J-S29014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.W.L.                                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                       v.

J.L. AND A.M.B.

APPEAL OF: J.L.                                     No. 1762 WDA 2015


                Appeal from the Order Entered October 9, 2015
            In the Court of Common Pleas of Westmoreland County
                    Civil Division at No(s): 2004 OF 2014-D


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 25, 2016

       J.L. (“Mother”) appeals from the order entered October 9, 2015, in the

Court of Common Pleas of Westmoreland County, which awarded partial

physical custody of her son, A.B., and her daughter, N.B. (collectively, “the

Children”), to her father, J.W.L. (“Maternal Grandfather”).1     After careful

review, we affirm.

       A.B. was born in February of 2011, and N.B. was born in May of 2012.

In May of 2013, A.M.B. ended his relationship with Mother.        During the

summer of 2013, Maternal Grandfather, and his wife, B.L. (“Maternal Step-

Grandmother”), began assisting Mother by babysitting the Children.        The

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1
  The biological father of the Children is A.M.B. A.M.B. did not appear during
the custody hearing and the trial court did not award A.M.B. any form of
custody. A.M.B. did not appeal from the subject custody order, and he did
not file a brief in connection with the instant appeal.



*Former Justice specially assigned to the Superior Court.
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majority of this assistance was provided by Maternal Step-Grandmother,

because Maternal Grandfather is employed as an “over the road” truck

driver, and spends most of his time away from home. Mother also lived at

Maternal Grandfather’s residence for a period of time.2 After Mother moved

out of Maternal Grandfather’s home, Maternal Grandfather and Maternal

Step-Grandmother continued to visit with the Children. Mother ended these

visits in the fall of 2014.

       On November 19, 2014, Maternal Grandfather filed a complaint for

partial physical custody of the Children. A custody hearing was held on June

4, 2015, and July 31, 2015, during which the trial court heard the testimony

of Maternal Step-Grandmother; certified nurse assistant, Diana Jenkins, who

provides care for one of Maternal Grandfather’s neighbors; the Children’s

maternal great uncle, P.L.; the Children’s maternal great grandmother, M.C.;

the Children’s maternal grandmother, T.H.; Mother; Maternal Grandfather;

Lisa Lersch, assistant director of the Children’s former daycare; and Mother’s

boyfriend, M.G. On October 9, 2015, the court issued an order and opinion

awarding Mother primary physical custody and sole legal custody of the

Children. The court awarded Maternal Grandfather partial physical custody
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2
  The amount of time that Mother resided at Maternal Grandfather’s home
was a hotly-debated topic during the custody hearing. Maternal Grandfather
testified that Mother resided at his home for at least four months, while
Mother insisted that she only lived there for two-and-a-half weeks. N.T.,
6/4/2015, at 95, 116.




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of the Children “[d]uring such periods that [Maternal Grandfather] is not

attending to his duties as an over-the-road trucker….” Order, 10/9/2015, at

¶ 3a.     The court indicated that Maternal Grandfather’s periods of partial

physical custody shall not exceed five days, and, starting in 2020, shall not

exceed seven days. Id. at ¶ 3b. Mother timely filed a notice of appeal on

November 5, 2015.3

        Mother now raises the following issues for our review.

        1. Whether the trial court erred in its analysis of the evidence by
        solely weighing the factors in 23 Pa. C.S.A. §5328(a) and not
        considering those factors set forth in 23 Pa. C.S.A.
        §5328(c)(1)[?]

        2. Whether the trial court could have reasonably arrived at the
        same result had it applied the proper analysis of the competent
        evidence presented at trial[?]

Mother’s brief at 5 (suggested answers omitted).


