Bell v. Bell (May 11, 2026)

Case details
Full caption
Dorothea Bell v. Kelly Bell
Country
United States
Jurisdiction
Pennsylvania (PA)
Court
Pennsylvania Supreme Court
Decided
May 11, 2026
Disposition
Vacated
Panel
Bowes (J.); Dubow (J.); Neuman (J.)
DOROTHEA BELL v. KELLY BELL Appellant, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1286509Unpublished DispositionOnly the Westlaw citation is currently available.See Pa.R.A.P. 126(b) and Superior CourtO.P. § 65.37 (Non-Precedential Decisions)NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT O.P. 65.37Superior Court of Pennsylvania.DOROTHEA BELLv.KELLY BELL AppellantNo. 1256 MDA 2025|FILED: MAY 11, 2026Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Appeal from the Order Entered August 12, 2025 In the Courtof Common Pleas of York County Civil Division at No(s):2024-FC-001763-03BEFORE: BOWES, J., DUBOW, J., and NEUMAN, J.OpinionMEMORANDUM BY BOWES, J.:*1 Kelly Bell (“Mother”) appeals pro se from the orderawarding Dorothea Bell (“Maternal Grandmother”) sole legaland primary physical custody of Mother's children, D.P., bornin 2021, and R.P., born in 2022, while allowing Motheronly partial supervised custody.1 Since the certified recorddoes not reflect the application by the trial court of thestatutory presumption in favor of Mother as the children'sbiological parent when awarding Maternal Grandmotherprimary physical custody, we are constrained to vacate in partand remand.The court aptly summarized the underlying proceedings:The current custody action began August 20, 2024, when[Maternal Grandmother] filed a custody complaint forL.R., an older child not at issue, in addition to D.P. andR.P.... Maternal Grandmother alleged that Mother wasstruggling with mental health and drug addiction after ...Mother's husband passed away in January of 2024.On September 26, 2024, the parties entered into a stipulatedorder for custody granting Maternal Grandmother solelegal custody and primary physical custody until Motherhad completed her rehabilitation and a threat of harmevaluation. Mother had rights of partial supervised custodyuntil her requirements were completed.Maternal Grandmother filed a petition for modification andcontempt on February 3, 2025. The petition alleged thatMother was sending insulting texts, screaming at her, andwas still in active addiction.Trial Court Opinion, 9/19/25, at 2 (cleaned up). Mother filedan answer asking that the petitions be denied and raising herown allegation of contempt regarding how she was permittedto exercise her periods of visitation.The court held a one-day custody trial, at which Mother wasrepresented by counsel. Stated briefly, Maternal Grandmothersought to keep the same custody arrangement as theparties had previously agreed upon, but to implementimproved communication and require Mother's supervisedvisits to occur at a neutral or mutually-agreeable location.Meanwhile, Mother pursued additional supervisor approvaland permission to have visits at her home under the presentarrangement. In her testimony, Mother asserted that she hadcomplied with the requirements stated in the stipulated orderand desired to have her sole legal and physical custody rightsas to D.P. and R.P. restored as soon as possible.Prior to the start of testimony, Mother's counsel raisedan irreconcilable conflict impairing her ability to representMother. See N.T. Custody Trial, 7/30/25, at 4. Specifically,counsel had advised Mother that she would not file arequested motion to terminate the stipulated custody orderbecause counsel believed it was a “baseless motion[.]” Id. at5. Counsel elaborated:*2 [Mother] believes that fitness and mental healthand substance issues are not the issue and that she willsomehow convince the court to reverse the order that wasentered by stipulation and that as a result of that, that thecourt would also consider that the award of grandparent
DOROTHEA BELL v. KELLY BELL Appellant, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2custody is contrary to her fundamental right to raise herchild as a parent.....The problem is all of the case law presumes – regardingconstitutionality of third parties intruding into custodyrights presumes that a parent who is challenging it wouldbe fit, and I don't believe that my client is going to be ableto establish that by the preponderance of the evidence.....