Altland, T. v. Diehl, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRAVIS ALTLAND : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSICA DIEHL :
:
Appellant : No. 966 MDA 2021
Appeal from the Order Entered June 30, 2021
In the Court of Common Pleas of York County Civil Division at No(s):
2018-FC-183-03
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 3, 2022
In this litigious custody matter, Jessica Diehl (Mother) appeals from the
final order entered in the York County Court of Common Pleas, granting Travis
Altland (Father) sole legal custody regarding decision-making1 and primary
physical custody, subject to Mother’s unsupervised physical custody rights of
the parties’ minor child, C.A. (Child or the Child), born in March 2015.2 Mother
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1 The court awarded the parties shared legal custody for purposes of obtaining
information, being able to attend conferences and activities, and for procuring
records, like medical, dental, educational, counseling, and similar records.
See Order, 6/30/21, at 2-3.
2 As recently explained in Graves v. Graves, 265 A.3d 688 (Pa. Super.
2021):
We use the parties’ names in the caption “as they stood upon the
record of the trial court at the time the appeal was taken” pursuant
(Footnote Continued Next Page)
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avers: (1) the trial court failed to properly consider all the custody factors in
the Child Custody Act, 23 Pa.C.S. § 5328, when fashioning its order; (2) the
court erred by finding her in contempt for changing Child’s school without
Father’s knowledge and purportedly encouraging a third party to post on social
media when the weight of the evidence did not warrant such a finding; (3) the
court imposed too severe a punishment on Mother when finding her in
contempt of court; (4) the court erred by finding Mother was emotionally
abusive towards Child when the weight of evidence did not support such a
finding and was made without expert testimony; (5) the court erred and
abused its discretion by substantially changing Mother’s custodial time in its
____________________________________________
to Pa.R.A.P. 904(b). We note that recent changes to our Rules of
Appellate Procedure provide that “[i]n an appeal of a custody
action where the trial court has used the full name of the parties
in the caption, upon application of a party and for cause shown,
an appellate court may exercise its discretion to use the initials of
the parties in the caption based upon the sensitive nature of the
facts included in the case record and the best interest of the child.”
Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907 (“When an appeal is
filed in a custody action, upon application of a party and for cause
shown the appellate court may make a determination that using
the parties’ initials in the caption is appropriate after considering
the sensitive nature of the facts included in the case record and
the child’s best interest.”). These changes to our Rules were
approved on October 22, 2020, effective January 1, 2021[.]
Graves, 265 A.3d at 688 n.1. Here, Mother filed her notice of appeal on July
21, 2021, which is after the change went into effect. Neither she nor Father
have applied to this Court for the use of initials in the caption. Nevertheless,
we will refer to the minor child at issue by her initials or as “Child” throughout
our decision.
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April 1, 2021, temporary order without giving Mother an opportunity to be
heard and only considering evidence from Father’s case-in-chief; and (6) the
court showed partiality, prejudice, bias, and/or ill will against Mother in
rendering its decision. See Mother’s Brief at 2-3.3 After careful review, we
affirm.
A panel of this Court set forth the relevant prior procedural history in an
earlier custody decision involving Mother’s request for relocation:
Mother and Father resided in York, Pennsylvania, when
[Child] was born. The parties ended their relationship in
December 2017. On February 26, 2018, the parties entered into
a stipulated custody agreement, which provided for shared legal
and physical custody of [Child].
In July 2018, Mother married and moved to Danville,
Pennsylvania, to reside with her new husband. In April 2019,
Mother and her husband [at the time] moved to Bloomsburg,
Pennsylvania.2 Mother did not provide statutory notice of
relocation to Father prior to either of these moves.
________________
2Both Bloomsburg and Danville are approximately a two-
hour drive from York.
________________
On September 4, 2019, Father filed a petition for special
relief, raising the issue of Mother’s relocation and seeking relief
due to Mother’s violation of the parties’ custody agreement. The
[trial] court held a hearing on this petition on October 18, 2019,
after which the court entered an order continuing the matter,
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3 Father filed a pro se letter stating while he disagreed with Mother’s position,
he did not intend to participate in the appeal process or file an appellee’s brief.
See Letter from Travis Altland to Jennifer Traxler, Esquire, Deputy
Prothonotary, 8/25/2021.
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setting a new custody schedule, and requiring Father’s custody be
supervised.3
________________
3 [Child] suffered a broken collarbone while in Father’s
custody, apparently from falling out of bed. Additionally,
York County Children, Youth and Families (CYF) received a
referral regarding “pornographic pictures that supposedly
may have been taken by an eight-year-old half[-]sibling and
that the caseworker talked to [F]ather about the photos and
appropriate supervision for [Child] and her being able to
access an iPad that had those on [it].” A Childline report of
abuse was determined to be unfounded. In fact, Mother
testified Father had told her about the pictures he had
found. The trial court, noting on the record that there was
no medical evidence suggesting abuse, stated: “I am finding
as a matter of fact that there was no harm by [F]ather
whatsoever relative to the collarbone or to any pictures that
may have been taken by the eight-year-old[,] so those
simply are not issues anymore.”
[Moreover, during this time, Mother filed temporary
protection from abuse (PFA) petitions on behalf of Child and
herself against Father on July 12, 2020. A temporary PFA
order was issued. On October 19, 2020, the trial court
denied the order on the basis that the report was deemed
to be unfounded.
Father also filed two PFA petitions against Mother and
her then husband on July 14, 2020. The court denied the
petitions and Father subsequently withdrew them.]
________________
On December 5, 2019 and January 22, 2020, the court held
hearings on Father’s petition for contempt and Mother’s petition
for relocation. Mother and Father both testified, as did Mother’s
[then] husband, Mother’s mother-in-law, Father’s mother, CYF
caseworker Kala Ciletti, and Detective John Bumsted, who
investigated the abuse report with respect to [Child’s] broken
collarbone.
On January 24, 2020, after considering the testimony and
statutory custody and relocation factors, see 23 Pa.C.S.A. §§
5328, 5337, the court entered an order awarding Mother and
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Father shared legal custody, awarding Father primary physical
custody and Mother partial physical custody during the school
year, and awarding the parties shared physical custody during the
summer (two weeks with Mother and one week with Father,
throughout the summer). The court denied Mother’s petition for
relocation and required the parties to engage in co-parenting
counseling. The court also found Mother in contempt and ordered
her to pay $500 toward Father’s attorneys’ fees and the first
$1,000 toward the cost of co-parenting counseling.
T.A. v. J.D., 296 MDA 2020 (unpub. memo. at 2-4) (Pa. Super. July 27, 2020)
(citations omitted).
Mother then appealed the court’s January 24, 2020, order. She alleged
the following: (1) the trial court erred by considering relocation despite the
fact that the parties had discussed the move and modified the custody
schedule as a result of the move; (2) the court abused its discretion in
determining a drastic change in custody after the first half-day of trial; and
(3) the court erred by considering various facts that were either inaccurate or
not supported by the testimony. See T.A., 296 MDA 2020 at 4. Mother also
appealed the contempt order, alleging there was no evidence of her intent to
violate the order. Id. at 10.
In affirming the trial court’s decision, a panel of this Court concluded:
(1) Mother did not comply with the form and time requirements for notice of
relocation as set forth in 23 Pa.C.S. § 5337(c) and she did not inform Father
of her second move until after the fact; and (2) her claim regarding a drastic
change in custody was “meritless” and “baseless” considering the totality of
the circumstances. See T.A., 296 MDA 2020 at 6-9. The panel also
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determined that the record supported the court’s finding of contempt where it
was “undisputed that Mother was subject to the stipulated custody order and
was aware that it specified that she and Father shared legal custody.” Id. at
11. As a result, the panel further concluded, “Mother was required to inform
Father about enrolling [Child] in counseling, speech therapy, and the Head
Start program, and yet she proceeded to make unilateral decisions affecting
[Child]’s education and welfare. Mother’s intent can be inferred from her
actions.” Id. at 11-12.
