A.P.T. v. J.L.T. ( 2017 )

J-A03002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.P.T. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J.L.T.
Appellant No. 1154 MDA 2016
Appeal from the Order Entered June 15, 2016
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2011-07420
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 21, 2017
J.L.T. (Mother) appeals from the trial court’s order denying Mother’s
request to reinstate a June 2012 parenting plan, putting a new parenting
plan into place, and granting A.P.T. (Father) primary physical custody and
Mother and Father shared legal custody of the parties’ minor daughter,
D.K.T. (born 5/2003).1 After careful review, we affirm.2
The parties were married; they separated in January 2011. In July
2011, Father filed a custody complaint against Mother seeking shared legal
custody and partial physical custody of D.K.T. and her siblings. On
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1
Parents have three children D.K.T., A.M. (born 1/2011), and L.P. (born
9/2006). Mother has primary physical custody of L.P. and A.M. The instant
appeal involves only D.K.T.
2
Father has not filed a brief on appeal.
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December 13, 2011, Father was awarded partial physical custody and a
visitation schedule was arranged. Father filed a contempt petition against
Mother for failing to abide by the custody order. The court found Mother in
contempt and sanctions were imposed against her. On June 8, 2012, the
court entered a new custody granting Mother primary physical custody and
Father partial custody; the parties retained shared legal custody.
In July 2015, Mother filed a petition for special relief, requesting that
Father’s visits with D.K.T. be supervised, claiming that D.K.T. has suffered
sexual, mental and verbal abuse while in Father’s custody. Mother
specifically averred that Father’s Stepfather (paternal Step-Grandfather) had
sexually abused D.K.T. The petition was denied without a hearing and the
court ordered conciliation for the parties. On August 6, 2015, the court
appointed Grace D’Alo, Esquire, as Guardian Ad Litem (GAL) for D.K.T.
On October 7, 2015, the Cumberland County Children and Youth
Services (Agency) received a referral alleging that Mother had emotionally
abused D.K.T. The court held a dependency hearing and a safety plan was
developed which placed D.K.T. with her maternal grandparents. On October
21, 2015, the court continued the safety plan, but permitted Father to have
periods of partial physical custody.
On October 29, 2015, the GAL filed a report and proposed order
recommending that primary physical custody be transferred to Father. On
October 30, 2015, the court terminated dependency, granted Father primary
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physical custody, and ordered that Mother continue to have no contact with
D.K.T. unless agreed to by all parties. Father was also ordered to provide
counseling or other therapy for D.K.T. Mother filed a motion for
reconsideration, which was denied. On February 17, 2016, the court
appointed a second GAL, Robert Hawn, Esquire, for D.K.T. when GAL D’Alo
had to travel out of the country.
The court held a two-day custody hearing in March 2016. At the
hearing, Doctor Ashley Milspaw, an expert in clinical psychology, testified
that she conducted a psychological evaluation of Mother and concluded that
she “seems to be an adequate parent and [knows how to] appropriate[ly]
parent[].” N.T. Custody Hearing, 3/2/16, at 11. Doctor Milspaw
recommended that Mother engage in some outpatient psychotherapy to
assist her with stress and anxiety she experienced associated with the
current custody battle and to help her with her health issues. Id. Child’s
maternal grandmother testified that while she was Child’s custodian, D.K.T.
seemed withdrawn and anxious at times and would try to seclude herself
from the rest of the family. Id. at 40. Grandmother also testified that she
never saw Mother do anything that would have caused concern with regard
to how she cared for her children. Id. at 43. Prior to living with Father,
maternal grandmother testified that Child was actively involved in basketball
and softball leagues, id. at 53, but since then had chosen not to play those
sports and has taken up babysitting after school. Id. at 53-52.
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On April 7, 2016, the court held an evidentiary hearing where Father’s
fiancée testified regarding her relationship with D.K.T., Father’s involvement
with and parenting of D.K.T., and any interactions she had had with Mother.