[W]ith respect to Mother's claim for a modification ofthe order to reverse the supervision and award her backcustody of the children, I believe that that is what cannotbe established.Id. at 7-9.2 Following a discussion during a recess, Motherchose to continue with counsel's representation at trial and notto pursue the motion. Id. at 19.During the trial, the court primarily heard testimony fromMother and Maternal Grandmother. Mother maintained thatshe had undergone the necessary rehabilitative programsfor her self-described eating disorder, complied with herprescribed medications for her mental health diagnoses, didnot have a substance abuse problem, and did not needprofessional help for therapeutic treatment. She desiredto regain custody of her children and assailed MaternalGrandmother's accusations against her and for keeping herchildren from her. Maternal Grandmother, for her part,expressed concern about Mother's ability to safely parent and,while she did not intend or want to raise the children forever,she would do so until Mother was again able to do so.Even through the cold record, the strain on the relationshipbetween Mother and Maternal Grandmother was palpableduring the trial. For example, the court frequently advisedMother to compose herself during unfavorable testimony.Additionally, Maternal Grandmother testified that Motherberated her in front of the children on several occasions,including episodes where Mother screamed at MaternalGrandmother and banged on the windows of the houseafter Maternal Grandmother brought the children insideand away from Mother's volatile behavior. While MaternalGrandmother stated she was willing to attend family therapywith Mother, Mother was not so inclined. At most, sheacknowledged to the court after much prodding regarding thepotential benefits counseling could have on their relationship,“I played nice. I can do so again.” Id. at 186-87.Although under the stipulated order Mother was entitled totwenty-four hours per week with the children, she regularlyexercised less than half of that. At the same time, MaternalGrandmother often took the children on vacation, deprivingMother of some of her scheduled time. Patricia Pinning(“Paternal Grandmother”) generally supervises Mother'svisits with the children at Mother's home and testifiedon her behalf. She noted concerns about supervising atMother's home and expressed a preference for doing so ather own residence because she would have more controland situational awareness. On cross-examination, PaternalGrandmother described one instance in the past when shehad suspected Mother to be under the influence but hadnot recently had any such concerns. She also detailed howMother had screamed at Maternal Grandmother in front of thechildren on one occasion, visibly upsetting them.*3 Since Paternal Grandmother resides part-time in Floridaand cannot supervise from there, Mother offered herthen-current housemate as a potential substitute. At theconclusion of the hearing, the court rejected her housemateas a supervisor for Mother's visits. Maternal Grandmotherrequested Mother instead use a professional supervisor at aneutral site, but the court also rejected those limitations.Finally, the court heard from Officers Robert Swartz andRoss Casteel of the Southern Regional Police Department.Both officers had responded to Mother's multiple 911calls. Officer Casteel relayed that he was dispatchedto Mother's house on Christmas Day 2024, becauseMaternal Grandmother's husband had allegedly assaulted her.However, the investigation revealed that Mother had becomeaggressive during a visit, prompting Maternal Grandmotherto leave the home with the children. When she did so,Mother became hysterical and physically tried to stop them bychasing them with small wooden boards. As a result, MaternalGrandmother's husband had pushed Mother and restrained herso that Maternal Grandmother and the children could departsafely. While not the focus of the domestic disturbance call,the officer noted that upon his arrival, Mother's house smelledstrongly of burnt marijuana and he saw a smoking pipe.3On two subsequent occasions, Mother called for assistancefollowing an argument with her intoxicated friend. Motherwas not present either time when Officer Casteel responded,but the subject individual was found to be in possession ofa crack pipe on one occasion, and a large amount of alcoholthe other. Officer Swartz, meanwhile, testified that during his
DOROTHEA BELL v. KELLY BELL Appellant, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3separate interactions with Mother, she did not appear to beunder the influence.In an order and opinion entered on August 12, 2025, thecourt awarded Maternal Grandmother sole legal and primaryphysical custody, and granted Mother partial supervisedcustody. Additionally, Mother was mandated to undergoevaluations for mental health and drugs and alcohol. Inresponse to the contempt motions, the court directed theparties to utilize Our Family Wizard and attempted tootherwise curtail the direct interactions between Mother andMaternal Grandmother in front of the children.On August 15, 2025, Mother sought to remove counseland pro se filed a petition for contempt, petition to modifycustody, and petition for special relief. These petitions weredenied and Mother was advised that if she was dissatisfiedwith the custody order, she should appeal to this Court. SeeOrder, 8/26/25. Thereafter, Mother filed pro se petitions tovacate the custody order as void because it constituted aviolation of her constitutional rights as the mother of D.P.and R.P. The court denied that request and, on the same day,Mother filed a timely notice of appeal from the August 12,2025 order, along with a concise statement. The trial courtauthored a responsive opinion pursuant to Pa.R.A.P. 1925(a).In this Court, Mother presents the following issues in herstatement of questions:1. Whether the trial court abused its discretion by awardingprimary physical custody to a non-parent, where no findingof parental unfitness was made and the statutory parentalpresumption under 23 Pa.C.S. § 5327(b) was ignored[.]