Subsequently, Father filed a petition for modification and contempt on
October 21, 2020.4 Mother filed an answer to Father’s petition for modification
and contempt with new matter. She denied taking any action, including filing
the PFA petitions and reports of child abuse, for the purpose of alienation or
damaging the relationship between Father and Child. Mother also alleged that
she did not engage in any intentional action other than to protect Child. In
her new matter, Mother requested the custody order include a provision that
required the parties to enroll Child in counseling because Mother believed it
was in Child’s best interest to ascertain why the child was making “concerning
statements to Mother and others if these statements [were] determined not
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4 Father also filed a conciliation conference memorandum on that same day,
requesting that Mother’s physical custody rights be suspended or curtailed,
that she and her husband at the time undergo complete psychological
evaluations, that Mother undergo a threat of harm evaluation to determine if
she is a continued threat to Child, and that she again be held in contempt.
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to be accurate.” Mother’s Answer to Father’s Petition for Modification and
Contempt with New Matter, 11/4/20, at ¶ 51. Mother also countered with her
own motion for contempt against Father for not allowing her to exercise
shared legal custody because she claims Father “unilaterally decid[ed] to
change the . . . Child’s doctor without Mother’s consent” and denied her
physical custody of Child one weekend in May 2020. Id. at ¶ 69.
The court then scheduled the matter for trial in April 2021.5 On April
1st, the court held the first day of trial. Father had completed his case-in-
chief but Mother had not done so. “[O]ut of an abundance of caution, the
Court temporarily made Mother’s rights of visits supervised until the trial could
be finished.” Trial Ct. Op., 7/30/21, at 2. The court opined it was taking this
action “because there [was] a potential that after hearing all of the testimony
. . ., [it] may find emotional abuse by Mother.” Order, 4/6/21, at 2. The
second half of the trial was originally scheduled for seven days later, but due
to Mother’s counsel’s request, it was continued until June 23, 2021.
During this time, Mother filed a motion for reconsideration of the court’s
April 1st temporary order.6 The court denied the motion on May 4, 2021. See
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5 Prior to the first proceeding, Mother left her husband, Dustin Diehl, and
moved back in with her parents.
6 Mother also obtained new counsel. See Praecipe to Withdraw
Appearance/Praecipe for Entry of Appearance, 4/30/21.
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Order of Court, 5/4/21. On June 23rd, the court concluded the trial and
entered the following final order:
The [c]ourt does find [M]other in contempt for not advising
[F]ather about changing [Child]’s school when she did that and,
secondly, the [c]ourt finds [M]other in contempt for encouraging
[her estranged mother-in-law] to post disparaging remarks that
disparaged [F]ather.
Since this is a second contempt for [M]other, we find the
sanctions to be that she shall reimburse to [F]ather or [F]ather’s
attorney the sum of $5,000 in attorneys’ fees at the rate of $100
monthly. The first monthly payment will be on August 1, 2021
and $100 per month the first day of each month thereafter until
the entire amount is paid.
We set this amount based on [M]other’s own testimony of
what she’s paid at her job and we warned [M]other that if there is
ever a third contempt, incarceration is almost a certainty if, after
a hearing, she would be found in contempt a third time.
The [c]ourt finds [F]ather not to be in contempt.
Relative to the custody order itself, the [c]ourt awards sole
legal custody to [F]ather for decision making but awards shared
legal custody to both parents for purposes of getting information,
being able to attend conferences and activities, for getting
records, medical, dental, educational, counseling and similar
records. So for all information gathering and recordkeeping
purposes, the parties have shared legal custody, but [F]ather has
sole legal custody for decision making.
The Court awards [F]ather majority physical custody.
[M]other will have the following rights of partial physical custody,
which will be unsupervised:
[M]other will have Fridays at 7:00 p.m. until Sunday at 7:00
p.m. the first, second, and fourth weekends of each month,
staying with the current schedule of when her weekends will be
and with Friday continuing to define the weekend.
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All this is, of course, really a continuation of the order of
January 22, 2020. However, this will be the schedule year round,
so [M]other does not get any extra time during the summer.
Holidays, including Thanksgiving and Christmas, will be as
set forth in the January 22nd, 2020 order, and presumably the
schedule of that can continue on as it has been.
Transportation will be shared by the party obtaining custody
of [Child] going and picking up [Child] at the residence of the other
party.
All other York County provisions set forth in the January 22,
2020 order are reconfirmed as those stated herein in full.
The [c]ourt does make a finding that [M]other has
emotionally abused the [C]hild. The [c]ourt is giving her
unsupervised partial custody because the [c]ourt is hopeful that
[M]other has learned her lesson, but the [c]ourt does warn
[M]other that if there is any future emotional abuse of this [C]hild
by [M]other or by her family members with her knowledge and
permission or encouragement or acquiescence, that we may go
back to supervised visits instead of unsupervised partial physical
custody.
Order, 6/30/21, at 1-4. This timely appeal followed.7
Mother raises the following issues on appeal:
I. Whether the trial court failed to correctly consider all
custody factors in 23 Pa.C.S.A. § 5328 in light of all relevant
evidence when fashioning the custody order reducing
Mother’s custodial time with the Child[?]
II. Whether the trial court erred in finding Mother in contempt
for changing the Child’s school and allegedly encouraging a
third part to post on social media when the weight of the
evidence did not warrant a finding of contempt[?]
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7 Mother complied with the court’s order and filed a timely Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
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III. In the alternative, whether the trial court imposed too
severe a punishment on Mother when finding her in
contempt of the court’s order[?]
IV. Whether the trial court erred in finding Mother emotionally
abusive when the weight of th[e] evidence did not support
such a finding and a trial court cannot solely find a parent
to be emotionally abusive without testimony from a
professional[?]
V. Whether the trial court erred as a matter of law and abused
its discretion when entering an order substantially changing
Mother’s custody without giving Mother an opportunity to be
heard and only considering Father’s case in chief[?]
VI. Whether the trial court showed partiality, prejudice, bias,
and/or ill will against Mother in the rendering of its decisions
throughout the case based upon the evidence and history of
the case[?]
Mother’s Brief at 2-3 (some capitalization omitted).
We begin with our well-settled scope and standard of review concerning
custody orders:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. 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.
S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
The [Child Custody] Act defines the various forms of custody
as the “right” of a party to make decisions for the child, or to
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exercise physical control over the child. [23 Pa.C.] § 5322. Thus,
in ordering a form of custody, the trial court dictates which party
has the right to custody.
When a trial court orders a form of custody, the best interest
of the child is paramount. J.R.M. v. J.E.A., 2011 PA Super 263,
33 A.3d 647, 650 (Pa. Super. 2011). To determine the child’s
best interest, the trial court must consider the following 16 factors
when “ordering any form of custody[ by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child.”] 23 Pa.C.S.A. § 5328(a). Those
factors are:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
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.
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(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
S.W.D. v. S.A.R., 96 A.3d 396, 400-01 (Pa. Super. 2014) (footnote omitted).
Notably, the “parties cannot dictate the amount of weight the trial court places
on evidence.” A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation
omitted). Moreover, “[i]t is within the trial court’s purview as the finder of
fact to determine which factors are most salient and critical in each particular
case.” M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) (citation
omitted).
