J.F. v. B.A. ( 2018 )

J-S12019-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
J.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
B.A. :
:
Appellant : No. 1850 MDA 2017
Appeal from the Order Entered, November 14, 2017,
in the Court of Common Pleas of Mifflin County,
Civil Division at No(s): 2017-00783.
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 21, 2018
B.A. (“Mother”) appeals from the order transferring primary physical
custody of the parties’ nine-year-old daughter, O.F., from Mother to J.F.
(“Father”). Because we conclude that the evidence does not support the trial
court’s custody modification, we are constrained to reverse.
We glean from the record and testimony the following facts:
The parties are parents of two daughters, 16-year-old Je.F. and 9-year-
old O.F., though only O.F. is the subject of these proceedings. The parties
separated in August 2012. From August 2012 to around August 2015, the
girls lived primarily with their Mother in Blair County and spent partial custody
with their Father in Huntingdon County. In September 2013, this arrangement
was reduced to writing via a mutually agreed upon “custody stipulation” which
was then transformed into a custody order. The parties agreed that legal
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custody would be shared, that Mother would continue to be the primary
custodian, and that Father would continue to enjoy partial custody on
alternating weekends. The parties also shared summers on a week-on-week-
off basis.
In 2015, however, prior to starting high school, Je.F. expressed her wish
to live primarily with Father, evidently after an ongoing strained relationship
with Mother. Mother acquiesced and Je.F. has resided in Father’s primary
custody ever since. The parties live in neighboring counties a little over an
hour away from each other. Je.F.’s custody arrangement with her parents
flipped, but the schedule was coordinated such that both girls spent every
weekend and every summer together.
The most recent litigation between the parties began in June 2017 when
Father petitioned to modify custody of the parties’ nine-year-old daughter,
O.F. His petition, filed in neighboring Huntingdon County, was precipitated by
the fact that Mother and O.F. had just moved for approximately the fifth time
since the parties’ separation; this time the child also transferred to the school
where Mother is a principal. Father’s stated rationale for the litigation was that
the girls should be together, and that he could provide O.F. a more stable
environment. For reasons that are unclear, Father’s petition to modify custody
was transferred from Huntingdon to Mifflin County.1 The previous court had
appointed Erica Shoaf, Esq. as guardian ad litem (“GAL”) on behalf of both
1Presumably, Father had moved from Huntingdon to Mifflin since the case
was last court-active.
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O.F. and Je.F. In June 2017, prior to the transfer of the case, the GAL issued
her report, recommending that Mother retain primary custody of O.F. The
GAL was retained by the Mifflin County court and the report was made part of
this record. The parties appeared for a custody hearing in the Mifflin County
Court of Common Pleas on September 21, 2017.
The trial court first conducted in camera interviews with Je.F. and O.F.
While the children’s testimony was made a part of the record, a letter that
Je.F. wrote to the court was not. The trial court heard only three additional
witnesses: Mother, Father, and Father’s wife. Neither party proffered any
other evidence except their witnesses’ testimony. After taking the matter
under advisement, the trial court issued an interim order and Findings of Fact,
both dated October 19, 2017. The Court granted Father’s petition, and
awarded him primary physical custody of O.F., with Mother enjoying partial
custody on alternating weekends. While all legal custody was to be shared,
the implicit understanding was that O.F. would leave her school to attend one
in Father’s district.
Mother presented two post-trial motions. She first sought the trial
judge’s recusal after Mother discovered that the judge knew Father’s wife;
both are active in the local youth basketball community. The trial judge
explained that while he knew of the wife, he did not know her as anything
more than an acquaintance, and he denied the motion to recuse. Mother also
asked for reconsideration of the custody decision. She specifically argued that
while the trial court was not bound to follow the GAL’s recommendation, it
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was obligated to articulate the reasons why it did not. This relief was also
denied.2 The temporary order changing primary custody was changed to a
final order, effective November 14, 2017. Mother presents to us this timely
appeal.
