J-S48043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.T. IN THE SUPERIOR COURT OF PENNSYLVANIA v.
J.T.
Appellant
v.
C.V.
No. 570 WDA 2015
Appeal from the Order of March 18, 2015 In the Court of Common Pleas of Beaver County Civil Division at No.: 11560-2014
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED JULY 24, 2015
J.T. (“Mother”) appeals the March 8, 2015 order that granted primary
physical custody of G.A. (“Child”), born in May 2009, to Mother and partial
physical custody to R.T. (“Grandmother”). We vacate and remand with
instructions.
The trial court summarized the factual history as follows:
[The appellant] in this action is [Mother], age 27, the natural mother of [Child]. Mother now lives in Allison Park, Pennsylvania, having relocated there in September of 2014. For the first 26 years of her life she resided with her mother[, Grandmother]. . . . [Grandmother] resides in Beaver County, Pennsylvania.
[Child] was born while [Mother] was living with [Grandmother.] The evidence reflected that the natural father of [Child, C.V. (“Father”),] has played no part in [Child’s] life to this date. It J-S48043-15
should be noted that [Father] did not appear for any of the proceedings leading up to the trial and was not present during the trial.[1] [Mother] and [Father] were never married[,] have never resided together and have had virtually no relationship since the birth of [Child].
The evidence further reflected that [Mother] was the primary caregiver of [Child], but she also worked at a casino in Pittsburgh and would be away from [Grandmother’s] residence for significant periods of time for purposes of work and also spent overnights after work with her present fiancé, with whom she now lives. When [Mother] was not available, [Grandmother] took over the caretaking responsibilities for [Child], even to the extent of taking [Child] to work with her as confirmed by testimony by her employer, a veterinarian. From that testimony, it appeared that [Child] was a regular at [Grandmother’s] work and well-liked and encouraged to be there by the employer. The testimony also reflected that [Grandmother] would handle other responsibilities for [Child] such as doctors’ visits and matters at pre-school/school.
The testimony clearly revealed that [Mother] had no problem permitting [Grandmother] to watch and care for [Child] up until the fall of 2014. In September of 2014, [Mother] and [Child] left [Grandmother’s] residence. [Mother] claimed that she was forced out of the residence by [Grandmother,] while [Grandmother] testified that [Mother] left with [Child] to live with her fiancé.
Trial Court Opinion (“T.C.O.”), 4/23/2015, at 2-3 (footnote omitted).
On October 16, 2014, Grandmother filed a complaint for partial
custody of Child. Following custody conciliation, the hearing officer entered
a proposed custody order granting Grandmother partial custody on
December 12, 2014. Both Mother and Grandmother filed exceptions to the
order. ____________________________________________
1 Father also did not participate in this appeal.
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The court held a custody trial on March 17, 2015. At trial, Mother
testified that, since September 2014, she has livied with her fiancé, K.B.,
and Child. Notes of Testimony (“N.T.”), 3/17/2015, at 9. Mother and K.B.
had a son, E.B., approximately six weeks prior to trial. Id. at 10. Mother
testified that she and Grandmother tried to get along when Child was
younger and that Grandmother helped with Child. However, Mother
asserted that the relationship between Mother and Grandmother became
hostile and Grandmother was verbally abusive. Id. at 13. Mother testified
that Grandmother kicked Mother and Child out of the house in September
2014. Id. at 12.
When Mother returned to work after having Child, Mother worked
evening hours and Grandmother watched Child. Id. at 58-59. Mother
admitted to spending the night with K.B. after work two or three times per
month while Grandmother cared for Child. Id. at 60. Although
Grandmother watched Child for twenty to thirty hours per week while Mother
worked, Mother did not like some of Grandmother’s behavior around Child.
Id. at 16-18. Mother was concerned that Grandmother would bathe with
Child and would allow Child to swim in the pool without a bathing suit. Id.
at 17, 18. Grandmother also spanked Child against Mother’s wishes. Id. at
20.
Mother alleged that Grandmother sold prescription medicine and grew
marijuana at the home. Id. at 20, 22, 23. Mother also stated that she
dated J.K. for six months in 2005, and then Grandmother dated J.K. off and
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on from 2005 through at least September 2014. Id. at 26-27. Mother
stated that Grandmother becoming involved with J.K. caused problems with
Mother and Grandmother’s relationship. Id. at 27. Mother was also
concerned about J.K. because he used drugs in the home. Id. at 33.
Grandmother has guns in the home that were left loaded and were not in a
locked cabinet. Id. at 29-30. Mother admitted that she also owns a gun.
Id. at 67. Mother’s brother, Ro.T., also lives with Grandmother, and Mother
alleged that he uses drugs and is physically and verbally abusive. Id. at 34-
36.