After a court has conducted its analysis based on the sixteen custody
factors, it “shall delineate its reasons for its decision on the record in open
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court or in a written opinion or order.” 23 Pa.C.S. § 5323(d). This Court has
previously explained:
In expressing the reasons for its decision, 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. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
D.Q. v. K.K., 241 A.3d 1112, 1118 (Pa. Super. 2020) (citations and
quotations marks omitted). “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.” A.V., 87 A.3d at 820(citation omitted).
Here, Mother first alleges the trial court failed to properly consider and
analyze all the factors in Section 5328 of the Child Custody Act. See Mother’s
Brief at 8. Specifically, she contends there was no testimony at the trial
indicating that she was unable to share legal custody decisions with Father.
She places blames on Father, stating:
To the contrary, Father testified that he did change the child’s
doctor without consulting Mother first because she lived so far
away. There was no other testimony from Father that Mother
thwarted any legal custody decisions or arbitrarily made it difficult
for the child to receive medical care or education opportunities.
The only item the parties disagreed upon was counseling for the
child. Mother believed the child would benefit from counseling and
Father testified that he did not think the child needed any
counseling.
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Id. at 11. Moreover, Mother asserts that her reduction in physical custody
periods “appears to be done in [an] attempt to punish Mother rather than for
the best interest of the Child.” Id.
In terms of the Section 5328 custody factors, Mother contends that the
only real substantial change in the parties’ situation since the court’s prior
determination is that Mother left her abusive husband and returned to the
area where her family resides to re-establish herself and to be closer to Child.
See Mother’s Brief at 12.
Furthermore, as for the specific factors, Mother alleges the following.
As to factor two (present and past abuse committed by a party or member of
the party’s household), Mother claims the court incorrectly found Mother
emotionally abused Child which was contrary to “legally established principles”
and should not have weighed in Father’s favor. See Mother’s Brief at 12. In
terms of factor three (parental duties performed by each party), Mother
argues there was uncontroverted testimony that Mother performed duties for
Child when she exercised custody and therefore, the court should have found
the factor to be neutral rather than favoring Father. With respect to factor
four (the need for stability), Mother states the court incorrectly relied on
information that she moved five or six times in the past few years because
her “‘moves’ were only in two different areas[.]” Id. at 13. In terms of factor
eight (the attempts of a parent to turn the child against the other parent),
Mother states the court’s erroneous reasoning for finding against her
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“centered around a Facebook post[8] that Mother did not know existed and a
report made to CYF about Paternal Grandmother’s daycare, which Mother also
did not know occurred.” Id. She claims there was no other testimony
indicating that she “actively attempted to turn the [C]hild against Father.” Id.
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8 At issue, Mother’s then mother-in-law posted the following to Facebook on
February 17, 2019:
I usually don’t post personal things on here but I feel I have
no choice. There is a 5 year old little girl that I know personally.
She made physical (broken bone) and sexual abuse allegations
against her own father. This little one has been fighting for over
a year for someone to listen to her and has not changed her story
at all. She told a crisis counselor and even in a CAC interview but
it’s never enough. Always an excuse why no arrests are made.
The things this kid has disclosed put a knife through my heart.
Something really bad is happening in York County Pa. I have
never seen the corruption in family courts that I had witnessed
there. Is this another “kids for cash” using family courts? I’m
talking about a mother who has never even had a parking ticket,
got her child taken from her because she believed and tried to
protect this child. The lies are in the court transcripts. Who is
benefiting from this? The game is [clever.] They try to financially
drain the mothers by slapping them with bogus contempt of court
like, putting your child in counseling and getting speech therapy.
Then they are ordered to pay $1000 cash to a “court appointed
family therapist” regardless of insurance. Payments to the
opposing attorney. Is this the pay off?? Why can’t ANYONE
investigate this??? Calls and emails were sent to everyone in these
agencies to file complaints/reports (CYS, Attorney General, State
Auditor, Newspapers . . . etc.) but the usual answer from
Pennsylvania is “oh we don’t handle these things.” Are they
scared??? Really?? Then can someone, anyone, tell me who the
hell does?? Should we sit back and wait once again until another
child goes missing or dies? If anyone can help or knows anyone
you think can help, please let me know.
See Father’s Petition for Modification and Contempt, 10/21/20, at Exhibit B.
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Lastly, as to factor thirteen (the level of conflict between the parties), Mother
argues that in finding this factor favored Father, the court improperly focused
on the fact that she filed a protection from abuse (PFA) petition against Father
on behalf of Child, which was not based upon “nefarious circumstances[,]” but
rather a disclosure made to Mother by Child. Id. at 14. Mother avers that
“Father retaliated and filed two PFA petitions against Mother and her then
[h]usband.” Id. Mother concludes that the court clearly erred in its analysis
and the order at issue should have maintain the custody arrangement as set
forth in the previous January 24, 2020, order. Id.
Mother’s allegations, in essence, amount to a dispute concerning the
court’s findings and determinations regarding the credibility of witnesses and
weight of the evidence. Impliedly, Mother would like this Court to reweigh the
evidence and reassess the Section 5328 factors in her favor.
As to issues concerning credibility and weight of the evidence, we
reiterate our standard of review, which dictates that “we must defer to the
presiding trial judge who viewed and assessed the witnesses first-hand”
absent an abuse of discretion. S.T. v. R.W., 192 A.3d at 1160. We further
observe:
It is not this Court’s function to determine whether the trial court
reached the “right” decision; rather, we must consider whether,
“based on the evidence presented, given due deference to the trial
court’s weight and credibility determinations,” the trial court erred
or abused its discretion in awarding custody to the prevailing
party.
King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citation omitted).
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The record reveals that at the June 23, 2021, proceeding, the trial court
exhaustively considered each of the 16 custody factors listed in section
5328(a):
[Factor o]ne, which party is more likely to encourage and
permit frequent and continuing contact between the child and the
other party. Candidly, the Court is very impressed with [F]ather
and his mother and how they got the supervised visits off quickly.
They had them – candidly, for the supervisor, six hours each
is a fairly substantial amount of time. Father obviously took his
responsibility to be sure the child saw [M]other as much as
possible, he took that seriously, so we find that factor in favor of
[F]ather.
Two, the present and past abuse committed by a party. We
did find emotional abuse by [M]other towards the [C]hild. The
[c]ourt believes that [M]other does not understand what the
[C]hild goes through when there are investigations and filings and
so forth.
The [c]ourt believes that when [M]other lost majority
custody back in 2020, that [M]other was on some kind of
campaign to revenge or something as a result of that and really
did make [F]ather’s life very miserable and thereby [Child]’s life
very miserable as [F]ather testified when we were here on April
1st.
[F]ather’s testimony was very convincing that [M]other’s
attempts to alienate [Child] against her father have made his life
quite miserable and, again, thereby vicariously made [Child]’s life
miserable.
Paragraph 2.1 is information relative to child abuse and
involvement of protective services. Of course there was some
involvement with protective services, but there were no indicated
findings.
However, others involving all kinds of law enforcement and
PFAs not directly necessarily contacting protective services, but
the [c]ourt can’t help but notice that [Mother] got her [then]
husband to contact protective services and somehow thought that
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was okay even though that was different than her calling
protective services. Anyway, it’s not really a factor.
Factor number three, the parental duties performed by each
party on behalf of the [C]hild. Clearly both parties have been able
to perform the parental duties on behalf of this [C]hild, so we find
that really a neutral factor. Father seems to have been doing a
very good job the last year and a half, and therefore that factor
will be slightly in favor of [F]ather but not heavily.
