R.B. v. M.A.G. ( 2018 )

J-A22014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.B., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
M.A.G.,
Appellee No. 1213 EDA 2018
Appeal from the Order Entered March 22, 2018
In the Court of Common Pleas of Lehigh County
Domestic Relations at No(s): 2015-FC-0991
BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 29, 2018
R.B. (Mother) appeals from the custody order entered on March 22,
2018, that awarded Mother primary physical custody of S.G. (born in October
of 2005) and R.G. (born in April of 2008) (Children) and partial physical
custody to M.A.G. (Father). Mother and Father were awarded joint legal
custody of Children. After review, we affirm.1
The scope and standard of review in custody matters is 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
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Father, who represented himself at trial, has not filed a responsive brief.
J-A22014-18
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 of the evidence, we
defer to the findings of the trial [court] who has had
the opportunity to observe the proceedings and
demeanor of the witnesses.
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.
R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.
2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).
Mother raises the following two issues for our review:
1. Did the trial court abuse its discretion by disregarding the
uncontroverted recommendation of the Lehigh County Office of
Children and Youth Services [(CYS)]?
2. Were the trial court’s conclusions of law unsupported by the
competent evidence of record?
Mother’s brief at 6.
Here, in its opinion, the trial court set forth an extensive, factual and
procedural history of this case and included information relating to the
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J-A22014-18
testimony of the witnesses presented at trial.2 In addition, the trial court
discussed and applied the custody factors contained in 23 Pa.C.S. § 5328. The
court also provided a supplemental opinion that further explains its reasons
for the order it issued on March 22, 2018. The supplemental opinion also
addresses the issues Mother raised in her concise statement of errors
complained of on appeal.
It is apparent that Mother’s arguments are essentially requesting that
this Court re-find facts and re-weigh the evidence. However, our standard of
review requires that we “accept findings of the trial court that are supported
by competent evidence of record, as our role does not include making
independent factual determinations.” C.R.F., III v. S.E.F., 45 A.3d 441, 443
(Pa. Super. 2012). Rather, 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.” E.D. v. M.P., 33 A.3d 73, 76 (Pa.
Super. 2011).
We have reviewed the certified record, Mother’s brief, the applicable
law, and the thorough, well-reasoned opinions authored by the Honorable
Edward D. Reibman of the Court of Common Pleas of Lehigh County, dated
March 22, 2018 and May 8, 2018. We conclude that Judge Reibman’s
extensive opinions properly dispose of the issues presented by Mother in this
____________________________________________
2 The witnesses included Megan Flores, a caseworker for CYS, Children’s
paternal grandmother, Mother and Father.
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J-A22014-18
appeal. Accordingly, we adopt the court’s two opinions as our own and affirm
the custody order on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/18
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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY PENNSYLVANIA
CIVIL DIVISION
2IMMISMINN,
Plaintiff FILE NO: 2015-FC-0991c7
vs CUSTODY r)
tv
Assigned Judge: Reibman,.:::
Defendant r>.)
LT;
MEMORANDUM OPINION'
A custody trial was held on March 19, 2018, on Plaintiff/Mother
Petition for Modification, filed on October 31, 2017, and Defendant/Father al Mb
Petition for Contempt, filed on November 17, 2017. Plaintiff/Mothe
("Mother") attended with her attorney, Michael E. Brunnabend, Esquire;
In .
Defendant/Father ("Father") attended fro se.
Mother is a native of Trinidad; Father is African -American. They were married
on December 17, 2004, and lived together until they separated on December 22, 2015.
g-,
Father filed for divorce on October 16, 2015. ankatELMINIk Lehigh County No.
2015-FC-1403. The Master recommended the entry of a divorce decree on November 7,
2017.
