J-A11034-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
REBECCA L. NAKICH, NOW REBECCA : IN THE SUPERIOR COURT OF L. COURTNEY : PENNSYLVANIA : Appellant : : : v. : : : No. 1402 WDA 2022 BART P. TERRY : : : v. : : : ALPHONSE TERRY AND GAIL TERRY :
Appeal from the Order Entered November 4, 2022 In the Court of Common Pleas of Somerset County Civil Division at No(s): No. 509 Civil 2010
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 22, 2023
Rebecca L. Nakich, now Rebecca L. Courtney (Mother) appeals from the
November 4, 2022 order of the Court of Common Pleas of Somerset County
(trial court) granting partial supervised custody to Bart P. Terry (Father) of
M.B.T. (Child, born 2009). Intervenors Alphonse and Gail Terry (Paternal
Grandparents) were ordered to supervise Father’s custody. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A11034-23
I.
We glean the following facts from the certified record. Mother and
Father, who never married, entered into their first custody agreement for Child
in 2010 when he was 11 months old. Mother has always maintained primary
physical custody of Child and she and Father share legal custody. Due to his
struggles with drug and alcohol addiction, Father has had partial physical
custody or supervised visitation throughout Child’s life. He has also been
subject to random hair follicle and urinalysis drug testing under the various
custody agreements.
Mother and Father entered the most recent custody agreement in 2019
following Father’s arrest for possession of a controlled substance, possession
of drug paraphernalia and a drug-related driving under the influence (DUI)
charge. The agreement required Paternal Grandparents to supervise Father’s
custodial periods. Father was required to submit to hair follicle drug testing
on request by Mother or the Child Custody Investigation Office, and any
positive tests or alcohol or substance use during custodial periods would result
in all future custody being supervised by the Alternative Community Resource
Program (ACRP). After entering this agreement, Father tested positive for
narcotics on a hair follicle test in March 2020. He did not exercise any partial
custody of Child from that point forward.
In August 2021, Paternal Grandparents filed a petition to intervene
requesting partial physical custody and averring that Mother had denied them
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contact with Child for over a year. On January 28, 2022, the parties entered
into a new custody agreement that granted Paternal Grandparents two hours
of partial physical custody of Child every other week and one phone or video
contact with Child during the off-week. Father was not permitted to be present
during Paternal Grandparents’ custodial periods. They were prohibited from
speaking about Father to Child unless he initiated the conversation.
On April 22, 2022, Mother filed a petition to modify the custody order
alleging that Paternal Grandfather violated the custody agreement. She
additionally filed a contempt petition alleging that Paternal Grandfather had
spoken to Child about Father in violation of the order and told Child to lie to
Mother about the conversation. The trial court denied the contempt petition,
finding no willful violation of the order. However, the parties proceeded to an
evidentiary hearing on the modification petition on October 24, 2022. At the
hearing, Mother sought to terminate Paternal Grandparents’ periods of
custody. The trial court stated at the beginning of the hearing that even
though Father had not filed his own modification petition, it would consider
modifying the prior custody order to allow Father to have supervised visitation
through Paternal Grandparents. The trial court noted its concern that Child
had been effectively isolated from Father and Father’s family for a long period
of time. Mother conceded that the trial court could modify Father’s custody
following the hearing if the evidence was so warranted, but opposed any
modification to the requirement that visitation be supervised by ACRP.
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The trial court began by speaking to Child about his preferences in
camera. Child was 13 years old and had last visited Father approximately 2.5
years prior at a supervised visit with Paternal Grandparents. Child was still
visiting Paternal Grandparents every other week and said that he did not ask
them about Father because he did not like him or want to see him. Child said
he stopped seeing Father when Father failed a hair follicle test, which Child
learned about from Mother and her counsel. When pressed by the trial court,
Child said that he may eventually want to learn more about Father but was
not interested in doing so at that time. He could not explain why he did not
want to develop a relationship with Father but denied that Mother would be
opposed to supervised contact. He did not think Paternal Grandparents could
supervise visits because Father had failed his hair follicle test when they were
responsible for supervision previously. When the trial court asked if Child
thought Paternal Grandparents could not protect him during visits, he could
not answer. He maintained that Mother would not be upset if Child said he
wanted to visit with Father. When asked how he felt about the current custody
arrangement, Child said that he did not like it or want to visit with Paternal
Grandparents. Child understood that the hair follicle test did not indicate that
Father was intoxicated during periods of custody and said that Father had
never done anything during custodial periods that had concerned him.