Factor number four, the need for stability and continuity in
the [C]hild’s education, family life and community life. Mother has
moved all over the place, and the [c]ourt found [M]other’s
testimony ironic that she’s going to stay where she is now with
her parents in Columbia, Pennsylvania and that’s where she’s
going to stay, because the [c]ourt heard her say that in prior
hearings about other various addresses and she has lived in five
or six different locations in just a couple of years. So that is
definitely a factor in favor of [F]ather.
Factor number five, the availability of extended family. Both
[M]other and [F]ather have extended family that are very involved
with this [C]hild’s life, and that’s a positive for the most part.
Unfortunately, there have been times when [M]other has
gotten other people in her life, whether it’s her now estranged
husband or her mother, to get too involved in this [C]hild’s life
which, unfortunately, is typical for [M]other.
She is somewhat enmeshed with her child and doesn’t quite
understand how that’s harmful to her child, but most of the time
most of the extended family relationships are positive, and
therefore that’s a relatively neutral factor.
Factor number seven, the preference of the [C]hild. The
[c]ourt did not interview the [C]hild because of her tender age,
and therefore that’s not a factor.
Factor number eight, the attempts of a parent to turn the
child against the other parent. This is a very important factor in
this case as [M]other has steadfastly tried to turn the [C]hild
against [F]ather and had various members of her family do
likewise.
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This is definitely a factor in favor of [F]ather, who is exactly
the opposite, who tries very much to enhance [Child]’s
relationship with her mother. The [c]ourt was dismayed and
couldn’t help but notice that [M]other endorsed or acquiesced or
encouraged her then mother-in-law, now of course estranged
mother-in-law, to post some very negative things on social media
about [F]ather.
That is only one -- additionally, it’s not totally clear exactly
what [M]other did, perhaps through other family members, but to
have paternal grandmother’s child care investigated is
reprehensible. And we heard testimony on that back on April 1st.
And those are not the only attempts that [M]other has made to
turn the [C]hild against [F]ather and [F]ather’s family.
Factor number nine, which party is more likely to maintain
a loving and stable, consistent and nurturing relationship
adequate for the child and the child’s emotional needs. The
[c]ourt did really comment on that in factor four about stability.
This a factor heavily in favor of [F]ather. Certainly
[M]other’s now being estranged and eager to file for divorce
against her present husband is not a sign of stability by any
means, so, again, that’s a factor in favor of [F]ather.
Factor number ten, which party is more likely to attend to
the daily physical, emotional, developmental, educational and
special needs of the child. Both parties do attend to those pretty
well.
Father certainly is the majority custodial parent for most of
the last year and a half, has had a better opportunity to do that,
and this [C]hild has apparently thrived in that year and a half. So
while [M]other is a good mother in many ways, even this factor is
very slightly in favor of [F]ather.
Factor number 11 is proximity of the residences of the
parties. Mother has moved back in with her parents in Columbia,
so the residences of the parties are not nearly as far apart as they
were, and the [c]ourt believes that probably was a wise move on
[M]other’s part.
But given [M]other’s track record, the [c]ourt cannot help
but ponder whether or not [M]other will remain there or go to
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some other residence as her housing stability has been extremely
unstable. In any event, this factor is not a factor in this case.
Factor number 12, each party’s availability to care for the
child and make appropriate child care arrangements. Again, there
is a lot of positive extended family for child care arrangements, so
that’s a good factor for both parties and therefore a neutral factor.
Factor 13, level of conflict between the parties, the
willingness and ability to cooperate with one another. This
unfortunately is a large part of the crux of this case there has been
a lot of conflict. The [c]ourt notes that the prothonotary’s file is
now on file three of three, each filing being at least four or five
inches thick.
Candidly, the [c]ourt cannot blame all of the conflict on
[M]other as [F]ather has made a few poor choices along the way
also, but a large majority of it has been [M]other’s doing or
initiating. But we commented on this before, so this factor,
though in favor of [F]ather, has already been commented on.
Factor 14, the history of the drug and alcohol abuse. We
hear no testimony on that.
Factor 15, the mental and physical condition of a party or
party’s household. We heard no testimony on that.
The [c]ourt does opine that [M]other’s attitude that she can
do no wrong and she has an excuse for every decision that she
makes that turns out poorly does make the [c]ourt recommend to
[M]other she probably could really benefit from some counseling.
Factor 16, any other relevant factor. There’s no other
relevant factor. . . .
N.T., 6/23/21, at 135-41. After the court was notified that it missed factor
six, it made the following comment: “I’ll go to factor six, the child’s sibling
relationships. The [C]hild has sibling relationships on both sides, [M]other’s
and [F]ather’s. They are positive, therefore it’s a neutral factor.” Id. at 142.
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After a careful review of the record, we find ample support in the trial
court’s analysis for its decision to award sole legal custody regarding decision
making to Father and to modify Mother’s already partial physical custody.9
Notably, Mother is only attacking the court’s findings as to five of the 16
factors. The court engaged in the required custody best interest
consideration, analyzed each of the custody/best interest factors pursuant to
Section 5328(a), and, we note, found a majority of the factors weighed in
Father’s favor. Nevertheless, it is evident the court considered and credited
Mother’s testimony and evidence in addition to Father’s testimony and
evidence. However, it was within the court’s purview as the fact-finder to
determine which factors were “most salient and critical” based on this
particular case. See M.J.M., 63 A.3d at 339.
Additionally, we find unpersuasive Mother’s arguments with respect to
factors two, three, four, eight, and thirteen, particularly in light of the fact that
the trial testimony established: (1) Child and Father’s other child had been
subjected to multiple CAC interviews based on multiple reports of physical and
sexual abuse, including three in July of 2020, made by Mother and her then
husband that were investigated by police and other governmental agencies
____________________________________________
9 The only real change from the prior order to the order at issue is the court
denied Mother extra time during the summer months. See Order, 6/30/21,
at 3.
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and ultimately determined to be unfounded;10 (2) Mother reviewed and
approved of her then-mother-in-law posting on social media about the
allegations of sexual and physical abuse;11 (3) Mother admitted she had
moved five times since 2018 and was currently living with her parents since
she left her husband, see N.T., 6/23/21, at 48 ; (4) Mother never told Father
that she was changing Child’s school prior to making the decision;12 (5) Father
made the change regarding Child’s physician because Mother had been taking
Child to a Bloomsburg area doctor, nearly two hours away, but he admitted
that he made the decision without Mother’s agreement, see N.T., 4/1/21, at
191-92; (6) Mother did not take responsibility for what has happened to
Father in terms of the physical and sexual abuse allegations because she
____________________________________________
10 Similar allegations were made in 2019, which were disposed of at that time.
N.T., 4/1/21, at 57. Police also investigated a report made by Mother’s then-
husband against Father’s mother in October 2020, in which the husband
accused the paternal grandmother of slapping Child. Id. at 41-43. No charges
were ever brought against the paternal grandmother. Mother’s former
husband also filed a complaint against the police for their handling of the
situation. Id. at 43-44.
11 Mother tries to downplay the effect of the post because she said that no
names were mentioned but the post does reference a five-year-old child who
is close to the mother-in-law and the post refers to allegations that the child
made “against her own father.” N.T., 4/1/21, at 197. See also Father’s
Petition for Modification and Contempt, 10/21/20, at Exhibit B
12 We note Mother attempted to text Father with the information, but Father
would not contact Mother due to the PFA order against him. His counsel sent
Mother’s counsel a letter acknowledging the situation. Mother never
requested her counsel contact Father’s counsel about the change in schools.