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3
   Mother failed to file her concise statement of errors complained of on
appeal at the same time as her notice of appeal, in violation of Pa.R.A.P.
1925(a)(2)(i). The trial court ordered Mother to file a concise statement
within twenty-one days on November 10, 2015, and Mother timely complied
by filing a concise statement on November 18, 2015. Maternal Grandfather
has not objected or claimed any prejudice as a result of Mother’s failure to
file a concise statement until ordered to do so by the trial court. Thus, we
have accepted Mother’s concise statement in reliance on our decision in In
re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that a mother’s
failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver
of her claims, as there was no prejudice to any party); cf. J.P. v. S.P., 991
A.2d 904, 908 (Pa. Super. 2010) (stating that an appellant waived her
issues on appeal when she failed to file a concise statement with her notice
of appeal, and then also failed to comply with the trial court’s order to file a
concise statement within twenty-one days).



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

review.

     In reviewing a custody order, our scope is of the broadest type
     and our standard is abuse of discretion.          We must accept
     findings of the trial court that are supported by competent
     evidence of record, as our role does not include making
     independent factual determinations. In addition, with regard to
     issues of credibility and weight of the evidence, we must defer to
     the presiding trial judge who viewed and assessed the witnesses
     first-hand. However, we are not bound by the trial court’s
     deductions or inferences from its factual findings. Ultimately,
     the test is whether the trial court’s conclusions are unreasonable
     as shown by the evidence of record.            We may reject the
     conclusions of the trial court only if they involve an error of law,
     or are unreasonable in light of the sustainable findings of the
     trial court.

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

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

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

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

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

     (a) Factors.--In ordering any form of custody, the court shall
     determine the best interest of the child by considering all
     relevant factors, giving weighted consideration to those factors
     which affect the safety of the child, including the following:

           (1) Which party is more likely to encourage and
           permit frequent and continuing contact between the
           child and another party.

           (2) The present and past abuse committed by a
           party or member of the party’s household, whether
           there is a continued risk of harm to the child or an
           abused party and which party can better provide
           adequate physical safeguards and supervision of the
           child.


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          (2.1) The information set forth in section 5329.1(a)
          (relating to consideration of child abuse and
          involvement with protective services).

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

          (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. § 5328(a).

        In addition, when awarding partial physical custody to a grandparent

who has standing pursuant to 23 Pa.C.S. § 5325(1) or (2),4 the court must

consider the following factors:

        (i) the amount of personal contact between the child and the
        party prior to the filing of the action;

        (ii)   whether   the    award    interferes   with   any   parent-child
        relationship; and

        (iii) whether the award is in the best interest of the child.

23 Pa.C.S. § 5328(c)(1).


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4
    Sections 5325(1) and (2) provide as follows:

        In addition to situations set forth in section 5324 (relating to
        standing for any form of physical custody or legal custody),
        grandparents and great-grandparents may file an action under
        this chapter for partial physical custody or supervised physical
        custody in the following situations:

               (1) where the parent of the child is deceased, a
               parent or grandparent of the deceased parent may
               file an action under this section;

               (2) where the parents of the child have been
               separated for a period of at least six months or have
               commenced and continued a proceeding to dissolve
               their marriage….

23 Pa.C.S. § 5325(1)-(2).      Here, there is no dispute that Maternal
Grandfather had standing to seek custody pursuant to Section 5325(2).




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      Instantly, in its opinion accompanying the subject custody order, the

trial court discussed each of the Section 5328(a) factors. The court found

that Sections 5328(a)(3), (10), and (14) weigh in favor of Mother, and that

Section 5328(a)(8) weighed in favor of Maternal Grandfather.         Trial Court

Opinion, 10/9/2015, at 2, 4-5.      The court concluded that the remaining

factors did not weigh in favor of either party.        Id. at 1-6.       The court

subsequently filed an additional opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii).

