V.P v. v. S.V. ( 2017 )

J-A24008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
V.P.V. IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
S.V.
Appellee No. 629 WDA 2017
Appeal from the Order April 7, 2017
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 15-01764-008
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 03, 2017
V.P.V. (“Father”) appeals from the April 7, 2017 order entered in the
Allegheny County Court of Common Pleas following a three-day custody trial.
We affirm.
The trial court set forth the factual and procedural history of this appeal
in its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, which we
incorporate herein. Opinion, 5/26/17, at 2-9 (“1925(a) Op.”).
On April 7, 2017, the trial court issued a custody order, which included
the following findings of fact:
1. [V.V., Jr., N.V. and D.V. (“Children”)] are estranged from
and alienated against [S.V. (“Mother”)], despite having, in
the past, told this Court that they would like their Parents
to reunite.
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2. The Children’s positions against their Mother have
strengthened over the last year and so has their defiance to
authorities and adults.
3. Father has shared very adult information with the
Children, including the nature of the criminal charges filed
against him by Mother and the meaning of a “no contest”
plea. In other matters, he has caused the children to believe
that Mother is “stealing” their food stamps.
4. Father has conscripted his parents into his [w]ar against
Mother, representing to them that she is a bad and abusive
parent and wife, while, unbeknownst to them, he contacted
Mother on numerous occasion[s], expressing his dream of
being back together, as recently as the two months
preceding the trial. Paternal Grandparents did not know of
Father’s ideas of reunification or of the covert steps he took
to accomplish said reunification.
5. Paternal Grandfather and most likely Paternal
Grandmother (as evidenced by her verbal attack on Mother
in front of the children at Dr. [Shannon] Edwards’ Office)
have comported themselves in an antagonistic way toward
Mother, likely on the premise that Mother is a bad Mother.
6. Mother has mishandled some of the issues that have
arisen with the Children. The court finds that the most
egregious incident was at school and was witnessed by the
Monroeville police. No charges were filed and after hearing
evidence, the Court believes there was no abuse.
7. Dr. [Neil] Rosenblum and Dr. Shannon Edwards believe
that Father and Father alone holds the key to reunification
between Mother and her Children, as does this Court.
8. Father failed to pay for Dr. Edwards’s service, resulting in
termination of important services, to the detriment of his
children.
9. Father filed a series of [protection from abuse (“PFA”)
petitions] against Mother, purportedly on behalf of the
children, all of which were filed at a time and in a manner
clearly designed to thwart Mother’s custody time as opposed
to protect the children as purported. Of particular note,
after Father agreed with Dr. Edwards to allow the children
to visit with Mother on December 23, 2016, supervised by
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the doctor if necessary, Father filed an [emergency] PFA, in
City Court at a time when the Family Courts were closed for
the holidays. The [emergency] PFA ordered no contact by
mother and only permitted Mother to contact the children
by phone. This prevented Mother’s holiday visit from
occurring. Nothing new had occurred which required the
filing of an emergency PFA - the incident was the same one
with the exact same evidence on which Father had based a
December 9, 2016 temporary PFA filing. Father’s testimony
that this was an innocent action on his part and that he
somehow did not realize that Mother would be prevented
from being with the children at all on the Christmas holiday
as a result of his actions was utterly disingenuous and this
Court found said testimony to be completely incredible.
10. From the inception of this case Father has never made
a genuine effort to help his children to realize the
importance of a relationship with their Mother. If anything,
Father has thwarted the healing of that relationship.
11. During the course of the trial in this matter, I found
Father’s testimony lacking in credibility and quite often
belied by his out of court actions. The evidence
demonstrated that Father undermined Mother’s attempts to
maintain a relationship with the children and pursued a
course of conduct designed to alienate the children from
her. Father’s explanations for his actions were often
contradictory and the Court found his testimony to be a
transparent effort to paint himself in a good light.
12. The evidence and testimony presented convinced me
that Father has engaged in a course of conduct designed to
alienate the children from Mother in a misguided attempt to
convince Mother to return to the marriage, intimating
reunification as a pathway to Mother having access to her
children. Accordingly, I have designed the following Order
to allow Mother time to heal the relationship with her
children and to incentivize Father to comply with the Order.