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believed that what was best for Child was to find out why the child was making
the allegations even though Mother also testified that she believed Father did
not do anything intentionally to Child, see N.T., 6/23/21, at 81-83; and (7)
Child is thriving in her present environment where she sees her other siblings
and close relatives and attends school, see i.e., N.T., 4/1/21, at 135-38 and
162-63. As such, Mother has not demonstrated that the trial court’s
conclusions are unreasonable in light of the record evidence. See S.T., 192
A.3d at 1160. Accordingly, Mother’s challenge to the trial court’s weighing of
the custody factors lacks merit.
In her second argument, Mother asserts the court erred in finding her
in contempt for changing Child’s school without Father’s consent and for
encouraging a third party, her estranged mother-in-law, to post on social
media about Father’s alleged abuse of Child when the weight of the evidence
did not warrant such a finding. See Mother’s Brief at 15. With respect to
changing Child’s school, Mother asserts that at the time, the July 2020
temporary custody order granted her primary, physical custody and that
school year was going to start one month later. Id. at 16. Mother alleges
that she attempted to enroll Child13 into a cyber academy where Father
resided, “but was unable to do so since she did not reside in the district.” Id.
She further avers:
____________________________________________
13 Child was five years old at the time.
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With no other choice and school beginning, Mother enrolled the
Child in Southern School in Columbia County. Prior to this time,
Mother had reached out to Father with other updates regarding
the child and was told to stop texting him by his attorney. In fact,
on August 3, 2020, [she states] Father’s attorney specifically
wrote, “your client has been texting father and contacting him.
There is a PFA in effect. She is to immediately stop texting him
unless and until the case is over. He will not violate the order in
effect.”
Id. at 16-17 (reproduced record citations omitted). Mother claims her actions
were “not done with wrongful intent” because she “had no choice” to enroll
Child in that other school. Id. at 17.
As for the social media post, Mother contends that based on her former
mother-in-law’s own testimony, Mother never told the mother-in-law “what to
put in the post nor to post anything to social media about the situation
happening with Father and the alleged abuse to the child.” Mother’s Brief at
18 (reproduced record citation omitted). Mother also mentions Father testified
that “the post did not name him or any identifying information for viewers of
the post to even know who the post would be about.” Id. (reproduced record
citation omitted). Additionally, she points to her own testimony, in which she
averred that “she did not have social media, did not know anything was being
posted to social media, and in fact[,] saw the post for the first time in [c]ourt
at the final PFA [h]earing.” Id. (reproduced record citation omitted). Mother
concludes that she “did not act to encourage anyone . . . to post disparaging
remarks about Father[, and even had she done so,] the post had no identifiers
tying it to Father, Mother, or the child in this case.” Id.
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Our standard of review concerning a trial court’s contempt findings is
very narrow:
This Court’s review of a civil contempt order is limited to a
determination of whether the trial court abused its discretion. If
a trial court, in reaching its conclusion, overrides or misapplies the
law or exercises judgment which is manifestly unreasonable, or
reaches a conclusion that is the result of partiality, prejudice, bias
or ill will as shown by the evidence of record, then discretion is
abused.
B.A.W. v. T.L.W., 230 A.3d 402, 406 (Pa. Super. 2020) (citation omitted).
“To sustain a finding of civil contempt, the complainant must prove
certain distinct elements by a preponderance of the evidence: (1) that the
contemnor had notice of the specific order . . .which he is alleged to have
disobeyed; (2) that the act constituting the contemnor’s violation was
volitional; and (3) that the contemnor acted with wrongful intent.” P.H.D. v.
R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation omitted). Moreover,
“[a] court may exercise its civil contempt power to enforce compliance with
its orders for the benefit of the party in whose favor the order runs but not to
inflict punishment. A party must have violated a court order to be found in
civil contempt.” Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001)
(citation omitted).
Nevertheless,
a showing of non-compliance is not sufficient in itself to prove
contempt. If the alleged contemnor is unable to perform and has
in good faith attempted to comply with the court order, contempt
is not proven. The alleged contemnor has the burden of proving
the affirmative defense that he has the present inability to comply
with the court order. A court cannot impose a coercive sentence
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conditioned on the contemnor’s performance of an act which is
incapable of performance. . . .
Sinaiko v. Sinaiko, 664 A.2d 1005, 1009-10 (Pa. Super. 1995) (emphasis in
original; citations and quotation marks omitted).
Regarding Mother’s decision to change Child’s school without Father’s
consent, a review of Mother’s testimony at the June 23, 2021, trial proceeding
reveals the following. On direct examination, Mother testified that she going
to enroll Child in a cyber school in the school district where Father resided,
but since she did not live in the same county, Mother was unable to keep Child
enrolled there and had to enroll Child in the county where she resided. See
N.T., 6/23/21, at 18. Mother testified that she reached out to Father with the
updated information, but her counsel received an email from Father’s counsel
on August 3, 2020, stating that she should stop contacting him because the
PFA order against him was in effect. Id. at 19-20. Mother never asked her
counsel to contact Father’s counsel about the change in schools. Moreover,
on cross-examination, the following exchange took place between Father’s
counsel and Mother:
[Father’s counsel]: Now, you enrolled [Child] into school up in
Catawissa. Is that correct?
[Mother]: Correct.
[Father’s counsel]: And you did not tell [Father] in advance that
you did so, correct?
[Mother]: Correct.
* * *
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[Father’s counsel]: And when you finally did notify [Father] of the
school, the exact school, it wasn’t until October of 2020, well after
school started and when he was to get custody back. That’s the
first time you told him where she was going to school, correct?
[Mother]: Correct.
N.T., 6/23/21, at 54-55.
As for the social media post, a review of the record reveals that at the
April 1, 2021, trial proceeding, Mother’s former mother-in-law, Heidi
Semiclose, testified, via video conference, to the following:
[Father’s counsel]: [F]or the Judge’s edification, it’s Exhibit D of
our exhibit pack. [Semiclose], I want to ask you to verify if this
was your [social media] post? . . . I’m not trying to get you into
trouble with the Court, and you’re not up for any kind of sanctions
by the Court, but I wanted to know if this was a post that you had
made.
[Semiclose]: Yes.
[Father’s counsel]: It was?
[Semiclose]: Yes, that was -- I don’t even know when it was, I
can’t remember, but at that time I was doing anything I could to
help [Mother]. I mean, she was very upset crying. I mean, I got
calls from her so much and texts and basically just trying to do
anything we could really to help her, because it was horrible, it is
just a horrible, horrible thing. You know, that was just, hey, does
anyone have ideas? I mean, I didn’t name anybody or anything
like that, . . . I just did anything I could to help her, because I
really felt bad for her. It was, I mean, it’s just a horrible thing
going through something like this.
[Father’s counsel]: Now the post -- did [Mother] know that you
were making it?
[Semiclose]: Yeah, I sent it to her before I put it up.
[Father’s counsel]: So she approved it before you put it up?
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[Semiclose]: Yeah, because I didn’t want to say anything wrong.
[Father’s counsel]: Sure. Did she ever request that you take it
down?
[Semiclose]: No.
* * *
[Semiclose]: No, in fact, I can’t even find it now.
[Father’s counsel]: Did she ask you to do anything else on her
behalf?
[Semiclose]: No, not with that, not with that. That was just, you
know, seeing if there was any resources or whatever the case may
be. [Mother], you know, she had talked to a lot of people through
[B]eyond [V]iolence [Women’s Center] and different things like
that, so she had it pretty good. She was able to find, you know,
what she needed or whatever to help with this situation.
[Father’s counsel]: Okay. Other than that post that she reviewed
in advance, which I had already instructed the Judge to tell him it
was Exhibit D of our packet, did she ask you to do any other
postings on social media or contact any other people?