The parties have two children, a daughter, S.G., born 2005, and a son, R.G., born
2008. The parties' separation has been acrimonious marked by a series of actions under
the Protection from Abuse Act and custody conferences. Nonetheless, they managed to
This memorandum opinion is filed to comply with the holding in C.B. v. J.B. and M.B. and TB.,
65 A.3d 946, 948 (Pa. Super. 2013) (trial court to address each of the factors set forth in 23 Pa.C.S. §
5328(a) "prior to the deadline by which a litigant must file a notice of appeal, and preferably at the time the
custody order is issued or shortly thereafter"). This memorandum opinion may be supplemented with
further explication in the event of an appeal.
enter into an agreed order on August 16, and filed on August 17, 2016, whereby they
would share legal custody of the children; and, in general, to the extent they could not
agree as to physical custody of the children, Mother would have primary custody and
Father would have partial custody one night during most weeks and every full weekend,
except the second weekend, of the month.
Father resides in Brooklyn, NY, on the third floor of his mother's house. His
mother resides on the second floor and his sister operates an insurance business on the
first floor. He has no other children. Mother resides in Lehigh County with the children.
She has no other children.
Mother's petition for modification is premised solely on certain photographs
Father took of the daughter in October, 2015, Pl.'s Ex.], when the child was almost ten
years old.2 Mother first became aware of the photographs in late October, 2017. She
found disturbing and immediately reported them to the Pennsylvania State Police, which,
in turn, delivered them to the Lehigh County Office of Children and Youth Services
("OCYS").
OCYS found the photographs to be "inappropriate," but concluded the child had
neither been abused sexually, because she was not photographed in the nude, nor
exploited, because the images had not been uploaded to the intemet or otherwise
disseminated. Both parents had considered enrolling the child in a modeling career, and
many photographs were taken of the child, perhaps hundreds, with different clothes and
poses to build a portfolio for that purpose. Of the many photographs taken of the child,
only those marked Pl.'s Ex. I were presented to the court.
2 There was some dispute as to whether the child was 8 or 9 years old when the photographs were taken.
Mother testified the memory card on which the images were found was dated October 25, 2015. The
child's birthday was October 30, 2005.
2
OCYS concluded its investigation with a finding of "unfounded." Nonetheless,
the OCYS caseworker believed Father did not understand how inappropriate the
photographs were. Consequently, the caseworker recommended Father have only
supervised visitation with the children, undergo a parenting evaluation and, if warranted,
protective parenting. Mother has adopted that position as well.
An agreed interim order was entered on January 8, 2018. It provided for Father to
have only supervised physical custody of the children one day a week, on either Saturday
or Sunday, for a period of time and by a supervisor "to be agreed upon by the parties"
with Father being solely responsible for the costs of the supervisor. Father has not seen
the children since January, 2018. The parties' relationship continues to be acrimonious;
any agreement between them would be highly unlikely.
The photographs, Pl.'s Ex. 1, are inappropriate. Even Father's mother, the
children's paternal grandmother, agreed they were inappropriate. However, there was no
basis to believe they were anything other than a reflection of poor judgment by Father at
the time. The photographs were a small number of many pictures taken that day. There
was no evidence that other inappropriate photographs were taken of the child at any other
time. There has been no other history of any inappropriate actions, behaviors or
comments by Father concerning the child or anyone else. The child was uncomfortable
when the photographs were taken, but has no fear or concern regarding Father. There
was no evidence at all to lead one to believe the photographs, Pl.'s Ex. 1, were anything
other than an isolated event.
Mother will not be criticized for finding the photographs inappropriate and
reporting them to the State Police. The photographs are inappropriate. Still, Mother's
3
insistence in limiting Father to supervised visitation is suspect. Her text messages to
Father refer to him in language that is worse than "inappropriate." See Deft.'s Exs. 6, 7 &
8. Her texts are foul, gross, disgusting, poisonous and insulting. Worse, it reflects a
concerted effort to diminish Father as a man and deprive him of his self-respect. It is
difficult to imagine how such hatred of Father cannot affect the children and encourage
them to be estranged from him. Such behavior is particularly pernicious when Father, as
an African -American male, has no criminal record, holds a steady job and has been
involved as a responsible parent in his children's lives.