Mother raises the following claims:
1. Whether the trial court erred and abused its discretion in
failing to recuse himself?
2. Whether the trial court erred and abused its discretion in
finding it was in the child’s best interest to change
primary custody from Mother to Father?
3. Whether the trial court’s failure to address the
recommendation of the guardian ad litem was a
misapplication of the law?
Mother’s Brief at 5.
We begin our analysis with the main issue Mother raises on appeal,
whether the trial court’s modification of the long-standing custody
arrangement was in O.F.’s best interests. We hold that it was not.
Our scope and standard of review of child custody orders are settled:
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
2The trial court did grant one aspect of Mother’s request. The trial court
ordered Father to take O.F. to an intake counseling session to determine
whether future counseling would be appropriate.
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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).
The potential harm that may result from the disruption of established
patterns of care and emotional bonds underscores the need for continuity,
stability, and finality imparted to custody arrangements. Jackson v. Beck,
858 A.2d 1250, 1252 (Pa. Super. 2004). A modification of custody is not
warranted merely because one parent is unhappy with the existing
arrangement. Id. Thus, we repeatedly have emphasized that a party
requesting modification must prove that the alteration of an existing custody
arrangement is in the child's best interest. Id. (citing McMillen v. McMillen,
602 A.2d 845 (Pa. 1992)).
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). Section 5338 of the Custody Act (23 Pa.C.S.A. §§ 5321 –
5340) provides that, upon petition, a trial court may modify a custody order
if it serves the best interests of the child. Section 5328(a) sets forth the best
interest factors that the trial court must consider:
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:
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(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) (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
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another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party's household.
(15) The mental and physical condition of a party or
member of a party's household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a). Trial courts are required to consider all of the factors
listed in Section 5328(a) when entering a custody order. J.R.M. v. J.E.A., 33
A.3d 647, 652 (Pa. Super. 2011); see also C.A.J. v. D.S.M., 136 A.3d 504(Pa. Super. 2016)(holding that the trial court was required to consider Section
5328(a) factors when modifying a custody award).
In analyzing these factors, the trial court’s main reason for switching
primary custody from Mother to Father was the subject child’s relationship
with her older sibling. See Findings and Discussion, 10/19/17, at Factor 6.
One of the reasons Father requested modification of the custody order was
that he wanted his daughters to live together.3 See N.T., 9/27/17, at 90. In
the conclusion section of its Findings and Discussion, the trial court stated that
both parents are capable of providing the physical, mental and emotional well-
being of O.F. See Findings and Discussion, at Factor 10. “However, given
the importance this Court places on the relationship between the minor child
and her oldest sister and the importance of fostering that relationship this
court believes primary physical custody should be with Father.” See id., at
3 Father’s other stated reason, that O.F. had previously expressed a desire
to live with him, is discussed in detail, infra.
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Factor 8. Apart from its Findings and Discussion, submitted simultaneously
with its custody order, the trial court provided no further elaboration of its
rationale for changing the parties’ long-standing, mutually agreed upon
custody order until Mother filed a motion for reconsideration. When denying
the motion for reconsideration, the trial court reiterated that its decision
“relies heavily” on the in camera interview with the older sibling, Je.F. See
N.T. 11/14/17, at 29. The trial court declined to agree entirely with Mother’s
summation that the court’s decision “ultimately rests on the relationship of
the older sister.” Id., at 30. The trial court stated: “[The sibling relationship
is] one of the factors. In my opinion it’s a factor and it was a big factor.” Id.
In the past, we have stated it is the policy of this Commonwealth that,
where possible, siblings should be raised together absent “compelling reasons”
to do otherwise. L.F.F. v. P.R.F., 828 A.2d 1148, 1152. (Pa. Super. 2003)
(citing Watters v. Watters, 757 A.2d 966, 969 (Pa. Super. 2000)).