[Semiclose]: No, there was never any other postings except for
that one, ever. After that, that is when I removed myself from
everything and after being up there and everything else, I just
kind of removed myself from everything, because it’s just going
nowhere.
[Father’s counsel]: What do you mean by that exactly, when you
say it’s going nowhere?
[Semiclose]: Just there is nothing -- this is just something that,
I did what I could for [Child], and there is just nothing else I can
do. Personally, I can’t do anything else to help that little girl. I
mean, I removed myself from the whole situation, because there
is absolutely nothing else that I can do [to] help her. I tried and
I can’t do anything else. That [post] was back in what, 2019?
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[Father’s counsel]: Yeah, it looks like it was 2019, yes. I am
looking at, and you can see on the exhibit there is some dates in
there. I wanted to ask you is Alex Lorison, are these relatives that
also made comments?
[Semiclose]: That is my daughter. She would be -- because to
tell you the truth, and to be honest, a lot of people do not know
my son’s wife, they don’t know [Mother]. Since I’m not in
Pennsylvania, I don’t live there, most people don’t even know he’s
married.
[Father’s counsel]: Okay. But just to be clear, [Mother], after
she approved it, she never told you to take it down?
[Semiclose]: No.
N.T., 4/1/21, at 151-54.
Subsequently, at the June 23rd proceeding, Mother testified to the
following:
[Father’s counsel]: . . . So the posting that Heidi Semiclose made
she said that you approved. If you recall from her testimony, she
said that you approved the posting before she posted it.
[Mother]: Correct.
[Father’s counsel]: So you called her as a witness in the first trial
on your behalf, didn’t you?
[Mother]: Correct. That was before I left her son.
[Father’s counsel]: So now are you saying that she just made
that up?
[Mother]: Correct.
[Father’s counsel]: And you saw the posting, which was quite
negative about [Father] with regard to [Child], wasn’t it?
[Mother]: It didn’t name him in the post that I recall seeing, but,
like I said, I had saw that as an exhibit at the other final PFA
hearing.
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[Father’s counsel]: And even though it didn’t reference him by
name, it referenced the father of the child, didn’t it?
[Mother]: Yes, but there was no names that were named in that
post from what I recall.
[Father’s counsel]: And you don’t think that was a derogatory
post about [Father]?
[Mother]: Like I said, she didn’t name any names and I was
unaware until after that it was clearly posted and used as an
exhibit that it was made.
N.T., 6/23/21, at 53-54.
In explaining its rationale, the trial court noted that “Mother admitted
to enrolling the child in school without telling Father[,]” and it also stated it
“heard testimony of Mother encouraging or at the very least approving a social
media post which was derogatory towards Father.” Trial Ct. Op. at 9, 12. The
court further stated “it was lenient in limiting the finding of contempt towards
[Mother] especially as some of the issues were the same counts as her first
contempt. Moreover, the [trial c]ourt . . . opine[d], once again, that Mother’s
argument that the [c]ourt erred in weighing the evidence at trial [was] not a
reviewable issue on appeal.” Id. at 12 (record citation omitted).
The record supports the court’s findings of contempt. As noted in this
Court’s prior decision:
It is undisputed that Mother was subject to the stipulated custody
order and was aware that it specified that she and Father shared
legal custody. See 23 Pa.C.S.A. § 5322(a) (defining “Legal
custody” as “the right to make major decisions on behalf of the
child, including, but not limited to, medical, religious and
educational decisions.”).
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T.A., 296 MDA 2020 at 11. In accordance with the order, she was required
to inform Father about enrolling Child in the new school, and yet again, she
made a unilateral decision which affected Child’s education.
As for the social media post, the court was free to make credibility
determinations and here, it found the mother-in-law’s testimony, as opposed
to Mother’s statements, credible. See S.T., 192 A.3d at 1160. Mother’s
excuses for downplaying her involvement regarding the disparaging remarks
made towards Father because he was not specifically named are unavailing.
Accordingly, we conclude Mother had notice of the order at issue, her acts
were volitional, and she acted with wrongful intent. See P.H.D., 56 A.3d at706 n.7. Furthermore, Mother has not demonstrated she acted in good faith
in attempting to comply with the court order. See Sinaiko, 664 A.2d at 1009-
10. Therefore, we discern no abuse of discretion, and Mother’s second
argument fails.
In her third claim, Mother raises an alternative argument to her prior
claim, complaining that the sanctions levied against her by the trial court
amounted to an abuse of discretion. See Mother’s Brief at 20. Specifically,
she states:
[T]he $5,000.00 Mother is ordered to pay to Father’s attorney for
the contempt are punitive in nature rather than compensatory.
Foremost, Mother works a job making $16.00 an hour and pays
child support to Father in this case making the $5,000.00 sanction
excessive for Mother’s current financial position. Furthermore, the
[t]rial [c]ourt on the record stated, “[Father] did a couple of things
that probably were close to contempt, but Mother did some other
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things that were probably close to contempt” making it clear that
neither Father nor Mother in the [c]ourt’s eyes were completely
clean, so to speak. The [t]rial [c]ourt’s own commentary infers
that the sanction against Mother is punitive in nature in this case.
Id. (reproduced record citation omitted).
“The imposition of counsel fees can serve as a sanction upon a finding
of civil contempt.” Sutch v. Roxborough Memorial Hospital, 142 A.3d 38,
68 (Pa. Super. 2016). The purpose of awarding counsel fees in this context
is “to reimburse an innocent litigant for the expenses the conduct of an
opponent makes necessary, such as the cost of the contempt hearing, so it
can be coercive and compensatory but it cannot be punitive.” Id. at 69. With
respect to an award of contempt sanctions in the form of counsel fees, this
Court’s standard of review is an abuse of discretion. Mrozek v. James, 780
A.2d 670, 674 (Pa. Super. 2001).
Here, Father testified that if he did it not file the petition for modification
and contempt, “everything would keep going as it was before.” N.T., 4/1/21,
at 159. He also indicated that since he filed the petition, no reports have been
filed and he has not received any calls from the police or CYF. See id., at
159-60. When asked how he was doing, Father stated, “It’s just been a
struggle. On the financial part of it going through all of the attorney’s fees
and court costs and all of that, I am in debt over my head right now fighting
for my girl.” Id. at 160. Father testified that he has spent over $22,000 in
counsel fees since the first allegation of physical abuse regarding Child’s
collarbone was made. Id. at 186.
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In finding that its contempt order was reasonable, the court stated:
It is denied that this [c]ourt erred in imposing a too severe
punishment on Mother relative to her second contempt. First, this
[c]ourt made this ruling based on Mother’s own testimony on her
earning capacity and her support payments.
Q. Okay. You say you have a new job now.[14] So you’ve
had it I guess you procured it [at] the end of April of 2021.
Is that correct?
[A. Correct.
* * *]
Q. And how much are you making?
A. $16.60.
Q. Per hour?
A. Yes.
See [N.T., 6/23/21, at 48-49] (noting Mother’s pay rate and that
Mother also makes a similar payment of $100 for child support)[.]
Second, this was Mother’s second contempt and it was apparent
that Mother did not learn her lesson the first time and therefore
the penalty needed to be higher so that Mother would not continue
to disregard [the c]ourt order and further harm the well-being of
the [C]hild. The [c]ourt would also note that the Mother’s
previous contempt were related to the very same issues, school
and counseling, and therefore, Mother should have been far more
cautious about repeating the same actions.
Trial Ct. Op. at 13 (some citations omitted).