*4 2. Whether the trial court violated [Mother]’sconstitutional rights to due process and family associationunder the First and Fourteenth Amendments by relying onpersonal impressions, hearsay, and speculative testimonyrather than admissible evidence[.]3. Whether the trial court erred as a matter of law bymisapplying the best-interest factors under 23 Pa.C.S. §5328(A), giving controlling weight to credibility findingsunsupported by the record and discounting objectiveevidence favorable to [Mother].4. Whether the trial court's order is void ab initiounder Commonwealth v. Gross, 611 A.2d 1360 (Pa.1992),[4] where it was entered in the absence ofjurisdictional compliance with due-process standards andwithout competent evidence establishing a basis to restrict[Mother]’s parental liberty.Mother's brief at 12-13. Although she raises four issues, shedivides her argument into three sections that do not neatlyalign with those four issues. It is axiomatic that “[n]o questionwill be considered unless it is stated in the statement ofquestions involved or is fairly suggested thereby.” Pa.R.A.P.2116(a); see also Pa.R.A.P. 2101. Accordingly, we first assesswhich of the issues Mother develops in the argument sectionof her brief are properly before us.Upon review, we deduce that Mother's complaints arethreefold: (1) the stipulated order was void ab initio,thereby also rendering the subject custody order void; (2)the trial court erred in failing to apply the § 5327(b)parental presumption before awarding Maternal Grandmotherprimary physical custody; and (3) the trial court improperlyweighed the custody factors by crediting only MaternalGrandmother's speculative testimony. Since the validity of theprior stipulated order is not even remotely suggested by thestatement of questions, we will not address that contention.See Pa.R.A.P. 2116(a). Conversely, we conclude that Motherhas preserved her second and third arguments. We beginwith her claim that the court failed to apply the statutorypresumption because it is dispositive.5The following legal principles guide our analysis of this issue:In reviewing a custody order, our scope is of the broadesttype and our standard is abuse of discretion. We mustaccept findings of the trial court that are supported bycompetent evidence of record, as our role does not includemaking independent factual determinations. In addition,with regard to issues of credibility and weight of theevidence, we must defer to the presiding trial judge whoviewed and assessed the witnesses first-hand. However, weare not bound by the trial court's deductions or inferencesfrom its factual findings. Ultimately, the test is whetherthe trial court's conclusions are unreasonable as shown bythe evidence of record. We may reject the conclusions ofthe trial court only if they involve an error of law, or areunreasonable in light of the sustainable findings of the trialcourt.*5 White v. Malecki, 296 A.3d 1210, 1213 (Pa.Super. 2023)(cleaned up).The Child Custody Law imposes certain “presumption[s] incases concerning primary physical custody[.]” 23 Pa.C.S. §5327. Pertinent to this case is the rebuttable presumption in
DOROTHEA BELL v. KELLY BELL Appellant, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4favor of parents over third parties: “In any action regardingthe custody of the child between a parent of the child anda nonparent, there shall be a presumption that custody shallbe awarded to the parent. The presumption in favor of theparent may be rebutted by clear and convincing evidence.” 23Pa.C.S. § 5327(b). We have defined that evidentiary burden“as presenting evidence that is so clear, direct, weighty, andconvincing so as to enable the trier of fact to come to a clearconviction, without hesitation, of the truth of the precise factsin issue.” M.J.S. v. B.B., 172 A.3d 651, 660 (Pa.Super. 2017)(cleaned up).Before being so codified, this rebuttable presumption existedat common law. In instructing trial courts on how to apply§ 5327(b), we have reiterated the same method developed atcommon law: “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 isweighty enough to bring the scale up to even, and down onthe third party's side.” V.B. v. J.E.B., 55 A.3d 1193, 1199(Pa.Super. 