“However, this policy is a consideration in, rather than a determinant of,
custody arrangements.” See L.F.F., 828 A.2d at 1152-1153; 1154 (affirming
the trial court’s determination that compelling reasons existed to maintain the
preexisting separation of the siblings) (emphasis added). These cases predate
the enactment of the current Child Custody Act. Their holdings retain
persuasive value, but Section 5328(a) does not require a court to presume
siblings should be raised together; this “policy” has been assimilated into
Section 5328(a)(6). See e.g. P.J.P. v. M.M., 2018 Pa. Super. 100, 2018 WL
1979832, (Pa. Super. April 27, 2018) (holding that the shared custody factors
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set forth in Wiseman v. Wall, 718 A.2d 844, (Pa. Super. 1998), assimilated
into the custody factors set forth in 23 Pa.C.S.A. § 5328(a)).
In this case, the trial court abused its discretion when it placed such a
disproportionate weight on the sibling relationship in light of the available
evidence as to both Section 5328(a)(6)(the sibling relationship) as well as the
other 15 enumerated custody factors in 23 Pa.C.S.A. § 5328(a).
The children have an age difference of seven years and four months.
They lived in Mother’s primary care since the date of separation in August
2012 until the older Je.F. moved into Father’s home in the summer of 2015,
a little over two years before this custody trial. Despite the age difference,
the record reflects that the children are close. Je.F. is protective of her
younger sister, O.F.; O.F. cried when Je.F. went to live with Father. But the
girls have been able to maintain a close relationship in the years since Je.F.’s
move, because the custody arrangement has afforded them time together
every weekend and every summer. Moreover, the trial court placed no weight
on the fact that Je.F. will graduate from high school in two years and may
pursue higher education possibilities. Thus, Je.F. may leave home shortly, at
which point O.F. would still only be 11. While the siblings would spend more
time together if Father was awarded primary custody of O.F., it cannot be said
that their relationship would be so much more enriched that it outweighs all
of the other custody considerations when determining O.F.’s best interests.
The trial court found that Je.F. could provide the younger O.F. “a stable,
loving, and continuing emotional presence in the minor child’s life,” and “Je.F.
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could act as a positive mentor for her younger sister given her work ethic and
involvement in extracurricular activities.” See Findings and Discussion,
10/19/17, at Factor 6. But the record simply does not reflect that O.F. is in
need of stability or motivation. Both children are on the honor roll. Both
children engage in extracurricular activities. Testimony revealed that the
stress of the litigation had caused O.F. anxiety. At Mother’s insistence, despite
Father’s skepticism, O.F. began therapy shortly before the hearing. Mother
reported that this therapy has been very beneficial. Despite credible
allegations that one or both parents were at fault, the trial court avoided laying
blame for the child’s emotional distress at the feet of either parent. On the
contrary, the trial court found that both parents could provide for the child’s
emotional well-being. See Findings and Discussion, 10/19/17, at Factor 10.
The trial court did not find, nor does the evidence suggest, that O.F. was in
want of emotional stability while in her Mother’s care.
In fact, when deciding Section 5328(a)(6)(sibling relationship), the trial
court seemed to place less emphasis on the actual sibling relationship, but
rather placed considerable weight on Je.F.’s in camera discussion of Mother’s
shortcomings as a parent. The trial court inferred that because Mother’s use
of corporal punishment with Je.F. had adversely affected their relationship,
the same fate might befall O.F. During the motion for reconsideration, the
trial court explained:
I interviewed [Je.F.] in the back with the GAL and with my
law clerk just simply to get a view of the landscape, and
there is some discussion in here regarding allegations of
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past abuse indicating that it was of testimony that they got
that. And that is where I reviewed my notes and
specifically on cross examination of [Mother,] it was
brought up that [Je.F.’s] perception is that mom was
violent with her in the past. Mom indicated she
wasn’t aware of that. And she said, well, [Je.F.] feels
that you did X, Y, and Z. Mom denied it, but she
indicated that’s [Je.F.’s] perspective? Yes. That’s
where I kind of went to the unofficial record to say
that was where I got that information. It was from
nothing that was said by [Je.F.] in the past because I
said to [Je.F.] when I talked to her, look, I’m not going to
run out and say [Je.F.] said X, Y, or Z. That’s not what I
do. I just wanted to get a picture of the landscape to get a
better idea of what I’m looking at in advance of this.
