K.D. v. E.D. ( 2018 )

J-A16004-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
K.D., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
E.D.,
Appellant No. 485 EDA 2018
Appeal from the Order Entered January 10, 2018
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 336-2015 DR
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 23, 2018
E.D. (Father) appeals from the trial court’s order entered on January 10,
2018, that granted K.D.’s (Mother) exceptions to a master’s report and
recommendation, resulting in the denial of Father’s petition requesting
supervised visitation with the two youngest of Mother’s and Father’s four
children. Following our review, we affirm.
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
empowered to determine whether the trial court’s
incontrovertible factual findings support its factual
conclusions, but it may not interfere with those
J-A16004-18
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,
[O]n 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).
Father raises the following two issues for our review:
I. Did the [h]onorable [t]rial [c]ourt err as a matter of law by
substituting its own credibility determinations for those of the
Master?
II. Did the [h]onorable [t]rial [c]ourt misapply the facts and err
as a matter of law in denying [F]ather[’]s request for periods
of therapeutic supervised visitation with two of his four children
and in finding that [F]ather poses a grave threat when the facts
establish that the children did not suffer sexual physical abuse
or emotional abuse at the hands of [F]ather?
Father’s brief at 3.
-2-
J-A16004-18
Here, in its opinion, the trial court set forth the factual and procedural
history of this case and gave an extensive discussion of all the testimony
provided by the various witnesses, especially the testimony of the
professionals, at the hearings held before the master. Furthermore, citing
Moran v. Moran, 839 A.2d 1091, 1093 (Pa. Super. 2003), the trial court
recognized that “[t]he Report and Recommendation from a master is only
advisory, but it must ‘be given the fullest consideration, particularly on the
question of credibility of witnesses, because the master ha[d] the opportunity
to observe and assess the behavior and demeanor the parties.’” Additionally,
the court noted that Father’s arguments appear to request 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, the briefs of the parties, the
applicable law, and the thorough, well-reasoned opinion authored by the
Honorable Raymond L. Hamill of the Court of Common Pleas of Wayne County,
dated January 11, 2018. We conclude that Judge Hamill’s extensive opinion
-3-
J-A16004-18
correctly disposes of the issues presented by Father in this appeal.
Accordingly, we adopt the court’s opinion as our own and affirm the custody
order on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/18
-4-
Circulated 08/07/2018 02:20 PM
..... IN THE COURT OF COMMON 'F'LEA3 CF 'i'HE 2im JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
-----'
COUNTY OF WAYNE
1(:v.
Plaintiff
vs.
'
Defendant NO. 336-DR-2015
OPlNION and ORDER
Presently before this Court are Plaintiff's and Defendant's Exceptions to the Report and
Recommendation of the Custody Master dated June 9, 2017. In response to the Master's Report,
J<.D.
Plaintiff,•••••• [hereinafter "Mother"] filed forty (40) specific Exceptions objecting to
the findings made by the Master, errors that the Master made in his findings, and to the
e.i:
Recommendations made by the Master. Defendant, ••••••- [hereinafter "Father"]
lists two (2) Exceptions objecting to errors made by the Master in his "Discussion" and
"Findings of Fact." As this Court has a long history with this custody matter, and, due to the
complexity of legal issues involved and the emotional repercussions any decision by the Court
'Nill have, the purpose of the following opinion is to make clear this Court's reasoning in
CER:nr)f.D FROM
reaching its decision. THE RECORD
BACKGROUND JAN 11 2018
EDWARD G·S�ND°EROO.GK
a. Family Histor)'. j PROTHONOTAAY & CLERK I
The parties, Mother and Father, arc the parents of four (4) minor children, J.D. age 15,
J.D. age 11, S.D. age 8, and S.D. age 4. The parties were married on May 28, 2000 and separated
in March 2015. It was not until after the parents separated that the children disclosed physical
abuse at the hands of their father and that the two older children disclosed sexual abuse. Report
Page 1 of 15 a
of the Guardian Ad Litem, at I.' At this time, Father is seeking to establish 'supervised visitation
with his children. Master's Report and Recommendation, at 1 [hereinafter "Master's Report"].
