venue, [and]
that [Maternal Aunt] stood in loco parentis to [Child. The
order] award[ed] shared legal custody of [Child] to [Father]
and [Maternal Aunt], award[ed] primary physical custody to
[Maternal Aunt], and award[ed] alternating weekend periods
of physical custody and an uninterrupted one [] week period
of physical custody to [Father,] pending further order of
court.

Trial Court Opinion, 12/31/18, at 2-3 (footnote and some capitalization

omitted).

The court conducted a hearing on the underlying Complaint for Custody

on November 26, 2018. Father and Maternal Aunt, represented by counsel,

each were present and testified on their own behalf. In addition, Father

presented the testimony of Paternal Grandparents and his friend, O.V.

Maternal Aunt presented the testimony of her husband, R.M.12

____________________________________________

10 We note that Maternal Aunt filed a custody matter in New York, which was
ultimately dismissed. Id. at 50-53.

11At the subsequent hearing, Maternal Aunt testified that she was confused
as to the court dates and that she would never purposefully avoid a court
hearing. Id. at 236-38.

12 The court did not speak with Child given Child’s young age. N.T., 11/26/18,
at 5. On this topic, the court stated, “Counsel, [C]hild is too young for me to
interview. He is four and a half, a little bit less, so I am not going to be

-5-
J-S27015-19

By order entered November 27, 2018,13 the trial court awarded the

parties shared legal custody of Child. Order, 11/27/18, at ¶ I.A. The court

further awarded Maternal Aunt primary physical custody during the school

year, or the months of September through May prior to school enrollment,

and Father partial physical custody every other weekend from Friday at 5:00

p.m. until Sunday at 5:00 p.m. Id. at ¶ I.B.1. During the summer, or the

months of June through August prior to school enrollment, starting the first

Sunday in June,14 or the first Sunday after Child’s last day of school, Father

was to have physical custody every third week, from Sunday at 5:00 p.m. to

Sunday at 5:00 p.m. Id. at ¶ I.B.2. The court additionally provided for,

among other things: a vacation and holiday schedule; shared transportation;

prohibition of drugs and alcohol during custodial time; and, encouragement of

telephonic communication between Child and the non-custodial party. Id. at

¶¶ I.B.3, II., III.B., III.F. Further, the court addressed the burden of proof

required, given that Maternal Aunt is a third party, and each of the custody

factors pursuant to Section 5328(a) on the record at the close of the hearing.

N.T., 11/26/18, at 305-335. As to burden of proof, the court stated,

____________________________________________

interviewing him. If he is waiting outside the courtroom, somebody can take
him someplace more comfortable.” Id.

13This order memorialized the decision placed on the record by the court at
the conclusion of the hearing. Id. at 336.

14 While the order states September, it appears there was a typographical
error in the order and that this should be June.

-6-
J-S27015-19

I am required to place all of my findings on the record with
respect to factors set forth under 23 Pa.C.S.A. section 5328.

Also, . . . I am guided by the presumption under section 5327
subsection B in any action regarding the custody of a child
between a parent and a nonparent, there is a presumption
that custody shall be awarded to the parent.

That presumption may be rebutted by clear and convincing
evidence. And, the cases make it clear that that’s evidence
that is so clear, direct[,] weighty and convincing to [enable]
the trier of fact to come to a clear conviction without
hesitation of the truth of the precise facts in issue. In this
case[,] it’s really with respect to the best interests.

But, in all of my findings and my order, I am utilizing all of
the factors under 5328 and also the presumption under 5327
and, necessar[ily], I will indicate my findings.

And really what that statute does, it’s a little bit of a burden
shifting in a custody hearing between parents. There is no
presumption. Scales are even.

And, a preponderance of the evidence of best interests. So,
the scales are tip[ped] a little bit when it’s a parent and a
third party statutorily, and long-standing case law. So[,] I []
will apply that.

Id. at 304-305. The court then analyzed each of the Section 5328(a)

factors.15 Id. at 305-335. The court discussed, in part,

The first factor is which party is more likely to encourage and
permit frequent and continuing contact between the child and
the other party.

I guess we start with a bit of an impasse in that [Maternal
Aunt] was talking about [adopting Child] early on, which
____________________________________________

15 The trial court did not separately address Section 5328(a)(2.1). While
Father testified that CYS had some sort of involvement following Child’s birth,
he testified that there were no interviews. Id. at 26-27. Moreover, there is
no evidence of any continuing investigation or finding or provision of services.
We, therefore, do not find this factor relevant.

-7-
J-S27015-19

would basically terminate [Father’s] rights. And, [Father], on
the other hand, in a recent conference, basically said[] he
wants [Maternal Aunt] out of [Child’s] life.

Not a good starting point on trying to determine who would
encourage and permit frequent and continuing contact.

I do note that once my order went into effect, both parties
complied with it. I also note that [Maternal Aunt] permitted
time that wasn’t set forth in the order.