N.T., 11/14/17, at 29-30 (emphasis added); see also N.T., 9/27/17, at 203.
To be clear, it appears that the trial court did not make findings of abuse.
In its discussion of 23 Pa.C.S.A. § 5328(a)(2)(pertaining to abuse), the trial
court only noted the allegations that Je.F. made during her in camera
interview:
This Court heard testimony alleging past abuse of the
parties’ oldest daughter, [Je.F.], by Mother. Although
Mother did not admit to any past abuse of [Je.F.], and
acknowledged only that their relationship is strained, these
allegations of abuse are very concerning to this Court.
Further, Mother admitted that her relationship with Father
was contentious and that both parties were abusive towards
one another prior to their separation. Nevertheless, Mother
expressly denied all allegations of abuse against the minor
child in this present case.
See Findings and Discussion, 10/19/17, at Factor 2.
In her in camera interview, Je.F. and the trial court engaged in the
following pertinent dialogue:
Je.F.:
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Growing up she used to hit me and stuff, and she was really
mean. And I understand that she had a lot of stress on her
and stuff, but I guess sometimes parents should find a way
to control it around their children, and she never did.
THE COURT:
And I don’t want to bring up stuff in the past, but, I mean,
you meaning normal smack your butt when you did
something wrong when you were 8?
Je.F.:
No.
THE COURT:
Or what you thought over the line abusive stuff?
Je.F.:
Yeah.
THE COURT:
That’s fine. You don’t have to get into it, but you think there
is still a concern there with [O.F.]?
Je.F.:
Yeah, it does concern me. And like I don’t think my mom is
a terrible mom. I’m not saying that by any means because
she is my mom, she is the only mom that I’ll ever have, but
what she does concerns me, and I don’t think that it’s the
greatest at some times. And I’m not going to sit here and
let her do it when I know that there is stuff that I could do
to prevent it. And I just, I’m afraid that [O.F.] will come in
here - - and she is beyond nervous.
THE COURT:
I’m sure.
Je.F.:
She is just - - I don’t want her to come here and feed a line
of crap because she gets - - when she is nervous, she does
that, and I’m afraid that she’ll do that. I told her just be
honest. If he asks what your favorite color is, just tell him.
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And she said I know, I know, but she can say I know all she
wants. I know her well enough that she might make
something up because she doesn’t want to hurt my dad’s
feelings or my mom’s feelings.
N.T., 9/27/17, at 10-11
On the subject of corporal punishment and abuse, the GAL wrote in her
report that Mother admitted to smacking Je.F. across the mouth several years
ago, when Je.F. told Mother that she hated her. Je.F. told the GAL that Mother
hits O.F., but not in the same way that Mother used to hit Je.F. Je.F. also
reported that Mother screams at her a lot when they are at her house. Je.F.
felt that Mother is not nurturing enough to O.F., and will push her away when
O.F. is looking for affection.
Mother also admitted to hitting O.F. in the back with a hairspray bottle.
O.F. said she was getting ready in the morning when O.F. spilled lotion on her
stepsister.4 She reported that Mother got mad at her and smacked her with
the bottle. O.F. reported that it hurt until the next day, but that there was no
bruise. Mother’s version is that the kids were dawdling in the bathroom, and
while telling them to get ready, Mother, with bottle in hand, accidently hit O.F.
