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2016 PA Super 204
M.G., IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
L.D.,
No. 2845 EDA 2015
APPEAL OF: B.D., INTERVENOR
Appeal from the Order August 19, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 11-31295
M.G., IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
L.D.,
APPEAL OF: L.D.,
No. 3215 EDA 2015
Appeal from the Order August 19, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 11-31295
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED SEPTEMBER 09, 2016
L.D. (“Mother”) and B.D. (“Grandfather”) appeal pro se from the trial
court’s August 19, 2015 order that denied Grandfather’s request for partial
* Retired Senior Judge assigned to the Superior Court.
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custody and Mother’s request for weekly telephone calls with her now
twelve-year-old biological daughter, M.G.D.1 After careful review, we
reverse and remand.
Mother and Appellee, M.G., are former lovers who adopted one
another’s biological children, i.e., M.G. adopted M.G.D. and Mother adopted
M.G’s now-teenage biological son, E.G.D. The family remained intact for
approximately thirteen years, until April of 2011. On November 14, 2011,
M.G. filed a complaint for custody wherein she requested sole legal and
physical custody of her son and primary physical custody of M.G.D. Mother’s
counterclaim requested primary physical custody of both children and asked
that M.G. receive periods of supervised physical custody.
Following a custody conciliation conference, Mother and M.G. entered a
series of interim consent agreements which culminated in the August 2,
2012 custody order wherein each parent maintained primary physical
custody of her biological child with varying degrees of partial custody of the
other child. Subsequent to the August 2012 order, Mother expressed
concerns that E.G.D. was aggressive toward her and M.G.D. and that he had
serious mental health issues. M.G. disputed the allegations against their
son. Nevertheless, the then-appointed parent coordinator recommended
1
These consecutively listed appeals challenge the same custody order, arise
from identical facts, and involve related parties that filed matching Rule
1925(b) Statements, which the trial court addressed jointly. Likewise, M.G.
filed identical briefs in both actions. Thus, we consolidate the appeals for
ease of disposition. The child advocate did not file a brief in either appeal.
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that E.G.D. get treatment from Adele Cox, M.D. and Bradford Norford, PhD.,
and that Mother and E.G.D. participate in parent/child counseling in lieu of
the custodial periods outlined in the consent order.2 Additionally, the parent
coordinator recommended that both parents and children participate in a
custody evaluation administered by Stephen Miksic, Ph.D.
During a subsequent custody exchange on May 27, 2013, Mother shot
M.G., who was in her car, several times in the presence of both children.
M.G. escaped grievous injury but spent two to three days in the hospital.
E.G.D., who was in the back seat of the car, was not injured. Mother was
arrested, tried, and convicted of, inter alia, attempted homicide and
endangering the welfare of children. She was sentenced to twenty-two and
one-half to fifty-two years imprisonment.3 During the criminal proceedings,
Mother was prohibited from communicating with E.G.D. While the criminal
court did not level a similar prohibition relating to M.G.D, it proscribed her
from talking to her daughter about the shooting incident. Mother continues
to maintain that she acted in self-defense and shot at M.G. only to avoid
being run down by the automobile M.G. was driving.
2
By adopting Pa.R.C.P. 1915.11-1, effective May 23, 2013, the Supreme
Court eliminated the use of parenting coordinators as an improper
delegation of judicial duties. As discussed in the body of this opinion, the
trial court’s subsequent reliance upon a child advocate in lieu of a parenting
coordinator raises similar concerns.
3
Mother appealed from the judgment of sentence, but as of the date of this
opinion, that appeal remains unresolved.
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Following the shooting, M.G. filed protection from abuse petitions
against Mother and an emergency petition to modify custody. Grandfather,
who is Mother’s father, countered with an emergency petition to intervene
wherein he requested custody of M.G.D. Grandfather attached a hand
written certification outlining his concern that M.G.D. was being physically
abused by then-eleven-year-old E.G.D. while in M.G.’s physical custody and
that M.G. did not curtail the behavior. Grandfather stated that he observed
welts and bruises on his granddaughter following visits with M.G. and that
M.G.D. advised him that she fears E.G.D., who has injured her. M.G. filed
preliminary objections to Grandfather’s petition to intervene. In addition to
challenging Grandfather’s standing to seek primary custody under § 5324 of
the Child Custody Law, 23 Pa.C.S. §§ 5321-5340, M.G. contested
Grandfather’s claims of physical aggression by her son against M.G.D.4
4
The Child Custody Law grants standing to seek physical custody and legal
custody as follows:
The following individuals may file an action under this chapter for any
form of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis to the
child:
(i) whose relationship with the child began either with the
consent of a parent of the child or under a court order;
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Thereafter, Grandfather filed an amended petition to intervene
outlining additional incidents of M.G.D.’s abuse at the hands of E.G.D. and
noted his grandson’s behavioral issues, including alleged incidents where he
threatened to kill an elementary school teacher and was suspended from
school for posting a racially-charged diatribe on his school’s computer
network. Grandfather invoked an additional right to seek partial custody
under 23 Pa.C.S. § 5325(2), which applies where parents have been
separated for at least six months.5 See L.A.L. v. V.D., 72 A.3d 690
(ii) who assumes or is willing to assume responsibility for
the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent
child under 42 Pa.C.S. Ch. 63 (relating to juvenile
matters);
(B) the child is substantially at risk due to parental
abuse, neglect, drug or alcohol abuse or incapacity; or
(C) the child has, for a period of at least 12 consecutive
months, resided with the grandparent, excluding brief
temporary absences of the child from the home, and is
removed from the home by the parents, in which case
the action must be filed within six months after the
removal of the child from the home.
23 Pa.C.S. § 5324
5
In relation to grandparents that are seeking partial physical custody, the
Child Custody Law states, in pertinent part,
In addition to situations set forth in section 5324 (relating to
standing for any form of physical custody or legal custody),
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(Pa.Super. 2013) (“Under Child Custody Act, grandparents of a child whose
parents never married have standing to seek partial custody of
grandchild.”). On June 4, 2013, the trial court entered a temporary order
granting Grandfather primary physical custody of M.G.D. and prohibiting
anyone except the child advocate, Lisa Kane Brown, Esquire, from discussing
the case with M.G.D. Attorney Kane Brown was previously appointed
through the Montgomery Child Advocacy Project (“MCAP”) as the child
advocate in relation to the PFA action M.G. filed against Mother.6
During the ensuing two-day custody trial, the trial court focused on
evidence as to whether E.G.D. presented a significant risk of harm to M.G.D.
Pointedly, as it relates to Grandfather’s petition, the focus of the court’s
inquiry was whether M.G.D. “is substantially at risk due to parental abuse,
[or] neglect” pursuant to § 5324. If Grandfather could not demonstrate a
grandparents and great-grandparents may file an action under
this chapter for partial physical custody or supervised physical
custody in the following situations:
....
(2) where the parents of the child have been separated
for a period of at least six months or have commenced
and continued a proceeding to dissolve their marriage[.]
23 Pa.C.S. § 5325(2).
6
According to the non-profit organization’s mission statement, “MCAP
provides free legal representation to children who are the victims of abuse
and neglect in Montgomery County.” See http://www.mcapkids.org/mission-
history/
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substantial risk of harm based upon M.G.’s lax response to E.G.D.’s
behaviors, he would lack standing to seek physical or legal custody under §
5324. In order to understand each child’s perspective of the sibling
dynamic, the court heard testimony from, inter alia, E.G.D.’s therapist, Dr.