Next, Mother testified that she and Child live with her husband of ten
years and their two children. Child also had a half-sibling on Father’s side.
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Mother had been Child’s primary custodian for his entire life, and in Child’s
early years, the custody schedule was designed around preschool and work,
with both sets of grandparents watching Child throughout the week. After
Child began kindergarten, Father had custodial periods two evenings after
school and on alternating weekends and Paternal Grandparents would pick up
Child on some of those days. Father had been employed with a carpenters’
union throughout Child’s life.
Mother testified that the custody schedule became more difficult and
Child suffered emotionally beginning in 2016 when Father separated from his
then-wife. Child was upset about losing Father’s wife from his life. Mother
said that drug abuse had always been an issue in the custody case, and that
she was not aware of the extent of Father’s addiction until she was pregnant
with Child. Father had been charged with multiple DUIs as a result of drug
and alcohol use. While the first custody agreement provided for random drug
testing, Mother did not believe the Child Custody Investigation Office had ever
tested him. She had filed her petition to enforce the order after observing
signs that Father was using again in 2017. At that time, his hair follicle test
was positive for methamphetamine, cocaine and amphetamines. Father
continued unsupervised visitation between 2017 and 2019.
Mother testified that she had asked Paternal Grandparents to supervise
the visits voluntarily and they declined to do so. She had become concerned
because Father’s health appeared to be worsening. On one occasion, he
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missed a custodial period with Child because he attempted to pick up his
daughter while intoxicated and his ex-wife required him to obtain an alcohol
screen pursuant to their custody order. Mother later learned that he was
planning to retrieve Child for their visit after picking up his daughter.
Father was arrested in 2019 for possession of a controlled substance,
possession of drug paraphernalia and DUI while he was on his way to pick up
Child. At that time, Paternal Grandmother told Mother that they could not
prove Father was driving under the influence because he refused the blood
test. Mother asserted that Paternal Grandparents have both repeatedly
denied that Father has a drug problem, have called her derogatory names and
have insulted her in front of Child.
Ultimately, Paternal Grandparents were ordered to supervise Father’s
custodial periods in 2019. Father then tested positive once again for narcotics
and, as a result, his custody time was to be supervised by ACRP. Mother
testified that this sanction was included in the custody agreement because she
was concerned Paternal Grandparents would not appropriately supervise the
visits. She said they had previously allowed Father to take Child snowboarding
when they were supposed to be supervising. She was concerned that Child
would be exposed to dangerous narcotics if left unsupervised with Father.
After Father tested positive for narcotics in March 2020, he did not exercise
any periods of supervised custody, despite being able to do so through ACRP.
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Mother said that at the time of the hearing, she believed Father was
unemployed and he was not paying child support. She believed that visitation
at ACRP cost $45 per visit. She said that he occasionally spoke with Child on
the phone and had contacted him four times in the ten months prior to the
hearing. Father did attend Child’s baseball and basketball games. Mother
said Paternal Grandparents texted her in May 2020 asking to see Child, and
she responded that she was concerned that they could not keep Child safe
and would not acknowledge Father’s addiction or hold him accountable for his
behavior. Mother said that Paternal Grandmother then tried to reach out to
Child directly and responded to Mother by blaming her for the situation.
Mother ultimately told Paternal Grandparents they could visit Child at
Mother’s home or speak with him on the phone. They visited briefly on
Halloween, Christmas and Easter to drop off gifts and Child spoke with them
on the phone several times. Paternal Grandmother brought Father to the
Christmas visit despite the order requiring his custody time be supervised by
ACRP. Mother said Child was confused and angry after seeing Father
unexpectedly at Christmas.
In the spring of 2021, Mother received a letter from Paternal
Grandparents’ counsel asking for visitation with Child under Father’s former
custody schedule. She and Paternal Grandparents then argued on the phone
and Paternal Grandmother insisted that the hair follicle tests had been invalid.