4 The maternal stepsister, L. (last name undisclosed), is the daughter of
Mother’s husband; her husband exercises shared custody of L. on alternating
weeks. L. and O.F. have been in each other’s lives since L. was 1 year old
and O.F. was 3 years old. The trial court did not consider this relationship,
nor the relationship O.F. has with her paternal stepsisters Ja. and La. who
reside with Father for an unspecified amount of time. We note that the
comment to section 5328 provides that “[s]ubsection (a)(6) is intended to
include full-blood siblings, half-blood siblings, step-siblings and adoptive
siblings. 23 Pa.C.S.A. § 5328, comment (2010).
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when she was using her hands for emphasis. Mother reported that she might
spank O.F. on the bottom when she misbehaves, but it is often not necessary.
The GAL concluded that while the use of physical discipline was
concerning, O.F. did not report any instances of physical discipline other than
the hairspray bottle incident and did not report any fear of Mother. The GAL
noted that Je.F. is thriving while living with Father, and that she would benefit
from counseling with Mother to address their strained relationship. However,
the GAL recommended that O.F. continue to live primarily with Mother. During
Mother’s cross-examination, it was revealed that Mother had tried to engage
in counseling with Je.F., but Je.F. has refused. See N.T., 9/27/17, at 203-204.
Mother said she understood that Je.F. did not presently wish to have a
relationship with her. 5 Id. at 203.
Ample evidence indicates that Father has been a considerably better
placement for the teenaged Je.F. She has said herself that she responds well
to his strict rules, which have provided the structure she needs. Id. at 15.
The GAL concluded that Je.F. is thriving in Father’s care. To Mother’s credit,
she acknowledged that it is in Je.F.’s best interests to remain in Father’s
primary care.
We are not bound by the trial court’s deductions or inferences from its
factual findings. C.R.F., 45 A.3d at 443. As such, we do not adopt the trial
5 It might appear, based on this testimony, that the daughters would not
actually spend every weekend together if O.F. remained in Mother’s custody.
However, in fashioning the modified custody order, the trial court anticipated
that Je.F. would still honor Mother’s partial custody time. As such, we find no
reason to conclude otherwise.
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court’s apparent inference that Mother’s parenting methods, which have
clearly produced a strained relationship between Mother and Je.F., would also
produce a negative relationship between Mother and O.F. The evidence does
not support this conclusion, nor does it support generally a departure from
the previously agreed upon status quo. Rather, ample evidence suggests that
Mother has changed her parenting style, largely refraining from physical
discipline, to the benefit of O.F. It is apparent that all parties have matured
in the years since the post-separation turmoil. The bond between siblings
who must endure custody litigation, especially acrimonious litigation, stands
to be as vital as any consideration in the best interests spectrum. But the
bond between these siblings is already strong and would not be so much better
served as to outweigh the rest of the analysis. The trial court reached its
conclusions regarding the sibling relationship largely based on the relationship
between Mother and Je.F. We do not adopt this inference.
Similarly, in its discussion of Section 5328(a)(4), the trial court also
cited the strained relationship between Mother and Je.F. as evidence for O.F.’s
apparent need for stability. See 23. Pa.C.S.A. § 5328(a)(4) (relating to the
need for stability and continuity in the child’s education, family life and
community life). The court noted the success Je.F. has achieved since she
moved in with her Father. The trial court noted Je.F.’s “maturity,” “strength
of character,” and her ability to maintain good grades while balancing a part-
time job and extracurricular activities. See Findings and Discussion,
10/19/17, at Factor 4. While perhaps it was evident that Je.F. was in need of
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this stability prior to her move with Father, we do not share the trial court’s
inference that the same is true of O.F.
The trial court also noted a secondary reason why O.F.’s current life with
Mother lacked stability and continuity; the trial court placed considerable
weight on the fact that O.F. and Mother have moved several times in recent
years:
Since 2012, Mother has changed residences approximately
five times. While Mother’s initial change in residence was
the result of a fire and was therefore beyond her control,
the subsequent changes in address were not. Such frequent
changes in address and school systems inevitably affects
the stability and continuity of the minor child’s education
and community life. While awarding Father primary custody
would necessitate yet another move for the child, this Court
believes Father offers a more stable environment based on
his less frequent changes in residence.