Norford, and M.G.D.’s psychologist, Robert Schwarz, Ph.D.7
At the close of the evidentiary hearings, the trial court determined
that, despite evidence of physicality, Grandfather’s concerns for M.G.D.’s
safety were unwarranted and that M.G.’s reactions to E.G.D.’s behaviors
were not tantamount to parental neglect. Hence, it ruled that Grandfather
lacked standing to seek primary physical custody. The trial court sustained
M.G.’s preliminary objection, dismissed Grandfather’s petition to intervene
pursuant to § 5324, and, as a default positon, it awarded M.G. primary
custody without addressing any of the best-interest factors that courts are
statutorily mandated to consider “in ordering any form of custody[.]” See
23 Pa.C.S. § 5328(a).
While the trial court denied Grandfather’s petition to intervene
pursuant to § 5324 relating to physical and legal custody, it granted
Grandfather’s petition insofar as he sought to exercise partial physical
custody under § 5325. Id. at 280. However, the court neglected to fashion
a custody schedule for Grandfather. Instead, it decided to “leave it to the
7
The trial court’s in camera interview with M.G.D. was not recorded.
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attorneys to try and work something out.” Id. The trial court specifically
sought input from the child advocate whom it had previously entreated to
take a “proactive” role in the custody case by drafting a list of “dos and
don’ts,” for the court’s approval, regarding conduct in both households and
the conditions of custody. Id. at 272-273, 275.8 Neither party appealed.
Between June and July 2013, Grandfather was able to exercise partial
custody on two occasions for a total of thirty-six hours before the child
advocate unilaterally terminated his custodial rights after she determined
that Grandfather contravened her directives regarding appropriate
communications with M.G.D. Specifically, the child advocate believed that
Grandfather permitted unauthorized telephone contact between Mother and
M.G.D. and that he indicated an intention to pump the child for information.
Grandfather attempted to explain that the pertinent telephone calls occurred
prior to the custody court’s prohibition, but his efforts were futile. Similarly,
while Grandfather declared that the reference related to information
concerning E.G.D.’s physical abuse, the child advocate believed that it
related to Mother’s pending criminal case. Accordingly, exercising authority
8
The child advocate’s list of conditions is not included in the certified
record, and it is unclear whether the trial court formally endorsed any
custody conditions that the child advocate fashioned. It is obvious,
however, that the child advocate imposed conditions upon Grandfather
because it was her unilateral decision to terminate Grandfather’s custodial
periods with M.G.D. based entirely upon her belief that the visits were
adverse to the child.
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delegated by the trial court, the child advocate terminated all contact
between Grandfather and M.G.D.
On August 14, 2013, M.G. filed a petition to modify the June 2013
custody order. She requested sole legal and physical custody of both
children. Following a hearing, on October 28, 2014, the trial court entered a
final order granting M.G. sole physical custody of M.G.D. and her brother.
Grandfather was denied partial physical custody. M.G. and Mother shared
legal custody in name only. M.G. was empowered to make all daily and
emergency decisions as well as all educational and therapeutic choices
without Mother’s consent. If Mother objected to any of the decisions, she
was required to petition the court for relief. The custody order limited
Mother’s contact with child to written communication and directed that the
child advocate review Mother’s correspondence with M.G.D., and, if
appropriate, forward it directly to the child. Conversely, “if inappropriate,
[the child advocate] may strike the inappropriate portions, and forward [it]
to [M.G.D.]” or return it to Mother with an explanation. Trial Court Order,
10/28/14, at 2.
Neither party appealed the October order; however, approximately two
weeks later, Grandfather filed a motion to modify the custody order. He
again asserted that M.G. and the child advocate had previously precluded
him from exercising his custodial rights or contacting his granddaughter on
the telephone. He again requested partial custody of M.G.D. consisting of
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two non-consecutive weekend days per month and one week during summer
vacation and sought permission to take the child on his visits with Mother.
During the ensuing hearing, the parties agreed to also address Mother’s
motions for visitation and contact by telephone and written correspondence.9
N.T., 4/27/15, at 19-20, 44. As to the increased contact, Mother sought
permission to make one telephone call and mail one letter to M.G.D. per
week.
The focus of the evidentiary hearing was Grandfather’s interaction with
M.G.D., his ongoing disquiet about M.G.D.’s welfare around E.G.D., and his
remark that he intended to gain information from his granddaughter.
Grandfather presented his and Mother’s testimony, M.G. testified on her own
behalf, and the child advocate presented her concerns that Grandfather’s
preoccupation with M.G.D.’s safety and his steadfast support of Mother’s
criminal defense interfered with the children’s best interest. Following the
evidentiary hearing and review of the parties’ post-hearing memoranda, on
August 18, 2015, the trial court entered an order denying Grandfather’s
request for partial physical custody and Mother’s requests for weekly
9
The Child Custody Law no longer identifies visitation as a specific form of
child custody and equates the term with partial physical custody, shared
physical custody, or supervised physical custody. Instantly, it is clear from
the context of Mother’s incarceration that she uses the term in its literal
sense, i.e. in-prison visitation or the virtual visitation, which we discuss in
the body of this opinion.
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telephone contact. It granted Mother permission to mail her daughter one
letter per week, subject to the child advocate’s approval.10
These timely, pro se appeals followed.11 Mother and Grandfather filed
identical Rule 1925(b) statements that asserted four issues:
a) the Court committed an error of law when it denied
appellant's requests for visitation and phone contact with her
daughter as it deprives appellant ([L.D.]) of her Constitutional
rights under the 1st and 14th Amendments.
b) the Court committed an error of law when it denied
grandparent visitation to appellant . . . with his granddaughter,
as it applied a "fact" not in evidence when it considered the legal
standards in making this decision.
10
Although the parties “agreed to have [the court] hear everything [during
the April 27 hearing],” the court’s subsequent order only addressed the
portions of Mother’s requests relating to telephone contact and written
correspondence. N.T., 4/27/15, at 44. The court neglected to address
prison visitation. If it considered visitation at all, it was in the context of
denying Grandfather’s request for partial custody, which necessarily
subsumed his entreaty to take M.G.D. to a third-party closed-circuit video
facility in Philadelphia for virtual visitation during his custodial period.
11
Under the prisoner mailbox rule, which applies equally to civil matters,
Mother is deemed to have filed her notice of appeal on September 12, 2015,
the date that she presented it to prison authorities for mailing. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (pro se inmate’s
notice of appeal deemed filed on the date that he gives appeal to prison
official or places it in prison’s mailbox); Thomas v. Elash, 781 A.2d 170,
176 (Pa.Super. 2001) (prisoner mailbox rule applies to all pro se filings by
incarcerated litigants including civil matter). Moreover, the Montgomery
County Prothonotary erroneously rejected Mother’s initial notice of appeal
because it misidentified the date of the custody order, which was attached to
the notice of appeal. See Commonwealth v. Williams, 106 A.3d 583,
588-589 (Pa. 2014) (clerk of courts lacks authority to reject, as defective,
timely notice of appeal; “therefore [it is] obligated to accept and process
notices of appeal upon receipt in accordance with the Rules of Appellate
Procedure, notwithstanding any perceived defects therein”). Hence, the
appeal was timely filed.
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c) the Court committed an error of law when it used the
"contentious nature" of the relationships between Plaintiffs and
Defendant as the basis of denying Plaintiffs[‘] requests for
contact with the minor child, rather than applying the
appropriate legal standards. Also, the Court did not consider the
fact that the source of the "contention" is due to the Defendant,
not the Plaintiffs, and the Plaintiffs should not be penalized for
this.
d) the Court, in its award of weekly letters from Plaintiff [L. D.]
to her daughter, ignored the fact that this does not effect
MEANINGFUL communication with her daughter since the
Defendant admitted in court that the child is not consistently
being given the letters.