The record supports the court’s determination. Mother asserts she was
merely looking out for the best interests of Child as the basis for the repeated
____________________________________________
14 Mother testified she was a medical office associate at Penn State Health’s
Lime Spring campus. See N.T., 6/23/21, at 8-9.
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abuse allegations against Father. However, it is clear these reports and
allegations were meant to harass Father as they stopped after he filed the
petition for modification and contempt. Moreover, it merits emphasizing that
this is Mother’s second contempt finding, and that her first contempt finding,
based on similar actions, was previously affirmed by this Court. See T.A.,
296 MDA 2020 at 10-12. We place great reliance on a court’s discretion
regarding contempt, and here, the trial court did not err or abuse its discretion
when it found that the award of Father’s counsel fees was a proper,
compensatory sanction. As such, Mother’s third claim has no merit.
Next, Mother claims the court erred in finding that she was emotionally
abusive towards Child based on the weight of the evidence. See Mother’s
Brief at 21. She alleges “in order for a parent to be found emotionally abusive,
it is required for a doctor or licensed psychologist to diagnose a child with one
of the conditions” set forth in the Child Protective Services Law (CPSL). Id.
at 22; see also 23 Pa.C.S. § 6303(a). Mother argues that in the present
case,
no testimony was provided by any medical professional that the
[C]hild suffers from chronically and severe anxiety, agitation,
depression, psychosis, or is socially withdrawn. Furthermore, no
testimony was provided that the [C]hild’s life or safety was
threatened by Mother nor was any testimony proffered that the
[C]hild has not been able to accomplish age appropriate
developmental social tasks. In short, no testimony by a doctor or
licensed psychologist was provided throughout the entirety of the
record. In fact, both parents testified how great their daughter is
doing. For instance, [Father] testified how great [Child] does in
school and the relationship she has with her teacher. Additionally,
Father testified that the child has friends at school and at daycare.
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Finally, Father even testified that he [did not] believe the [C]hild
needed counseling. Furthermore, Mother testified that the [C]hild
is an outgoing, loving child, who [does not] exhibit any issues with
development or mental illness. Despite the testimony from the
[C]hild’s parents that the [C]hild exhibits no signs of any
conditions and without any testimony from any medical
professionals that the [C]hild was suffering from any mental
infirmities, the court, sua sponte, still found Mother to be
emotionally abusive to the Child.
Id.
As noted above, Mother relies on the CPSL, citing Section 6303, which
provides, in relevant part:
(b.1) Child abuse.— The term “child abuse” shall mean
intentionally, knowingly or recklessly doing any of the following:
* * *
(3) Causing or substantially contributing to serious mental injury
to a child through any act or failure to act or a series of such acts
or failures to act.
23 Pa.C.S. § 6303(b.1)(3). “Serious mental injury” is defined as follows:
A psychological condition, as diagnosed by a physician or licensed
psychologist, including the refusal of appropriate treatment, that:
(1) renders a child chronically and severely anxious, agitated,
depressed, socially withdrawn, psychotic or in reasonable fear that
the child's life or safety is threatened; or
(2) seriously interferes with a child’s ability to accomplish age-
appropriate developmental and social tasks.
23 Pa.C.S. § 6303(a) (“Serious mental injury”) (emphasis in original).
Here, the trial court found the following:
First, this [c]ourt would opine that there does not seem to be any
authority which states that a Court cannot make a finding of
emotional abuse without the testimony of an expert. Moreover,
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this [c]ourt does not believe that the discretion which the trial
court holds in regards to experts support[s] such a conclusion.
Namely, the trial court wields the discretion to determine
the weight accorded to each expert’s testimony. Gaydos v.
Gaydos, 693 A.2d 1368, 1377 (Pa. Super. Ct. 1997) (citing
Rigler v. Treen, 660 A.2d 111, 116 (1995)). Moreover, although
a court should offer an explanation of the basis of its decision, a
court “need not accept even the uncontradicted opinion of an
expert.” Gaydos, 693 A.2d at 1377 (citing Semasek v.
Semasek, 502 A.2d 109, 112 (1985)). Accordingly, the trial
court is free “to accept or reject the credibility of both expert and
lay witnesses, and to believe all, part, or none of the evidence.”
Gaydos, 693 A.2d at 1377-78 (citing Murphy v. Murphy, 599
A.2d 647, 653 (1991)). Accordingly, Mother’s argument that this
[c]ourt is limited in its finding without an expert is baseless.
Moreover, this [c]ourt would once again note that Mother failed to
preserve any argument relative to expert testimony by not making
an objection on the record. See Pa.R.A.P. 302(a).
Second, this Court did not err because there was evidence
presented that supported an emotional abuse finding relative to
Mother. Notably, Mother filed several Protection from Abuse
Petition[s] which thwarted the [C]hild from being able to have
contact with Father for a significant amount of time. Additionally,
Mother initiated or encouraged multiple members of the family to
make phone calls to [C]hild [L]ine and other child protective
services. There were also multiple [Children Advocacy Center
(CAC)] interviews and medical exams done to [C]hild following
these reports. Mother even sought to disrupt another family
member[’]s life, the minor child’s half-sister, and had her
subjected to a CAC interview. Moreover, Mother had Father’s
mother investigated because she was not getting the result she
wanted.
It is also notable that Mother had a complaint filed against
law enforcement because they failed to find sufficient evidence to
pursue charges again[st] Father or Father’s mother. Most
importantly, the Court heard testimony regarding the minor child’s
older sister’s interview in that the child was extremely upset solely
over one interview and this [c]ourt believed [that] given [Child’s]
multiple interviews and the physical examination that this was
extremely upsetting for the [C]hild. This testimony combined with
Father’s testimony about the [C]hild and his misery over this
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situation convinced this [c]ourt to make an emotional abuse
finding relative to Mother. Finally, this [c]ourt would incorporate[]
its rationale [in its analysis concerning Section 5328 factors].
Trial Ct. Op. at 14-16.
We agree the court’s analysis. Mother provides no case law requiring
expert testimony before a court may make a finding of emotional abuse under
the Custody Act. Also, Mother “conflates” the court’s finding of emotional
abuse “under the purview of the Child Custody Act with a substantial finding
of abuse under the CPSL.” K.D. v. E.D., __ A.3d __, __, 2021 WL 5314731,
at *4 (Pa. Super. 2021).
Furthermore, as will be discussed below, Mother was on notice that her
purported emotional abuse of Child was at issue based on the April 1st trial
proceeding. However, as pointed out by the trial court, Mother failed to
preserve any argument relative to expert testimony by not making an
objection on the record. See Pa.R.A.P. 302(a). Accordingly, she cannot now
claim that court’s ruling was against the weight of the evidence based on a
lack of expert testimony. Thus, we discern that no relief is warranted.
In her penultimate claim, Mother alleges the trial court erred and abused
its discretion by entering the April 6th interim order which she asserts
“substantially” and “drastically” changed her custody rights and did not
provide her with the opportunity to be heard before making such a decision.
Mother’s Brief at 23. Mother points out that in Pennsylvania, parties are
entitled to due process in custody proceedings, and as part of that right, the
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court must provide the party “an opportunity to be heard at a meaningful time
and in a meaningful manner.” Id. Mother complains that the court entered
the interim order after Father had presented his witnesses and case-in-chief,
but before she had an opportunity to be heard. Id. at 24. She also suggests
that because the court referenced a “potential” finding of abuse in the order,
she “had no opportunity to be heard or present any evidence to refute the
‘potential’ of emotional abuse.” Id. She complains the court “stripped” her
of “her due process rights during the custody proceeding and significantly
reduced [her] custodial time for the next almost three . . . months.” Id.
