J-S40029-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
N.L.P., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
S.M.K., :
:
Appellant : No. 292 WDA 2015
Appeal from the Order entered February 4, 2015,
Court of Common Pleas, Blair County,
Civil Division at No. 2011 GN 134
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 26, 2015
Appellant, S.M.K. (“Father”), appeals from the order entered on
February 4, 2015 by the Court of Common Pleas of Blair County awarding
joint physical and legal custody of S.N.G.-K. (“Child”) to Father and
Appellee, N.L.P. (“Mother”). For the reasons that follow, we affirm.
The relevant facts and procedural history of this case are as follows.
Mother and Father are the biological parents of Child, who was born in
September 2009. Mother and Father met while employed at Cresson State
Correctional Institute. Mother is a registered nurse and Father was a
corrections officer. Both Mother and Father are currently retired from
employment with the Commonwealth. Mother and Father never married,
but lived together for a brief period, and separated when Child was
approximately fifteen months old. Mother is currently engaged to J.B., with
*Retired Senior Judge assigned to the Superior Court.
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whom she has had an intimate relationship since approximately October
2013.
Prior to the events surrounding this appeal, Mother and Father equally
shared custody of Child pursuant to an order entered by the trial court on
December 23, 2011. On October 2, 2013, Father filed a petition to modify
the custody order seeking primary custody of Child because he wanted her
to attend pre-kindergarten in Ebensburg, Pennsylvania, where he currently
resides.
Father claims that in November 2013, Child disclosed to Father’s
mother and sister that J.B. had inappropriately touched and kissed Child.
Upon learning this information, Father took Child to the Logan Township
Police to file a report. At that time, Sergeant David Hoover (“Sergeant
Hoover”), a child abuse investigation specialist, attempted to interview Child,
but she refused to talk to him. Father then went to the Blair County
Courthouse to request an emergency protection from abuse order (“PFA”)
against J.B. Father later withdrew his request for a PFA because Mother
agreed that there would be no contact between Child and J.B. pending the
outcome of a forensic interview by Logan Township Police and Blair County
Children, Youth, and Family Services (“CYF”). Because there was no
evidence that any inappropriate touching or kissing occurred, both Logan
Township Police and CYF determined that the allegations of abuse against
J.B. were unfounded.
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On December 31, 2013, Mother filed a petition for a custody
evaluation based upon her concern that Father was influencing Child to
make these abuse allegations against J.B. In early 2014, Douglas Ramm,
Ph.D (“Dr. Ramm”), a forensic psychologist, performed the custody
evaluation. In his report, Dr. Ramm stated that he was unable to determine
whether J.B. had sexually abused Child or whether Father had improperly
encouraged Child to lie about the allegations. Custody Evaluation, 5/6/14,
at 21-22. Dr. Ramm concluded, however, that J.B. had a number of
negative personality traits, including narcissistic and paranoid tendencies
and that J.B. was a significant source of stress for Child. Id. at 11, 21. Dr.
Ramm further concluded that if Child was to have further contact with J.B.,
she should develop a therapeutic relationship with a therapist and that her
first contact with J.B. should occur in the presence of the therapist. Id. at
22.
Mother engaged Shirley Knapp (“Knapp”) in response to Dr. Ramm’s
recommendation that Child receive counseling prior to having contact with
J.B. Father objected to Knapp’s counseling as Mother did not inform him of
her counseling prior to its commencement and he believed it did not follow
Dr. Ramm’s recommendations because J.B. was involved in the counseling
sessions. Knapp conducted four separate one-hour sessions with Child that
included Mother and J.B. and found Child’s interaction with J.B. was
appropriate. N.T., 7/18/14, at 5-6.
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The trial court held a half-day custody hearing on July 18, 2014. Both
Mother and Father requested additional time to present more witnesses and
the trial court held another hearing on December 10, 2014. Prior to the
December 10, 2014 hearing, another incident occurred prompting another
investigation by the Logan Township Police and CYF. According to Mother,
Child accidentally injured herself in her vaginal area by cutting herself with a
clothes shaver. N.T., 12/10/14, at 40-41. Father claimed, however, that
Child told Father’s mother that J.B. did this to her. Father and Father’s
mother took Child to the hospital. Child reported at the hospital that J.B.
had caused her injury. Id. at 85. Only Father’s mother was with Child when
she made this report as Father had opted to stay in the waiting room. Id. at
86. Based on these allegations, CYF arranged for a second forensic
interview and decided to place Child in foster care in order to prevent either
Mother or Father from influencing Child before the forensic interview. CYF
placed Child in the custody of Dorrie Raihl (“Raihl”).