Concise Statement of Matters Complained of on Appeal, 9/17/15, at 1.
We review the trial court’s custody order for an abuse of discretion.
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial
court’s factual findings that are supported by the record and its credibility
determinations. Id. However, we are not bound by the trial court’s
deductions or inferences, nor are we constrained to adopt a finding that
cannot be sustained with competent evidence. A.V. v. S.T., 87 A.3d 818,
820 (Pa.Super. 2014). In sum, this Court will accept the trial court’s
conclusion unless it is tantamount to legal error or unreasonable in light of
the factual findings. S.W.D., supra at 400.
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors which legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual well-being.” Saintz v. Rinker,
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902 A.2d 509, 512 (Pa.Super. 2006) (citing Arnold v. Arnold, 847 A.2d
674, 677 (Pa.Super. 2004)).
Mother raises the following questions for review:
1. Did the lower court's decision to deny visitation and phone
contact between [L.D.] and her biological daughter [M.G.D.]
violate [L.D.’s] Constitutional Rights under the First and
Fourteenth Amendments?
2. Did the lower court ignore a grave issue of child welfare by
not immediately modifying custody of [M.G.D.] or allowing her
biological family any contact with her to ensure her ongoing
safety once new information became available (and was brought
to the attention of the court) after the hearing of 4/27/15 which
spoke to abuse and /or neglect of the child [M.G.D.] while under
the care of appellee [M.G.]?
3. Did the lower court commit an error of law when it utilized
"facts" either not in evidence and /or not relevant to applicable
law when making its decisions to deny requests of appellants . . .
for visitation /phone contact and partial custody /grandparent
visitation with the child [M.G.D.]?
4. Are the lower court's decisions in this case in accordance with
statutory and case law, and do they provide means for
meaningful communication between [Mother] and [M.G.D.]?
Mother’s brief at 10.12
At the outset, we reject Mother’s third argument summarily because
the crux of her contention challenges only the trial court’s decision vis-à-vis
Grandfather and not any aspect of the custody order relating to her custodial
12
Mother’s brief is disjointed. While the first issue raised in her statement of
questions presented corresponds with the first argument asserted in her
brief, issues two and three are argued in her brief under the headings “Point
#3” and “Point 4,” respectively. Mother’s brief at 19, 20. Consequently,
issue four is argued under “Point 2”. Id. at 17.
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rights. Although Mother referenced her custodial rights in phrasing this
issue, her argument simply invokes the now-repealed Custody and
Grandparent Visitation Act, and asserts that the court erred in failing to
grant Grandfather’s request for partial custody. As Mother does not present
a basis to disturb the custody order in relation to her rights, this claim does
not warrant relief.
Similarly, we note that Mother’s second issue, regarding the court’s
failure to consider new information about the alleged abuse that E.G.D.
inflicted upon M.G.D., is waived because Mother ignored this contention in
her Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”).
Moreover, even if the second issue had been preserved, it is meritless.
Concisely, Mother asserts that, in rendering its best interest determination,
the trial court neglected to consider significant injuries that M.G.D. received
to her head and clavicle during July 2014. Mother surmised that the injuries
were the result of E.G.D.’s continued physical abuse and that M.G.’s
explanation for the injury, i.e. that M.G.D. fell from a warped wall at a
parkour gym,13 was a dubious attempt to cover up the abuse. Accordingly,
13
The notes of testimony includes the malapropism that M.G.D. fell at “a
park or a gym[.]” N.T., 4/27/15, at 64. During oral argument, it was
confirmed that M.G.D. fell while participating in parkour, a training type
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she opined that her direct contact with M.G.D. is necessary to verify her
daughter’s continued safety and welfare. She also complains that she was
not informed about the incident or the substantial injuries that her daughter
suffered. The record belies both of these arguments.
First, the trial court considered testimony regarding the injury, but
unlike Mother, it accepted M.G.D.’s explanation that the injury was
accidental. Our standard of review precludes us from reweighing the
testimony from Mother’s perspective and making a contrary determination in
her favor. Furthermore, the certified record refutes Mother’s insinuation that
she was not informed of the injury. In fact, Mother had been advised of
M.G.D.’s hospitalization during her criminal sentencing and her present
assertion sought only to confirm that this was the same injury that was
previously disclosed. Thus, although we believe that the trial court, and
more precisely the child advocate, have persistently slighted the legitimate
concerns of Mother and Grandfather about M.G.D.’s safety around E.G.D.,
nothing in the record supports Mother’s specific assertion concerning the
trauma that M.G.D. sustained to her head and upper body during July 2014.
athletic activity made popular by the television show “American Ninja
Warrior.” A warped wall is a common obstacle used in parkour.
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Mother’s first preserved argument is that the trial court’s custody
determination violates her constitutional rights.14 Although her precise
argument is difficult to follow, the crux of this contention is that, even
though she is incarcerated, her right to visit with M.G.D. is a fundamental
right guaranteed by the First and Fourteenth Amendments to the
Constitution of the United States of America. She continues that the trial
court can only deny her right to visitation to prevent “a severe adverse
impact on [M.G.D.’s] welfare.” Mother’s brief at 15. Other than one citation
to our Supreme Court’s decision in D.R.C. v. J.A.Z., 31 A.3d 677 (Pa.
2011), Mother supports her cryptic claim with references to the former child
custody law, various non-precedential cases, and three cases with
questionable relevance to the visitation rights of an incarcerated parent.
While Mother’s argument is artless, it highlights a significant flaw in the trial
court’s decision to deny her request for visitation, i.e., by focusing upon
Mother’s insistence upon her innocence and the effect that Mother’s
increased contact with M.G.D. would have upon the child’s relationship with
M.G. and E.G.D., the trial court neglected to consider the factors relevant to
determine whether visitation with Mother, or, at least, weekly telephone
14
The dissent mischaracterizes our analysis as addressing the trial court’s
custody factors. In actuality, we address Mother’s specific reference to
D.R.C. v. J.A.Z., 31 A.3d 677 (Pa. 2011), regarding the viability of the
“grave threat” aspect of in-prison visitation, and we confront the trial court’s
failure to apply the appropriate standard that our High Court outlined in that
case. This argument was preserved as a subsidiary component of Issue A in
the Rule 1925(b) statement.
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contact is in M.G.D’s best interest. Upon review, we find that the trial court
based its denial of Mother’s request for expanded contact with M.G.D. on
improper considerations.
Section 5328 of the Child Custody Law, which we reproduce infra,
provides that, “In ordering any form of custody, the court shall determine
the best interest of the child by considering all relevant factors, giving
weighted consideration to those factors which affect the safety of the
child[.]” 23 Pa.C.S. § 5328(a). However, where, as here, one parent is
incarcerated and will remain imprisoned for an extended period, the
applicability of several of the enumerated statutory factors is questionable.
Traditionally, when determining the best interest of a child in reference to an
incarcerated parent’s request for visitation, this Court has considered the
factors set forth in Etter v. Rose, 684 A.2d 1082 (Pa.Super. 1996). See
D.R.C., supra.