Mother “recognize[s] that this due process violation is now technically moot
for this specific case, but in the interest of future justice, believes it is
important that the higher court examine and propound the guidelines for a
[c]ourt to enter a temporary [o]rder before a party has had an opportunity to
be heard.” Id. at 25.
Mother is accurate on two points. First, Mother is correct that her
argument is moot. The interim custody order, which Mother is challenging,
was rendered moot by the entry of the final custody order. Moreover, other
than a bald assertion that this claim should be reviewed because the interest
of future justice is too important, Mother has not explained how the order,
and issue, is subject to any of the exceptions to the mootness doctrine. See
In re Gross, 382 A.2d 116, 119-20 (Pa. 1978).
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Second, Mother is correct that she is entitled to due process with respect
to custody issues. Indeed, “[f]ormal notice and an opportunity to be heard are
fundamental components of due process when a person may be deprived in a
legal proceeding of a liberty interest,” including the custody of a child.
Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005) (citation omitted).
“Both notice and an opportunity to be heard must be afforded at a meaningful
time in a meaningful manner.” Id. (citations and internal quotation marks
omitted). “Notice, in our adversarial process, ensures that each party is
provided adequate opportunity to prepare and thereafter properly advocate
its position, ultimately exposing all relevant factors from which the finder of
fact may make an informed judgment.” Langendorfer v. Spearman, 797
A.2d 303, 309 (Pa. Super. 2002) (citation omitted).
Here, the record reveals the following exchange between the court and
the parties:
[Mother’s counsel]: . . . I would ask you to reconsider, because
we haven’t had the opportunity to hear my client’s point of view
yet. The only thing that linked her to these complaints that were
made, Your Honor, are a statement from an estranged husband
of hers and her estranged husband’s mother.
THE COURT: No, I understand. . . . Normally, I would not do this
candidly, but it’s very hard for this Judge to picture a scenario of
how Mother is going to explain these things that does not involve
Mother being emotionally abusive of this child given this child and
others being interviewed and re interviewed and re interviewed
and multiple court proceedings in which the child is put in the
middle. There is always the chance that this proceeding could get
continued on April 8th, things happen . . . . I want that cautionary
[o]rder or change in the [o]rder in place out of an abundance of
caution. If it were exactly the opposite, and I heard some
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overwhelming evidence that Father had in fact sexually abused
the child, I would be doing exactly the same thing in reverse.
[Father’s counsel]: You did, Your Honor, you did the exact same
thing in reverse back in 20[1]9.
THE COURT: Well, it’s good to be consistent. That is my
explanation. I am not reconsidering it, frankly I have been
thinking about that since the lunch break.
[Mother’s counsel]: Okay. Your Honor, I do -- I would just implore
Your Honor that [a] finding of emotional abuse . . . I think that
should come from a counselor, you know. All we’ve heard from
Mother so far is that we did hear that there was a CAC interview
in which the child, without Mother present, had made statements
of allegations of abuse; and you have a mother that wants to
protect her child.
[Father’s counsel]: I am going to object, we’re not doing closing
right now.
THE COURT: Okay, let her go.
[Mother’s counsel]: Okay.
THE COURT: That is fair.
[Mother’s counsel]: I will keep it brief. . . . [Mother] is put in a
no-win situation. Your Honor, I understand how this played out
and I do get how this played out but this could have played out
differently. All Mother, you know, she’s hearing from a child that
is tell[ing] her one thing, and right now we’re all beating her up
because she did something; but if it was the other way around,
and I understand, I am not beating Father up, but if she had been
a victim of abuse and she hadn’t done anything, then she would
be the bad person here for not protecting her child so she’s in a
no-win situation.
THE COURT: Well, I don’t see it that way. [Mother’s counsel], I
would recommend that you may want to look at, there are at least
two that I know of, [a]ppellate [c]ourt cases in Pennsylvania on
emotional abuse. One of them was an appeal to the Superior
Court, a decision of mine in which I was upheld, so I know [a]
little something about emotional abuse. Unless Mother has some
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awfully good explanations, I may be finding emotional abuse. I
say that to help you prepare between now and [the second day of
trial].
N.T., 4/1/21, at 209-11. In its corresponding temporary order, the court
explained it was changing Mother’s visits from unsupervised to supervised
because “there [was] a potential that after hearing all of the testimony . . .,
[it] may find emotional abuse by Mother.” Order, 4/6/21, at 2. See N.T.,
4/1/21, at 209.
Based on the record before us, the trial court put Mother on notice at
the conclusion of the April 1, 2020, proceeding that it was not making a final
determination with only having evidence from Father’s case-in-chief, but it did
observe some evidence to support the finding of emotional abuse. Moreover,
it waited until after the second day of trial to make that determinative finding.
As noted above, the second day of trial took place two months later. Mother
was provided with significant time to prepare evidence and argument
concerning the issue and present her case-in-chief. Accordingly, based on the
record, one cannot conclude that Mother’s due process rights were violated as
she was given sufficient notice and an opportunity to prepare argument and
introduce evidence on the issue.15 Therefore, Mother’s contention is
unavailing.
____________________________________________
15 Notably, Mother was given unsupervised custody rights in the final order
despite the court’s finding of emotional abuse.
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Lastly, Mother asserts that based on the orders entered in this case, the
trial court exhibited partiality, prejudice, bias, and ill will towards Mother. She
alleges the orders “are not supported by the evidence of record and the
reasoning of the [t]rial [c]ourt is manifestly unreasonable” based on the
evidence presented at trial. Mother’s Brief at 25. Mother references the
court’s entry of the April 6th interim order and states that this is the “most
glaring example of prejudice or bias” because the court severely limited her
custody without providing her with the opportunity to be heard. Id. Mother
also points to the following as more examples of court’s bias: (1) the court
“scrawled ‘denied’” on the order denying her motion for reconsideration; (2)
the court warned Mother that “‘incarceration [was] almost a certainty’” if she
was be found in contempt again, which would be her third time; (3) the court’s
finding of emotional abuse against Mother because it had no basis in the law;
(4) the court’s order which granted Father sole legal custody of Child because
there was no supporting evidence that she did not act in the best interests of
Child; (5) the court’s “quick rendering” of its final order which was entered
only a day and a half after the trial ended which Mother suggests is evidence
that the trial court had pre-determined its final decision before she even
testified; and (6) the fact that the court needed to be reminded at the end of
trial that there was an outstanding contempt motion, which the court quickly
addressed. Id. at 26.
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A review of the record reveals that Mother and her counsel did not
protest the court’s actions or request the court recuse itself due to any
partiality, prejudice, bias, or ill will. As such, we find that Mother’s final
challenge is waived. See Pa.R.A.P. 302(a); see also Fillmore v. Hill, 665
A.2d 514, 515-16 (Pa. Super. 1995) (“[I]n order to preserve an issue for
appellate review, a party must make a timely and specific objection at the
appropriate stage of the proceedings before the trial court. . . . On appeal,
the Superior Court will not consider a claim which was not called to the trial
court’s attention at a time when any error committed could have been
corrected.”) (citations omitted). Moreover, even if Mother had properly
preserved this claim, we would deem it to be without merit. As analyzed
above, a review of the record reveals the court’s findings and determinations
are supported by competent evidence.16
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/03/2022
____________________________________________
16 It merits mention that the trial court found waiver regarding several of
Mother’s claims while we addressed the merits. Nevertheless, “we are not
bound by the rationale of the trial court and may affirm on any basis.”
Richmond v. McHale, 35 A.3d 779, 786 (Pa. Super. 2012) (citation omitted).
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