Trial Ct. Order, 4/7/17, at 2-5 (“April 7 Order”).
The court then ordered, among other things, the following physical
custody terms:
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At the outset, I note that while it is a somewhat drastic
remedy, it is my determination that if Father is not able to
enforce the terms of the following shared Order, it is then in
the best interests of these Children to be removed from
Father’s custody and control and placed with Mother if
possible, and, if placing them with Mother is impossible due
to their continuing refusal and or safety issues due to the
Children’s belligerence and/or defiance, they should be
removed from Father’s physical custody and be placed into
foster care until it becomes possible to place them with
Mother.
1. Beginning the first weekend after the date of this Order,
Mother shall have a four hour supervised weekend visit at a
community site of her choosing with all of the children.
Father shall have a neutral person transport the children to
and from the visit. A probation officer supervisor shall be
[requested] by separate order, and fee shall be paid by
Father in advance of the meeting.
2. Beginning May 1, 2017, Mother is to have unsupervised
custody after school until 8:30 PM once a week each Child
individually and in addition to the weekend community visit.
It is recommended that Mother have a friend or family
member present.
3. After one month of the above and beginning the first
weekend she does not work, Mother is to exercise
unsupervised partial custody with all three children
Saturday from 9:00 a.m. to 8:00 p.m. on the alternate
weekends that she does not work.
4. After two Saturday periods of custody with Mother, the
parties are to resume their previous shared custody
schedule on a 5-2-2-5 rotation.
5. Exchanges are to take place at the Police station closest
to the marital residence. Parties are to remember that time
is of the essence and should be consistent as to exchange
locations and time. Being consistently late is not
acceptable. The parties shall not use the Children to send
verbal messages to the other parent about the custody
situation or changes in the custody schedule.
b. If Father does not comply with the above stepped up plan
for custody and/or the 5-2-2-5 rotation, by directing and
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ensuring the children to go with Mother so she can exercise
her custody time as set forth above, then sole physical and
legal custody shall shift to Mother, and Father is to have no
contact with Mother or the children for a period of 90 days.
Upon being informed that custody exchanges are not
occurring pursuant to this Order, this Court shall issue an
Order implementing this paragraph to be enforced by law
enforcement if necessary. The Court would support the
intervention of the Office of Children, Youth, and Families to
ensure the safety of the parties.
Id. at 7-9.1 The trial court further ordered both individual and family therapy
for the parties and Children. Id. at 13-15. The trial court also discussed all
of the custody factors set forth in 23 Pa.C.S. § 5328 and determined that the
custody order entered was in the best interests of Children. Id. at 15-20.
On April 25, 2017, Father filed a timely notice of appeal. On appeal,
Father raises the following issues:
1. Whether the Trial Court erred and abused its discretion
by showing an extreme and unfair prejudice against
[Father], when the Court's findings are not supported by the
testimony and evidence of record, is contrary to the best
interest of the children and by improperly advocating on
behalf of the pro-se litigant, [Mother], throughout the entire
three day trial?
2. Whether the Trial Court’s Order of March 28, 2017 that
ultimately determined custody of the parties’ three minor
children after a three day trial was contrary to the best
interest of the parties’ three minor children and is not
supported by the record?
Father’s Br. at 5.
____________________________________________
1In its Rule 1925(a) opinion, the trial court notes Mother filed a motion
alleging Father did not ensure Children’s compliance with the order and, on
May 22, 2017, the trial court entered an order to modify custody of Children
pursuant to the April 7, 2017 order.
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I. Advocacy/Bias by Trial Court
Father first maintains that the trial court showed “an extreme and unfair
prejudice against” Father. Father’s Br. at 12. He claims that the trial court
exhibited this bias by: advocating for Mother; disregarding the testimony of
Father, his family and friends, and Children; disregarding the abuse and
mental struggles of Mother; abusing its discretion when it failed to find
Mother’s testimony not credible; disregarding the testimony of Dr.
Rosenblum; and impermissibly permitting Dr. Edwards to provide expert
testimony. Father requests that this Court (1) vacate the April 7 Order, (2)
order that the trial judge recuse herself, and (3) grant a new trial to determine
a custody arrangement that is in Children’s best interests. Id. at 32.
