S.B. v. S.S. ( 2017 )

J-A18030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.B. IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
S.S.
Appellant No. 74 WDA 2017
Appeal from the Order December 12, 2016
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-15-008183-10
BEFORE: BOWES, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 20, 2017
S.S. (“Mother”) appeals from the order, entered in the Court of Common
Pleas of Allegheny County, awarding S.B. (“Father”) sole legal custody and
sole physical custody of F.B.H. (“Child”) (born August 2006). After our review,
we affirm, with instructions.
Child was born in Guatemala in 2006. Father and his first wife, A.H.,
who were married for almost twenty years, adopted Child in 2007, when he
was six months old.1 A.H. died in December 2008, when Child was two years
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1 A.H. was diagnosed with breast cancer in 1999 and underwent
chemotherapy. She and Father wanted to start a family, and they began the
adoption process in 2003. They contacted Palmetto Hope, an adoption agency
that specializes in Guatemalan adoptions, and after going through a home
study with Jewish Family Services in Pittsburgh and meeting the Palmetto
Hope requirements, the adoption was finalized in February 2007. N.T. Trial,
5/20/16, at 176-78.
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old. Father continued his close relationship with A.H.’s extended family, and
he raised Child, with their support, for the next four years. In May 2012,
Father met Mother on an online dating website; they married four months
later. Mother adopted Child in 2013.
The parties’ relationship was short-lived; in November 2013, Mother
moved out of the main house and into the guesthouse. One year later, Mother
left the marital residence and moved into her own home. The parties entered
into a custody agreement on November 22, 2014.
Father filed a complaint in custody on June 11, 2015; Mother
counterclaimed for primary custody. On October 9, 2015, the court held a
hearing and entered an interim custody order pending a custody trial. The
interim order expanded Father’s custodial time. Days later, Mother filed a
Petition for Abuse (PFA), on behalf of herself and Child, alleging Father had
sexually abused Child, and the court ordered supervision of Father’s custodial
periods. Over one month later, after a five-day trial, the court dismissed the
PFA petition.
On January 21, 2016, the court scheduled a custody trial to be held in
April of that year; on February 2, 2016, Mother filed a second PFA petition on
behalf of herself and Child, again alleging Father’s sexual abuse of Child.2
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2 On February 4, 2016, Mother filed an emergency petition for special relief,
indicating Child made additional disclosures of sexual abuse and that Child
was refusing visits with Father. The court suspended visitation and contact
between Father and Child. That same day, the court appointed Maegan Susa
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Senior Judge Lee J. Mazur denied the petition without a hearing and
recommended the petition be presented again before the Honorable Kim
Berkeley Clark, who was presiding over the custody matter. Judge Clark
denied the petition without a hearing.
The twenty-three day custody trial commenced on May 20, 2016, and
concluded on November 18, 2016. The parties presented 24 witnesses and
offered 216 exhibits, 193 of which were admitted by the court, in addition to
the exhibits from the PFA trial that were incorporated into the custody trial.
On December 12, 2016, Judge Clark entered her findings of fact on the
record and entered an order granting Father sole legal and sole physical
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Filo, Guardian ad litem (GAL), to represent Child’s best interests. On April 11,
2016, after meeting with the parties, Child, communicating with counsel for
both parties, reviewing expert reports, GAL made several recommendations,
including the following:
Child be immediately removed from Mother’s care and placed with
Father after attending the Family Bridges program;
Child should be immediately reunited with A.H.’s extended family;
Child should begin attending his former synagogue;
Child should begin to attend his Guatemalan adoption group in
which he participated previously with Father;
Father should be granted sole legal custody of Child;
Both Mother and Father should follow any recommendations made
by Dr. McGroarty for each party’s mental health therapy.
Report and Recommendation of the Guardian ad litem, 2/4/16, at 8.
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custody. On December 14, 2016, the court entered an amended order, which
provides:
1. Sole legal custody of [Child] is awarded to [Father] who shall
have the sole authority to make all medical, therapeutic,
educational, and religious decisions on behalf of the child.
Father is hereby authorized to obtain treatment/intervention
for [Child], as he deems necessary and appropriate for [Child’s]
welfare.