In the supplemental opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the court

discussed the factors listed in Section 5328(c)(1). The court concluded that

Section   5328(c)(1)(i),   weighs   in   favor   of   Mother,    while    Sections

5328(c)(1)(ii) and (iii) weigh in favor of Maternal Grandfather. Trial Court

Opinion, 12/11/15, at 2-3. In its opinions, the court observed that there is

“an apparent affinity between the minor children, both Parties, and their

extended family.”    Trial Court Opinion, 10/9/2015, at 4. The court noted

that it was “struck by the clear adoration and affection of [Maternal

Grandfather] and his wife, … toward the minor children[,]” and that there is

a “need and benefit of individuals like [Maternal Grandfather] in the minor

children’s lives.” Trial Court Opinion, 12/11/15, at 3, 3 n.1.




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       On appeal, Mother presents two interrelated issues, which we address

together.5     Mother argues that the trial court abused its discretion by

awarding partial physical custody to Maternal Grandfather, in the light of the

Section 5328(a) and (c)(1) factors. Mother discusses each of these factors,

and offers her own interpretation as to how the court should have applied

the evidence presented during the custody hearing. Mother contends, inter

alia, that Maternal Grandfather has only a minimal relationship with the

Children, and that Maternal Step-Grandmother uses drugs and has a history

of involvement with child protective services. Mother’s brief at 12-14, 18-

19, 22-25. Mother also asserts that the subject custody order fails to specify

how often Maternal Grandfather will be permitted to exercise his periods of

partial physical custody, and that the order takes an unreasonable amount

of custody time away from Mother.              Id. at 14-15.   Mother argues that

Maternal Grandfather could have partial physical custody for as much as

eighty-four days a year starting in 2020 if he exercises monthly visits, and

that this arrangement “prevents [M]other and other family members from



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5
   Mother indicates that her first issue is that the trial court erred by
considering the Section 5328(a) factors only, and by failing to consider the
factors listed at Section 5328(c)(1). However, the actual substance of
Mother’s argument is not that the court failed to consider the Section
5328(c)(1) factors, but that the court reached improper conclusions during
its consideration of those factors. As noted supra, the court considered
Section 5328(c)(1) in its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii).



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planning family time together without the risk that [Maternal G]randfather

will call to exercise his period of partial custody and ruin their plans.” Id.

      After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion by awarding partial physical

custody to Maternal Grandfather.      At the outset, we express our concern

about Maternal Step-Grandmother’s ongoing drug use, and we stress that

our affirmance of the subject custody order does not suggest that we

condone Maternal Step-Grandmother’s behavior.              During the custody

hearing, Maternal Step-Grandmother admitted that she engages in daily

marijuana use. N.T., 6/4/2015, at 13. Maternal Step-Grandmother stated

that she used marijuana even when the Children were at her home, but she

claimed that she did not use marijuana in the presence of the Children, and

that she would smoke marijuana while the Children were outside. Id. While

Maternal Step-Grandmother’s use of an illegal substance is troubling, we

note that there also was testimony indicating that Mother’s boyfriend, M.G.,

drove the Children home after consuming alcohol, which is similarly

concerning. Specifically, Maternal Grandfather described an incident during

which M.G. consumed alcohol “excessively,” and then put the Children in his

pickup truck and drove away.           Id. at 116.      According to Maternal

Grandfather, he protested that M.G. should not be driving the Children in his

drunken state, but Mother intervened, saying, “he’ll be okay, he’s a safe

driver.” Id. Both of the parties in this matter, and their significant others,


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have placed the safety of the Children at risk by engaging in, or permitting,

these types of activities.6

       Despite these issues, the record supports the trial court’s finding that

the Children are bonded with Maternal Grandfather and Maternal Step-

Grandmother, and Maternal Grandfather and Maternal Step-Grandmother

care deeply for the Children.           Mother acknowledged during the custody

hearing that the Children have asked to visit Maternal Grandfather’s home,

but that Mother has told them that they were not permitted to go. Id. at

110. Mother stated, “they wanted to go over at first, like when everything

was going on. I told them no, they’re mean to Mommy, they’re not being

good. … They know what’s going on, and after that, they haven’t asked for

you guys at all.” Id. It was reasonable for the trial court to conclude that
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6
  Additionally,    there was testimony presented during the custody hearing
that Maternal     Grandfather consumes alcohol excessively, and that Mother
has engaged       in excessive drinking and marijuana use. In its opinion
accompanying      the subject custody order, the court stated,