Over the course of several days of testimony it was learned that the parties' separation
occurred essentially after Father confessed to Mother that he viewed child pornography websites
in the past. Master's Report, at 5. Testimony was also heard on the complex health issues of J.D.
age I 5, whose problems started before Mother and Father separated. Id. The condition started in
April 20 I 4 with severe pain in the belly and groin area, but after being seen by many specialists
there is still no clear diagnosis. Rep011 of the Guardian Ad Litem, at 2.
What Father, as a physician, diagnosed as perhaps a sinus infection turned into intestinal
symptoms, which only got worse and later necessitated emergency room trips, tests of many
kinds, and a gall bladder removal. Id. In July 2014, J.D. age 15 was admitted to the Children's
Hospital of Philadelphia for further tests, and at one point he spent six (6) days hospitalized, and
he had to be placed on a feeding tube. Id. While the cause of his symptoms was not conclusively
diagnosed, the Custody Master found that "[tjhere was a psychological element contributing to
those physical issues related to the relationship between [J.D. age 15] and his father." Id., at 19.
Considering himself a religious man, Father thought about his past sins and thought
disclosing his illicit activity to Mother would secure God's relief for his ill son. Id. It was in 2014
when J.D. age I 5 began losing weight that Father came to Mother and confessed that he viewed
homosexual pornography, and there was also an admission that Father himself was molested as a
teenager in France by his cousins. Id. On or about March 30, 2015, there were further
admissions by Father to having viewed pornography while in medical school in Grenada, in
Staten Island when they lived there, and then in Williamsport. Id., at 15. Following the March
30, 2015 incident Mother then left the marital home with the children to stay with her parents. Id.
Page 2 of 15 a
· The following evening, Father signed a document giving Mother custody of the children. Id:, 14-
15.
It was not until after March of 2015 when Mother and the children were living away from
the marital home that J.D. age 15 disclosed to Mother the physical abuse he experienced from
Father - "being hit with a paddle and the emotional abuse as the father cursed in French." Id., at
15. As to the allegations of sexual abuse, J.D. age 15 testified to his father touching him at
nighttime while he was in his bunk in his pajamas and at other times. Id., at 17. J.D. age 15 stated
that he fears his father and hates him. Id. Additionally, he objected to his younger siblings being
with Father and that he would still be afraid even if he was in a supervised visitation setting with
. . . .
Father. Id.
Testimony from J.D. age 11 was similar in that he told of being hit by an angry Father
with a wooden spoon even when he did nothing wrong. Id. He similarly testified that he was
touched at night in his genital area by Father, and that Father's physical abuse would occur on
Wednesdays when Father watched the children while Mother was shopping. Id. J.D. age 11
likewise resisted even supervised visitation. Id. The testimony ofS.D. age 8 was similar. She
does not want to see Father, and she testified to Father hitting her once but seeing Father hit J.D.
age 11 and S.D. age 4., who at the time of the abuse was just a baby. Id.
The remaining family history hinged on by the Master concerns the parents' pervasive
religious beliefs. Testimony was heard on Father's involvement with No Greater Joy Ministry
[hereinafter "the Pearl Ministry"] in Pleasantville, Tennessee, a church led by Michael Pearl,
with whom the parties first became involved in 2004. Id., at 15. In 2010, the parties visited the
Pearl Ministry when J.D. age 15 was 8 and J.D. age l 1 was 4 for a sermon regarding sex
education for children. Id., at 6. Father stayed in contact with Pearl Ministries after 2010, and he
was so involved that he would provide medical services there, provide financial support, and
Page 3 of 15 a
distribute their literature in his own· patient exam rooms, · Id. By the conclusion of testimony, · ·
Father alleged that he no longer believes it is a fundamental Christian Ministry, but rather that it
is a cult. Id., at 8.
b, Reports of the Profcssfonals Involved
The majority of professionals involved testified that the children need more individual
counseling based on their needs and that clinically supervised visitation with any of the children
would not be appropriate at this time. Father's chief witness, Dr. Robert Gordon, an eminently
qualified psychologist with years of experience dealing with sex offenders and in custody cases,
was the only professional to specificall� advise supervised visitation. Master's Report, at 19_.