Fiancée is the parent to two girls, six years old and eighteen years old,
whom she claimed have a sibling-like relationship with D.K.T.
Father testified that he is concerned that a lot of negative talk about
him occurs when D.K.T. is at Mother’s home, coming from both Mother and
Mother’s father (maternal grandfather). N.T. Custody Trial, 3/3/16, at 45,
48. On June 1, 2016, Hawn issued a report recommending that Mother be
awarded primary physical custody of D.K.T, with the following suggestions:
(1) D.K.T. promptly resume counseling sessions;
(2) D.K.T. actively reestablish herself in the community by
engaging in sports, recreation, and social activities, as well
as renewing friendships; and
(3) Mother undergo counseling to help her reconcile the failure
of her marriage, resolve the issues with father, and move
on with her life.
Guardian ad Litem Report, 6/1/16, at 18.3 In response to GAL Hawn’s
report, GAL D’Alo issued an unsolicited report contradicting GAL Hawn’s
recommendation that Mother be granted primary physical custody of D.K.T.
Specifically, GAL D’Alo made the following observations:
 Mother does not understand D.K.T.’s need for Father;
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3
On July 23, 2016, GAL Hawn informed the court that he no longer
represented any party in interest in the matter after the court entered its
final custody order on June 15, 2016.
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 Mother will denigrate Father if D.K.T. is returned to her
care;
 Mother will continue to limit D.K.T.’s contact with Father;
and
 Mother’s reactions are not in the best interest of D.K.T.
GAL D’Alo’s Response to Report by GAL Hawn, 6/8/16, at 2.
On June 15, 2016, the court entered the current custody order
awarding Mother and Father shared legal custody, awarding Father primary
physical custody and setting forth, in part, the following schedule:
 Mother has overnight physical custody of D.K.T. on the
first and third weekends of even months; Father has
overnight physical custody on the second weekend of even
months;
 Father has overnight physical custody of D.K.T. on the first
and third weekends of odd months; Mother has overnight
physical custody on the second weekend of odd months;
 The parties shall attend co-parenting counseling at the
request of either party;
 “Good night” phone calls shall be placed nightly to the
non-custodial parent;
 Parents are encouraged to establish a mutually agreeable
holiday custody schedule[.]
Trial Court Order, 6/15/16. After conducting its analysis of the sixteen
section 5328(a) factors, the trial court set forth its reasons for fashioning the
instant custody award as follows:
This Parenting Plan is strongly focused on [D.K.T.], her needs
and best interest. This action was required by the ongoing
drama at Mother’s house that culminated in this court reporting
the neglect of this child to Cumberland County Children and
Youth Services Agency. Mother is found to be duplicitous and
insincere. She often over[-]corrects for problems she creates.
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Mother is narcissistic, in that she seeks favorable treatment for
herself, and automatic compliance[,] or else she will become
exploitative. There are those who would describe Mother as a
helicopter parent; however, truth be told there are times that
she allows the children to be unsupervised as was demonstrated
in the making and posting of the YouTube video. The fact that
[D.K.T.] is thriving in her current household, in spite of all the
tumult and uproar she has experienced this school year, is
indicative that the prior court ruling was exactly what she
needed and there is no reason to endanger her education any
further. It is noted that the Guardian Ad Litem Hawn report
believes a return to the June 2012 Parenting Plan would be in
order and this report was duly considered. Indeed, the report
makes several future recommendations about the best interest
of [D.K.T.] including ongoing counseling which . . . per the last
testimony is continuing; having Mother undergo counseling to
help her reconcile the failed marriage, resolve her own father
issues, and move on with her life; cut the every weekend travel
for the chi[ld]ren; and also require Father to repay his student
loans to assure children’s eligibility in the future. The
circumstances that led the [c]ourt to this drastic midyear school
change still exist[] and without the ability of each parent to
develop the respective co-parenting skills necessary, a strict
structure is all the court can provide. The flexibility that co-
parenting would provide to allow children to participate in
extracurricular activities that occur on weekends when hey may
be in [the] custodial time of another parent cannot be magically
resolved by the [c]ourt. Only the parents have this ability, if
they choose to use it, which heretofore they have not. Thus, in
the best interest of D.K.T. . . . the above Parenting Plan has
been established.