I didn’t say that it was a minimum schedule. I was concerned
about the absence of [Father] for a period of time. And, I set
forth a schedule of alternating weekend, and the seven[-]day
period. So, had a little framework for the custody hearing, I
felt that was appropriate.

[Maternal Aunt] permitted the Halloween that wasn’t on
[Father’s] schedule. She provided some extra
transportation. So, I don’t think this is a factor that plays a
large part in my decision.

A little bit concerning, both sides dug their heels in to a
certain extent, maybe, staked their grounds where [Child] is
concerned. But, nothing that would indicate that the parties
aren’t going to comply with my court order.

The next factor is the present and past abuse committed by
either party or members of the [party’s] household. And
whether there is a continued risk of harm to [Child] as a result
of that. And if so, which party can provide adequate physical
safeguard and supervision of the child.

I heard nothing with respect to [Maternal Aunt] or her
husband with respect to any type of abuse, domestic violence
between the two of them.

Nothing with respect to any concerns about [Child’s] care in
their custody. So, there is no present or past abuse history
with respect to [Maternal Aunt].

On [Father’s] side[,] and I do note, all of these incidents
pre-date [Father’s] accident. Very unfortunate. And
pre-date, I guess you would say, the light going on for him
that he had no future with drinking.

-8-
J-S27015-19

Tested him. He had no alcohol, anything else in his system.
Heard no evidence that he has been violent or aggressive
since he has been on the wagon or almost on the wagon.
Other than the one custody transfer. And what went on at
that one. Wasn’t great. But it certainly didn’t amount to
abuse.

The past history with [Father] and [Mother] [is] extremely
troubling. And, to be honest, [there] should have been
intervention, the, if not the agency, somebody should have
protected [Child].

He was in a drunken no-man’s land drinking from sun up to
sundown, fighting, scream[ing], yelling, screaming in the
middle of the night. Pushing, shoving. Taking him to drinking
events, apparently.

And, essentially, what it was in my determination, [Father]
and [Mother] would get completely drunk, get ticked off at
each other, and go at it verbally and sometimes physically.

It’s not a justification for abuse. [Maternal Aunt] testified
about one incident that she observed firsthand. I found her
credible. I found [Father] credible. So, some type of
domestic violence whether it’s verbal, physical threats,
whatever it was, did occur.

But, under the current circumstances and the testimony that
which is, essentially, uncontradicted, that [Father] does not
do the same type of drinking that he did when he and
[Mother] were an on again and off again couple.

And absolutely no indication that he has been mean or
physical with [Child] or with other members of his household.
I don’t see it as a current concern that [Father] is going to
become physically violent, particularly with [Child] in his
home.

The next factor are the physical duties performed by each of
the parties on behalf of [Child]. [Maternal Aunt] has had him
since January of 2018. And he has been in her care since
that time.

So, we are talking about ten or [11] months, [ten-and-a-half]
months of primary physical custody with [Maternal Aunt],
and particularly so, since she hasn’t taken any new work

-9-
J-S27015-19

contracts and has been a stay at home mom, I might be off
a month or two but I think in the spring of this year, maybe
starting in April a little bit earlier.

And, certainly she has been performing the lion’s share of all
of [Child’s] [caregiving] over that [ten-and-a-half] month
period.

Her husband, [R.H.], who is employed presently, has
certainly assisted in the [caregiving], particularly in
Pittsburgh during the time [Mother] was there and [Maternal
Aunt] was working. And, obviously, her husband was caring
for [Child].

So, over the last [ten-and-a-half] months, nobody could
argue that [Maternal Aunt] has been [Child’s] primary
bordering on exclusive caregiver. She has been responsible,
really, for ever[y] aspect of his life for that period of time.

Before that she wasn’t [Child’s] caregiver, but she was
frequently interacting with her sister and [Child]. And begun
to develop a relationship. But[,] as far as [caregiving], that’s
my finding with respect to [Maternal Aunt].

On [Father]’s behalf, a little bit more difficult to pin it down
other than the couple went to his parents’ home after [Child]
got out of the NICU, and they drank and yelled their way
through.

There was, I guess, some period of time where it wasn’t as
bad. But, [Father] would go to work. The mother would stay
at home and drink. Sometimes the grandmother would help
out.

And when the dad got home from work, he would help out.
During that period of time, [Mother] left frequently to [J.H.]’s
house.[16] Always took [Child] with her. For good or bad.

And, she would provide the care that she could under his roof.
And there would be a reconciliation, and it would go back and
forth.

____________________________________________

16 [J.H.] is Mother’s stepfather and Maternal Aunt’s father. Id. at 209.

- 10 -
J-S27015-19

I guess the best way to conclude, I wouldn’t consider
anybody appropriately performing parental duties for [Child],
at least for that couple years after he was home.

You can’t say you are intoxicated and providing appropriate
care, coming and going, it was a sketchy period of time for
sure.

Starting in January of this year, and for whatever reason,
[Child] doesn’t know the reasons behind the scenes, what the
adult decisions are, what the motivations are, he just knows
who tucks him in bed.