2. Father shall have sole physical custody of the Child.
3. Father shall pursue reunification with the Child through Family
Bridges: A Workshop for Troubled and Alienated Parent-
Child Relationships ("Family Bridges").
4. Following the completion of the Family Bridges workshop,
and before returning home with [Child], Father shall take
[Child] on a vacation of no less than five days in duration. The
Court expects that [Child] will apply what he has learned during
the Family Bridges workshop to improve their interactions
with his Father during and following their vacation.
5. Father has the right to conceal from Mother the location of any
intervention sought for [Child] (e.g., educational or mental
health intervention) in the interests of protecting [Child] and
the intervention from intrusion, interruption, and harassment.
6. Following the completion of the Family Bridges workshop,
Family Bridges or the aftercare Specialist shall provide
recommendations as to the next steps for the parties
(counseling, contact, etc.)
7. Until such time as the Child can be taken to the Family Bridges
Workshop, [Child] shall be cared for by [S.B. and S.B.]. If
possible, Mr. or Mrs. B[.] shall pick the child up from school. A
copy of this Order shall be provided to the school, if necessary.
8. Defendant, [Mother] shall cause to be delivered by a third
party: clothing flor [Child] for two; (2) weeks, his birth
certificate and citizenship papers, and his most important
personal effects to the home of [S.B. and S.B.]. Personal
effects should include, at a minimum, stuffed animals [Child]
sleeps with, pajamas, his school backpack, books he is
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currently reading, his school folder with current assignments,
and his iPad with his favorite games on it. Said items shall be
delivered by 7:00 P.M. December 12, 2016.
9. Mother is to ensure that all of [Child’s] remaining belongings
are delivered by a third party to Father's home or other agreed
upon location within 14 days.
10. Father is authorized, if he deems necessary and/or
appropriate, to hire or designate other persons to facilitate and
assist with the transfer of [Child] to the location where any
intervention will be conducted. [S.B. and S.B.] are expressly
authorized to travel with the Child.
11. Father has the sole authority to consent to [Child’s] travel.
12. A copy of any custody evaluations and other evaluations of
[Child] and/or the parties and all other relevant information
shall be provided to any professional whom Father engages to
assist with [Child], including Family Bridges team leaders.
13. [Child] shall have no contact with Mother, her family, or her
friends and/or associates not participating in the intervention,
and relatives, friends, and associates of Mother, and any
parents of [Child’s] friends whose influence might foreseeably
interfere with [Child] progress in effectively repairing the
damaged relationship with Father, except as directed by
Family Bridges, or the aftercare professional, or any other
professional designated by Father or the Court.
14. "Contact" includes all forms of contact and communication,
including but not limited to phone contact, text messages,
letters, contact via computer, in-person contact, and
communication via third parties.
15. The duration of the no-contact order shall be determined by
the Court, but shall be no less than 90 consecutive days from
return of the family to the home of the custodial parent, or
other designated post Family Bridges residence after the
successfully completion of the structured Family Bridges
workshop and the post Workshop vacation period.
16. Should any person subject to the no-contact order have
contact with [Child] prior to the expiration of the Court-
imposed 90-day no-contact period, the period of no contact
begins again. For example, if on day 45 Mother and [Child]
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have any form of contact that is prohibited by the Court Orders,
the clock counting down the 90 day period of no contact is reset
to zero and the 90 consecutive day period of no contact begins
anew. For each subsequent incidence of parent-child contact
prior to the expiration of the no-contact period, the clock will
be reset to zero until 90 consecutive days have passed without
parent-child contact.
17. Father, through counsel, shall notify the court when he and
[Child] have returned to live in father's residence in Allegheny
County within 72 hours of their return. Upon notification, that
[Child] and Father have returned, the court will schedule and
hold a judicial conference to determine what other therapeutic
interventions, if any, should be ordered and to determine
Mother's partial custody. The Court will determine the
conditions, timing, and nature of resumption of contact
between [Child] and Mother with the assistance and input from
the aftercare professional.