The second forensic interview did not reveal whether J.B. was abusing
Child or whether Father was improperly influencing Child to lie about the
sexual abuse allegations. Sergeant Hoover, who was present for the second
forensic interview, concluded that the alleged child abuse did not occur and
the allegations arose from Father’s influence. Id. at 12, 17. Furthermore,
Raihl testified that she overheard several telephone conversations between
Child and each of her parents while Child was in her care. Id. at 126-27.
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Raihl stated that Mother’s conversations with Child were appropriate, but
that Father attempted to improperly influence Child. Id.
On February 4, 2015, the trial court entered an order granting Mother
and Father joint physical and legal custody of Child. The order stated that
Child’s primary residence during the school year was to be with Mother, that
Child was to attend school in the Altoona Area School District, and that
Mother and Father would equally share custody over the summer. On
February 19, 2015, Father filed a timely notice of appeal and
contemporaneously with his notice of appeal, Father filed his concise
statement of the errors complained of on appeal pursuant to Rule
1925(a)(2)(i) of the Pennsylvania Rules of Appellate Procedure.
On appeal, Father raises the following issue for our review and
determination:
Whether the [c]ourt erred in determining in looking
through the custody factors that [factors one, four,
eight, nine, ten, and thirteen] all significantly favored
[Mother] and was the main reason why custody was
granted toward [Mother]?
Father’s Brief at 4.
We begin by acknowledging our scope and standard of review for
custody cases:
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
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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.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (quoting Durning v.
Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011)).
“With any child custody case, the paramount concern is the best
interests of the child.” Id. The legislature enacted section 5328(a) of the
Child Custody Act in order to delineate the “factors the trial court must
consider when awarding any form of custody.” Id. at 651 (citation omitted).
Section 5328(a) sets forth a list of factors that trial courts must consider “in
a best interests of the child analysis in making any custody determination.”
E.D. v. M.P., 33 A.3d 73, 79-80 (Pa. Super. 2011) (citing 23 Pa.C.S.A.
§ 5328(a)) (footnote omitted). The factors listed in section 5328(a) that
trial courts must consider when determining a child’s best interest include:
(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
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adequate physical safeguards and supervision of the
child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) 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.
(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
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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.
42 Pa.C.S.A. § 5328(a).
In this case, the trial court based its custody decision on its
determination that Father improperly influenced Child to make false
allegations of abuse by J.B. Trial Court Opinion, 2/4/15, at 9. The trial
court’s findings regarding Father’s behavior are as follows:
There is nothing in the record that supports Father’s
beliefs or accusations against [J.B.] This [c]ourt
states here that it does not believe that [J.B.] has
had any inappropriate contact whatsoever with
[Child] and any prohibitions of contact of [J.B. with
Child] are no longer necessary[.]
* * *
The [court,] relying on Sgt. Hoover, [CYF], the
counseling report of [Knapp], and finally the report
of conduct [by Raihl], comes to the inescapable
conclusion that Father’s efforts to improperly
influence [Child were] done without any
consideration of the consequences which they inflict
upon her.
Trial Court Opinion, 2/4/15, at 15-16.
Based on these findings, the trial court concluded that factors one
(which party is more likely to encourage and permit frequent and continuing
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contact between the child and another party), four (the need for stability
and continuity in the child’s education, family life and community life), eight
(the attempts of a parent to turn the child against the other parent), nine
(which party is more likely to maintain a loving, stable, consistent and
nurturing relationship with the child), ten (which party is more likely to
attend to the daily physical, emotional, developmental, educational and
special needs of the child), and thirteen (the level of conflict between the
parties and the willingness and ability of the parties to cooperate with one
another) of section 5328(a) each strongly favored Mother.1
Father argues that the trial court’s finding that he improperly
influenced Child to make false claims of sexual and physical abuse against
J.B. is not supported by the record. Father’s Brief at 11. Father contends
that there is evidence in the record supporting Child’s claims of abuse and
neither Dr. Ramm’s custody evaluation nor either of the two forensic
interviews were conclusive as to whether Father improperly influenced child.