Mother has an unsettling relationship with an inmate at the
United States Penitentiary at Waymart, Pennsylvania. She describes him as a friend, like
"brother and sister," who she has known since she was 10 years old, from the same social
club in Trinidad. She has visited him at the penitentiary in 2014. Deft.'s Ex.1 contains
photographs of them holding and hugging each other in ways that might be seen as
"inappropriate" for a brother and sister. Deft.'s Ex 2 contains various messages of love
he sent to her in 2015 that also seems "inappropriate" for a brother and sister, and a nude
drawing of himself with his hands covering his genitalia with a drawing of her beside the
drawing of him in what appears to be her glancing at him with obvious satisfaction or
pleasure. He has also sent cartoon -like drawings to the children, Deft.'s Ex. 3 & 4, which
Mother hung on the wall of their home. At one point, wrote "I will be in
Trinidad by December 25th, 2014." Deft.'s Ex. 1. Mother's texts to Father states she will
"have a real man helping me;" "I finally have a REAL MAN in my life," and in response
to Father's text to Mother to "go to your jail -bird boyfriend and leave me alone with my
time with the kids," she wrote "LOL more man than you c-t" and [s] --k better, f-k
4
better." Deft.'s Ex. 6 & 8. Her characterization of her relationship with as
"brother and sister" is suspect. Furthermore, she professed incredibly not to know why
he is incarcerated, any details of the offense for which he is incarcerated or his release
date. She may be a risk to return to Trinidad, or elsewhere, with the children.
Father appears to be a quiet, reserved and passive individual. In order to avoid
Dir; 'ea
conflict with Mother, he did not object to her hanging Mr. cartoon-like
drawings he sent to the children on the wall of the marital home. Rather than
appreciating Father's qualities, she belittles him. He appears to be an appropriate father -
figure for the children.
Finally, the paternal grandmother described her relationship with the children,
and their relationship with her other grandchildren, the children's first cousins. She also
described her relationship with Mother in rather charitable terms; Mother did not
reciprocate the sentiments. Paternal grandmother was found to be credible, kind,
responsible, family -oriented and caring for the children.
Based upon those observations, the order of March 21, 2018, was based upon the
application and consideration of the factors set forth in 23 Pa.C.S. § .5328 as follows:
1.) Party more likely to encourage and permit frequent and continuing
contact between the child and another party:
Mother is on a mission to deny Father frequent, continuing and normal
contact with the children. Father has done nothing to interfere with Mother's
custody of the children.
2.) 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 child:
Despite any abuse between the parties, both of them are capable of
5
providing adequate physical safeguards and supervision of the children.
2.1) Consideration of child abuse and involvement with protective services:
(a) With respect to child abuse:
(i) Whether the child is the subject of an indicated or founded
report of child abuse.
(ii) Whether a party or a member of the party's household has
been identified as the perpetrator in an indicated or founded report of child
abuse.
(iii) The date and circumstances of the child abuse.
(iv) The jurisdiction where the child abuse investigation took
place.
A referral to child protective services was determined to be
"unfounded."
(b) With respect to child protective services or general protective services
under Chapter 63:
(i) Whether a party or a member of a party's household has been
provided services.
(ii) The type of services provided.
(iii) The circumstances surrounding the provision of services.
(iv) The status of services.
(v) The date the services were provided.
(vi) The jurisdiction where the services were provided.
It was suggested that Father have supervised visitation with the
children and undergo a parenting evaluation. He has not undergone such
an evaluation, and after trial, it was concluded there was no need to do so.
3.) Parental duties performed by each party on behalf of the child:
Both parties are capable of meeting the children's physical needs. Father
is capable of meeting the children's need for a full relationship with Mother.
Mother has used the one instance of Father's lapse of judgment to undermine
his relationship with the children.
6
4.) Need for stability and continuity in child's education, family life and
community life:
The children will benefit with regular, on -going contact with both parents.
5.) Availability of extended family:
Mother has no extended family in the Lehigh County area. Father has his
mother, sister, nieces and nephews in Brooklyn, NY, who have established
close relationships with the children.