She said that they had done nothing wrong and Paternal Grandfather said that
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a court should resolve the matter. Mother testified that she said she wanted
them to have a relationship with Child if they could acknowledge Father’s
struggles with addiction.
Mother entered as an exhibit a poem Child wrote about Father in school
in which he described worrying about Father and wishing that Father would
get better for him and his half-sister. Mother believed Child would be uneasy
if he began visiting with Father again without any proof that Father was sober.
She testified that Child took a class in sixth grade about drugs and alcohol and
asked Mother what substance Father used. He became very upset when she
told him Father used methamphetamine and wanted to know why Father was
not getting better or getting any help with his addiction. Mother believed that
Father had avoided treatment for his addiction because Paternal Grandparents
enabled him by performing custodial duties for him and hiding information
about his drug use and criminal charges from Mother.
Mother testified that she encouraged contact between Child and Father
until she began to suspect drug and alcohol use was affecting his ability to
care for Child. At seven years old, Child told Mother that Father would sleep
throughout weekend visits and that Paternal Grandmother would have to wake
him up. In the spring and summer prior to the evidentiary hearing, Father
would attend Child’s sporting events and fall asleep on the sidelines. Father
had been using Suboxone since he met Mother and throughout Child’s life.
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Mother testified that she has not gotten along well with Paternal
Grandparents due to their failure to acknowledge Father’s addiction. She did
not feel that they respected her role as Child’s mother. She said Child had
reported that Father drank alcohol in the car while transporting him on one
occasion. Father had not produced a negative drug test since he stopped
seeing Child in March 2020 and had not performed parental duties other than
paying child support since that time. Around that same time, Father sent
Child a message blaming Mother for separating them.
On cross-examination, Mother conceded that Child was once close with
Paternal Grandparents but stated that the relationship changed when Father
was arrested. She believed that Child felt lied to about Father’s addiction.
Child attended therapy prior to Father’s divorce and still spoke with the social
worker at his school to discuss his feelings about the custody situation.
Mother admitted that hair follicle tests only indicate that a substance
was consumed within 90 to 120 days prior to the test, and that she could not
say with certainty that Father was under the influence during any specific
custodial period. She said that she wanted Paternal Grandparents to form a
relationship with Child independent of Father and to stop speaking about
Father and excusing his behavior when they were with Child. She testified
that Child is stressed by visits with Paternal Grandparents and expresses that
he does not wish to visit or call them.
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Mother did not believe Paternal Grandparents would know if Father
brought narcotics into their home or would protect Child from that influence.
She did not think they supervised visits appropriately in the past because they
would not always remain physically present throughout the visit and would
hide information from Mother when Father was using drugs. When asked if
she would allow them to supervise custody if they subjected Father to
breathalyzer and urine screens, she replied that she would not because they
still could not understand the danger Father posed to Child.
When questioned by the trial court, Mother testified that she normally
believes it would be in a child’s best interest to have relationships with both
sides of the family. However, she felt in this situation a relationship could be
dangerous and would cause mental harm to Child. She believed that Paternal
Grandparents needed treatment for co-dependency and to participate in
Father’s treatment in order to safely continue the two-hour visits with Child
every other week.
Paternal Grandmother testified next. She was retired and had
previously taught physical education and special education from 1972 until
after Child was born. She did not have a criminal record. She testified that
early in Child’s life, she and Paternal Grandfather would frequently watch Child
throughout the day while Mother and Father worked but the custody schedule
became more formal in 2016 after Father’s divorce. In 2019, Father was
convicted of DUI and was sentenced to house arrest that was set to begin in
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March 2020. Around the same time, he failed his hair follicle drug test and he
had not seen Child since.
After the failed drug test, Paternal Grandmother testified that they
waited a couple of months before retaining an attorney to pursue custodial
time with Child. She wanted to see Child for longer periods, as the two-hour
custody windows did not leave them enough time to do more than share a
meal. She said they attend Child’s baseball games but had to seek out the
schedule themselves because Mother refused to share it with them.
Communication with Mother was poor and Mother would ignore her messages
requesting phone calls with Child. She said that they try not to sit near Mother
when attending Child’s games and denied that Father has ever fallen asleep
at a game. She contended that Father was just looking at his cell phone.