While he never personally met with the children or Mother, Dr. Gordon believed after analyzing
tests administered by other professionals involved that "[the children) should be placed in
'supervised therapeutic sessions ... with the alienated parent' as such has been found to be
effective for the well-being of the children. Master's Report, at 2.
In contrast to Dr. Gordon, the professionals who have been around the children the
longest agreed that supervised visitation is not appropriate at this time. Additionally, they
testified about the great lengths they had to go through to first eam the trust of the children
before they could develop a relationship and make progress in treatment.
Judith Munoz, MA, recommended that the two older children undergo counseling. Id., at
21. Ms. Munoz became involved with the matter in October of2015 at the request of Wayne
County Children and Youth Services to investigate alleged emotional abuse by Father against the
two older children. Id_., at 2. In her recommendations, she stated "[J .D. age 15] and (J .D. age 11]
are experiencing much anxiety, tension and fear, although it does not appear to be the result of
identifiable acts which intentionally caused mental injury." Id., at 4. Ms. Munoz concluded that
the test results did not support a finding that Father was an emotional abuser or that Mother
Page 4 of 15 a
presented as one who was slrivingto alienate her children. Id. TI1e evidence reflects that Ms.
Munoz is open to reunification counseling, however, Father would need to be treated as well so
that the children are not faced with a situation where they will feel that what they have said and
been through does not matter. N.T. Vol. I, Session II, at 34.
Heather Evans LCSW opined that J.D. age 15 and J.D. age 11 suffer from PTSD and
have fear and/or anxiety towards Father. Id, at 21. She started working with the children in
December of 2015. Id�, at 12. Based off her own interviews and reports conducted by two
gastroenterologists at Children's Hospital of Philadelphia and a CRNP with Lighthouse
Psychiatry, she diagnosed
. the two older children
. with PTSD. Id. Both .children continue to have
anger toward Father as a result of abuse attributed to Father. Id. Ms. Evans considered even
supervised visitation with Father to be a re-victimization, and given the bonded nature of the
family, the two older children would be disturbed if their younger siblings were subjected to
visitation. Id.
Mr. Chris Charleton, LCSW who holds a MSW, has been working with Mother and the
children since May 2016. The Children's Hospital of Philadelphia screened Mr. Charleton as
being competent to deal with and provide intensive outpatient therapy to J.D. age 15, who was
displaying possible symptoms of suicide ideology. Id., at 10. Mr. Charleton also diagnosed the
two older children with a version of PTSD. Id. He testified that there was no reason to challenge
the credibility of the children's statements that they were beaten by Father. Id., at I I. Mr.
Charleton recommended that the children must first go through much therapy to reduce their
feelings of having been traumatized prior to interacting with Father. Id. He estimated that it
would take between 1.5 and 2 years before supervised visitation might be helpful. Id.
Finally, the Guardian Ad Lltem, Attorney Leatrice Anderson, also concluded that
supervised visitation would not be in the best interest of the children at this time. Report of the
Page5of15 a
( ruraId., at 1. During her interviews she witnessed a unity and solidarity
between the siblings. Id., at 8. Each child individually denied wanting to see Father again, and
each .had a protective capacity toward one another that could be harmed by any siblings'
interaction with Father. LId.
DISCUSSION
The Report and Recommendation from a master is only advisory, but it must "be given
the fullest consideration, particularly on the question of credibility of witnesses, because the
master has the opportunity to observe and assess the behavior and demeanor of the parties."
MormLv, Moran, 839 A.2d 1091, 1093 (Pa.Super. 2003) (citing See .SJ.1.11eone v. Simeone. 551
A..2d 219, 225 (Pa.Super. I 988)). In custody and visitation matters, the paramo�nt concern of
this Court is the best interests of the children. McMillen v. McMilJcn, 602 A.2d 845 (Pa. 1992).
"The best-interests standard, decided on a case-by-case basis, considers all factors that
legitimately have an effect upon the child's physical, intellectual, moral, and spiritual
wellbeing." Saintz v. Rinker, 2006 Pa. Super. 129, 902 A.2d 509, 512 (Pa.Super. 2006).