Id.
We do not share the trial court’s inference, because Mother’s moves
were justified and did not cause the disruption the trial court presumed.
Mother testified that her first move was from the parties’ joint residence to an
apartment above a flower shop, which she was forced to leave after a fire.
See N.T., 9/27/17, at 143. From there, she and the children moved into her
grandmother’s house until she could secure an apartment in the area where
they had previously resided. Id. at 144. Mother decided to wait out the school
year instead; Mother was a teacher and O.F. was enrolled in pre-school where
the grandmother lived. Id. Mother then moved back to Altoona, where she
lived before the fire, and found a place on 5th Avenue. Id. at 144-46. Mother
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lived there with the children for two years, before moving with her husband
to a residence on Baynton Avenue. Id. at 146. She lived there for another
two years before she and her husband purchased a home. Id.
We note that O.F.’s education was largely uninterrupted by the moves.
The child was enrolled in first, second, and third grade in the same school
where Mother also taught. Id., at 148. For fourth grade – the grade she was
in during the subject custody litigation – the child followed Mother to a new
school. Id. at 148. The new school is a magnet school, which has greater
emphasis on science education. Id. at 148-149. Mother moved to this school,
located in the same school district, because she was hired to be the principal.
O.F. indicated that she liked her new school, particularly the science
curriculum. Mother testified that she brought O.F. to school early with her,
where O.F. ate breakfast and socialized with the children of the teachers.
During school, O.F. stopped in the office to say hello to Mother. After school,
O.F. went to Mother’s office to complete her homework. Id. at 154.
Meanwhile, Father has only been at his current address for three years.
He is currently renting and is in the process of purchasing a home. Id. at 48-
49. We fail to deduce that Mother’s moves contributed to any sort of instability
for O.F. The child has largely completed her education in the same school,
except for the most recent move, where the evidence suggests she is thriving;
for example, O.F. was asked to be in a robotics competition with LEGOs. Id.
at 152. The court completely discounted the impact on O.F. of the transition
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from Mother to Father and the imminent move Father will make when his
family purchases a home.
The trial court surmised that O.F. will succeed in any school
environment. We are not in the business of rating schools, but it should not
be ignored that O.F. has a considerable advantage of being enrolled in a school
where her Mother works. Mother has a unique opportunity to observe the
child’s education. Id. at 54. Mother’s employment offers a consistent routine,
and Mother does not need to enroll the child in daycare. Id. Conversely,
Father’s schedule alternates such that one week differs from the next. Id.
We do not share the trial court’s conclusion that O.F.’s need for stability
and continuity would be best served by disrupting the status quo. O.F. had
been in Mother’s primary care since she was three years old. When factoring
in the pre-separation history, O.F. had resided with Mother for her entire life.
As to this factor, the evidence does not support the finding that the child would
be better served if she was in Father’s primary custody.
The trial court made one other custody finding without evidentiary
support in the record. Under Section 5238(a)(7)(the child’s preference), the
trial court noted that O.F. eagerly expressed her desire to remain in Mother’s
primary care. The trial court inferred that this eagerness and her attempt to
reach out to the GAL after the custody hearing to reiterate her preference was
the result of Mother’s coaching or undue influence of the child. Nothing
supports this inference.
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It is unclear from the record what exactly transpired after the custody
hearing. At the motion for reconsideration, Mother’s counsel represented that
she encouraged Mother to contact the GAL after Mother told her counsel of
O.F.’s distress following the trial court’s decision. It was alleged that O.F. had
been upset after Father allegedly questioned O.F. about her in camera
interview. The trial court’s recollection of what transpired was also unclear.