During the custody hearing, Father objected to the court’s questioning
of witnesses and asserted that he had a “case with the trial court” and that
the trial court had made prejudgments about the case. See, e.g., N.T.,
3/1/17, at 57, 233; N.T., 3/2/17, at 254. Father, however, did not request
that the trial court recuse itself. Accordingly, Father has waived any claim
with respect to recusal. See Lomas v. Kravitz, ___ A.3d ____, 2017 WL
4287338, at *8 (Pa. Sept. 28, 2017) (“party must seek recusal of a jurist at
the earliest possible moment, i.e., when the party knows of the facts that form
the basis for a motion to recuse. If the party fails to present a motion to
recuse at that time, then the party’s recusal issue is time-barred and
waived.”); Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (“If a
party questions the impartiality of a judge, the proper recourse is a motion for
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recusal, requesting that the judge make an independent, self-analysis of the
ability to be impartial.”); Reilly by Reilly v. Southeastern Pa. Transp.
Auth., 489 A.2d 1291, 1299 (Pa. 1985) (“When circumstances arise during
the course of a trial raising questions of a trial judge’s bias or impartiality, it
is still the duty of the party, who asserts that a judge should be disqualified,
to allege by petition the bias, prejudice or unfairness necessitating recusal.”).
Further, even had Father not waived this claim, we would conclude that
it, and any other claim based on the trial court’s alleged bias, lacked merit.
We apply the following standard when reviewing recusal motions:
[Our Supreme] Court presumes judges of this
Commonwealth are “honorable, fair and competent,” and,
when confronted with a recusal demand, have the ability to
determine whether they can rule impartially and without
prejudice. Commonwealth v. White, 557 Pa. 408, 734
A.2d 374, 384 (1999). The party who asserts a trial judge
must be disqualified bears the burden of producing evidence
establishing bias, prejudice, or unfairness necessitating
recusal, and the “decision by a judge against whom a plea
of prejudice is made will not be disturbed except for an
abuse of discretion.” [Commonwealth v.] Darush, [501
Pa. 15, 459 A.2d 727,] 731 [(1983)].
Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa.Super. 2014) (quoting
Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004)) (some alterations
in original).
Courts have noted:
[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair
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judgment impossible. Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge. They may do so
if they reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high degree
of favoritism or antagonism as to make fair judgment
impossible . . . . Not establishing bias or partiality, however,
are expressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what
imperfect men and women, even after having been
confirmed as [ ] judges, sometimes display. A judge’s
ordinary efforts at courtroom administration—even a stern
and short-tempered judge’s ordinary efforts at courtroom
administration—remain immune.
Id. at 61 (quoting Liteky v. United States, 510 U.S. 540, 555-56 (1994))
(emphasis omitted) (alterations in original).2
A. Advocacy
Father first argues that the trial court improperly advocated for Mother
through its questioning of witnesses.
“While a trial judge should normally leave questioning of witnesses to
counsel, justice may require that a trial judge ask questions when absurd,
ambiguous, or frivolous testimony is given or testimony is in need of further
elucidation.” Commonwealth v. Carson, 913 A.2d 220, 249 (Pa. 2006).
Further, we have explained:
[a] trial judge has the right if not the duty to interrogate
witnesses in order to clarify a disputed issue or vague
____________________________________________
As this Court noted in Kearney, our Supreme Court has “tentatively
2
accepted the extra-judicial source doctrine, noting that it is significant if the
information at the root of the recusal motion was obtained in a prior
proceeding of the case, and not from any pretrial bias or personal disdain.”
92 A.3d at 61 (quoting Druce, 848 A.2d at 110).
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evidence. Unless the complaining party can establish the
judge’s questioning constituted an abuse of discretion,
resulting in discernible prejudice, capricious disbelief, or
prejudgment, a new trial will not be granted.
Jordan v. Jackson, 876 A.2d 443, 453-54 (Pa.Super. 2005) (quoting
Mansour v. Linganna, 787 A.2d 443, 446 (Pa.Super. 2001)) (alteration in
original).
The trial court found that its questioning of witnesses did not constitute
improper advocacy. The trial court reasoned:
That I questioned witnesses does not equate to
advocacy. I questioned witnesses, particularly Dr.