Relevant to custody cases are the factors set forth in Section 5328(a) of the Child
Custody Act [hereinafter "Act"], which provides:
§ 5J28. 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:
(I) 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.
Page 7 of 15 a
(2. I) The information set forth in section .5329. I (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) 111e 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
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.
Page 8 of 15 a
:,, }·� ..
23 Pa.C.S.A. § 5328(a).
TI1e Superior Court has stated that "[a]ll of the factors listed in section 5328(a) are
required to be considered by the trial court when entering a custody order." J.R.M. y. J.E.A.,
2011 Pa. Super. 263, 33 A.3d 647, 652 (Pa.Super, 2011). Here, the weight of the evidence does
not support Father's position if we were deciding legal custody, primary physical custody, partial
physical custody, or any type of custody but what Father requests. However, Father solely seeks
to initiate clinically supervised visitations invoking Title 23 Pa.C.S.A. Section 5323(e) with the
imposition of appropriate safeguards, particularly the supervision of Dr. Chet Muklewicz.
Pmsuant to Section 5323(e); after taking into consideration the factors under· section
5328(a)(2), "if the court finds that there is an ongoing risk of harm to the child or an abused party
and awards any form of custody to a party who committed abuse or who has a household
member who committed the abuse, the court shall include in the custody order safety conditions
designed to protect the child or the abused party." Therefore, because Father seeks a limited form
of custody pursuant to Title 23 Pa.C.S.A. Section 5323(e), the standard for evaluating whether
authorizing clinically supervised visitation is appropriate is guided by relevant case law.
While it is well-settled in custody disputes that the fundamental issue is the child's best
interest, in a dispute such as this where supervised visitation is at issue the stricter, "grave threat
to the child standard" applies. See fn Re Damon B., 460 A.2d 1196 (Pa. Super. 1983). "A parent
will be denied visitation only in those instances where the record shows that the parent is
severely mentally or morally deficient as to constitute a grave threat to the child's welfare."
Niadna v. Niadna, 343 Pa. Super. 298, 302, 494 A.2d 856, 858 (Pa.Super 1985). This standard
can be met where the evidence clearly shows that even supervised visitation would severely
Page 9 of 15 a
endanger the child. See in_Re'Rhin(:, q.56 A:2d 608 (Pa.Super. 1983); In the Interest of C.B., 861
A.2d 287 (Pa.Super. 2004).
By way of example in applying this standard, in the worst sense, case precedent has held
that a father may be denied visitation of his biological son when the father sexually abused his
stepdaughter in front of his son, which constituted an act of such moral deficiency that it posed a
grave threat to the son. In the Jnterest of C.B., 861 A.2d 287, 294. There, the evidence of sexual
abuse perpetrated by father against stepdaughter C.B., was overwhelming - both interviews with
case workers and psychologists as well as physical examinations revealed findings consistent
with sexual abuse. Id. Although father never
. sexually abused his biological
. son, the court held
that, «Father has displayed such severe moral deficiency that he constitutes a grave threat to
[biological son]. Regardless of whether his conduct resulted in criminal convictions, numerous
CYS witnesses attested to the horrific sexual abuse perpetrated by Father on a ten-year-old girl in
his care and custody." Id., at 294. Therefore, the Superior Court held that denying father
visitation with his biological son was proper under the "grave threat to the child standard."
In another application of the "grave threat to the child standard," in Rosenberg, Dr.
Rosenberg and Mrs. Rosenberg were the parents of two daughters, R.R. age ten and LR. age
seven. Rosenberg v. Rosenberg, 350 Pa. Super. 268, 270 (Pa.Super. 1985). Mother was awarded
temporary custody of the daughters and Dr. Rosenberg visitation, which mother objected to. Id.
Mrs. Rosenberg supported her objections to Dr. Rosenberg's visitation based on accusations that
he had sexually abused I.R. age seven, which accusations the court found the evidence did not
support. Id., at 271. The evidence reflected that LR. age seven testified that she did not care for
her father "because Daddy does things to me ... He touches me in my private places. So I don't
think anybody would like that," which statement correlated with claims made to her mother that
Page 10 of 15a
her father had on cic·casibri fondled Iler in her vaginal and rectalareas. ld.','af 272-: Dr.Rosenberg
denied such accusations Id.