Paternal Grandmother said that on the day Father was arrested for DUI,
Paternal Grandfather had picked Child up from school and Father was driving
home from work to visit him. When Father did not come home, Paternal
Grandfather took Child to his baseball practice and Paternal Grandmother
eventually received a phone call alerting her that Father had been arrested for
DUI after he was found sleeping in his car. They then went to retrieve Father
and left Child with his step-father at practice. Paternal Grandmother said she
did not notify Mother of the DUI at that time because it was “blown out of
proportion” and that nothing could be proven because Father refused the
blood test. N.T., 10/24/22, at 160-61.
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Paternal Grandmother acknowledged that Father had struggled with
heroin addiction out of high school. He attended an intensive outpatient
rehabilitation program and she attended family nights with him during that
time. A couple of years later he went back for an inpatient program. Since
2019, he had been attending counseling two to three times per month and
saw a doctor at a rehabilitation facility once or twice a month where he is drug
tested. Paternal Grandmother testified that Father would be expelled from
the program if he failed a drug test. Additionally, she randomly drug-tested
Father with over-the-counter urinalysis tests. She denied enabling Father’s
addiction and said that she and Paternal Grandfather provide support so that
he could manage fatherhood and work. She said that she learned to identify
signs of intoxication and was very attuned to when Father was using narcotics.
She said that she would not allow Father to see Child if she thought he was
using drugs during any custodial time she supervised.
Paternal Grandmother said that she contacted Mother to arrange visits
with Child over various holidays since March 2020 but was only allowed brief
visits when she dropped off gifts. She believed that Child was quieter when
Mother was present for phone calls and visits and more talkative when she
was not. They have a bedroom for Child to use when he visits overnight.
On cross-examination, Paternal Grandmother testified that Father
began Suboxone treatment in 2004 and continued to use it 18 years later.
She said it was a maintenance drug that had kept him alive through that time.
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She was aware that he tested positive for methamphetamine and cocaine in
2017, which was related to his DUI. She admitted that she could not always
tell when he was using methamphetamine but would look for signs such as
glassy eyes. She said that when he was charged with DUI, he was not driving
to pick up Child but rather was going to meet him at her home. She said that
Father had not seen Child since March 2020 because Mother had prohibited it,
but admitted that Father was entitled to supervised visits at ACRP. She said
supervised visits were difficult to schedule and that ACRP charged $70 per
hour for visits. Paternal Grandparents were lending him money to meet his
child support obligations but he had not asked for money for visitation.
Paternal Grandmother acknowledged that Father had not produced a
negative drug screen but contended that he was taking a medication for
depression that produced false positives for amphetamines. She believed that
he was doing well and not using illegal narcotics at the time of the hearing.
He was still on parole for his most recent DUI.
Paternal Grandfather testified that he was also retired but had
previously worked as a construction superintendent and football official. He
currently worked as a ski instructor and had no criminal history. He said that
he had been very close with Child when they had periods of custody in the
past and enjoyed attending Child’s practices, games and school recitals.
Paternal Grandfather did not deny that Father suffered from addiction
but said that he was currently doing well in regular counseling. He said that
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Father is drug tested regularly and that he did not understand why the hair
follicle tests were not consistent with his other drug analysis tests. He said
they were attempting to change his prescription medications so that he could
pass the drug tests. He had not observed Father under the influence during
any custodial periods and said that he had never suspected that Father
brought illegal substances into his home.
Paternal Grandfather said that he wanted to have a regular role in Child’s
life again. He acknowledged that there was some hostility in his relationship
with Mother but denied making any derogatory comments about Mother in
front of Child. On cross-examination, Paternal Grandfather said that Father
kept getting false positive hair follicle tests because of his prescription
medications. He believed Mother was influencing Child to say that he did not
want to visit with Paternal Grandparents.
Finally, Father testified that he was currently laid off from his job as a
carpenter but had recently had his driver’s license reinstated. He said that he
could not currently afford to pay for supervised visitation through ACRP and
when he was employed, his work schedule prevented him from scheduling
visitation. He had been sober from illegal narcotics for over a year and was
regularly attending counseling. He was attempting to change his anxiety
medication to prevent false positive results on his hair follicle tests. He denied
falling asleep at Child’s sporting events or ever using alcohol or narcotics at
supervised visits with Child. He had not used drugs in Paternal Grandparents’
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home or brought them into their home since he was a child. He said that he
would like to resume visitation with Child supervised by Paternal Grandparents
and said that he currently has visitation with his daughter.