Rosenblum, when Mother, Father’s counsel and Best
Interest counsel did not elicit testimony which was helpful
to me. Accordingly, I posed the questions necessary for me
to get the facts I needed. At times my questioning,
particularly of Father, was much like cross examination. It
was the only avenue by which I could obtain answers to the
questions I had myself which were not elicited by the
litigants.
Father’s burden here would be to demonstrate that my
questioning of witnesses during the trial constituted “an
abuse of discretion, resulting in discernible prejudice,
capricious disbelief, or prejudgment.” Jordan[, 876 A.2d at
454]. Father cannot meet this burden. Further, there was
no jury to be influenced by my questions. The weight to be
given to witnesses’ testimony was up to me as fact-finder.
In a custody trial, my role is not to “pick a winner.” It is,
instead, to find what custody arrangements will best serve
the interests of the Children.
1925(a) Op. at 13.
The trial court had an extensive history with this case. Not surprisingly,
at the time of trial, the trial court had clarifying questions for the witnesses.
Although the extent to which the trial court questioned witnesses in this case
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is not typical, we conclude that here, where the trial court’s task was to fashion
a custody order that would be in the best interests of Children, the questioning
did not result in “discernible prejudice, capricious disbelief, or prejudgment.”
Jordan, 876 A.2d at 454. We find no abuse of discretion.
B. Testimony of Father, Father’s Witnesses, and Children
Contrary to Father’s contention, the trial court did not disregard the
testimony of Father, Father’s witnesses, and Children. Rather, the trial court
found Father not credible and found Father that influenced the testimony of
Father’s witnesses and Children. April 7 Order at 3, 5. The trial court
explained:
Father first argues that I am prejudiced and biased
against him in a manner not supported by the evidence. I
do not agree. I have been involved with this family since
2015, leading up to this trial, and so have heard Father’s
contradictory explanations for his actions. I have watched
his Children adopt each and every one of his positions
regarding Mother, positions which they could only get from
Father. At trial, I found much of Father’s testimony to be
disingenuous, self-serving, and contradictory, and I
appropriately challenged it.
Although he claims that Mother is so dangerous she
planned to hire a paid assassin to kill him, he also claims he
is working diligently to help his Children develop a
meaningful relationship with her. This is simply not a
credible position. Nor is it credible when Father claims the
Children’s defiance is the result of genuine and justified fear
of Mother, while at the same time sending her emails asking
to be a family again.
Father’s explanation for the December 23rd [emergency]
PFA was especially troubling as it demonstrated not only
Father’s duplicity but a purposeful effort on his part to keep
Mother from the Children over the Christmas holiday, even
though a perfectly safe alternative plan had been agreed to
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have them meet in public with Dr. Edwards. Father’s
assertions that he “did not know” how the police knew
Mother would be at Grandparent’s house at noon on the 23rd
to serve her with the PFA was, plainly, ludicrous. Equally
incredible was Father’s claim that he did not know the
[emergency] PFA would prevent the lunch from occurring,
yet he could not answer when asked how it could have
occurred. Pressed, he finally admitted he knew it could not
go forward.
I rightfully became impatient with Father during the trial
as I did not believe he was being truthful or forthright to the
court. I found disingenuous his “surprise” that his son
feared Mother would kill him and that he would never forgive
her. I found it impossible to believe that these boys whom
Father claims will obey him in every single other
circumstance of their lives nonetheless defiantly “disobey”
him by not visiting with their Mother. I found his claim that
he is helpless to correct that situation simply not believable.
Any impatience with Father’s comportment in court is not
evidence of bias. I was attempting to get to the truth of the
matter and became impatient with Father’s attempt to
obfuscate that truth.
1925(a) Op. at 10-12 (internal citations to record omitted). The trial court’s
finding that Father was not credible does not establish the trial court was
biased. See Kearney, 92 A.3d at 61.
C. Mother’s Mental Health Issues and Issues with Children
Contrary to Father’s contention, the trial court did not ignore Mother’s
struggles. It noted that Mother could have, and should have, handled
situations differently. April 7 Order at 3; 1925(a) Op. at 5. The trial court
ordered that the parties contact a Department of Human Services liaison to
assist in finding family-based mental health services. The goals of this therapy
“would be reunification with mother and improving that relationship,
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supporting Mother in responding to the boys’ fears and concerns more
effectively and assisting Father to discourage the boys’ aggressive, non-
compliant behavior so that they can build healthy relations with their Mother.”