For whatever reason, starting in January, [Father] more or
less permitted [Maternal Aunt] to take over [caregiving].
Initially, I guess, because she was in Pittsburgh close to the
mother’s hospital. And that way [Child] could see his mom
and be under his aunt’s care.

I am not so sure that that’s a parent carrying out their duties.
I don’t, I didn’t hear that [Father] was employed or otherwise
occupied.

Another option would be let [sic] get [Child] back in his family
home, I will take care of him day-to-day. You got to work []
all day as [a] surgical tech.

I will, me and[] [O.V.] will go down to Pittsburgh as
frequently as we can, when [Mother] is in good shape[,] to
[take Child] to visit his mom.

I think that is an alternative that puts him back in the shoes
of [Father]. And, it is kind of compounded with all of the
other times that [Mother] left and he, basically, waited for
her to come back.

He would visit [Child] at [J.H.]’s house. But, nonetheless, up
until my court order in July, on July 24th, [Father] wasn’t
performing any parental duties.

Since then, he has been exercising his court[-]ordered period
of physical custody when he has [Child]. It sounds like he is
with him. Isn’t delegating his [caregiving].

Feeds him, bathes him. Gets him dressed. Provides for his
other care, took him to the walk-in clinic a couple times when
he observe[d] concerns. And, otherwise, cared for him.

- 11 -
J-S27015-19

So, that’s my findings from birth until now, the parties[’]
parental duties performed on behalf of [Child].

The next factor is the need for stability and the continuity in
[Child’s] education, family life and community life. And, I
don’t think I have ever seen a four-year[-]old in more need
of that type of stability and continuity.

Frankly, with the first, I guess, three plus years of his life, for
what he went through, it’s stunning to me that the parties
aren’t dealing with rather intense emotional issues, mental
health issues, behavioral issues, because [Child] had a pretty
nasty early life.

You know, after being born with fetal alcohol syndrome, he
goes to [Father’s] parents to live there. Then there is
fighting. And, he goes with the mom to someplace. . . .

[Mother] would go to [J.H.]’s place. Lived in a hotel in
Pittsburgh. Absolutely nothing that he could hang his hat on
that this is my home. This where I am supposed to be.

This is when I do this. This is when I eat. This is when I go
to bed. It’s back and forth and in the wind, depending on
how drunk [Mother] got. How big of a fight was. How long
she was going to stay at [J.H.]’s, and if and when she was
going to come back.

And, coupled with that, was the illness and unfortunate
passing of his mother. He had to deal with that at a young
age. And, all the disruptions that went along with that. No
doubt he was in good care, but living in a hotel suite, a tough
run for a three[-] or [four-year-old].

He needs a period of stability, security, where he knows
where home is. He knows who his primary [caregivers] are.
He knows when he goes to bed. When he gets up. He needs
to be in preschool. He needs to have his dental care
addressed.

He needs to be a four-year[-]old instead of what he has been
put through. It’s my sincere hope that issues don’t develop
in the future because what he has went through.

And, I think the family is to be commended for stepping in
when [Mother] was ill. And since then. But he needs

- 12 -
J-S27015-19

absolute[] stability and continuity in every aspect of his life
for some period of time.

...

The next factor are the, is, rather, [Child’s] sibling
relationships. He has two half[-]brothers, [C.] and [B.] Both
eleven years old.

[Father] is the father of those two. They have different
mothers. They are in the home presently, just about every
weekend. Times when there isn’t school. They are 11.
[Child] is [four].

I understand that difference and I understand the boys might
have some special needs, and some issues that are being
work[ed] on.

That being said, I think both sides indicated that [Child] likes
his brothers. Loves them, I would assume. Enjoys being
with them.

I didn’t really hear anything of specific concern about the two
of them, the mooning thing is nonsense. Obviously, that’s
not a great thing.

It’s not [a] good thing to teach a four-year[-]old to pull his
pants down and flash his buttocks. I have seen worse. And,
it sound[s] like [Father] is on top of that.

And, [Child] should and will be able to develop a relationship
with the boys. If there is ever a concern in the future about
that, somebody can get to me or another court and it can be
addressed.

But, it sound[s] like they play. They interact. And they are
brothers. So, [] that can be a good thing, and it should be.
There [are] no siblings on the mother’s or the aunt’s side to
speak of. Cousins, no siblings.

...

The next factor is which party is more likely to maintain a
loving, stable, consistent nurturing relationship with [Child]
adequate for his emotional needs and which party is more

- 13 -
J-S27015-19

likely to attend to the daily physical, emotional,
developmental, educational and special needs of [Child].

And both of those factors favor the aunt. She has done that
for the last ten months. They have been in the same home
for I guess the last six or seven months.

Achieved the first stability [Child] has ever had in his life.
Providing care for him. And there is no record of [Father]
doing the same when he was parenting or co-parenting
[Child], along with [Mother].