On cross-examination, Father admitted that he had never called ACRP
to try and schedule visitation but had assumed that they would only be
available in normal business hours. He said that he still took Suboxone but
had discontinued Wellbutrin because he believed it was responsible for the
false positive drug tests for amphetamines. He had recently begun taking
medication for ADHD, for which he was diagnosed in 2018. He had been
employed for a couple of months in 2022, nine months in 2021 and off-and-
on in 2020. He denied having custody of Child while under the influence and
said that he took breathalyzer tests prior to visits with Child in the past. He
said that Paternal Grandparents would be able to tell if he was under the
influence.
On questioning by the trial court, Father asserted that when he produced
false positive tests through his rehabilitative services, they sent the sample
for further testing in a laboratory. He said that if he were actively using illegal
narcotics, he would be terminated from the program. He agreed that he would
have to work to reestablish a relationship with Child and would not be able to
immediately exercise unsupervised overnight or weekend custody.
Following the reception of the evidence, the trial court entered an order
modifying the prior custody agreements. The trial court explained that it
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wanted to create a new custody order that would allow Father visitation
supervised by Paternal Grandparents in order to facilitate a relationship
between Child and Father’s family. Accordingly, Father was granted partial
custody to be supervised by Paternal Grandparents one day every other
weekend from noon to 7 PM, and increasing to one day every weekend
beginning in the summer. At least one of the Paternal Grandparents were
required to be physically present during visitation and Father was required to
be present unless otherwise agreed to by the parties. Holiday schedules would
be mutually-agreed upon by the parties and all other terms of the previous
agreements would remain in effect.
Mother timely appealed and she and the trial court complied with Pa.
R.A.P. 1925.
II.
On appeal, Mother argues that the trial court erred and abused its
discretion by (1) granting Father periods of partial custody; (2) determining
that Paternal Grandparents could appropriately supervise Father’s custody;
and (3) crafting a custody order that denied Mother any complete weekend of
custodial time beginning in the summer.1
1 When reviewing a custody order,
our scope is of the broadest type and our standard is an abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not (Footnote Continued Next Page)
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When deciding a petition to modify custody, the trial court must conduct
a thorough analysis of the best interests of the child based on the relevant
Section 5328(a) factors2 set forth in the Child Custody Act, 23 Pa.C.S. § 5321
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).
2 The relevant factors are:
(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.
(Footnote Continued Next Page)
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et seq. See E.D. v. M.P., 33 A.3d 73, 80 (Pa. Super. 2011). However, “[i]t
is within the trial court’s purview as the finder of fact to determine which
(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.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
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factors are most salient and critical in each particular case.” M.J.M. v. M.L.G.,
63 A.3d 331, 339 (Pa. Super. 2013). “The best-interests standard, decided
on a case-by-case basis, considers all factors that legitimately have an effect
upon the child’s physical, intellectual, moral, and spiritual well[-]being.”
Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
A.
In her first argument, Mother highlights that Father has been addicted
to narcotics since high school, used Suboxone for 18 years, continued to fail
drug tests and incurred criminal charges as a result of his addictions. She
contends that he continued to abuse drugs when Paternal Grandparents were
supervising his custody of Child and then declined to visit with Child at all after
ACRP took over responsibility for supervision. She contends that he regularly
missed visits with Child or slept through them and that he only had brief phone
contact with Child four times in the ten months preceding the evidentiary
hearing. She argues that the trial court disregarded Child’s preference not to
see Father until he was sober. She maintains that the trial court ignored
Paternal Grandparents’ prior failures to supervise Father and did not
acknowledge that Father was at fault for declining to exercise his custodial
rights since 2020.
Mother cites no law in support of her position, nor does she couch her
argument within the terms of our well-settled standard of review. See Pa.