       the [trial c]ourt finds credible evidence that [Maternal
       Grandfather] has a history of the use and likely abuse of alcohol.
       However, it is not apparent that [Maternal Grandfather]
       currently has issues with abuse of alcohol. … However, the
       [c]ourt left the record open for the limited purpose of receiving a
       report from SPHS of Greensburg, which the [c]ourt received on
       or about August 4, 2015. That report confirms the [c]ourt’s
       belief that [Maternal Grandfather] exhibits no present abuse of
       drugs or alcohol.

Trial Court Opinion, 10/9/2015, at 5-6. The court did not indicate whether it
found the testimony concerning alleged drinking and drug use by Mother to
be credible.



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the Children would benefit from spending time in the custody of Maternal

Grandfather, and that allowing Mother to withhold the Children would not be

in their best interest. As this Court has explained,

      the discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge
      gained by a trial court in observing witnesses in a custody
      proceeding cannot adequately be imparted to an appellate court
      by a printed record.

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

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).                 “[I]f

competent evidence supports the court’s findings, we will affirm even if the

record could also support the opposite result.” In re Adoption of T.B.B.,

835 A.2d 387, 394 (Pa. Super. 2003) (quoting In re N.C., 763 A.2d 913,

917 (Pa. Super. 2000)).

      Additionally, we reject Mother’s claim that the subject custody order

fails to specify how often Maternal Grandfather may exercise partial physical

custody of the Children, and/or unreasonably interferes with Mother’s

relationship with the Children. As noted supra, the court awarded Maternal

Grandfather partial physical custody of the Children “[d]uring such periods

that [Maternal Grandfather] is not attending to his duties as an over-the-

road trucker….”   Order, 10/9/2015, at ¶ 3a.     During the custody hearing,

Maternal Grandfather testified that the company he works for requires him

to be on the road for at least twenty-eight days before he is allowed to


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return home, and that he is allowed to spend only two days at home before

returning to road. N.T., 6/4/2015, at 120. Maternal Grandfather explained

that he prefers to spend five to six weeks on the road at a time, because this

allows him to return home for four or four-and-a-half days instead of just

two. Id. Maternal Grandfather noted that he spent nearly seven weeks on

the road immediately prior to the first day of the custody hearing, and that

he anticipated spending another six to seven weeks on the road afterward.

Id. at 120-21. At the conclusion of the second day of testimony, Maternal

Grandfather stated that he would likely be on the road for six to eight weeks

and/or until the end of October. N.T., 7/31/2015, at 48.

      Based on this testimony, it would be difficult, if not impossible, for the

trial court to make its award of partial physical custody any more specific.

Attempting to set a frequency for Maternal Grandfather’s periods of partial

physical custody would prove to be futile, given that Maternal Grandfather

can go anywhere from twenty-eight days to months at a time without being

home. While it may be difficult for Mother to predict when she will need to

provide Maternal Grandfather with the Children, we note that Mother is

unemployed, and she does not appear to have any scheduling restraints.

      Further, it is clear that Maternal Grandfather’s periods of partial

physical custody will have a minimal impact on Mother’s relationship with the

Children. Based on Maternal Grandfather’s testimony, he will be exercising

about four days of partial physical custody of the Children less than once per


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month.   Mother’s claim that Maternal Grandfather may end up exercising

greater amounts of partial physical custody in the future is mere speculation,

as there was no testimony during the custody hearing that Maternal

Grandfather’s work schedule is likely to change.

      Accordingly, because we conclude that the trial court did not abuse its

discretion by awarding partial physical custody of the Children to Maternal

Grandfather when he is not working, we affirm the order of the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2016




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