It was a bad situation. I think the paternal grandmother was
honest about that. They would fight. She would tell [Mother]
to leave because of her drinking.

They would come back. She would start drinking. They
would fight, she would tell them to leave. And, [Mother] was
the primary caregiver between the two of them.

And, for the most part, she was an intoxicated primary
caregiver, and [Father] had every legal right and ability to
step in at any point to address that.

But, I think he was mired in his own alcohol issues. I am not
saying that [Child] was neglected, mistreated or abused while
he lived with [Father] and [Mother] coming and going
between [J.H.’s] house, and [Paternal Grandparents’] house.

But, nobody could argue that that was maintaining a stable,
consistent nurturing relationship or dealing with [Child’s]
day-to-day needs.

Not when the two parents in charge of his well[-]being
delegate [caregiving] on a day-to-day basis from an all for
and [sic] all day drinker and all of the police calls, the
problems that occurred.

And I understand from [Father’s] standpoint, he could point
the finger at [Mother] and say, hey I am just reacting to her
drunken tirades; but, it was more than that.

He was doing his own drinking. He didn’t take steps to
protect [Child] from that environment. So, there is [] no real
history upon which I could determine that [Father] could
provide the same type of stability that [Maternal Aunt] has at
her home in Hamburg.

- 14 -
J-S27015-19

It[’s] just, a complete void of past evidence that would
support that proposition; whereas, I know for the ten months
leading up to the custody hearing, [Maternal Aunt] has done
that for him at her home with the help of her husband[,]
and[,] part of prior to [] that time[,] her mother and
stepfather.

This is a finding certainly by clear and convincing evidence.
I couldn’t point to one bit of testimony where I could say here
is a period of time where [Father] on his own without his
mother breathing down his neck, without [Child’s] mother
disrupting everybody’s life that he stepped up and said, I am
going to address this. I am going to care for this. He needs
the stability and structure.

You move out to [J.H.]’s, you are not going. And, perhaps
the wake up call regarding his alcohol abuse should have
come voluntarily early on when he saw how things were
going. Not good at all.

So, that is a finding certainly by clear and convincing
evidence. And, that would favor [Maternal Aunt’s] side of the
case.

...

So, the other relevant factors [are] that we sit here today,
after ten months and in his aunt’s care, this is the condition
that [Child] is in. And he is in good condition.

So, I can’t disregard that and say, well I can’t he is in great
shape developmentally, but let’s try something different,
because somebody is a biological parent. And somebody else
isn’t. His development, how well he is doing currently, the
fact that that’s after ten months in the exclusive custody of
[Maternal Aunt], tells me by clear and convincing evidence
that he needs to stay there on a primary basis. You could
walk away with really no other conclusion.

And again, I am applying the burden of proof. I find that
[Maternal Aunt] has overcome the presumption that [Child]
should be placed with his father by the clear and convincing
evidence I just outlined.

- 15 -
J-S27015-19

One final note is I understand [Father] had a rough go of it
with his accident. That his rehab took a while. He is really
just getting his feet under him.

But, there was a period and I would say the end of 2017, until
he filed his custody petition that he didn’t assert himself as a
father.

He didn’t take the bull by the horns and say, I am taking my
kid home. I will bring him to see his mom. Or, get into court
in January, February, and say, you know, this is my son.

He, I just found that it seems like he is not extremely
assertive. And, maybe in an effort to keep the peace, didn’t
assert himself.

But, parents do have to assert themselves. You have to
irritate teachers, doctors, friends, parents. You can’t sit back
for the ride. You have to drive the vehicle. You have got to
take control.

You have got to get to the schools. Get to medical
appointment[s]. And for that period of time, I don’t think
[Father] did what he could have to assert his parental rights
to [Child].

N.T., 11/26/18, at 305-318, 321-324, and 333-335.

On December 27, 2018, Father, through counsel, filed a notice of

appeal, along with a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b).

Thereafter, the trial court issued an opinion, pursuant to Pennsylvania Rule of

Appellate Procedure 1925(a).

On appeal, Father raises the following issues for our review:

1. Did the trial court err and commit an abuse of discretion
in awarding primary physical custody of the child to the aunt,
and in finding the aunt had rebutted the presumption to
award primary custody to the parent under 23 Pa.C.S.A.
§ 5327 upon a showing of clear and convincing evidence?

- 16 -
J-S27015-19

2. Were the trial court’s findings pursuant to the child custody
factors set forth in 23 Pa.C.S.A. § 5328 unsupported by the
certified record?

3. Did the trial court err and commit an abuse of discretion
by failing to analyze the present ability of the Father to care
for the child separately and independently from the prior
conduct of the child’s recently deceased Mother?

4. Did the trial court err and commit an abuse of discretion
by the demonstration of bias against [Father] throughout this
proceeding?

Father’s Brief at 14.17

In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.

§§ 5321-5340, 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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

This Court consistently has held:

[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special
____________________________________________

17We observe that Maternal Aunt did not file a brief in support of her position
with this Court.