April 7 Order at 13 (emphasis added). Further, the trial court ordered Mother
to “follow through with individual mental health counseling for herself to
address issues of depression, trauma and stress.” Id. at 14.3
D. Dr. Rosenblum’s Testimony
Father also claims the trial court disregarded Dr. Rosenblum’s
testimony. We disagree.
Dr. Rosenblum prepared a report on February 28, 2016, one year before
the custody hearing. N.T., 3/1/17, at 20. He had no contact with Children,
Mother, or Father since preparing the report, other than to discuss fees. Id.
at 23. The only substantive information Dr. Rosenblum received since
preparation of the report was through discussions he had with Dr. Edwards
and with the best-interest attorney, Thomas H. May, Esquire. Id.
Dr. Rosenblum testified that Father was alienating Children from Mother.
Id. at 42. He recommended counseling for all parties. Id. at 27-35, 44. Dr.
Rosenblum testified that he was no longer sure that the 5-2-2-5 shared
custody arrangement was feasible, and agreed with Father’s counsel that the
end goal for custody should be left open. Id. at 48. Further, he stated that
any custody order would have to be gradual. He suggested “a supported
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3The order also contained therapy requirements for Father and
Children. April 7 Order at 14.
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weekend visit once on Saturday or Sunday for mother and . . . the three boys.”
N.T., 3/3/17, at 36. He also recommended that “each child visit with mother
separately during the school week for a period of several hours in mother’s
home. That’s one boy at a time.” Id. at 37.
Dr. Rosenblum further stated that “[F]ather is what we call the aligned
parent, and [M]other is the alienated parent. It’s only within the power of the
aligned parent to give the children psychological permission and to also
mandate to the boys their level of cooperation with these visits.” Id. at 42.
He further testified:
I’m stating multiple times that in my opinion [F]ather not
only has the ability to make changes in the boys’ perceptions
and relationship with [M]other, but in my opinion, he should
consider that this is in the boys’ best interest. They don’t
have to have the same respect for their mother as they do
their father. They don’t have to feel that, you know – these
are two different people and two different relationships. But
it’s not healthy for them to reject their mother to the degree
that is going on right now.
Id. at 61. When asked what steps should be taken if Father failed to take
steps to change Children’s perception of, and relationship with, Mother, Dr.
Rosenblum responded:
Based on the age of these children, I don’t recommend
[taking Children from Father and placing them with Mother]
because I think you would have the same warfare that you
had when I was doing this evaluation. I do believe the Court
might have to consider removing [C]hildren from [F]ather’s
custody and placing them either in foster care or with
relatives if the Court believes that there is no degree of
appropriate cooperation from [F]ather or from the aligned
parent.
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Id. at 61.4
The trial court considered Dr. Rosenblum’s testimony in implementing a
custody order that would be in Children’s best interest. The custody order
provided for a gradual custody schedule and included Dr. Rosenblum’s
suggested supervised weekend visits and individual weekday visits with
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Dr. Rosenblum acknowledged that placing Children in foster care could
4
be viewed by Children as punishment and stated that it could cause them to
close down further. N.T., 3/1/17, at 64. He clarified:
But again, there would not be the same – if, and I’m not
saying it is, but if what’s coming from the aligned parent is,
theoretically, hypothetically, your mother is no good, it’s not
healthy for you to visit with your mother, this is not a
constructive relationship, and if the children feel that by
identifying with [F]ather that they are sort of his minions or
they are showing their loyalty to their father by doing this,
that would not be constructive.
I’m not recommending that the Court easily make a decision
that we have to remove these children from their home.
That’s the last thing that I want. Similarly, I’m not
suggesting that it’s in the children’s best interest to visit
with their mother for a length of time or in a format that we
know that right now they feel concerned about. So we have
to do this gradually, and we have to do this within a
framework, within a system that builds the children’s
confidence that mother can be a loving and nurturing parent
who is supportive of their emotional needs and who can get
along with them, have fun with them, and feel good about
being involved in their lives. Because, yes, I am convinced
that she did that in the past.