2012) (cleaned up).In the matter sub judice, Mother argues that the trial courtfailed to apply the parental presumption before assessingthe custody factors outlined in 23 Pa.C.S. § 5328. SeeMother's reply brief at 3. She contends that the court madeno finding by clear and convincing evidence that she wasunfit to parent her children, and that the court's reliance on“forward-looking speculation” and “stale events from 2024[,]without competent evidence of present harm at the time ofadjudication, cannot overcome the parental presumption.” Id.at 4; see also Mother's brief at 21-23.Our review confirms that the trial court made no explicitdetermination regarding the parental presumption either attrial or in its opinion accompanying the August custody order,and therefore it appears that the court improperly weighedthe custody factors as if Mother and Maternal Grandmotherwere on equal footing. Notwithstanding this impression, thecourt purported to clarify in its Rule 1925(a) opinion that ithad, in fact, considered the presumption when conducting itsanalysis:The court was satisfied in this case that MaternalGrandmother established by a clear and convincingstandard that she was entitled to sole legal and majorityphysical custody, especially as it related to the mentalhealth of Mother at this time and, to a lesser butimportant degree, as it relates to the use of Adderall ina manner inconsistent with typical prescribed use. Thesefactors were discussed in the opinion issued in supportof the order at pages [twelve to fourteen]. The ordermandates interventions for Mother in the form of a mentalhealth evaluation and a drug and alcohol evaluation andcompliance with recommended treatment.*6 Trial Court Opinion, 9/19/25, at 5 (cleaned up).However, this judgment appears to be made wholly inhindsight because our review of the court's best-interestsanalysis simply does not evince application of the parentalpresumption. See V.B., 55 A.3d at 1200 (concluding that“nothing in the record supports the trial court's after-the-fact assertion that it considered the heightened standard ofproduction when it issued the custody order”). In this regard,we find our decision in M.J.S. to be particularly instructive.Therein, the grandmother intervened in the father's petitionthat he had filed against the mother for primary custodyof their child. We affirmed the court's determination thatthe grandmother had standing to seek custody because shestood in loco parentis to the child. In considering the father'schallenge to the court's best-interest analysis, however, weagreed with him that the court neglected to separate the rolesof the grandmother and the mother in weighing the requisitecustody factors, did not apply the parental presumption infavor of the father, and improperly placed the burden of proofon the father.Relevantly, we held:[T]he trial court undeniably ignored the presumptionfavoring Father over Grandmother pursuant to § 5327(b). ...Preliminarily, we observe that the fact that Grandmotherattained standing through in loco parentis status doesnot alter her role as a third-party challenger to Father'srequest for primary physical custody. As suggested by ourSupreme Court ..., in loco parentis status merely providesa third party an opportunity to establish that maintainingthat relationship supersedes the birth parent's opposition.The High Court observed, where an in loco parentisrelationship is shown, our courts recognize that the child'sbest interest requires that the third party be granted standingso as to have the opportunity to litigate fully the issueof whether that relationship should be maintained evenover a natural parent's objections. Significantly, neither theSupreme Court's discussion ... nor the text of § 5327(b)indicates that in loco parentis status effectively places athird-party on equal footing with a birth parent. To thecontrary, § 5327 provides that the presumption applies “[i]nany action regarding the custody of a child between a
DOROTHEA BELL v. KELLY BELL Appellant, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5parent of the child and a nonparent[.]” 23 Pa.C.S. § 5327(b)(emphasis added). If our legislature desired to carve anexception to the presumption when the nonparent attainedin loco parentis status, it could have done so; however, itdid not. Thus, for all of the foregoing reasons, the trial courterred in failing to apply the presumption in Father's favorpursuant to § 5327(b).M.J.S., 172 A.3d at 660 (cleaned up).Given this and other errors, we reversed and remanded thematter to the trial court instead of conducting our own meritsanalysis, reasoning thusly:[T]he trial court's best-interest analysis is contrary toat least three entrenched principles of our custodyjurisprudence. Accordingly, we reverse the order awardingGrandmother primary physical custody of L.M.S. andremand the matter for a best-interests determination thatconforms with the Child Custody Law and prevailingprecedent. While Father entreats that this Court decidethe case on its merits and award him primary physicalcustody, we decline to analyze the relevant statutory best-interests factors in the first instance. Although this Courthas engaged in merits determinations based upon thecertified record in limited situations where the outcome isobvious, such is not the case herein. Contrary to Father'sprotestations, it is not clear from the certified record thatthe presumption in his favor is insurmountable in light ofthe testimony that Grandmother either performed or sharedall aspects of raising L.M.S. since birth. If accepted astrue, these allegations could form the clear and convincingevidence required to rebut the statutory presumption. Weleave that determination to the trial court, who is theultimate arbiter of fact.