Mother testified that, since overnight visits with Grandmother began,
Child has had issues with the sleeping arrangements, and Grandmother
feeds Child food that Mother does not permit her to eat. Id. at 46-47. Child
has been defiant upon returning from Grandmother’s house. Id. at 48-49.
Further, Grandmother will not communicate with Mother regarding Child.
Id. at 48.
K.B. testified that Grandmother and Mother had “a broken
relationship,” and that Grandmother was demeaning to Mother. Id. at 76.
K.B. believed that Grandmother loved Child, but thought that Grandmother
said inappropriate things to Child. Id. at 78-79. K.B. stated that Child likes
to go to Grandmother’s house but does not like to sleep there. Id. at 84.
K.B. also noted that Child seems less engaged with the family when she
returns from Grandmother’s house. Id. at 85. K.B. and Mother started the
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paperwork for K.B. to adopt Child, but were still in the process of trying to
get Father to relinquish his parental rights. Id. at 86-87.
Grandmother testified that only she and Ro.T. live in her residence.
Id. at 105. After Mother went back to work after having Child, Mother and
Grandmother agreed that Mother would work nights and weekends because
Grandmother worked during normal business hours during that week. With
that schedule, someone would always be home with Child. Id. at 107.
Grandmother took Child swimming and on trips with her two other
grandchildren who live in the area. Id. at 108. Grandmother also took Child
to work when Mother was unavailable during weekdays or when Mother was
sleeping after a late shift. Id. at 108-09. Grandmother testified that she
took Child to some dentist and pediatrician visits. Id. at 109. Grandmother
described herself as “the other parent” and stated that she and Mother
discussed how Child would be raised. Id. at 125.
Grandmother testified that the guns in her home are not loaded and
that she keeps them in a cabinet, but that the children cannot access the
cabinet. Id. at 112, 134-35. Grandmother denied that J.K. was living in her
house and stated that she had not seen him since before Mother left the
house. Grandmother testified that she knew that her relationship with J.K.
could strain her relationship with Mother. Id. at 145. Grandmother
admitted that J.K. used drugs, but stated that her relationship with him
ended in 2010, although he still occasionally came around the house through
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early 2014. Id. at 146-47. Grandmother denied that she grew marijuana or
sold prescription drugs. Id. at 117-18.
Grandmother also denied that she kicked Mother and Child out of the
house. Id. at 130. Grandmother admitted that she argues with Mother, and
sometimes the arguments become heated. Id. at 131. Grandmother denied
calling Mother names or disparaging Mother in front of Child. Id. at 132.
Grandmother also argues with her son on occasion, but not in front of Child.
Id. at 136-37.
Grandmother testified that the first scheduled visit was not an
overnight visit as ordered. Instead, Mother offered to bring Child to a
restaurant to meet with Grandmother and Mother stayed during the visit.
Although Child was hesitant at first, Grandmother thought the visit went
well. Id. at 118-19. At the second visit, K.B. notified Grandmother that the
visit had to start Friday instead of Saturday as ordered. Id. at 121.
Grandmother testified that the visit went well and that she and Child played
games. Id. at 121-22. At the third visit, Child was excited to see
Grandmother and was able to spend time with Child’s cousins. Id. at 123.
F.S., Grandmother’s daughter and Mother’s half-sister, testified that
she and her daughter are at Grandmother’s house at least once per week.
Id. at 158. F.S. observed Grandmother and Child and believed their
relationship to be that of a typical family. Id. at 159. F.S. was present for
part of two overnight visits between Grandmother and Child. She thought
Child was more reserved than usual, but that Child loved Grandmother and
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had a good time. Id. at 160-61. F.S. admitted that sometimes family
members argued and yelled. Id. at 162-63. However, F.S. had no concerns
about her daughter or Child being in the house. Id. at 163.
Grandmother’s employer, Richard Bell, a veterinarian, testified that
Grandmother brings Child to work, and that he knew Child and Grandmother
well. Grandmother has worked for Mr. Bell since 1997. Id. at 98. He
characterized Grandmother and Child’s relationship as normal for a
grandparent and grandchild. Id. at 99. Mr. Bell noted that Child was at the
workplace frequently and, although he initially was reluctant, he believed it
was necessary and permitted Child to be there. He also testified that Child
liked being in the office and playing with the animals. Id. at 100.
After hearing all the evidence, the trial court discussed its findings of
fact and conclusions of law on the record and gave its ruling from the bench.
On March 18, 2015, the trial court issued its order, memorializing the prior
day’s ruling. The order awarded legal custody and primary physical custody
to Mother. Father was granted partial custody, as he and Mother agreed.
Grandmother was awarded partial physical custody on the second weekend
of every month; one day during the Christmas, Thanksgiving, and Easter
holidays; and ten consecutive days between June and August. Grandmother
received a total of thirty-seven days each year.
On April 1, 2015, Mother filed a notice of appeal and concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and
(b). On April 23, 2015, the trial court filed its opinion.