Trial Court Opinion, 6/15/16, at 13-14. Mother filed a timely notice of
appeal and Pa.R.A.P. 1925(b) concise statement of matters complained of on
appeal. The trial court filed a Rule 1925(a) opinion where it incorporated, by
reference, the section 5328(a) custody factors set forth in its June 2016
Parenting Plan/Custody Order.
On appeal, Mother raises the following issues for our review:
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(1) Did the trial court abuse its discretion in its analysis of the
factors under 23 Pa.C.S. § 5328(a) by reaching
unreasonable conclusions not supported by the evidence
presented during the custody hearings?
(2) Did the trial court abuse its discretion in its analysis of the
factors under 23 Pa.C.S. § 5328(a) by failing to address
the subject matter of multiple factors?
(3) Did the trial court abuse its discretion in its Reasons for
Award by making inferences and deductions not supported
by the evidence of record?
Appellant’ Brief, at 4.
The scope of review of an appellate court reviewing a child
custody order is of the broadest type; the 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.
Kaneski v. Kaneski, 604 A.2d 1075 (Pa. Super. 1992) (citing McMillen v.
McMillen, 602 A.2d 845 (Pa. 1992)). In addition, with regard to issues of
credibility and weight of the evidence, we must defer to the presiding judge
who viewed and assessed the witnesses first-hand. C.R.F. v. S.E.F., 45
A.3d 441, 443 (Pa. Super. 2012) (citation omitted). Moreover, the primary
concern in any custody case is the best interests of the child.
Beginning on January 24, 2011, new legislation prescribed a number
of factors that a trial court must consider discretely in entering or modifying
a custody order. M.E.V. v. F.P.W., 100 A.3d 670, 671 (Pa. Super. 2014).
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Those factors are enumerated in 23 Pa.C.S. § 5328(a). “Notably, this Court
has held that it is not sufficient that the trial court merely state its reasoning
on the record in open court or conclusorily assert that it has considered the
enumerated factors in reaching its disposition.” Id. at 672. Rather,
[t]he Act requires a court to consider all of the § 5328(a) best
interest factors when "ordering any form of custody.” 23 Pa.C.S.
§ 5328(a) . . . [Subs]ections 5323(a) and (d) reinforce this
mandate by requiring a court to delineate the reasons for its
decision when making an award of custody either on the record
or in a written opinion. Mere recitation of the statute and
consideration of the § 5328(a) factors en masse is insufficient.
C.B. v. J.B., 2013 Pa. Super. 92, 65 A.3d 946, 950 (Pa. Super.
2013). A trial court's failure to place its reasoning regarding the
§ 5328(a) factors on the record or in a written opinion is an error
of law. J.R.M. v. J.E.A., 2011 Pa. Super. 263, 33 A.3d 647, 652
(Pa. Super. 2011). Accordingly, in C.B., when the trial court
merely stated that it had considered the § 5328(a) factors, we
held that the trial court's on-the-record explanation was
insufficient under the statute. 65 A.3d at 950-51. Similarly, in
M.P. v. M.P., [2012 Pa. Super. 215, 54 A.3d 950, 955-56 (Pa.
Super. 2012),] we found error where the trial court listed the §
5328(a) factors but failed to apply them[.]
Id., citing S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014).
On appeal, Mother’s claims boil down to one basic contention that the
court abused its discretion in coming to its custody determination.