- 17 -
J-S27015-19

nature of the proceeding and the lasting impact the result will
have on the lives of the parties concerned. Indeed, the
knowledge gained by a trial court in observing witnesses in a
custody proceeding cannot adequately be imparted to an
appellate court by a printed record.

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

v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). In addition,

[a]lthough 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.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations

omitted).

The paramount concern in any custody case decided under the Act is

the best interests of the child. See 23 Pa.C.S.A. §§ 5328 and 5338. 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 is in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

- 18 -
J-S27015-19

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S.A. § 5323(a).

As between a parent and a third party, Section 5327 states, in 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.A. § 5327(b). It therefore follows,

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.

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

Stehlik, 744 A.2d 1255, 1258 (Pa. 2000)).

We further explained,

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, 416 A.2d 512, 513–514
(Pa. 1980))]. In [Ellerbe,] 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

- 19 -
J-S27015-19

intrusive and hence the proper course is to award custody to
the parent or parents.” [Ellerbe, 416 A.2d] at 514.

V.B., 55 A.3d at 1199.

Section 5328(a) sets forth the best interest factors that the trial court

must consider in awarding custody. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2

(Pa. Super. 2011). Specifically, 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).

(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.

- 20 -
J-S27015-19

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

(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.

(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child’s emotional needs.

(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
the child.

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

(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.

(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.

(14) The history of drug or alcohol abuse of a party or
member of a party’s household.

(15) The mental and physical condition of a party or member
of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

Further, with regard to the Custody Act, we have stated as follows:

All of the factors listed in Section 5328(a) are required to be
considered by the trial court when entering a custody order. . . .
The record must be clear on appeal that the trial court considered
all the factors.

- 21 -
J-S27015-19

Section 5323(d) provides that a trial 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). Additionally, Section
5323(d) requires the trial court to set forth its mandatory
assessment of the sixteen Section 5328(a) custody factors prior
to the deadline by which a litigant must file a notice of appeal.

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. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (corrections and some

quotations and citations omitted) (emphasis in original).

We address Father’s first two issues together, as the issues are

interrelated and Father combines them in his brief. Father argues that the

court erred in finding Maternal Aunt, as a third party, had met her burden for

an award of primary physical custody. Father’s Brief at 23.

Father asserts that the court misstated the burden Maternal Aunt had

to meet. Id. at 22-23. He states,

The court’s characterization of the scales being tipped “a little
bit” runs seriously contrary to the requirements of case law
cited above, and by the citations provided by the trial court
itself. This statement indicates how the trial court possibly
determined [Maternal Aunt] met her burden of proof;
because the court did not perceive the burden to be as great
as in fact it should have been.

Id. at 23 (some capitalization omitted).

Father further challenges the trial court’s determinations as to the

Section 5328(a) factors. Id. at 23-29. Father recognizes that the trial court

- 22 -
J-S27015-19

found factors 2, 3, 9, 10, and arguably 4, in favor of Maternal Aunt. He

maintains that “[t]he findings themselves were not weighty enough to meet

the enhanced burden of proof, or should not have been assigned to [Maternal

Aunt] or determined neutral.” Id. at 23. Father also argues that the court

should have found factor 6 in favor of Father. Father states,

In conclusion, after review of the factors discussed by the
trial court, an error of law was committed in finding that the
burden of proof of clear and convincing evidence was met,
when only at most five of the factors were assigned to
[Maternal Aunt]; and when the court made findings that
clearly mitigated the award of those factors to preclude
[Maternal] Aunt’s satisfaction of the burden of proof.

Id. at 29 (some capitalization omitted).

In addition, Father contends that the trial court erred in failing to find

factors 1 and 16 against Maternal Aunt. Id. at 30-37. Father points to

Maternal Aunt’s pre-hearing behavior, such as her stated desire to adopt Child,

and her failure to initially provide Father with her new address in Hamburg.

Id. at 30-34. He further highlights her failure to appear for court. Id. at

34-37. Father’s claims fail.

As to Father’s claim of error with regard to the burden of proof, the trial

court reasoned:

The court directly and repeatedly addressed this issue at the
conclusion of the hearing in its opinion on the record. The
court recited the statutory presumption and indicated that
was the framework for the court’s findings. The court clearly
indicated that [Maternal Aunt] bore the burden of overcoming
the presumption in favor of the father and the court further
defined the “clear and convincing evidence” standard as the
Superior Court has as evidence “that is so clear, direct,
weighty, and convincing so as to enable the trier of fact to

- 23 -
J-S27015-19

come to a clear conviction, without hesitation, of truth of the
precise facts in issue.” V.B. v. J.E.B., 55 A.3d 1193, 1199
(Pa. Super. 2012). That is the standard and framework upon
which the court decided this matter. It is not a case where
the court placed the parties on equal footing for purposes of
analyzing the evidence. [See] M.J.S. v. B.B. v. B.B., 172
A.3d 651 [] (Pa. Super. 2017). The court could not have
made it clearer on the record. The parties were not on an
even playing field. [Maternal Aunt] had to overcome the
presumption that [Father] should be granted custody of
[Child] by clear and convincing evidence. Based upon the
court’s analysis of the custody factors, and taking into
consideration the presumption and burden of proof, the court
determined that [Maternal Aunt] had met that burden of
proof and rebutted the presumption.