In D.R.C., our Supreme Court addressed the counseling provision
under § 5303(c) of the prior custody statutes and reviewed the trial court’s
consideration of an incarcerated parent’s criminal conviction under §
5303(b). The relevant provisions, which were repealed and reenacted in
substantial part at 23 Pa.C.S. §§ 5329(a) and (d), required that, prior to
making an order of physical custody or visitation, the court must determine
whether a parent who committed one of the offenses enumerated in that
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section posed a threat of harm to his or her child. 15 Subsection (c) of the
former statute required that the trial court appoint a counselor to the
offending parent. The precise question before the High Court in D.R.C.
concerned who was required to pay for the incarcerated parent’s counseling
in the state facility. As it relates to the case at bar, in disposing of the issue
15
In pertinent part, the current version of the statute provides,
Consideration of criminal conviction
(a) Offenses.—Where a party seeks any form of custody, the
court shall consider whether that party or member of that party's
household has been convicted of or has pleaded guilty or no
contest to any of the offenses in this section or an offense in
another jurisdiction substantially equivalent to any of the
offenses in this section. The court shall consider such conduct
and determine that the party does not pose a threat of harm to
the child before making any order of custody to that parent
when considering the following offenses:
18 Pa.C.S. Ch. 25 (relating to criminal homicide).
18 Pa.C.S. § 2701 (aggravated assault)
. . . . [a litany of enumerated offenses]
18 Pa.C.S. § 4304(endangering welfare of children)[.]
(b) Parent convicted of murder.—No court shall award custody,
partial custody or supervised physical custody to a parent who
has been convicted of murder under 18 Pa.C.S. § 2502(a)
(relating to murder) of the other parent of the child who is the
subject of the order unless the child is of suitable age and
consents to the order.
....
23 Pa.C.S. § 5329 (effective November 30, 2015).
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before it, the High Court found that § 5303(b) and (c) did not apply to
incarcerated parents who were only seeking visitation with their children
within the prison. The court concluded, “[W]e find that it was not the
General Assembly's intent for subsections (b) and (c) to be applied to
requests for prison visitation.” Id. at 687. Instead, the section applied only
to custody considerations following a parent’s release from prison. Id. at
686. The Supreme Court reasoned,
[D]ue to the strictures of their confinement and the rules of the
penal institution, incarcerated parents are unable to engage in
the type of physical interaction feared by the drafters of this
legislation. Thus, it would serve no significant ameliorative
purpose to mandate counseling for every incarcerated offending
parent for the limited and closely scrutinized contacts associated
with prison visits. A visitation request by an incarcerated parent
necessarily stands on different footing than a traditional custody
petition.
Id.
While the Supreme Court concluded that a mechanical application of §
5303 was ill-fitting in this scenario, it astutely observed that the nature of
the incarcerated parent’s criminal conduct was a component of the
determination. Thus, referring to Etter, supra, a prison visitation case
decided by this Court, our High Court outlined the various factors relevant to
prison visitation. The Court explained,
In prison visit cases, the court in fashioning an appropriate
order, where it determines visits would be in the child's best
interests, is limited to a determination of the number of visits
and perhaps some contacts through telephone calls and written
correspondence. . . . [P]rison visit requests involve additional
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factors unique to that scenario that courts must consider in
evaluating the overarching best interests of the child. For
example, in Etter v. Rose, 454 Pa.Super. 138, 684 A.2d 1092,
1093 (1996), the Superior Court recognized some of the factors
to be considered in deciding a question of visitation where the
parent is incarcerated: (1) age of the child; (2) distance and
hardship to the child in traveling to the visitation site; (3) the
type of supervision at the visit; (4) identification of the person(s)
transporting the child and by what means; (5) the effect on the
child both physically and emotionally; (6) whether the parent
has and does exhibit a genuine interest in the child; and (7)
whether reasonable contacts were maintained in the past. Of
course, although not mentioned in Etter, another relevant
consideration is the nature of the criminal conduct that
culminated in the parent's incarceration, regardless of whether
that incarceration is the result of a crime enumerated in section
5303(b).
Id. The D.R.C. Court reversed the order denying relief and remanded the
matter for a hearing to address the parent’s request for prison visitation
pursuant to the relevant factors. We recognize that D.R.C. concerns the
statutory interpretation of a provision that has been repealed and reenacted
as § 5329 of the current child custody law. However, since § 5329 is
materially indistinguishable from its predecessor, we follow the guidance
that our High Court provided in addressing prison visitations in D.R.C.
Herein, the trial court did not consider how visitation would affect
M.G.D. physically and emotionally in light of her age, travel logistics, and
supervision during the visit. Likewise, it neglected to determine whether
Mother’s interest in expanding her contact with M.G.D. is genuine.
Moreover, deaf to our High Court’s discussion in D.R.C., the trial court failed
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to consider the nature of Mother’s criminal conduct or its effect upon her
daughter.
Rather than confronting the relevant factors, the trial court first noted
that incarceration necessarily curtailed Mother’s freedom of association and
it then considered Mother’s past statements and behaviors, which it
characterized as arrogant and short-tempered. In addition, the court
implicated Mother in Grandfather’s statement to her that he would pump
M.G.D. for information, which the court interpreted as an attempt to
influence the child’s testimony in the criminal proceedings. In sum, the trial
court reasoned that “permitting visitation and/or telephone contact with the
child(ren) would be detrimental to the child(ren) given that [Mother] and
Grandfather continue to maintain that [Mother] is innocent in the shooting of
M.G.” Trial Court Opinion, 10/19/15, at 6 (parentheses in original) (citation
to record omitted). As the trial court failed to consider the visitation factors
that we outlined in Etter, supra, and that our Supreme Court endorsed in
D.R.C., supra, we vacate the order denying Mother’s request for visitation
and remand for the trial court to render a determination in light of the
appropriate considerations.
Although we remand for further proceedings, our resolution of
Mother’s remaining complaint, which is a tangent of her request for
visitation, will assist the trial court’s visitation determination. We therefore
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address that argument as well.16 Essentially, Mother contends that the
court’s denial of her request for greater contact with M.G.D. denied her the
right to meaningful communication with her daughter. In asserting this
complaint, Mother highlights the extent of the child advocate’s interference,
albeit on authority delegated by the trial court, with her already-
compromised ability to communicate with her daughter. The following facts
are relevant to our review.
As noted supra, in fashioning the June 2013 custody order, the trial
court enlisted the child advocate to oversee the custody arrangement.
During October 2014, the trial court extended its reliance upon the child
advocate and directed her to review Mother’s correspondence with M.G.D.
and censor, redact, or strike any portions that she deemed inappropriate.
The certified record demonstrates that the child advocate wielded her
delegated authority industriously. She regularly micromanaged Mother’s
contacts with M.G.D. in the name of the child’s best interest. Beyond merely
reviewing Mother’s missives for inappropriate content, the child advocate
first objected to Mother numbering her correspondence, and then instructed
Mother to reduce the frequency of her weekly correspondence with M.G.D. to
16
We disagree with the dissent’s perspective that Mother did not complain of
Attorney Kane Brown’s role throughout the custody proceedings. The issue
is an integral component of Issue D in the Rule 1925(b) statement insofar as
she challenged Attorney Kane Brown’s interference with her meaningful
communication with M.G.D. Likewise, Mother preserved the claim in Issue 4
of her statement of questions presented and highlighted Attorney Kane
Brown’s overreaching at pages seventeen through eighteen of her brief.
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one letter per month. Neither of these edicts involved any specified
inappropriate statements on Mother’s part. The child advocate disapproved
of the enumeration because she had not seen the prior letters and could not
confirm that they had been sent. N.T., 4/27/14, at 83. Likewise, she limited
the communications to “small talk” and ordered that Mother reduce the
frequency of the communiqués because she was told that their frequency
upset the child. Id. at 80, 83.