*7 Id. at 661. See also Wolfe v. Wilson, 285 A.3d 919,2022 WL 4113116, at *3 (Pa.Super. 2022) (non-precedentialdecision) (“The question of whether nonparents rebutted thestatutory presumption in favor of a parent must be resolvedby the trial court[.]” (cleaned up)); but see V.B., 55 A.3d at1200-05 (proceeding to consider whether the grandparents’evidence was sufficient to overcome the parental presumptiondespite the trial court failing to apply it in the first instanceand concluding that the trial court's post-hoc conclusion thatthe grandparents had met that burden was unsupported by therecord).Here, the trial court stated in its Rule 1925(a) opinionthat it had applied the presumption in awarding MaternalGrandmother primary physical custody. Despite thatassertion, the opinion accompanying the custody order madeabsolutely no mention of the presumption. Furthermore, thecourt's initial review of the custody factors contains nosuggestion that it first weighed them in Mother's favor. Rather,the court discussed each factor and, save for those it deemedfavorable to neither party, proceeded to weigh every factorin favor of Maternal Grandmother. In doing so, it offeredno hint that it had started by presuming the factor leanedtowards Mother or even recognized that Mother had primarycustody of the children without incident until their fatherhad died. In other words, we can glean no sign that thecourt started its analysis with the factors in Mother's favorbut nonetheless determined that Maternal Grandmother'sevidence was “weighty enough to bring the scale up to even,and down on [Maternal Grandmother's] side.” V.B., 55 A.3dat 1199 (cleaned up). Thus, the certified record does notsupport the court's statement in its Rule 1925(a) opinion thatit applied the § 5327(b) presumption when weighing thecustody factors. Since the trial court abused its discretion inawarding Maternal Grandmother primary physical custodywithout applying the parental presumption, we must vacatethe August 12, 2025 custody order.6Mother asks us to remand with directions for the trial courtto restore full legal and physical custody of D.P. and R.P.to her. See Mother's brief at 37. Based upon our review ofthe record, Maternal Grandmother may very well overcomethe parental presumption if Mother has not yet remediedthe myriad issues she demonstrated during the custody trialand which concerned the trial court. Therefore, as in M.J.S.,the proper course of action is to send this matter back tothe trial court to determine whether Maternal Grandmotherhas overcome the presumption in favor of Mother. Thus, weremand for the court to apply the § 5327(b) presumption whenweighing the custody factors.Order vacated in part. Case remanded for further proceedings.Jurisdiction relinquished.Judgment Entered.Benjamin D. Kohler, Esq. ProthonotaryAll CitationsSlip Copy, 2026 WL 1286509 (Table)
DOROTHEA BELL v. KELLY BELL Appellant, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6Footnotes1Although the order was filed on August 8, 2025, notice was not given until August 12, 2025. The Rules of Civil Procedureprovide that an order shall be considered entered on “the day on which the clerk makes the notation in the docket thatnotice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b). Thus, we use August 12,2025 as the pertinent date for the appealed-from order. Accordingly, Mother's September 10, 2025 appeal was timely filed.2Concerningly, counsel's statements suggest that instead of Maternal Grandmother having to overcome the presumptionin favor of biological parents against third parties by clear and convincing evidence, as 23 Pa.C.S. § 5327(b) mandates,Mother could only invoke that presumption if she first proved fitness by a preponderance of the evidence. As will beborne out by our discussion infra, that would be a gross misreading of the burdens of proof for the § 5327(b) parentalpresumption.3Mother testified that she has a medical marijuana card, but the trial court reminded her that the Medical Marijuana Actdoes not permit individuals to smoke marijuana.4We note that our research indicates this case does not exist, at least as cited. See also Maternal Grandmother's briefat 21 (noting the cited case “has proven to be unlocatable”).5We recognize that Mother's prayer for relief includes a request that we find Maternal Grandmother lacks standing to seekcustody. Notwithstanding that demand, Mother has made no argument in support thereof and her statement of questionscannot be read to advance any issue pertaining to Maternal Grandmother's standing. Accordingly, we have no causeto consider this plea.6To clarify, we vacate only the portion of the order awarding Maternal Grandmother primary physical custody, therebyreverting the custody schedule back to that set forth in the stipulated order for the time being. We do not disturb theremainder of the August 12, 2025 order that required, inter alia, the parties to utilize Our Family Wizard and Mother toundergo certain evaluations.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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