Trial Court Opinion, 12/31/18, at 3-4.

With this, we agree and find no abuse of discretion.

With regard to the custody factors, we have stated that the trial court

is required to consider all of the Section 5328(a) factors in entering a custody

order. J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). Although the

court is required to give “weighted consideration to those factors which affect

the safety of the child” pursuant to 23 Pa.C.S.A. § 5328(a), we have

acknowledged that the amount of weight a court gives any one factor is almost

entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013).

Critically, as we stated in M.J.M.:

It is within the trial court’s purview as the finder of fact
to determine which factors are most salient and critical
in each particular case. See A.D. v. M.A.B., 989 A.2d 32,
35-36 (Pa.Super. 2010) (“In reviewing a custody order . . .
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.”). Our decision here does not change that.

- 24 -
J-S27015-19

Id. (emphasis added). Further, we have noted that, while the primary

caretaker doctrine is no longer viable, a court may still consider a parent’s role

as primary caretaker in its consideration of the custody factors.

We hasten to add that this conclusion does not mean that a trial
court cannot consider a parent’s role as the primary caretaker
when engaging in the statutorily-guided inquiry. As discussed
above, a trial court will necessarily consider a parent’s status as a
primary caretaker implicitly as it considers the [S]ection 5328(a)
factors, and to the extent the trial court finds it necessary to
explicitly consider one parent’s role as the primary caretaker, it is
free to do so under subsection (a)(16).

Id.

Father’s claim on appeal is a challenge to the trial court’s findings of fact

and determinations regarding the credibility of witnesses and the weight that

it attributed to certain Section 5328(a) factors. Father, in essence, questions

the trial court’s conclusions and assessments and asks this Court to re-find

facts, re-weigh evidence, and/or re-assess credibility to his view of the

evidence. This we cannot do. Under the aforementioned standard of review

applicable in custody matters, the trial court’s findings of fact and

determinations regarding credibility and weight of the evidence are not

disturbed absent an abuse of discretion. See C.R.F., 45 A.3d at 443; see

also E.R., 129 A.3d at 527. As we stated in King v. King: “[i]t is not this

Court’s function to determine whether the trial court reached the ‘right’

decision; rather, we must consider whether, ‘based on the evidence

presented, [giving] due deference to the trial court’s weight and credibility

determinations,’ the trial court erred or abused its discretion.” King v. King,

- 25 -
J-S27015-19

889 A.2d 630, 632 (Pa. Super. 2005)(quoting Hanson v. Hanson, 878 A.2d

127, 129 (Pa. Super. 2005). After a thorough review of the record, we find

no abuse of discretion. Further, to the extent Father additionally challenges

the weight attributed to any factor by the trial court, we likewise find no abuse

of discretion. As stated above, the amount of weight that a trial court gives

to any one factor is almost entirely within its discretion. See M.J.M., 63 A.3d

at 339. Hence, the trial court was within its discretion to emphasize parental

duties and Child’s stability and well-being.

In the case sub judice, the trial court reasonably analyzed and

addressed each factor under Section 5328(a). See N.T., 11/26/18, at

305-335. After a careful review of the record, we determine that the trial

court’s findings and determinations regarding the custody factors set forth in

Section 5328(a) are supported by competent evidence in the record, and we

will not disturb them. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d

at 527. As such, Father’s claim of error is without merit.

Next, Father claims trial court error for failure to analyze his present

ability to care for Child separate and apart from the conduct of Mother.

Father’s Brief at 37. As to this issue, Father argues as follows:

The trial court never made a finding, nor did the record
support a finding, that the Father’s residence was
objectionable after Mother’s passing. The record establishes
that the house, as currently occupied by Father, paternal
grandparents, and from time to time the child’s brothers, was
suitable for children. Accusations about arguments between
[Father] and his father were denied. The children were safe
in their activities. The children had plenty of appropriate
activities. The [c]ourt treated any concerns about his

- 26 -
J-S27015-19

brothers’ misbehavior with little weight. The [c]ourt did not
make any finding, against the Father or otherwise, regarding
the paternal grandfather’s alcohol use. The record only
supports the conclusion that Father could presently provide
an acceptable household which met the statutory factors.

The record established a clear distinction between the
atmosphere of [Father’s] household when Mother was alive
as full of conflict and tumult, and after Mother’s passing,
which provided a sense of normalcy. During the same period
of time from the Mother’s passing to the time of the custody
trial that the trial court attributed to [Maternal] Aunt a level
of stability that the child had not experienced while in
Mother’s primary care, the Father demonstrated during his
time with the child the he was providing stability as well.

...