As to the latter requirement, even when Mother complied with the
child advocate’s mandate and waited longer than normal before mailing
M.G.D. her next letter, the child advocate was still dissatisfied. The child
advocate rejected that correspondence because Mother had written to
M.G.D. to expect fewer letters from her and attempted to reassure her that
the reduction did not mean that Mother loved her any less. The child
advocate characterized this letter as “about three paragraphs” that she
believed were patently inappropriate to forward to her adolescent client. In
reality, she objected to the following passage,
[M]y dearest [M.G.D.], hello sweetheart. I’m sending you a big
hug through the page of this letter. I hope you can feel it
sending you my warmth and love. You may have noticed that it
was a little longer than usual between my last letter and this
one. The reason for that is because [the child advocate] told me
that sometimes it upsets you when you read my letters, so she
[M.G.] and Dr. Norford [17]would like me to send you less
letters. Now, [M.G.D.], the last thing I want is for you to be
17
Curiously, Dr. Norford is E.G.D.’s therapist. As noted supra, M.G.D. was
treated by Dr. Schwarz.
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upset. I realize you are in a tough situation, and I certainly
don’t want to make it worse. Now I understand that reading my
letters means you think of me and us and that makes you miss
me more, and that is very hard. So I will send you less letters
for now as long as you understand that it does not mean I am
thinking about you less because my love now is stronger than
anything on this [E]arth and that I feel it each minute of every
single day just as I know how much you love me . . . too.
Id. at 83-84.
In justifying her decision to the trial court, the child advocate
explained, “[R]ather then redact almost the entire first page of [Mother’s]
Letter, which would have looked rather strange, I sent it back to [Mother]
with a letter . . . stating [that ‘the entire first paragraph is inappropriate’]
and [informing her] that if she wanted to rewrite it and leave those portions
out . . . [she] would be happy to forward it to [M.G.D.]” Id. at 80-81
(quoting Child Advocate’s Letter dated 2/10/15).
Neither of the child advocate’s explanations identifies which aspect of
the letter was inappropriate, and the record does not reveal the specific
reason for the child advocate’s unilateral decision to reject it. As outlined,
supra, Mother’s letter did not insult or belittle M.G. or E.G.D., discuss
Mother’s pending criminal matters, or even present a false hope of their
immediate reunification. Indeed, we are uncertain whether the child
advocate protested the letter’s reference to M.G. and Dr. Norford, Mother’s
loving reassurances, or the statement that implicated the child advocate in
the decision to reduce the contacts. While we will not presume to know the
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child advocate’s logic, it is evident that the result of the child advocate’s
excessive control was that Mother was required to reduce her weekly
contacts with M.G.D. and then was forbidden to explain to her daughter why
she was sending the correspondence less frequently.
Although Mother declined to revise the pertinent letter and simply
acquiesced to the child advocate’s directive to communicate with her
daughter less frequently, this episode, which stems entirely from the child
advocate’s overreach of her court-ordered mandate to ensure that the
correspondence was appropriate, uncovered yet another problem with this
case—the trial court’s improper delegation of its authority to child advocate
Attorney Kane Brown.
The trial court did not define Attorney Kane Brown’s precise role in this
child custody case. Indeed, the court’s Rule 1925(a) opinion refers to
Attorney Kane Brown interchangeably as both a child advocate and guardian
ad litem. See Trial Court Opinion, 10/19/15, at 2, 7, 8. Unlike the roles of
guardian ad litem and counsel for child, which are clearly delineated in the
child custody law, the statute does not recognize the role of “child advocate”
or define the scope of a child advocate’s authority in custody cases. See 23
Pa.C.S. §§ 5334-5335. Recall that Attorney Kane Brown was initially
appointed through MCAP as M.G.D.’s child advocate in the PFA action against
Mother, and ostensibly retained pursuant to 42 Pa.C.S. § 5983, which
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provides for the appointment of advocates for children who are victims or
material witnesses in criminal proceeding.18
Moreover, stark differences exist among the appropriate
responsibilities of an MCAP attorney appointed as a child advocate for a
victim of abuse, neglect, or a crime; a guardian ad litem appointed under §
5334; and legal counsel appointed pursuant to § 5335. Basically, the MCAP
18
That statute provides as follows:
(A) Designation of persons to act on behalf of children.—
Courts of common pleas may designate one or more persons as
a child advocate to provide the following services on behalf of
children who are involved in criminal proceedings as victims or
material witnesses:
(1) To explain, in language understood by the child, all legal
proceedings in which the child will be involved.
(2) As a friend of the court, to advise the judge, whenever
appropriate, of the child's ability to understand and
cooperate with any court proceedings.
(3) To assist or secure assistance for the child and the
child's family in coping with the emotional impact of the
crime and subsequent criminal proceedings in which the
child is involved.
(b) Qualifications.--Persons designated under subsection (a)
may be attorneys at law or other persons who, by virtue of
service as rape crisis or domestic violence counselors or by
virtue of membership in a community service organization or of
other experience acceptable to the court, possess education,
experience or training in child or sexual abuse and a basic
understanding of the criminal justice system.
42 Pa.C.S. § 5983.
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child advocate utilizes a holistic approach to representation that is not
specifically authorized by the child custody law and transcends both that of
guardian ad litem and legal counsel.19
Furthermore, the two types of representatives that are authorized
under the child custody law serve different functions, and the trial court’s
intention in appointing Attorney Kane Brown is not obvious from the
authority that it delegated to her throughout these proceedings. For
example, Attorney Kane Brown has performed tasks consistent with legal
counsel appointed under § 5335(a), i.e., she invoked the privilege of
communication during one hearing, and the trial court routinely invited her
to present evidence and cross-examine witnesses. However, during the
identical period, Attorney Kane Brown maintained monthly telephone contact
with M.G.D., presented her concerns and general recommendations to the
court consistent with the guardian ad litem’s powers and duties under §
5334(b)(6) and (8), and the trial court not only examined her on the record,
presumably under oath, and elicited opinion testimony interpreting one of
19
MCAP child advocates are charged with the mission “to give Voice, Healing
and Security to children.” http://www.mcapkids.org/mission-history/.
Indeed, as stated with a spirit commensurate with the organization’s
impactful role, MCAP defines its child advocacy by stating, “We help kids be
kids and recapture their childhoods! We give children roots to grow and
wings to fly. We advocate for our kids, so that they will be the SUPERHeroes
they were born to be!” Id. In sum, the MCAP child advocate cultivates a
protective emotional and social environment as well as providing legal
expertise.
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Grandfather’s statements, but it also subjected her to cross-examination by
Mother and Grandfather. The latter considerations are particularly relevant
in light of the fact that, effective September 3, 2013, the Supreme Court
clarified, inter alia, that the guardian ad litem can no longer represent both
the best interest and legal interest of the child, or present evidence or cross-
examine witnesses; however, the guardian ad litem may testify and be
subject to cross-examination.20 While the changes became effective three
months after the trial court first endowed Attorney Kane Brown with her
court-ordered authority during June 2013, the alterations were operative
when the trial court extended this power in its October 2014 custody order.
Moreover, Attorney Kane Brown’s role as child advocate was ambiguous at
the outset. At best, the trial court’s mandates blurred the lines of Attorney
Kane Brown’s appointment, and at worst, the action was the improper
delegation of judicial-decision making authority reminiscent of a parenting
coordinator. Thus, upon remand, the trial court shall state Attorney Kane
20
The Editors’ Note following 23 Pa.C.S. § 5334 explained,
SUSPENDED IN PART
23 Pa.C.S.A. § 5334 is suspended insofar as it (1) requires that
a guardian ad litem be an attorney, (2) permits the guardian ad
litem to represent both the best interests and legal interests of
the child, (3) provides the guardian ad litem the right to
examine, cross-examine, present witnesses and present
evidence on behalf of the child, and (4) prohibits the guardian ad
litem from testifying, pursuant to Pa.R.C.P. No. 1915.25.