18. The resumption, timing and nature of contact between
[Child] and Mother will be based on the cooperation of [Child]
and Mother with these Orders, with the Family Bridges
program, and with the aftercare professional, after a judicial
conference upon praecipe by either party following the
completion of the 90-day period.
19. Father has the authority to confiscate and prevent [Child’s]
use of communication devices; including but not limited to: cell
phone, pagers, blackberries, tablets, and computers, even if
Mother provides such equipment.
20. If the child is ill and must be hospitalized or unable to leave
the home, the custodial parent shall notify the non-custodial
parent as soon as possible, but no later than within 24 hours.
21. During the no-contact period, Mother shall stay at least 100
yards away from Father and [Child], their residence, the
residences of members of Father's and the H[.] families,
Father's vehicle, and all other places frequented by [Child].
Until further Order of' Court, Mother shall not be on the grounds
of Shadyside Academy Junior School.
22. Mother shall not harass, attack, strike, threaten, assault,
hit, follow, stalk, molest, destroy personal property, disturb the
peace, keep under surveillance, or block movements of Father
and/or [Child].
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23. Mother shall relinquish to Father, [Child’s] passport,
citizenship papers, the original adoption papers, birth
certificate, and all other important documents and shall be
entitled to obtain and/or renew [Child’s] passport without
Mother's consent. Father shall have possession and control of
these documents.
24. Neither party shall subpoena the records of any of the
professionals who assist the Father and [Child] in making the
transition to the Court Orders, including Family Bridges team
leaders, nor shall either party seek testimony in any future
Court hearings by Family Bridges team leaders. This does not
prohibit Family Bridges team leaders from communication
with aftercare professionals and any professionals, such as
guardians ad litem, appointed by the Court.
25. Neither parent will go to the home or office of a Family
Bridges team leader unless for prescheduled appointments,
nor approach the Family Bridges team leaders at any time in
public, nor phone excessively, nor send threatening
communications.
26. Neither party shall relocate outside of Allegheny County with
the child, without notice to and the written consent of the other
party OR with permission from this court. Any party seeking
relocation shall strictly adhere to the requirements of 23
Pa.C.S.A. § 5337.
27. The police and/or other law enforcement agencies shall
enforce the terms of this Order and lend all necessary
assistance, if necessary, to allow Father to maintain sole
custody of [Child], and enforce the no contact order.
28. The matter of Counsel Fees shall be set for argument before
this court.
29. This order supersedes all other orders previously entered in
this case.
Amended Order, 12/14/16 (emphasis in original).
On December 27, 2016, the court filed detailed Findings of Fact in
support of its order. The court also filed an opinion analyzing each witness’s
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testimony, including the testimony of Child and the guardian ad litem, and
applying the statutory custody factors. Mother filed a timely appeal on
January 13, 2017.3 She raises the following issues for our review:
1. Did the trial court err as a matter of law or abuse its
discretion in finding that the parties’ child was not sexually
abused by Father?
2. Did the trial court err as a matter of law or abuse its
discretion in finding it to be in the Child’s best interest that
he be placed in Father’s sole custody and in severely
restricting Mother’s custody, contact, and involvement in his
life?
3. Did the trial court err as a matter of law or abuse its
discretion in using the dictates and demands of the Family
Bridges program protocol as the basis for the details of the
custody order regarding the suspension of Mother’s custody
and contact, in delegating decision-making authority to such
a program, and in prohibiting Mother from subpoenaing the
Family Bridges records and from procuring future testimony
from Family Bridges personnel, and was such a deprivation
of her state and federal constitutional due process and
parental rights?
Appellant’s Brief, at 10.
In any custody case decided under the Custody Act, 23 Pa.C.S.A. §§
5321–40, the paramount concern is the best interests of the child. See 23
Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition,
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3 Mother filed an “Application for the Exercise of King’s Bench Power or
Extraordinary Jurisdiction” in the Pennsylvania Supreme Court on February 1,
2017. See 42 Pa.C.S.A. § 726. Father filed an answer on February 8, 2017.
The Supreme Court denied Mother’s application on February 24, 2017 by per
curiam order. S.B. v. S.S., 8 WM 2017, filed 2/24/17. Mother’s appeal was
argued before this Court on July 19, 2017.