[T]he trial court in this matter has placed too great a focus
on Father’s previous misconduct, of which significant findings
were made that it is no longer taking place. To abide by the
trial court’s focus on Father’s past conduct, and not on the
present ability of Father, there is no substantial identifiable
condition which Father is to improve upon which would tip
the scales back in Father’s direction. If Father continues with
the adequate care that he is providing to the child while in
his custody every other weekend, and the [a]unt continues
to provide unobjectionable care, by the [c]ourt’s logic,
focusing on the past conduct of Father, custody will always
remain with the [a]unt. It was therefore an error of law for
the trial court to have found the clear and convincing burden
of proof was met[,] primarily by evidence of either Mother or
Father’s past conduct, when the trial court did not find the
child suffered from harm therefrom.

Id. at 38-39 and 41-42.

On this topic, the trial court stated,

The court fully considered all testimony and evidence and
most certainly analyzed [Father’s] current circumstances in
its findings. For example, the court did address [Father’s]
past alcohol abuse and incidents of domestic disputes with
the late mother of [Child] as the court is required to consider
the “history of drug or alcohol use of a party” (23 Pa.C.S.A.

- 27 -
J-S27015-19

§ 5328(a)(14), and “present and past abuse committed by a
party” (23 Pa.C.S.A. § 5328(a)(2)). It should be further
noted that [Child] was a four[-]year[-]old child and all of the
findings occurred in that relatively brief time span. The court,
however, also made explicit findings regarding [Father’s]
current circumstances. The court found that [Father’s] past
alcohol abuse had been addressed by [Father] and he drank
only infrequently. As a result, the court stated on the record
that this was not a factor that would be weighed against
[Father]. The court also found that the repeated instances of
the domestic turbulence between [Father] and the mother
were no longer present as the mother had passed away. The
court indicated that there were no concerns regarding
[Father] presently and no risk to [Child] in his father’s care.
The court noted that the regular periods of physical custody
[Father] had with [Child] following the order of July 24, 2018,
had gone well and that no witnesses expressed any concern
about [Father’s] care of [Child], the paternal grandmother
assisting in that care, or the physical accommodations for
[Child] in their home.

In making its findings regarding the parental duties
performed by each party on behalf of the child, the court
must look at the history of caregiving for the child during his
lifetime. (23 Pa.C.S.A. § 5328(a)(3)). In the present case[,]
all witnesses, including [Father] and paternal grandmother,
painted a picture of a turbulent, unstable and alcohol
dominated existence for [Child] in the three [] years that he
lived with [Father] and [Mother] after his extended stay in
the NICU for fetal alcohol syndrome. In the paternal
grandmother’s home, [Child] was in the care for the most
part of a regularly intoxicated mother. [Father] was drinking
heavily at that time. There were repeated separations where
[Mother] would take [Child] and live with a relative. The
court relied upon that testimony in concluding that [Father]
had never been a consistent, sober and stable provider of
parental duties for [Child]. This was contrasted by [Maternal
Aunt’s] consistent performance of parental duties in the ten
[] months preceding the custody hearing.

The court is also required to make predictive findings as to
“which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child’s emotional needs” (23 Pa.C.S.A. §5328(a)(9)),

- 28 -
J-S27015-19

and “which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
the child.” (23 Pa.C.S.A. §5328(a)(10)). The court has to
analyze what has transpired in the past, as well as the current
circumstances, in making this analysis and that is what the
court did. In particular, the court fairly concluded that the
past ten [] months prior to the hearing, and in particular the
last six [] months after [Child] moved to New York [S]tate
with [Maternal Aunt], was the most [stabile], consistent
nurturing period of his life and the period in which his daily
physical, emotional and developmental needs were attended
to. With the backdrop of [Father’s] past periods of custody
and his current circumstances, contrasted with the most
recent ten [] months of [Child]’s life, the court determined
that this was clear and convincing evidence that [Maternal
Aunt] was more likely to maintain a loving and consistent
relationship and attend to [Child]’s needs. This finding was
supported by the findings at [Child]’s . . . pediatric visit which
took place just a few weeks before the hearing. The
pediatrician found that [Child] was healthy, active,
well-adjusted and developmentally on track in all areas.
Considered in the context of the court’s finding that [Child],
following an inconsistent early childhood, with many moves
and inconsistent care, was in great need of stability and
continuity in his life, this further supported remaining with his
current caregiver.

Finally, the court’s provision for regular periods of physical
custody for [Father], including at a minimum, every other
weekend, approximately four [] or [five] full weeks during
the summer, as well as shared holidays, was based upon the
court’s full consideration of [Father’s] present circumstances
and ability to care for [Child]. These regular periods of
physical custody were designed to re-adjust [Child] to
[Father]. [Child] had gone months without seeing his father
prior to the special relief order, for whatever reason, and had
been cared for exclusively by [Maternal Aunt]. To completely
disrupt that stability and consistency in [Child]’s life was
determined, by clear and convincing evidence, not to be in
[Child]’s best interests.

Trial Court Opinion, 12/31/18, at 4-6.