The trial court evidently instructed the law clerk to reach out to the GAL, who
perhaps indicated that the child restated her preference that she stay with
Mother. This restatement apparently caused the trial court to infer that
Mother had influenced the child’s stated preference. See N.T., 11/14/17, at
26-29. Whatever action occurred post-trial, none of it should have been
considered by the trial court.
However, in terms of O.F.’s actual preference, the trial court properly
afforded it less weight. The record revealed that the child has told both her
parents at different times that she wished to live primarily with each of them.
Mother testified that the child has been placed in an impossible situation. See
N.T., 9/27/17, at 178. While both parents stated that they encouraged the
child to tell the truth to the GAL and to the court, both admitted to speaking
with the child about her preference beforehand. The stress of the pending
litigation caused the child so much anxiety that Mother enrolled the child in
therapy. Id., at 179. Although O.F. told both the GAL and the trial court that
while she considered living with Father, she stated her ultimate desire was to
stay with Mother. It was reasonable of the trial court to conclude O.F. is an
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unreliable narrator. Id., at 234-235; see also Findings and Discussion,
10/19/17, at Factor 7. We disagree with the conclusion, however, that the
child’s eagerness to tell the court her preference, without more evidence, was
indicative of Mother’s attempt to coach the child. Indeed, nothing in the
record supports this assumption.
As to the other statutory factors, the trial court generally found they
favored neither parent in any meaningful way. Our review of the record
supports this conclusion. Since these remaining factors favored neither
parent, we cannot hold that the rest of the best interests analysis redeems
the evidentiary deficiency of the previous discussion. We must reverse.
Usually the prudent practice of this Court is to avoid commenting on all
of an appellant’s issues if one issue constitutes reversible error. See, e.g.,
Landis v. Landis, 869 A.2d 1003 (Pa. Super. 2005). Because we assume
that this case will be remanded to the same trial judge, it is necessary to
address Mother’s contention that the judge should have recused himself.
In addressing Mother’s this issue, we hold that the circumstances of this
case do not warrant such a recusal.
Our scope and standard of review regarding the subject is settled:
The denial of a motion to recuse is preserved as an
assignment of error that can be raised on appeal following
the conclusion of the case. Reilly by Reilly v.
Southeastern Pennsylvania Transp. Authority, 507 Pa.
204, 489 A.2d 1291, 1300 (1985). We review a trial court's
decision to deny a motion to recuse for an abuse of
discretion. Vargo v. Schwartz, 940 A.2d 459, 471 (Pa.
Super. 2007). Indeed, our review of a trial court's denial of
a motion to recuse is exceptionally deferential. Id. (“[W]e
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extend extreme deference to a trial court's decision not
to recuse [.]”). As we explained in Commonwealth v.
Harris, 979 A.2d 387, 391–392 (Pa. Super. 2009) (quoting
in part Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.
Super. 2005)), we recognize that our trial judges are
“honorable, fair and competent,” and although we employ
an abuse of discretion standard, we do so recognizing that
the judge himself is best qualified to gauge his ability to
preside impartially. Hence, a trial judge should grant the
motion to recuse only if a doubt exists as to his or her ability
to preside impartially or if impartiality can be reasonably
questioned. In re Bridgeport Fire Litigation, 5 A.3d
1250, 1254 (Pa. Super. 2010).
In re A.D., 93 A.3d 888, 893 (Pa. Super. 2014).
In the instant matter, Mother sought the trial judge’s recusal when she
learned, after the trial, that the judge and Father’s wife were acquaintances
in the local basketball coaching community. As evidence, she cited local news
articles in which they were both mentioned, in passing, as assistants to a
retiring high school coach. It appeared as though they were assistants at
different times. While the wife also played for the retiring coach, it also
appeared that the judge was not an assistant while the wife was on the team.
Both have gone on to become active in local youth basketball programs.
During the trial, Mother’s counsel made it known that she had previously
represented Father’s wife in an uncontested divorce matter. All agreed that
this presented no conflict, and the trial continued. At that moment, Mother
argues, the trial judge should have acknowledged his own connection to
Father’s wife.