R.A.P. 2111(a), 2119(a), (b), (c) & (d); In re M.Z.T.M.W., 163 A.3d 462,
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465 (Pa. Super. 2017) (“[T]his Court will not review a claim unless it is
developed in the argument section of an appellant’s brief, and supported by
citations to relevant authority.”). Rather, she recasts the evidence by largely
crediting her own testimony and asserts that because the trial court found no
custody factor weighing in Father’s favor, any contact with Father would not
be in Child’s best interest. Our review of the trial court’s opinion reveals that
it carefully weighed all of the required factors and did not downplay the
severity of Father’s addiction, but ultimately concluded that it was in Child’s
best interest to develop a relationship with Father and his family. The
supervised custody with Paternal Grandparents balanced the need to ensure
Child’s safety and Father’s right to maintain a relationship with Child.
As Mother recognizes, the trial court addressed each of the statutory
custody factors in its opinion in support of the order and found that many of
them favored her continuing as primary custodian. The trial court agreed with
Mother that Father was in active addiction and that his excuses for not
exercising custody for over two years were incredible, as Paternal
Grandparents were supporting him financially during his periods of
unemployment. See Memorandum Opinion and Order, 11/4/22, at 7.
However, the trial court found Mother’s insistence on allowing Child to dictate
the visitation schedule with Paternal Grandparents and Father to be
unreasonable and not in his best interest. It was concerned that Mother had
isolated Child from Father’s side of the family and concluded that a 13-year-
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old should not have sole discretion to decide if or when to have a relationship
with Father and Paternal Grandparents.
Further, the trial court repeatedly noted that it did not find Mother
completely credible and that her grievances against Father and Paternal
Grandparents were not supported in fact. Id. at 8 (“Mother’s expression of
concern regarding the safety of the child is not justified. Mother’s hostility
towards the paternal grandparents and the father is prevalent and the
historical blame towards paternal grandparents for supporting father has been
misinterpreted as enabling his addiction.”); id. at 10 (“We find that mother
has been unduly restrictive in dismissing opportunities for the paternal
grandparents to visit with the child and has misinterpreted paternal
grandparents’ efforts to support their son’s addiction reform as enabling the
drug use.”); id. at 13 (“Any expression of a desire to include the paternal
grandparents would be met with perceived disappointment by mother, which
the child wishes to avoid. Testimony revealed that the remote conversations
the child had with paternal grandparents were stilted with mother’s presence
as opposed to when the visitation took place in person with paternal
grandparents.”); id. (“[M]other has been adamant about creating false
narratives about the potential risk factors of child’s interaction with the
paternal grandparents.”). Thus, while the trial court agreed that Father
continued to struggle with his addiction and was not ready to resume
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unsupervised contact with Child, it also concluded that Mother’s fears about
Child’s safety during supervised visitation were overblown.
This finding was supported by the record, as there was no evidence
presented at the hearing that Paternal Grandparents had ever allowed Father
to be in contact with Child while under the influence of drugs or alcohol.3 The
trial court noted that both Paternal Grandparents had held jobs that required
clearances for working with children and credited Paternal Grandmother’s
explanation that she had learned the signs of drug use by participating in
family sessions in one of Father’s treatment programs. While the trial court
held that Father would have to work toward unsupervised periods of custody,
it concluded that it was not in Child’s best interest to be cut off completely
from Father while he was in recovery.
Merely holding that most of the custody factors favor Mother does not
lead to the inexorable conclusion that Father and Paternal Grandparents
should be denied all contact with Child. To the contrary, the trial court focused
on whether it was in Child’s best interest to foster a relationship with Father,
Paternal Grandparents and the rest of Father’s extended family, as is required
by the Child Custody Act. E.D., supra. Sitting as the fact-finder, the trial
3Mother repeatedly references Father’s failed hair follicle test in March 2020, but acknowledges that the test only indicates that he ingested substances at some point in the 90 days prior. The test simply does not establish that Father was under the influence of narcotics during a supervised visit with Child and Paternal Grandparents.