See id. at 13-18. Father also points to other evidence in his favor, such as
Dr. Ramm’s report revealing that Child told Dr. Ramm that J.B. abused her
and Dr. Ramm’s conclusion that J.B. was a significant source of stress for
Child. See id. at 15-16.
1
The trial court found that the remaining factors of section 5328(a) either
did not apply or minimally influenced its decision. See Trial Court Opinion,
2/4/15, at 9-14.
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Father’s argument asks to reweigh the evidence in his favor and
disregard the evidence of record relied upon by the trial court. This we
cannot do. See J.R.M., 33 A.3d at 650. The certified record on appeal
supports the trial court’s determination. Raihl, Child’s foster parent, testified
that she overheard Father attempting to improperly influence Child to lie
about J.B. N.T., 12/10/14, at 126-27. Specifically, Raihl testified:
Q. Okay, and Ms. Raihl, there’s been conflicting
testimony that one or the other parent made efforts
to contact [Child] prior to when she went to that
evaluation. Would you have known of any contact
that was made to [Child] while she was under your
care, ma’am?
A. She had regular phone calls with both parents
usually on a daily basis.
Q. Okay. And would you have as part of what you
do, do you listen to those phone calls, Ms. Raihl?
A. She --- [Child] sat rather close to me a few
times and I could overhear some of the phone calls.
Q. Okay. And Ms. Raihl, from the conversations
that you directly heard, did either parent make any
efforts at all to influence or to persuade [Child] to
say one thing or another?
A. I never heard her mother say anything other
than she missed her and loved her[,] normal
conversations. There [were] a few conversations
with her father that [Child] got extremely upset
about and my husband and I both were listening to
the one phone call because it didn’t sound right and
he was talking about something about taking her
away and asked her if she liked airplanes and trains
and something else, it’s only forty some dollars to
take her to Disney and as soon as he gets her and if
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she does what he tells her to do he’s going to buy
her all this stuff and take her on a trip. So that kind
of sounded odd so I wrote that all down and turned
that in the day of that [sic] she went to State
College.
* * *
A. There [were] a few times that, you know, they
were talking about something called the truth or like
daddy’s truth and another truth and I wasn’t really
sure what they were talking about. When I
questioned [Child,] she just said that her daddy gets
mad that she doesn’t lie. I didn’t know what she
was talking about so I asked her and she just said
that she’s supposed to lie about this guy named
[J.B.] and I said who’s [J.B.] She said that’s
mommy’s boyfriend and that she liked him and she
liked her mommy but she was afraid of her daddy
because he would get angry whenever she wouldn’t
lie and that was the only thing that [Child] ever told
me.
Id. Sergeant Hoover likewise testified that based on his experience and
time spent with Child, he believed that Father was influencing Child to lie
about the allegations of abuse pertaining to J.B. Id. at 17.
Moreover, there is ample evidence of record supporting the trial court’s
conclusion that J.B. had not been abusing Child. Sergeant Hoover testified
that there has never been sufficient evidence to charge J.B. with any crime.
Id. at 16-17. Kirin McCaulley testified on behalf of CYF that the outcomes of
both of CYF’s investigations into the claims of abuse against J.B. were
unfounded and that there was not enough evidence to support any of the
allegations. Id. at 122-23. Furthermore, Knapp testified that during her
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counseling sessions with Mother, J.B., and Child, she observed Child and J.B.
exhibit a healthy interaction during which Child appeared “very carefree, no
anxiety noted, no stress.” N.T., 7/18/14, at 6.
Therefore, based upon our review of the certified record, the evidence
supports the trial court’s determination that Father improperly influenced
Child to make false allegations of sexual abuse against J.B. and that factors
one, four, eight, nine, ten, and thirteen of section 5328(a) favored Mother.
Accordingly, Father is not entitled to any relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
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