R.R. age 10 testified that her father had never fondled her in the same way as described
by her sister, but R.R. did. testify that "her father was overly affectionate and sometimes hugged
and kissed her too much." Id. The professionals who examined the daughters, a psychologist and
two psychiatrists, "differed in their opinions as to whether [I.R. age sevenj's accusations against
father were credible or the result of coaching by her mother." Id., As there was no other objective
evidence, with the exception of her accusation that I.R. age seven had been fondled by father,
"the hearing judge, who saw and heard the witnesses, decided this conflict in favor of [father]."
Id. Therefore, because it was within the hearing judge's discretion to make this determination
based on the facts and in applying the "grave threat to the child standard," the Superior Court
found neither error of law nor abuse of discretion in making this determination. Id.
In a final application of the "grave threat to the child standard," in Niadna, the child's
birth mother and non-custodial parent, sought to exercise her visitation rights. 343 Pa. Super, at
300-01. Following the divorce, custody of the child was awarded to father, with weekend and
holiday visitations awarded to mother, who shortly after the divorce became a resident of
California. Id., at 301. Mother testified that she attempted to maintain contact with the child and
to visit once but was refused by father. Id. Nine years after the court order granting father
custody was entered, mother filed the petition at issue seeking a modification of the prior
visitation schedule so that she might visit her daughter. Id. Father challenged on the basis that the
court should not allow personal visits to California. Id., at 303.
In applying the "grave threat to the child standard," the court held that daughter's best
interests and welfare would not be harmed by ordering visitation in California. Id. The record
reflected that mother led a settled and secure life in California with her sons and husband. Id., at
Page 11 of 15 a
' 302: Testimony from 'family, friends, and professionals _was· heard as to mother's qualified
parental fitness; notwithstanding the long period of time in daughter's life that mother was not
involved. Id. The hearing judge interviewed daughter in chambers and learned that, while she
was not averse to developing a relationship with mother, she was apprehensive about going to
California. Id. Nevertheless, the hearing judge found that there was "no evidence that mother
suffered from mental or moral deficiencies that would prevent the full exercise of her rights as a
non-custodial parent." Id., at 303. Further, there were no apparent reasons for supposing that a
visit to California would prove harmful to a young and bright child. Id. Therefore, based on this
. record the Superior Court found that there was no abuse of discretion on the part of the hearing
judge in ordering visitation in California. Id., 303-04.
-5.Uurning to the case .at , bar, the Cust�;At'tMaster·•here"ffifotmcl•1that�O.re1afa�h'&Mhas
def.icienefo·s�..'. lhlut•dh���at� -not ·SC:> .severe .. as ,-.to.ad.Id. In .. contrast here, the majority of
professionals found the children's accusations credible. As additional objective evidence that
supervised visitation would constitute a grave threat to the children is J.D. age l 51s exceptional
health issues, which as the Master stated, there exists 11a psychological element contributing to
those physical health issues related to the relationship between J.D. age 15 and his father."
Master's Report at 19.
In concluding, this Court is cognizant of the emotional repercussions this decision will
have on the family. However, based on the record evidence, this Court is constrained to find that
clinically supervised visitation with Father, who has exhibited behavior of such severe mental or
moral deficiency, would constitute a grave threat to the children's welfare. Therefore, this Court
holds that the Master erred as a matter of law and abused his discretion in recommending that the
children have supervised visitation with Defendant.
Page 14 of 15 a
OiIDER
AND NOW, to wit, this __iL. day of January, 2018, upon consideration of Plaintiffs
Exceptions to the Master's Report and Defendant's Exceptions to the Master's Report, it is
{<.[).
hereby the ORDER of this Court that Plaintiff, •••••'.s, Exceptions to the Master's
Report are GRANTED.
BY THE COURT
.:�,vr(
���rii,
SENIOR JUDGE
2211d Judicial District
cc: Theodore Hoppe Jr., Esq.
Arthur Silverblatt, Esq.
Leatrice Anderson, Esq.
Brendan Ellis, Esq.
Warren Schloesser, Esq. (Master)
SM
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