23 Pa.C.S. § 5334; Pa.R.C.P. 1915.25 (effective September 3, 2013).
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Brown’s specific role with clarity and ensure that she acts within the
statutory authority of that appointment.
Having reversed the portion of the custody order relating to Mother’s
request for visitation and increased non-physical contact, we next address
Grandfather’s pro se appeal. He presents four questions for our review:
[1.] Was the relevant evidence before the lower court sufficient
to terminate the Partial Custody previously granted to the
grandfather by Order of June 12, 2013? The Order being
appealed was entered on August 19, 2015 and terminated Partial
Custody in the Grandparent.
[2.] Is the lower court permitted to consider the opinion of the
attorney for M.G.D. as determinative to a finding of that which is
in the "best interests" of the child when that attorney, guardian
ad litem clearly has no expertise in the relevant professions to
render such opinions and there is no testimony in the record as
to any negative impact that Grandparents Partial Custody would
have on M.G.D.(Grandchild)?
[3.] Is the lower court permitted to determine a potential
future harmful impact upon M.G.D.(Grandchild) upon a
completely unsubstantiated interpretation of a Statement made
by Intervenor-Appellant?
[4.] Did the lower court err by not considering (a) the
importance of preserving the stability in the life of M.G.D. when
it completely removed the Grandfather from the life of M.G.D.,
and (b) the traumatic effect upon M.G.D. that would surely result
from the continued denial of contact between M.G.D. and her
grandfather?
Grandfather’s brief at 2-3.
Grandfather’s brief does not conform to Pa.R.A.P. 2119 insofar as he
failed to divide the argument into sections that correspond with the four
issues he raised in his statement of questions involved. Instead of
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complying with the procedural uniformity of Rule 2119, Grandfather presents
one rambling argument that touches, to varying degrees, upon on the points
that he noted in his statement of issues. While this Court is authorized to
quash a nonconforming brief, his procedural misstep does not substantially
impede our ability to perform appellate review, and we shall address the
merits of the arguments that have been preserved for review in the Rule
1925(b) statement. See Pa.R.A.P. 2101; Commonwealth v. Adams, 882
A.2d 496, 498 (Pa.Super. 2005) (“Despite the numerous defects in
Appellant's brief, we will address the one claim that we are able to
review[.]”).
Next, we observe that Grandfather’s first and fourth claims are waived
due to his failure to present it in his Rule 1925(b) statement. See Pa.R.A.P.
1925(b)(4)(vii). While M.G. asserts that the second and third issues are
waived for the identical reason, we disagree with that assessment. The Rule
1925(b) statement delineated that, inter alia, the trial court erred in
considering facts that were not part of the certified record, i.e., the child
advocate’s depiction of him, and in relying on the effect of the perceived
discord between Grandfather and M.G. as the basis for denying him periods
of custody with his granddaughter. Contrary to M.G.’s characterization, our
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interpretation of Grandfather’s Rule 1925(b) statement subsumes the
second and third arguments that Grandfather raises herein.21
Grandfather’s argument challenges the trial court’s finding of fact
relating to whether he: (1) attempted to influence M.G.D.’s testimony in the
criminal case; (2) discussed the shooting with M.G.D. and permitted the
child to speak with Mother in violation of a court order; and (3) nurtured a
contentious relationship between M.G. and M.G.D. as evidenced by his
reference to her as “adoptive mother,” differing perspectives of the shooting,
and attempts to alienate M.G.D. from M.G. and E.G.D. This complaint
further highlights the above-referenced defects relating to the ambiguity of
Attorney Kane Brown’s role in this case and the trial court’s collective
reliance upon her testimony, opinions, recommendations, and legal
arguments. For all of the following reasons, we find that the trial court’s
custody decision is without support in the certified record.
The following legal principles guide our review. This court must defer
to the trial court’s credibility determinations and its factual findings that are
supported by the record. S.W.D., supra at 400. However, findings of fact
21
The dissent misapprehends our analysis. We do not address the claims
leveled in Issues A and D of Grandfather’s Rule 1925(b) statement. Indeed,
Grandfather does not attempt to assert these claims in his brief. Moreover,
while the dissent does not hesitate to find the remaining claims waived, Rule
1925(b)(4)(v) provides for a nuanced review of claims that treats as
preserved the specific error identified as well as “every subsidiary issue
contained therein[.]” Instantly, we find that the specific claims that
Grandfather leveled in Issues B and C of his Rule 1925(b) statement
subsume the second and third arguments that he makes on appeal.
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that cannot be sustained with competent evidence are not binding. A.V.,
supra at 820. “Ultimately, the test is whether the trial court's conclusions
are unreasonable as shown by the evidence of record.” See K.T. v. L.S.,
118 A.3d 1136, 1159 (Pa.Super. 2015) (quotations omitted).22
The child custody law outlines the relevant factors to consider in
determining whether to award partial physical custody to a grandparent who
has standing to pursue partial custody under § 5325(2) based upon the
dissolution of her parents’ relationship. In this scenario, § 5328(c)(1)
requires that the trial court consider:
(i) the amount of personal contact between the child and
the party prior to the filing of the action;
(ii) whether the award interferes with any parent-child
relationship; and
(iii) whether the award is in the best interest of the child.
23 Pa.C.S. § 5328(c)(1). Moreover, in adjudicating the child’s best interest
under § 5328(c)(1)(iii), the trial court is required to engage in a review of
the sixteen statutory best-interest factors applicable when making any order
22
While the dissent criticizes what it depicts as our glib disagreement with
the trial court’s findings of fact, our standard of review demands that this
Court ensure that the trial court’s factual determinations are sustained by
competent evidence of record. As noted in the body of this writing, some of
the trial court’s findings are founded on Attorney Kane Brown’s supposition
and others are based on references to the district attorney’s suspicions and
insinuations leveled during Mother’s criminal case. Thus, our observations
regarding these tenuous factual underpinnings, as well as the inherent
contradiction in the trial court’s risk-of-harm discussion undoubtedly is
within the purview of our standard of review. See A.V., supra at 820.
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of custody. K.T., supra at 1159; L.A.L., supra at 695; 23 Pa.C.S. §
5328(a).23
23
The list of best-interest factors 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 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.
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Instantly, the trial court denied Grandfather’s request for partial
custody because it determined that partial custody would interfere with
M.G.D.’s relationship with M.G., and would be adverse to M.G.D.’s best
interest. Specifically, the court concluded that Grandfather’s insistence upon
Mother’s innocence in the criminal matter and his alleged attempt to
influence M.G.D.’s testimony in that case were detrimental to M.G.D. The
court also determined that Grandfather was hostile to M.G., and that
Grandfather’s feigned concern for M.G.D.’s safety in M.G.’s household was
designed to alienate M.G.D. from M.G. and E.G.D.
(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. § 5328(a)(1)-(16).