6.) Child's sibling relationships:
The children get along well with each other and have no other sibling
relationships.
7.) Well -reasoned preference of child, based on child's maturity and judgment:
The children were interviewed individually, on the record and, with the
parties' permission, outside of their presence. Such interview was helpful, but
not determinative, and is being treated as confidential.
8.) Attempts of a parent to turn the child against other parent, except in cases of
domestic violence where reasonable safety measures are necessary to protect
the child from harm:
Mother has engaged in behaviors designed to discourage the children from
having a normal relationship with Father.
9.) Party more likely to maintain loving, stable, consistent and nurturing
relationship with child given child's emotional needs:
Both parents are likely to maintain a loving, stable, consistent and
nurturing relationship between themselves and the children.
7
10.) Party more likely to attend to the daily physical, emotional,
developmental, educational and special needs of child:
Both parents are likely to attend to the daily physical, emotional,
developmental, educational and special needs of the children.
I I.) Proximity of parties' residences:
Mother lives in Lehigh County, PA; Father lives in Brooklyn, NY.
12.) Each party's availability to care for child or make appropriate child-care
arrangements:
Both parties are available to care or make appropriate child-care
arrangements for the children during their periods of custody.
13.) Level of conflict between parties and their willingness and ability to
cooperate with one another:
The level of conflict is high. Father has demonstrated a willingness and
ability to cooperate with Mother. Mother has not demonstrated any
willingness to cooperate with Father.
14.) History of drug or alcohol abuse of party or member of household:
There was no evidence of drug or alcohol abuse by either party or member
of Father's household.
15.) Mental and physical condition of party or member of party's household:
There was no evidence of any mental or physical condition of any party or
member of Father's household.
8
16.) Other:
Primary care giver in past:
Before separation, both parties cared for the children. After
separation, Mother has been the children's primary caregiver.
See 23 Pa.C.S. § 5328.
BY THE COURT:
March ;4.12018
9
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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY,
PENNSYLVANIA
CIVIL DIVISION
Plaintiff, File No. 2015-FC-0991 ,-,
Assigned Judge: Edward D. l',.ibrrfitti
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SUPPLEMENTAL MEMORANDUM OPINION
Plaintiff/Mother Ithessikeillhav ("Mother") appealed timely from the Court's Order of
March 22, 2018. A Memorandum Opinion explaining the reasons for the Court's Order was also
tiled on March 22, 2018. As noted in footnote 1 of that Memorandum Opinion, the
Memorandum Opinion was filed prior to the Court having the benefit of the notes of testimony
of the trial upon which the March 22 Order was based. This Supplemental Memorandum
Opinion further explains the reasons for that Order.
-The photographs of the child, taken when she was almost 10 years old, which everyone,
including the Court, found to be "inappropriate" remained on the child's computer. They
represented a very small number of the hundreds of photographs Father took during a three hour
period of which there was no issue. The photographs were taken for the purpose of developing a
portfolio for the child's modeling career. The child had been, with the consent of both parents,
involved in modeling. Importantly, the photographs deemed inappropriate were never
disseminated by anyone, especially Father. They remained on the child's computer for the two
years between when they were taken and when Mother discovered them. Nor has there been any
allegation that, in the intervening period of time, Father did anything inappropriate with respect
to the child.
The Child Protective Services investigator and the Court found the child to be intelligent
and well adjusted. While the child felt uncomfortable when some of the photographs were
taken, she expressed no such concern or reservation about Father at the time of trial.
Paternal Grandmother, was the most well-grounded, mature and responsible
adult at trial, She clearly loves the child as well as the child's brother and her two other
grandchildren. She did not attempt to defend, apologize or otherwise excuse the "inappropriate"
photographs of the child. At the end of her testimony, she tried to be diplomatic if not
conciliatory to Mother. She characterized Mother's extended family as "very nice" people and
represented she would get along with Mother despite whatever their history had been, Mother
would have none of it and rejected outright any overture of conciliation by Paternal
Grandmother.