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Mother raises six issues for our review:
I. Whether the Court erred in granting partial custody to [Grandmother] over the objection of a fit parent when [Mother] has a fundamental constitutional right to the custody, care and control of her child.
II. Whether the Court erred when considering the Pennsylvania § 5328 custody factors, it failed to heavily weigh those factors in the favor of [Mother] in a custody dispute between the natural mother and the maternal grandmother.
III. Whether the Court erred by failing to consider the impact on the parent-child relationship when awarding partial custody to [Grandmother].
IV. Whether the Court erred when it failed to give weight to the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.
V. Whether the Court erred when [Grandmother] failed to prove that obtaining partial custody of [Child] was in the best interest of [Child].
VI. Whether the remarks of the trial court judge regarding [Mother] established an appearance of impropriety such that the decisions regarding custody were the result of bias.
Mother’s Brief at 3.
Mother’s last issue is waived. It was not included in Mother’s concise
statement. See Pa.R.A.P.1925(b); Ravitch v. Pricewaterhouse, 793 A.2d
939, 944 (Pa. Super. 2002) (“Failure to include an issue in a 1925(b)
statement waives that issue for purposes of appellate review.”). Therefore,
we will not review that issue.
Mother first challenges the trial court’s grant of partial custody to
Grandmother. Mother suggests that the grandparent custody statute is
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unconstitutional when applied to a grandparent seeking custody against the
wishes of his or her own child, as opposed to a grandparent disputing
custody with his or her grandchild’s other parent. Mother recognizes that
our Supreme Court found the statute’s predecessor to be constitutional, but
argues that the ruling should be limited to the facts of that case in which the
maternal grandmother sought partial custody from the grandchild’s father.
Mother’s Brief at 9-13.
Mother cites 23 Pa.C.S.A. § 5311. That statute was repealed,
effective January 24, 2011, and was replaced by the following:
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; or
(3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.
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23 Pa.C.S.A. § 5325.2
In Hiller v. Fausey, 904 A.2d 875 (Pa. 2006), our Supreme Court
addressed whether now-repealed section 5311 violated a parent’s due
process rights. In that case, the maternal grandmother and the child had a
close relationship prior to the mother’s death. The grandmother saw the
child almost daily in the two years during which the mother had cancer. The
grandmother cared for the child when the mother was unable to do so or
had doctors’ appointments and transported the child to and from school
occasionally. After the mother’s death, the father cut off contact and the
grandmother only saw the child on three occasions in the year after the
mother died. Id. at 877.
The grandmother filed for partial custody. After a hearing, the trial
court granted the grandmother’s request and awarded her one weekend per
month and a week in the summer. In doing so, the trial court applied the
presumption that, as a fit parent, the father was acting in the child’s best
interest and that the grandmother had the burden of proof. The trial court
____________________________________________
2 Section 5325 consolidated the three prior statutes that provided grandparents with standing to pursue custody under the prior statutory scheme: 23 Pa.C.S.A. § 5311 (providing grandparent standing when the grandparent’s child was deceased); § 5312 (when the parents were divorced or separated); and § 5313 (when the child lived with the grandparent for at least twelve months). The previous sections each included a requirement that grandparent custody or visitation must be in the child’s best interest and must not interfere with the parent-child relationship. That requirement can now be found in 23 Pa.C.S.A. § 5328(c).
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considered the frequent contact between the child and the grandmother and
their strong relationship. Id. at 877. The trial court considered that the
father was unlikely to permit continuing contact without a court order. The
trial court found that partial custody for the grandmother was in the child’s
best interest, notwithstanding the presumption that the father’s decision to
limit contact was in the child’s best interest. Id. at 878. Finally, the trial
court weighed whether partial custody would interfere with the parent-child
relationship and found that partial custody would not distress the child or
adversely impact the father’s ability to parent the child. Therefore, the trial
court concluded that the grandmother had rebutted the presumption that
the father’s decision to limit contact was in the child’s best interest. Id. at
879.
Our Supreme Court affirmed that “the right to make decisions
concerning the care, custody, and control of one’s children is one of the
oldest fundamental rights protected by the Due Process Clause,” and that
court must apply strict scrutiny. Id. at 885-86 (defining strict scrutiny as
determining “if the infringement is supported by a compelling state interest
and if the infringement is narrowly tailored to effectuate that interest”). The
Court identified the compelling state interest as “the state’s longstanding
interest in protecting the health and emotional welfare of children.” Id. at
886. The Court also noted that the section 5311 was narrowly tailored,
applying only to grandparents whose children had died. The statute
furthered the policy interest of permitting continuing contact with
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grandparents “when the parent is deceased, divorced, or separated.” Id.