Id. at 64-65.
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Mother. Further, the order provided that custody would transfer from Father
to Mother or to foster care only if Father continued to alienate Mother. 5
E. Dr. Edwards’ Testimony
Father argues that the trial court improperly considered Dr. Edwards as
an expert witness, even though he should have been permitted to testify only
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5 As the trial court recognized, that part of its custody order directing
that Children be transferred to foster care should Father fail to meet the terms
of the order represented a “drastic step.” We note that a trial court should
not take such extreme steps lightly. The focus in a custody proceeding is
always to determine a custody order that is in the child’s best interests. A
trial court must take care to ensure that efforts to reform the behavior of a
recalcitrant parent do not undermine the child’s best interest.
Here, despite significant efforts by the trial court and others over an
extended period, Father continued to engage in conduct that alienated
Children from Mother. The trial court further received testimony, including
from Father’s expert witness, that, if all other avenues had been tried and
Father failed to reform his conduct, Children’s best interest would be served
by a foster care placement. Therefore, as a last resort, the trial court included
a no-contact order and a change in custody. As the trial court explained:
I entered the Custody Order in this case after long
deliberation, being very aware of the drastic steps I was
setting forth if the terms of the Order were not met. The .
. . Order allows a gradual resumption of Mother’s custody
and provides counseling and time for healing. The Children
deserve to return to a good relationship with their Mother.
This is so important that I believe it to be an imperative,
thus the consequences for not following the Order are
necessary to find a way to achieve the goal, if Father cannot
or will not do what he is required to do. As such, my Order
serves the best interests of the Children in having the love
and care of both of their parents and should be affirmed.
1925(a) Op. at 20. Accordingly, in this rare case, we conclude that the trial
court did not abuse its discretion in finding that the order would be in
Children’s best interest.
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as a fact witness. The trial court, however, found that in reaching its decision,
it considered only Dr. Edwards’ “interactions with the parties and her
observations” not her expert opinion. 1925(a) Op. at 15. We discern no error.
Father references the following testimony from Dr. Edwards:
[Dr. Edwards]: . . . In cases such as this, complete
reprogramming has to happen. I’m not as suggestive as my
colleague, Doctor Rosenblum’s, whereas I would say I
would issue a no contact, 90 days. It’s time sensitive
in this particular –
[Father’s Counsel]: Objection, Your Honor. I understand
your ruling and she can continue with the objection on the
record.
[The Court]: So what is it that put you over the edge in
terms of saying that the children need not to be near him?
Because he says they are doing this because of what she
did. Why do you think that that’s not the case?
[Dr. Edwards]: We have had, when I say we, I say the
system, the court system has had several professionals be
hired, testify, or write reports to suggest otherwise. There
has been misuse of the system. With regard to PFAs, we do
have people that are victims, severe domestic violence who
abuse sexually and physically their children who do need
PFAs, and do need those resources very badly. And there
have been many PFAs filed in this case that have not been
substantiated by evidence. I find that to be very offensive
to the system and our judicial system.
I say what puts this over the edge is that. I say what puts
this over the edge is the fact that these children need both
of their parents. They need their mother and their father.
And there has been no evidence to suggest that physical or
sexual abuse has been founded, despite several [Children,
Youth and Families] cases being open and closed in the
matter. I also suggest that there have been licensed
professionals, such as myself and Doctor Rosenblum, who
have evaluated and/or seen them in therapeutic situations
who have suggested that there are other issues at hand.
However, it is not a case of one or both parents abusing the
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children. Although some in my field may argue that parental
alienation is abuse of a child.
N.T., 3/1/17, at 184-85 (emphasis added).
Dr. Edwards’ testimony at times appeared to go beyond mere fact
witness testimony, and she did mention a 90-day no-contact order. Father’s
expert, Dr. Rosenblum, however, also testified that, if Father refused to help
end the alienation of Mother, a period of time where Father did not have
custody was warranted.6 There is no indication the trial court relied on Dr.
Edwards’ recommendation in reaching her decision.
F. Mother’s Credibility
Father claims the trial court erred in failing to find Mother’s testimony
not credible. The trial court found that the impeachment evidence presented
by Father was not dispositive of the custody determinations. 1925(a) Op. at
17. As the trial court’s credibility determinations are supported by the record,
we will not disturb them on appeal. See M.J.M. v. M.L.G., 63 A.3d 331, 337
(Pa.Super. 2013).