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court was entitled to assess the credibility of Mother, Father, Child and
Paternal Grandparents and determine that Child’s best interests were served
by attempting to foster a bond with Father and his side of the family and that
Child would not be endangered by supervised visits with Father. O.G. v. A.B.,
234 A.3d 766, 777 (Pa. Super. 2020) (citation omitted) (explaining that the
weight the trial court grants to the various custody factors “almost entirely
discretionary.”). The trial court’s factual findings are supported by the record,
and we cannot conclude that the relatively small amount of supervised
visitation granted to Father and Paternal Grandparents—seven hours every
other week, increasing to weekly in the summer—was an abuse of discretion.
The issue merits no relief.
B.
Next, Mother argues that the trial court erred by finding that Paternal
Grandparents could appropriately supervise Father’s periods of custody. She
maintains that Paternal Grandparents previously refused to supervise Father,
despite exercising his periods of custody in his stead. She highlights that
Father incurred criminal charges resulting in Paternal Grandparents
supervising his visits by necessity, but continued to test positive for illegal
narcotics. She contends that Paternal Grandparents failed to protect Child
because they did not notice or acknowledge Father’s drug use and continued
to believe that his drug test results were false positives. She argues that the
testimony at the hearing established that Mother and Paternal Grandparents
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cannot communicate effectively and that Paternal Grandparents would
continue to hide information about Father’s addiction. She claims that
Paternal Grandparents cannot tell when Father is under the influence or
actively using narcotics and, thus, cannot safely supervise his custody of
Child.4
Again, Mother’s argument attacks the trial court’s factual findings, as
she focuses on whether Paternal Grandparents acknowledge Father’s
addiction, enable his behavior or can recognize when Father is under the
influence of narcotics. After viewing all the testimony, the trial court
specifically concluded that if they were appointed as supervisors of Father’s
custody, Paternal Grandparents would not allow Child to be placed in danger.
Memorandum Opinion and Order, 11/4/22, at 11, 15. Paternal Grandparents
agreed that Father struggles with addiction and supported his recovery by
driving him to counseling, lending him money for child support and attending
family treatment sessions with him in the past. Moreover, they had a close
relationship with Child in the past and endeavored to maintain a presence in
4 In closing, Mother makes a cursory, one-sentence assertion that by finding that Paternal Grandparents were not “parties” to the proceeding, the trial court “avoid[ed] measuring his conclusions against the clear and convincing evidentiary standard required to defeat Mother’s objections to their role.” Mother’s Brief at 43. As she has failed to develop this claim in any meaningful fashion, it is waived. See Commonwealth v. Patterson, 180 A.3d 1217, 1229 (Pa. Super. 2018) (holding that failure to include citation to relevant authority or to develop issue in any other meaningful fashion capable of review results in waiver of claim).
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his life even without regular visitation. While Mother speculated about
whether Father could bring narcotics into Paternal Grandparents’ home or they
could recognize signs of his intoxication, there was ultimately no evidence that
Paternal Grandparents had ever allowed Father to exercise custody or
visitation with Child while under the influence.5 The trial court determined
that Paternal Grandparents are able to recognize when Father is under the
influence of any substance and would appropriately supervise Child to shield
him from any risk posed by Father’s addiction during the relatively short
periods of custody. We discern no abuse of discretion.
C.
Finally, Mother provides one paragraph of argument in support of her
claim that the trial court erred by denying her any full weekends of custody
beginning in the summer of 2023. She complains that the trial court deprived
Mother of full weekends of custody in favor of Father, even though Father had
declined to exercise custody for over two years prior to the hearing.
In addressing this claim, the trial court noted that the modified custody
order left in place all provisions of the prior orders that were not affected by
the modifications. See Order, 11/4/22, at 18. A previous consent order
5 Paternal Grandmother testified that she administered home drug tests to Father in the past prior to periods of custody. The failed hair follicle tests that Mother relies upon could not establish that Father used narcotics while exercising custody of Child, or even that he had been under the influence in the presence of Paternal Grandparents.
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between the parties included a provision allowing each parent two non-
consecutive weeks of vacation throughout the year that would supersede the
other provisions of the custody and holiday schedule. See Order of Court,
10/5/17, at 4-5. Thus, the trial court noted that Mother is still entitled to full
weekend custody during her vacation time. Mother did not address this
argument in her brief, nor did she explain why it was an abuse of discretion
to allow Father to see Child for seven hours each weekend when she retains
all other periods of primary physical custody. No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/22/2023
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