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a trial court may modify a custody order if it serves the best interests of the
child. 23 Pa.C.S.A. § 5338; see also E.D. v. M.P., 33 A.3d 73, 80–81 n.2 (Pa.
Super. 2011). Section 5328(a) sets forth a list of sixteen factors4 that the
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4 § 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party's household, whether there is a
continued risk of harm to the child or an abused party
and which party can better provide adequate physical
safeguards and supervision of the child.
(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.
(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
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trial court must consider when making a “best interests of the child” analysis
for a custody determination. See 23 Pa.C.S.A. § 5328(a).
Moreover, section 5323(d) mandates that, when the trial court awards
custody, it “shall delineate the reasons for its decision on the record in open
court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d).
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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.A. § 5328(a).
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The relevant scope and standard of review are as follows:
[T]he appellate court is not bound by the deductions or inferences
made by the trial court from its findings of fact, nor must the
reviewing court accept a finding that has no competent evidence
to support it. . . . However, this broad scope of review does not
vest in the reviewing court the duty or the privilege of making its
own independent determination. . . . Thus, an appellate court is
empowered to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may not
interfere with those conclusions unless they are unreasonable in
view of the trial court’s factual findings; and thus, represent a
gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting
Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover, on issues
of credibility and weight, we defer to the trial court, which has had the
opportunity to observe the proceedings and demeanor of the witnesses.
R.M.G., Jr., supra at 1237.
The parties cannot dictate the amount of weight the trial court
places on evidence. Rather, the paramount concern of the trial
court is the best interest of the child. Appellate interference is
unwarranted if the trial court’s consideration of the best interest
of the child was careful and thorough, and we are unable to find
any abuse of discretion.
Id. (internal citations omitted). In sum, this Court will accept the trial court’s
conclusion unless it is tantamount to legal error or unreasonable in light of the
factual findings. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014).
After our review, we conclude that Mother’s claims are meritless. The
core of this custody case is not allegations of sexual abuse; it is isolation and
alienation. Child’s vulnerability and susceptibility to Mother’s influence was
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not lost on Judge Clark, and it is not lost on this Court. Our review of the
record indicates that Mother has systematically engineered an isolation plan,
at Child’s psychological expense.
Judge Clark’s opinion provides a careful and detailed examination of the
evidence, see Trial Court Opinion, 12/27/16, at 8-51, and a comprehensive
analysis of each of the section 5328(a) factors. See id. at 52-55. The court
determined there was no evidence that Father sexually abused Child. In
making this determination, the court considered Child’s relationship with
Father and with Mother both before and after the allegations of sexual abuse,
the timing of the abuse allegations, the parties’ psychological testing reports,
the testimony from the GAL, family members, friends, former babysitters and
neighbors, as well as the expert testimony from the custody evaluator, from
Child’s therapist and forensic interviewers, and Mother’s therapist. The court
also found that Child was alienated from Father by Mother, id. at 51, and that
the extent of alienation in this case warranted a restrictive and intensive
reunification program. Contrary to Mother’s claim, the trial court did not
delegate its duty; our instructions below reinforce the court’s decision-making
responsibility.
Our review of the record reveals extreme alienation; Father has not had
contact with Child for over a year. The record supports the court’s
determinations that the timing of Mother’s allegations of sexual abuse are
suspect, that there is no evidence to support Mother’s claim that Father
sexually abused Child, and that Mother has deliberately marginalized Father
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in Child’s life. She has also isolated Child from Father’s extended family and
his first wife’s (and Child’s first adopted Mother’s) family.
We share the court’s perspective that, although controversial,
reunification therapy of the type promoted by Family Bridges is necessary to
repair the extensive damage done to the Father/Child relationship. The court
may consider the recommendations of the agency and mental health
professionals but it is ultimately the court’s responsibility to determine what
will truly promote Child’s best interests. We therefore affirm the court’s order.
We rely on Judge Clark’s December 22, 2016 opinion to affirm the
custody order, and we advise the parties to attach a copy of that opinion in
the event of further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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