- 29 -
J-S27015-19

Upon review, Father’s claim is without merit. We agree with the trial

court for the reasons stated above in its opinion.

Lastly, Father argues that the trial court erred and abused its discretion

in demonstrating bias against him throughout the proceedings. Father’s Brief

at 43. In so arguing, Father essentially claims that the court considered

evidence not appropriately before it. Father refers back to the hearing in July

2017 on his Petition for Special Relief and notes that the court, despite

acknowledging that it was only hearing one side of the story due to Maternal

Aunt’s failure to appear, awarded Maternal Aunt primary physical custody. Id.

at 43-45. Father states,

The [c]ourt’s open acknowledgment that it had only heard
one side of the story; that the record established [Maternal]
Aunt’s notice of the proceeding; that [Maternal] Aunt was not
providing information to the Father or responding to [c]ourt
appearances; and that compliance by [Maternal] Aunt was
not expected, should have led to the conclusion that Father,
being the only party to have been present and provided
competent evidence as to having adequate resources
available to care for the child, met his burden of proof at the
time, and should have been granted the relief requested of
interim temporary primary [physical] custody. What instead
was enacted by the trial court was a puzzlement in due
process.

Id. at 44.

Father further asserts that the court allowed hearsay evidence from

Maternal Aunt as to the prior living arrangements of Mother and Child. Id. at

45-48. Father states, “[s]hortly after the commencement of the Aunt’s

[case-in-chief], counsel for the Father made a hearsay objection, which was

- 30 -
J-S27015-19

angrily overruled by the [c]ourt, and included a statement that it was willing

to consider hearsay testimony provided by the Aunt.”18 Id. at 45. Father

contends that the court’s “raised voice, extensive refutation, and rationale of

preparing to accept hearsay testimony had a chilling effect on further

objections.” Id. at 46. He continues,

Nevertheless, with this explanation after the first objection
raised against [Maternal] Aunt, the trial court expressed his
openness to receive hearsay in contravention to the rules of
evidence. The [c]ourt then arguably relied on the hearsay
testimony presented by the [a]unt as to why she did not
appear for hearings, when [Maternal] Aunt attributed
statements by the Court Administrator as justifications for
why she did not appear for the hearing on the Petition for
Special Relief.

Id. at 47-48.

In addition, Father purports that the court received information

regarding the custody matter filed in New York by Maternal Aunt as the New

York court alluded to receiving extensive information from Pennsylvania. Id.

at 48-50.

[T]he [c]ourt’s statement proclaiming no knowledge of the
New York filing does not square with the statement received
from the New York State [c]ourt, as this counsel stated to
this trial court, as a verbatim quote that they (the New York
State court) received “extensive documentation” from
Pennsylvania to establish jurisdiction over the case. The
judge who entered the final order which was appealed from
____________________________________________

18 The court responded to the objection in question as follows: “Okay. There
was a lot hearsay presented before. You presented testimony of statement[s]
regarding [Mother]. Her statements that [Child] made, so I think the door is
open. I can assess the probative value of [the] testimony.” N.T., 11/26/18,
at 218-219.

- 31 -
J-S27015-19

was the only jurist known to have entered any order on the
record.

The reality is there were serious allegations against the
Father in the New York State [c]omplaint, all of which would
have been denied, but which could have influenced the trial
court if read. Father’s concern is that, similar to the
willingness to presume facts not offered or proven at the
Special Relief Hearing in support of temporary physical
custody for [Maternal] Aunt; similar to the willingness to
consider hearsay evidence during the custody trial; this
[c]ourt may have considered statements not properly
presented into evidence. Why the trial court would have
stated it had no knowledge of that case, instead of
acknowledging its participation in a jurisdictional
determination, is unknown.

Id. at 49-50.

Father, however, waived this issue by failing to raise it in the court below

as the matter proceeded. See Pa.R.A.P. 302(a) (providing for waiver of issues

not first raised in lower court); Fillmore v. Hill, 665 A.2d 514, 515-16

(Pa.Super. 1995) (stating, “[I]n order to preserve an issue for appellate

review, a party must make a timely and specific objection at the appropriate

stage of the proceedings before the trial court. Failure to timely object to a

basic and fundamental error, such as an erroneous jury instruction, will result

in waiver of that issue. On appeal, the Superior Court will not consider a claim

which was not called to the trial court’s attention at a time when any error

committed could have been corrected”) (citations omitted).

Critically, Father failed to raise any claim of bias in the trial court. Father

did not raise any further objections as to hearsay, and did not raise objections

regarding the New York proceeding. Moreover, as to the New York proceeding,

Father’s assertions are patently speculative, as there is no indication as to

- 32 -
J-S27015-19

who from Warren County, Pennsylvania provided the New York court

information. In fact, the trial court indicates that it did not have contact with

any judge from New York. N.T., 11/26/18, at 52.

Accordingly, for the foregoing reasons we affirm the trial court’s order.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/15/2019

- 33 -