Specifically, Mother contends that the court’s conclusions were unreasonable
and unsupported by the record and that the court failed to consider several
statutory factors under section 23 Pa.C.S. § 5328(a). Mother asserts that
had the court properly considered the evidence of record, it would have
concluded that the best interests of D.K.T. would be served by awarding
Mother primary physical custody.
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We recognize that the trial court’s analysis of subsections 5328(a)(5)
(availability of extended family), (7) (preference of children), and (9) (which
parent more likely to attend to physical, emotional, developmental,
educational and special needs of child) as it applies to D.K.T. is scant or
lacking in depth. Specifically, when analyzing section (a)(5) the court does
not mention Mother’s large extended family, all of whom live close by to her
and some of whom acted as D.K.T.’s caregivers when D.K.T. was declared
dependent. In addition, we recognize that the trial court fails to mention
D.K.T. at all, instead only discussing her brother, in its section 5328 analysis
of factor (a)(9), a critical component regarding the well-being of a child.
Finally, with regard to factor (a)(7), the court seems to rely upon “non-
verbal cues indicat[ing] that [D.K.T.] is thriving within Father’s household,”
to determine D.K.T.’s “well-reasoned” preference. However, not only is this
determination not explained or supported by specific evidence in the record,
it also fails to acknowledge that GAL Hawn noted in his report, only days
before the instant custody order was entered, that “D.K.T. lacked sufficient
maturity to express a well-reasoned preference and that D.K.T.’s preference
has in fact changed from Father to Mother.” GAL Report, 6/1/16, at 11-12,
16.
However, after reviewing the entire record including all GAL reports,
pleadings, petitions, orders, custody trial notes and professional opinions
regarding the parties’ mental and psychological states, we cannot conclude
that the trial court’s conclusions are unreasonable. Cf. M.E.V. v. F.P.W.,
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100 A.3d at 681 (trial court may not merely rely upon conclusory assertions
regarding consideration of section 5328(a) factors in entering an custody
order); C.A.J. v. D.S.M., 136 A.3d 504 (Pa. Super. 2016) (where trial court
only considered half of statutorily mandated custody factors in fashioning its
order, order vacated and case remanded for preparation of opinion and
order specifically addressing all section 5328(a) factors). As an appellate
court we are mindful that our role does not include making independent
factual determinations. In re C.R.F., 45 A.3d 441, 443 (Pa. Super. 2012).
We are also cognizant of the fact that while the result of custody
proceedings no doubt has a “lasting impact on the lives of the parties
concerned,” Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006),
upon petition, a trial court can modify a custody order to serve the best
interest of the child.
In C.W. v. K.A.W., 774 A.2d 745 (Pa. Super. 2001), our Court
recognized the role of a guardian ad litem in custody matters, noting
A guardian ad litem is appointed by the court to represent a
minor child in particular litigation. The function of the guardian
is to represent and protect unrepresented minors and their
interests. [citation omitted] A guardian ad litem is not a judicial
or quasi-judicial officer.
* * *
In a non-jury trial such as this, the role of the judge is to
interpret the law, determine the facts and apply the facts to the
law for an eventual decision of the controversy. The trial court
may not delegate its judicial powers [to the guardian ad litem].
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Id. at 748-49. Here, we are confident that although the two GALs provided
opposing recommendations with regard to the award of primary physical
custody, the court made an independent determination regarding what was
in D.K.T.’s best interests after observing the proceedings in the matter,
assessing the credibility of the many witnesses, and weighing the requisite
factors under section 5328. C.R.F., supra; 23 Pa.C.S. 5328 (“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[.]”); M.J.M. v. M.L.G., 3 A.3d
331, 336 (Pa. Super. 2013 (“there is no required amount of detail for the
trial court’s explanation; all that is required is that the enumerated factors
are considered and that the custody decision is based on those
considerations.”). Under such circumstances we are obligated to affirm the
court as its order is neither manifestly unreasonable nor a gross abuse of
discretion.
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Order affirmed.
Judge Dubow joins this Memorandum.
Judge Stabile notes his dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2017
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