In her Concise Statement of Errors Complained of on Appeal, filed with her Notice of
Appeal on April 20, 2018, Mother contends the Court abused its discretion by rejecting the
recommendation of the Lehigh County Office of Children and Youth Services ("OCYS"), citing
to 23 Pa.C.S. § 5328. A careful reading of § 5328 does not require the court blindly accept the
recommendation of OCYS. Rather, the involvement of protective services is one of many
factors to be considered in determining the best interests of the child. 23 Pa.C.S. § 5328(a). The
2
recommendation of OCYS was considered carefully; the court determined the incident
upon
which the recommendation was based was an aberration of Father's long history
and
involvement with the child, dated in that the photographs were taken two years before
trial and
no longer necessary given the absence of any allegations of inappropriate contact by Father in
that intervening period of time.
Mother also asserts the Court committed "reversible error" by admitting irrelevant
testimony regarding Mother's alleged relationship with a federal imnate,
Although Mother's Concise Statement of Errors Complained of on Appeal represents
was "serving a life sentence without possibility of release," there appears to be no
evidence in the record to support that representation. Moreover, 1MS wrote to Mother
that he expected to be released from prison in December 2014. N.T., 3/19/18, at 111. And, on
September 4, 2015, Mother texted to Father that "soon they [the children] will know what it's
like to have a father .". Id., at 117. Mother's alleged relationship with
k .17
and his
relationship with the children, was considered a "relevant factor" as required by 23 Pa.C.S.A. §
5328(a)(16). It was also considered to evaluate Mother's credibility. She testified that she has
had a close relationship with ince she was 10 years old and that between the ages of
10 and 16 or 17, they were with each other on a daily basis. The letters from and the
photographs of him with Mother indicate they maintain a close personal relationship. She
characterized that relationship as "brother/sister". Id, at 105, 108. His letters and photographs
belie that characterization. Furthermore, Mother testified she did not know why was
in federal prison or when he might be released. Id., at 107. That, too, was difficult to accept as
true. Finally, when asked whether she had an affair with she replied "... I did not
3
have an affair in general." Id., at 113. (Emphasis added.) There was no basis in the record to
conclude whether was entitled to have conjugal visits while incarcerated, but
Mother's qualification that he did not have an affair "in general" seemed evasive.
Finally, at the conclusion of the trial, Father requested to see the children. He had no
contact with them since February 15, 2018, when Mother blocked his cell phone number. When
the Court directed court staff to bring the children into the courtroom, Mother rose from her chair
at counsel table and attempted to bring them in herself, at which point she was told to sit down
and allow court staff to bring the children into the courtroom. When the children entered the
courtroom, the Court told them their father and grandmother wanted to give them a hug. There
was no hesitation or reservation by either child in approaching their father and grandmother and
giving them a hug.
Father was awarded partial physical custody of the children as he and Mother may agree
or, in the absence of such agreement, then every weekend except the second full weekend of
each month, from Friday evening until Sunday evening and from the Wednesday immediately
following Mother's custodial weekend until Friday during the children's school year and every
weekend except the second full weekend of each month from Friday evening until Sunday
evening during the summer. That, significantly, was the custodial arrangement proposed by
Father; he made no effort to restrict Mother's custodial time with the children.' Mother's
proposal that Father only have supervised visitation with the children and his time with them be
1
Father stated: "... for the wellbeing oW children -- children's development, I seek shared physical
custody, or primary physical custody, since Isecontinues to project a very negative influence over our children
because of her non-stop hatred directed towards me, which is creating an unloving environment around our children,
destroying my relationship with them as a father and as a daddy." Id, at 89. Father's statement that he sought
primary physical custody of the children appears to have been the result of confusion. At no other time did he
request primary physical custody of the children.
4
them be limited reflected her animus toward Father as evidenced by her texts to him and threats
to reveal them on the internet.
BY THE COURT:
May 7, 2018
5