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In explaining its rationale, the trial court ignored our recent decision in
K.T., supra, wherein we addressed grandparent custody under §
5328(c)(1). Instead, the court relied upon two cases that predated the
current child custody law, Zaffarano v. Genaro, 455 A.2d 1180 (Pa. 1983)
and Miller v. Miller, 478 A.2d 451 (Pa.Super. 1984), which discuss the
effects of hostility between parents and grandparents. More importantly,
however, the trial court omitted the component of the § 5328(c)(1) analysis
relating to M.G.D.’s level of personal contact with Grandfather prior to the
custody litigation, and it utterly failed to engage in the required review of
the statutory best-interest factors pursuant to § 5328(a). Since Grandfather
did not assert these omissions as grounds to reverse the instant custody
order, we do not raise them sua sponte in order to grant relief. We note,
however, that had Grandfather leveled these complaints, we would have
reversed the custody order on the basis of the omitted best-interest factors
alone. See L.A.L. supra (“Because the present record does not evince a
thorough analysis of all relevant factors, we cannot conclude that the trial
court properly considered the Child's best interest.”). Nevertheless, as we
are compelled to reverse the order relating to Grandfather due to the trial
court’s unsupported factual findings, we caution the court to be mindful of
the statutory requirements on remand and to perform the appropriate best-
interest analysis as required by the child custody statute. See K.T., supra
at 1159.
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Herein, Grandfather argues that the certified record will not sustain
several of the trial court’s essential findings of fact. We agree with his first
contention that the record does not establish that Grandfather attempted to
influence M.G.D.’s testimony in the criminal case. Essentially, the trial court
adopted Attorney Kane Brown’s interpretation of Grandfather’s statement
that he would “pump M.G.D. for information” as an indication of
Grandfather’s intention to influence the child’s testimony in the criminal
proceedings. As Grandfather points out in his brief, nothing in the certified
record suggests that he has ever discussed the criminal matter with M.G.D.,
let alone attempted to influence her testimony. He further explained that he
made the statement in reference to his granddaughter’s allegations of abuse
in M.G.’s household. Indeed, apparently recognizing this reality, M.G.
concedes in her brief that the “pump for information” statement related to
Grandfather’s intention to obtain details of the abuse that he suspected that
his granddaughter was enduring at the hands of E.G.D. See Appellee’s brief
at 8 (stating that Grandfather’s actual purpose for seeking this information
was to undermine the parent-child relationship). Unlike Attorney Kane
Brown’s conjecture about Grandfather’s intent to interfere with the criminal
matter, as we highlight infra, the certified record is replete with evidence
that M.G.D. has been required to endure E.G.D.’s physical mistreatment
without M.G.’s intervention. As the certified record will not sustain Attorney
Kane Brown’s supposition concerning what she believed Grandfather
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intended by the statement, the court erred in adopting her perspective as
grounds to deny partial custody.
The second disputed conclusion concerns whether Grandfather
discussed the shooting with M.G.D. and permitted the child to speak with
Mother in violation of a court order. This issue has two components: the
allegation of witness tampering and the claim of unauthorized contact.
Neither assertion is supported by the record.
During the April 27, 2015 hearing, M.G.’s counsel repeatedly asked
Grandfather about the district attorney’s alleged concern about witness
tampering. Grandfather disputed that he was ever accused of tampering but
stressed that the district attorney made that insinuation as part of the
criminal case against Mother. N.T., 4/27/15, at 24. Grandfather also
discussed an incident that occurred three days after the shooting where he
allegedly told Mother that he contacted her criminal attorney to inquire how
she intended to get M.G.D. to tell the truth about the incident. Id. at 29-30.
Grandfather testified that he did not recall the exact exchange, but he
believed that his hope that M.G.D. would testify truthfully was innocent and
sensible. He continued that the district attorney took the reference out of
context in order to manufacture a sinister motive for purposes of the
criminal prosecution. Id. at 29-30. Again, the trial court adopted this
perspective despite a dearth of evidence in the certified record to support
that inference beyond the persistence of counsel’s inquiry.
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Likewise, neither M.G. nor the trial court identified any countervailing
evidence to contest Grandfather’s statement that he never discussed the
incident with M.G.D. Grandfather testified that soon after the May 27, 2013
shooting, he scheduled a meeting between M.G.D. and Mother’s defense
counsel. Id. at 25, 27. The scheduling occurred prior to the custody court’s
June 4, 2013 order precluding any discussion of the incident, and once the
trial court issued its order, the meeting was immediately cancelled. Id.
Accordingly, this finding also is unsupported.
Moreover, as it relates to M.G.D.’s telephone contact with Mother while
in Grandfather’s custody immediately after the shooting, Grandfather
confirmed that he permitted M.G.D. to speak with Mother every night during
that week. Id. at 27-28. The trial court credited Attorney Kane Brown’s
subsequent testimony that “M.G.D. was not to have contact with Mother
between the first custody hearing and the conclusion of the custody
hearing.” Unfortunately, the record does not support Attorney Kane Brown’s
testimony. Stated plainly, the June 4, 2013 order entered following the
hearing that Attorney Kane Brown referenced simply did not preclude M.G.D.
from speaking with Mother on the telephone. While it is conceivable that the
trial court could have issued the directive from the bench, that proceeding
was not recorded and the trial court neglected to indicate its recollection of
an oral directive in adopting Attorney Kane Brown’s position.
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The third aspect of Grandfather’s argument challenges the trial court’s
finding that he and Mother are responsible for the family’s contentious
relationship with M.G. In reaching this conclusion, the trial court pointed to
three factual determinations: (1) Grandfather demeans M.G. by insisting
upon referring to her as “adoptive mother;” (2) he believes Mother acted in
self-defense despite the jury conviction; and (3) he attempted to alienate
M.G.D. from M.G. and E.G.D. The certified record clearly sustains the trial
court’s findings that Grandfather referred to M.G. as adoptive mother and
advocated Mother’s criminal defense; however, since there is no indication in
the record that Grandfather shared with M.G.D. his personal perspective of
M.G. or discussed Mother’s legal defense in the child’s presence, we reject
the inference that those differences interfered with the parent-child
relationship.
As it relates to Grandfather’s persistent references to M.G. as
“adoptive mother,” we agree that the moniker is inexcusable and
Grandfather’s cavalier reaction to M.G.’s objection to the epithet evinces his
disdain for her as a parent and ignores M.G.’s unwavering legal, emotional,
and moral responsibility to her daughter. Notwithstanding Grandfather’s
insensitive behavior, however, considering the procedural and factual errors
that we have encountered in reviewing the trial court's custody decision, we
find that the derogatory statements do not warrant depriving Grandfather of
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his custodial rights—particularly in light of his pledge to drop the disparaging
qualification and to simply refer to M.G. as the child’s mother.
The trial court’s finding of alienation is the primary ground for
concluding that awarding Grandfather partial physical custody of M.G.D.
would interfere with her relationship with M.G. Throughout the proceedings,
the trial court was preoccupied with how its ruling would affect M.G.D.’s
relationships in M.G.’s home. For example, it interpreted Grandfather’s
ongoing concern for M.G.D.’s safety around E.G.D. as a pretext to alienate
his granddaughter from that side of her family. Indeed, when the trial court
actually confronted the issue in its threshold determination of Grandfather’s
standing, it was less concerned with M.G.D.’s safety than the effect that the
allegations of abuse would have upon E.G.D. The court’s reaction and its
finding of alienation would be reasonable if the allegations of physicality had
been completely refuted. However, that is not the case herein.
The record demonstrates that, notwithstanding M.G.’s protestations to
the contrary, E.G.D. posed a risk to M.G.D.’s safety and that Grandfather’s
concerns were warranted. During the June 2013 hearing, Dr. Norford
testified about the treatment that he rendered to E.G.D. in order to address
his aggressive behavior. Dr. Norford treated E.G.D. for approximately one
month during June 2011 and resumed treatment during January 2013,
following E.G.D.’s publication of inappropriate statements on the school’s
computer network. He described the post as racially and ethnically
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insensitive, extremely intense, and aggressive, but lacking any direct threats
of violence to any of the individuals that he identified. In spite of that
conclusion, he recommended that the school increase its monitoring of
E.G.D., require weekly meetings with the school guidance counselor, regular
contact with his psychiatrist, and outpatient therapy. Since the resumption
of counseling, E.G.D. participated in nine sessions, two of which followed the
shooting incident.