Although acknowledging his acquaintance may have been prudent, the
judge’s silence was not an error or unethical. At the post-trial recusal motion,
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the judge admitted to knowing Father’s wife, but said that they do not
socialize. He explained that he previously learned from one of his ex-players
that Father’s wife was also involved in youth basketball. The judge specified
that the wife works with the younger players, while he coaches the older
group. However, he described the two groups as “significantly separate” from
each other.
Moreover, this local community within Mifflin County appears quite
small. For example, during her in camera interview, Je.F. mentioned to the
judge that she saw the judge’s wife in the grocery store where Je.F. works.
Mother did not argue anything improper with this exchange or the familiarity
that it could imply. Another example is the judge’s familiarity with a lot of the
officers in the community from his days as a magisterial district judge. The
judge also knows many of the officers’ children from his coaching activities.
When these persons appear before him, the judge recognizes that he must
decide, in each case, whether he should recuse. We presume he made the
same consideration when Father’s wife took the stand. Given their tangential
relationship, we find no evidence to suggest an abuse of discretion when the
judge presided over this case.
To support her claim, Mother cites the judge’s own statement that he
might recuse himself if the case is remanded. His statement, however, was
not made in the context of his association with Father’s wife, but rather, was
a general comment regarding the complexity of this case. As this remand will
now come to fruition, see infra, we defer the recusal decision to the learned
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trial judge, but note that he possesses the ability to make that decision for
himself. Arnold v. Arnold, 847 A.2d 674, 680 (Pa. Super. 2004).
Our Supreme Court has recognized that it
would be an unworkable rule which demanded that a trial judge
recuse whenever an acquaintance was a party to or had an
interest in the controversy. Such a rule ignores that judges
throughout the Commonwealth know and are known by many
people . . . and assumes that no judge can remain impartial when
presiding in such a case.
Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312, 318 (Pa. 1976).
Because the trial court’s decision to grant Father’s request for
modification constitutes an abuse of discretion, we need not address Mother’s
final claim: that the trial court misapplied the law when it failed to address the
GAL’s recommendation that O.F. remain with Mother. Nonetheless, we will
discuss this claim briefly.
We have said “while a trial court is not required to accept the conclusions
of an expert witness in a child custody case, it must consider them, and if the
trial court chooses not to follow the expert’s recommendations, its
independent decision must be supported by competence evidence of record.”
M.A.T. v. G.S.T., 989 A.2d 11, 20 (Pa. Super. 2010) (citations omitted). We
have typically applied this rule to expert witnesses – usually forensic
psychologists who performed a custody evaluation. This rule could extend to
a GAL, but we have yet to do so; given our disposition based on Mother’s other
claims, we need not decide this issue. Of course, we are mindful that a GAL
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is not a judicial officer, and a trial court shall not delegate its judicial power to
a GAL. C.W. v. K.A.W., 774 A.2d 745, 749 (Pa. Super. 2001).
We note that in this case, the GAL was not called to testify nor was the
report discussed at trial. See 23 Pa.C.S.A. § 5334 (statute is “suspended
insofar as it [(1)-(3)], and (4) prohibits the guardian ad litem from testifying,
pursuant to Pa.R.C.P. No. 1915.25.”) The GAL report was made part of the
record, and at the Reconsideration Motion, the trial court stated that it did
consider the GAL report, even though the court did not mention it in its
Findings and Discussion.
Mother’s main argument is that the trial court did not specifically explain
in its initial analysis why it departed from the GAL recommendation. We have
never compelled a trial court to do this. Neither has our legislature obligated
the trial court to discuss the GAL report. As we discussed above, there was a
lack of evidence to support the trial court’s decision. Under the facts of this
case we conclude that the trial court’s departure from the GAL report was
against the weight of the evidence.
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Decision reversed. Case remanded for a new custody order in light of
our decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2018
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