II. Best Interest of Children
Father next contends that the trial court “failed to apply [the custody
factors] in a manner that truly was reflective of the best interests of the
children’s general well being.” Father’s Br. at 24. He claims the trial court
____________________________________________
We further note that Father’s proposed custody order required a 90-
6
day period where Mother had no contact with Children. Plaintiff’s Amended
Proposed Objection, Proposed Custody Order and Proposed Finding of Fact at
3-4.
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abused its discretion by failing to consider Mother’s “lies and abuses” and by
finding the majority of factors weight in Mother’s favor.
Our standard of review in child custody cases is as follows:
Our paramount concern and the polestar of our analysis in
this case, and a legion of prior custody cases is the best
interests of the child. The best interests standard, decided
on a case-by-case basis, considers all factors which
legitimately have an effect upon the child’s physical,
intellectual, moral and spiritual well-being. On appeal, our
scope of review is broad in that we are not bound by
deductions and inferences drawn by the trial court from the
facts found, nor are we required to accept findings which
are wholly without support in the record. On the other hand,
our broad scope of review does not authorize us to nullify
the fact-finding function of the trial court in order to
substitute our judgment for that of the trial court. Rather,
we are bound by findings supported in the record, and may
reject conclusions drawn by the trial court only if they
involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.
Further, on the issues of credibility and weight of the
evidence, we defer to the findings on the trial judge.
Additionally, appellate interference is allowed only where it
is found that the custody order is manifestly unreasonable
as shown by the evidence of record.
Saintz v. Rinker, 902 A.2d 509, 512 (Pa.Super. 2006) (quoting Arnold v.
Arnold, 847 A.2d 674, 677 (Pa.Super.2004)).
Here, in reaching its custody order, the trial court analyzed the factors
set forth in 23 Pa.C.S. § 5328. See April 7 Order at 15-20. The record
supports the trial court’s factual findings and credibility determinations.
Father’s arguments effectively asks us to disregard these credibility
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determinations and re-weigh the facts, which we will not do. See Saintz, 902
A.2d at 512.
Further, the trial court explained:
Dr. Rosenblum testified that removing Children from the
aligned parent is no longer considered appropriate by
experts in parental alienation. My order does not remove
the Children from Father. Instead, it gives Father the time
and incentive to alter his behavior and convince the Children
that he wants them to see their Mother. Only if Father
refuses will such drastic measures be introduced.
Dr. Rosenblum testified as to his recommendation which
were substantially similar to my Order. Dr. Rosenblum also
testified that as a last resort, if Father did not cooperate, he
would suggest putting the Children in foster care.
I do not find Father’s proposed solution for a 90 days
“cooling off” period where the Children have no face-to-face
contact with Mother, to be in their best interest. To the
contrary, I believe it would send the message to the
Children that they and Father have won the war they
instituted against Mother and would only serve to cement
their defiance.
I strongly feel that the best way to help the Children
improve their relationship with Mother is through therapy in
which Father genuinely participates and through time with
their Mother which Father genuinely encourages. As noted
by both professionals who testified in this case, the key is
with Father, who has the ability to make the change. Dr.
Rosenblum stated that Father needs to do a “better job of
instructing the boys that it is not only necessary for them to
visit but desirable for them to visit and I do believe that
Father has the ability and the authority and the rapport with
the boys that he should be able to be successful.” It is
Father who must take the steps to demonstrate to the boys
that giving their Mother a chance is not just a Court Order,
but it is the right thing to do and that he supports it.
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1925(a) Op. at 19-20. We conclude that the trial court did not abuse its
discretion concluding that the custody order was in Children’s best interest. 7
Order affirmed.
Judge Musmanno joins the memorandum.
Judge Solano files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2017
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7We note that, as is often the case in child custody actions, it appears
that subsequent events occurred following the appeal. At argument, this
Court was informed that the parties’ eldest son was in foster care. We note,
however, that we cannot consider this information in deciding this appeal,
and, as discussed above, the trial court’s decision to include in its order a
provision allowing such a situation was not an abuse of discretion.
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