Dr. Norford testified that E.G.D. had a fairly substantial case of
attention deficit hyperactivity disorder (“ADHD”) with a small degree of
symptoms consistent with anxiety and Asperger’s Syndrome. He highlighted
that E.G.D. exhibited impulsiveness and poor judgment. E.G.D. takes four
types of daily medication to address his impulsivity and to sharpen his focus.
Dr. Norford also noted that, while Mother highlighted the boy’s symptoms,
M.G. elected to minimize them. For example, although Mother presented
several examples of their son’s aggressive and excessive behavior
throughout his childhood, M.G. consistently downplayed those episodes.
For his part, Dr. Norford found that the behaviors were typical for a
child with ADHD and did not characterize E.G.D. as particularly aggressive or
harmful to people in general. Paradoxically, however, in describing the
profanity-laced blog post for which he was suspended from school for two
days, he opined, “I don’t want to say that someone is not any danger to
somebody when you have a rant like that sitting there.” N.T., 6/10/13, at
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42-43. He also noted that while it had been reported that the child
previously threatened an elementary school teacher and stole a knife from a
home his parents were considering purchasing, he did not follow up either
report.
As it relates specifically to M.G.D., Dr. Norford explained that E.G.D.
speaks positively of his sister and smiles when he talks about her. He never
expressed anger with his sister or blamed her for her accusations of abuse.
Instead, E.G.D directs his anger toward Mother. Dr. Norford reported, “He
says that [Mother] believes he is violent and that, if anything happens to
[M.G.D.] when they’re playing, that it might result in her not being able to
come back.” Id. at 47. The witness continued, “he feels that . . .[M.G.D.
will] say what [Mother] feels about the situation[.]” Id. Based on these
conversations, Dr. Norford did not believe that E.G.D. is intentionally
aggressive or violent with his sister and attributed the girl’s injuries to
roughhousing between siblings. During Attorney Kane Brown’s cross-
examination, Dr. Norford agreed with her supposition that E.G.D. may not
realize that his sister perceives his ADHD symptoms as aggressive
behaviors. Id. at 71-72.
Dr. Norford conceded that his conclusion was based entirely upon
E.G.D.’s and M.G.’s versions of the sibling relationship and data from
E.G.D.’s school. Significantly, he has never to spoken to M.G.D. and he only
observed the children together once in the waiting room outside his office.
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Moreover, neither E.G.D. nor M.G. informed Dr. Norford that M.G.D. hid in
the closet to avoid interacting with her brother.
In contrast to the benign interactions that Dr. Norford relayed to the
court, Dr. Schwarz, who has treated M.G.D. monthly since August of 2012,
testified that M.G.D. was unhappy in M.G.’s home. During the majority of
their sessions, M.G.D. complained to him that E.G.D. is physically abusive
and confirmed that M.G. did not curb E.G.D.’s behavior. In addition to
general complaints of rough treatment, she described two specific examples
of physicality. On one occasion, E.G.D. placed his legs around her neck and
squeezed them in a chokehold-like maneuver. During a separate incident,
E.G.D. put M.G.D. in a headlock. Dr. Schwarz testified that, when M.G. told
him that M.G.D. was always happy and smiling in her presence, he advised
M.G. that her daughter “has been pretty consistently unhappy with [the
situation with E.G.D. and the lack of limits.]” N.T., 6/12/13, at 292. 24 While
Dr. Schwarz was concerned about M.G.D.’s protests, he did not believe that
the actions warranted advising a child service agency of potential child
abuse.
24
The notes of testimony for the June 12 hearing is paginated both
independently and consecutive to the June 10 hearing. Additionally, the
morning and afternoon sessions of the June 12 hearing were transcribed in
reverse order. For ease of reference and to limit confusion, we cite to the
uniform pagination.
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Dr. Schwarz also testified that, from his initial interaction with M.G.D.,
the child outlined issues with E.G.D., M.G’s lack of structure, and her feeling
that she would not be “protected from her older brother.” Id. at 296.
M.G.D. also relayed that she took shelter in a closet while at M.G.’s home
“because she was unhappy[,] wanted to read[,] and . . . needed to be left
alone.” Id. Significantly, Dr. Schwarz rejected the trial court’s attempt to
minimize E.G.D.’s behavior as common sibling roughhousing. He stated, “I
took it more as . . . a little worse than roughhousing . . . the[se] are
brothers and sisters who don’t treat each other all that well.” Id. at 307.
Nevertheless, the trial court rebuffed Dr. Schwarz’s perspective of the
physical interactions, continued to diminish M.G.D.’s reports as normal
sibling roughhousing, and expressed its shock that more incidents had not
been reported over the seven-year period in light of E.G.D.’s condition. The
court reasoned, “Siblings fight. Kids fight. Kids get injured as a result. . . .
Kids fight. And every now and then kids fight to a point where one gets
injured, sometimes more seriously than others.” Id. at 269. Even when the
court acknowledged that E.G.D.’s actions could have been intentional, the
court was “not convinced by a preponderance of the evidence that there is
such serious abuse by [E.G.D.] that would prompt [it] to say that [M.G.]
is . . . neglectful to such a point that [Grandfather] should be permitted to
intervene in this case.” Id.
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Tellingly, however, despite relegating the referenced incidents to
typical rambunctiousness between children, the trial court cautioned M.G.
about her lax discipline of E.G.D. and warned, “[Y]ou’ve got to recognize
that [M.G.D.] is a little girl who may need a watchful eye all the time she’s
with her brother and needs to be reassured that you are taking care of the
issues.” N.T., 6/10/13, at 270 (emphasis added). Later, the trial court
repeated its caveat: “[I]t’s up to you, [M.G.] to monitor that in your home.
That means that you don’t leave these two children alone. Don’t leave them
alone.” Id at 274. If M.G.D.’s injuries were truly the unfortunate but
acceptable product of sibling roughhousing, the trial court’s admonishment
of M.G. would be pointless.
Thus, while the court deemed E.G.D.’s behavior to be something less
than physical abuse, the trial court’s demonstrated concern about M.G.’s
hesitancy to address her son’s conduct buttressed Grandfather’s
apprehension about M.G.D.’s safety in that household. Indeed,
notwithstanding the court’s stated factual finding, in reality, it shared
Grandfather’s concern over the true threat that E.G.D. would pose to M.G.D.
if his behavior was permitted to continue unchecked. The foregoing
scenario, where the trial court actually legitimized Grandfather’s concern for
M.G.D.’s wellbeing, belies the court’s finding that Grandfather’s fear was a
pretext by which he alienated M.G.D. from M.G. and E.G.D. Hence, the trial
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court erred in concluding that Grandfather’s concern for M.G.D.’s welfare in
M.G.’s home was insincere.
For all of the foregoing reasons, we reverse the trial court’s August 19,
2015 custody order. The trial court is directed to clarify the statutory basis
of Attorney Kane Brown’s appointment; review Mother’s request for
visitation, whether it be “virtual visitation” or in-person visitation, consistent
with the factors our Supreme Court endorsed in D.R.C., supra; and review
Grandfather’s petition for partial physical custody in light of the § 5328 (a)
and (c)(1)(i), considerations the court omitted from its prior determination.
Order reversed. Cases remanded for further proceedings consistent
with this opinion.
Judge Olson joins the Opinion
Judge Strassburger files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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M.G. v. L.D., Appeal of: B.D.
Combined Opinion