Further, it recognized that “grandparents have assumed increased roles in
their grandchildren’s lives and our cumulative experience demonstrates the
many potential benefits of strong inter-generational ties.” Id. While the
Court recognized that a grandparent’s desire for partial custody would not
override a fit parent’s decision to limit contact in all cases, it refused to close
the courtroom doors to a grandparent when the parent chose to limit
contact. Id. at 887.
The Hiller Court also observed that, in addition to the language of the
statute, our precedent had established “a presumption in favor of a fit
parent.” Id. at 887. The Court noted that the United States Supreme Court
had found a Washington statute on third-party standing in custody
unconstitutional due in part to the statute’s failure to provide such a
presumption. Id. (discussing Troxel v. Granville, 530 U.S. 57, 68-70
(2000)). In reviewing precedent, the Hiller Court stated that it had
“maintain[ed] a presumption in favor of parents that meaningfully tips the
balance in the parent’s favor.” Id. at 888.
In conclusion, the Hiller Court held:
[T]he stringent requirements of Section 5311, as applied in this case, combined with the presumption that parents act in a child’s best interest, sufficiently protect the fundamental right of parents without requiring any additional demonstration of unfitness. . . . The trial court in the case sub judice applied the necessary presumption and gave “special weight” to the decision of [the father]. Nevertheless, the court found that [the grandmother] had met this burden given the court’s consideration that the child benefited from spending time with
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[the grandmother], with whom he had a longstanding and close relationship and from whom he received emotional support in the aftermath of the loss of his mother. We, therefore, find that the trial court satisfied the requirements of Section 5311 and that its application survives our strict scrutiny.
Id. at 890 (emphasis added).
The statute at issue in Hiller only provided standing for the parent of
a deceased parent. At that time, a different statute, not considered in
Hiller, provided standing to a grandparent when the parents were divorced
or separated.3 However, the compelling state interest and the requirements
that make the statute narrowly tailored are present in section 5325. The
predecessor section 5311 was available only to the grandparent whose child
had died. Thus, section 5311 cases only presented situations in which the
grandparent was never directly related to the parent from whom partial
custody was sought and not, like here, where the parent from whom partial
custody is sought is the grandparent’s child. However, that distinction was
written into the statute and is not part of the Hiller Court’s analysis in
finding section 5311 constitutional. We see no principled distinction between
the basis for the Hiller Court’s conclusions regarding section 5311 and the
substance of section 5325. Therefore, we reject Mother’s argument that ____________________________________________
3 We have held that section 5325(2), relating to standing for grandparents where the parents are divorce or separated, and its predecessor section 5312, provides standing to grandparents when the parents were never married and/or had never lived together. See L.A.L. v. V.D., 72 A.3d 690, 694 (Pa. Super. 2013).
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section 5325 does not permit a trial court to grant partial custody to a
grandparent when the opposing parent is the grandparent’s child.4
Having found that to be the case, we still must afford Mother relief
because the trial court did not apply the appropriate presumption. The trial
court on the record reviewed the sixteen factors enumerated in 23 Pa.C.S.A.
§ 5328(a), which it must do in determining a child’s best interest. N.T. at
170-82. Further, in its opinion, the trial court explained its rationale
pursuant to the additional factors for grandparent custody set forth in
section 5328(c):
(c) Grandparents and great-grandparents. –
(1) In ordering partial physical custody or supervised physical custody to a party who has standing under section 5325(1) or (2)(relating to standing for partial physical custody and supervised physical custody), the court shall consider the following:
(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. ____________________________________________
4 We also reject Mother’s argument that the fact that this case involves partial physical custody instead of visitation is controlling. Mother’s Brief at 12. In Hiller, the grandmother was awarded partial custody, which our Supreme Court found to be constitutional as applied. Hiller, 904 A.2d at 877. As well, our custody statutes no longer include a separate type of physical custody called visitation. Instead, there is shared, primary, partial, sole and supervised physical custody. Compare 23 Pa.C.S.A. § 5322 with § 5302; § 5323 with § 5303.
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23 Pa.C.S.A. § 5328(c); see T.C.O. at 6-7. The 5328(c) factors mirror those
set forth in the predecessor section 5311 which the Hiller Court found
determinative when upholding the constitutionality of section 5311; namely,
the amount of pre-litigation contact between the child and the grandparent,
and whether the partial custody would interfere with the parent-child
relationship. Hiller, 804 A.2d at 887. However, the trial court does not
mention the other factor that was critical to the Hiller court’s holding: the
presumption in favor of a fit parent’s decision and Grandmother’s burden in
overcoming that presumption. Because there is no evidence that the trial
court considered the presumption that “meaningfully tips the balance in the
parent’s favor,” id. at 888, we must vacate the trial court’s custody order.
We remand the case to the trial court so that it may review the evidence
with due consideration for the presumption in Mother’s favor and to
determine whether Grandmother has met her burden in overcoming that
presumption.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/24/2015
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