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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.P.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
K.J.
No. 1764 EDA 2016
Appeal from the Order Entered May 10, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2009-02505
BEFORE: BOWES, MOULTON AND MUSMANNO JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2016
M.P.B. (“Father”) appeals from the custody order awarding K.J.
(“Mother”) primary physical custody of their minor son, D.B., and granting
him periods of partial physical custody. We affirm.
Mother and Father never married. D.B. was born during May 2007 as
a consequence of the parties’ brief dalliance. Five months into the
pregnancy, Mother informed Father that she was pregnant. Father attended
D.B.’s birth, but he did not maintain contact with his infant son.
During 2008, Mother surreptitiously moved with D.B. to New
Hampshire in order to marry R.J. (“Stepfather”). After Father discovered
Mother’s location, he filed a custody complaint in Pennsylvania. On April 15,
2009, the parties fashioned a custody arrangement in which they shared
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legal custody, Mother maintained primary physical custody in New
Hampshire, and Father exercised monthly periods of partial physical custody.
While living in New Hampshire, Mother became concerned that
Stepfather might be abusing D.B. sexually because the child started
speaking and behaving inappropriately. Mother reported her fears to child
protective services, left Stepfather, and returned with D.B. to Pennsylvania.
She reunited with Stepfather in New Hampshire after an investigation
deemed the report unfounded. During June 2012, Stepfather pled guilty in
New Hampshire to child pornography charges that did not involve D.B.
Mother initiated that investigation after alerting authorities that she had
discovered suspected child pornography on her husband’s computer.
Thereafter, Mother initiated divorce proceedings against Stepfather and
relocated with her son to Pennsylvania permanently. She and D.B. began to
reside in an apartment that Father secured for them.1 During this period,
Father exercised weekly periods of physical custody and enjoyed liberal
visitation.
Allegations of abuse were not limited to Stepfather. In total, five
allegations of physical abuse were leveled against Father by either Mother or
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1
As a first grader, D.B. was diagnosed with Attention Deficit/Hyperactivity
Disorder (“ADHD”) and was prescribed between 5 mg and 10 mg of Ritalin
per day. He also has diagnoses of Autism Spectrum Disorder, and
unspecified Disruptive Impulse-control and Conduct Disorder.
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D.B.’s pediatrician based upon unexplained injuries and bruises that
occurred while in Father’s care. All of those allegations were deemed
unfounded.
In March 2015, Mother was committed to a mental health facility for
two weeks following the sudden death of her younger brother. Mother, who
was victimized repeatedly as a child, has an extensive history of mental
illness with multiple hospitalizations dating back to 1988. She has been on
total psychiatric disability since 1993 and she has residual cognitive defects
from a traumatic brain injury that she sustained in 1999. Prior to the 2015
hospitalization, Mother’s most recent inpatient treatment occurred in 2006.
Based upon the latest hospitalization, Father filed a petition for emergency
custody, which the court granted, awarding him sole legal custody and
primary physical custody of D.B. The order did not carve any specific
periods of partial custody for Mother, but it permitted her to visit D.B. upon
her release from the facility, so long as Father agreed.
At the conclusion of Mother’s two-week hospitalization, Father limited
Mother’s access to D.B. As a result, she petitioned the trial court for
modification of the emergency custody order. The trial court ordered Mother
to undergo a mental health evaluation, and upon review of the evaluator’s
findings, it reinstated the April 2009 custody arrangement with a
modification that enlarged Father’s periods of alternating weekend custody.
Father sought reconsideration, which led to a series of countervailing
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petitions that ultimately culminated in the two-day custody trial that is the
genesis of this appeal.
During the trial, Mother testified and presented her long-term
psychotherapist, Melisa Hubsher, Psy.D., to introduce evidence regarding her
mental health. Father testified on his own behalf, and the court-ordered
custody evaluator, Gerald F. Bellettirie, Ph.D., discussed his thorough,
seventy-page custody evaluation and recommendation. Dr. Bellettirie first
provided an extensive historical review and summarized his evaluations of
D.B. individually and with each parent in his and her respective homes.
Next, he outlined the best-interest factors set forth in 23 Pa.C.S. § 5328(a),
and recommended that Mother and Father share equal physical custody of
D.B., provided that the trial court ensure that Mother continue mental health
treatment. Referencing the child’s aversion to change, Dr. Bellettirie
stressed the importance that D.B. remain in his current school in the district
where Mother resides. See Custody Evaluation, 11/22/15, at 70 (“Change is
a very difficult adjustment for a child with [D.B.]’s developmental
disorders.”). He added that “[D.B.] should not be separated from his
mother for any unnecessary extended period of time. [He] has already been
traumatized from being separated from mother for an extended period of
time in the past.” Id. at 68-69.
At the close of the trial, the trial court presented its on-the-record
analysis of the best-interest factors and outlined the terms of the ensuing
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custody award. Five days later, on May 10, 2016, the trial court entered a
final custody order awarding Mother primary physical custody of D.B. and
granting Father partial physical custody Wednesday overnight and
alternating weekends. The custody order incorporated Dr. Bellettirie’s
recommended safeguards relating to the trial court’s monitoring of Mother's
continued mental health treatments. This timely appeal followed.
Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise
statement of errors complained of on appeal concurrent with his notice of
appeal. The trial court entered a Rule 1925(a) opinion addressing the merits
of Father’s claims. The matter is ready for our review.
Father frames his assertions in four prolix questions, which we
condense into two succinct issues: (1) whether the trial court’s best-interest
analysis is contrary to the statutory directive to give weighted consideration
to factors that affect the safety of the child; and (2) whether the trial court
erred in weighing the second, seventh, fifteenth, and sixteenth custody
2
factors pursuant to 23 Pa.C.S. § 5328(a). Father’s brief at 7-8.
In M.J.M. v. M.L.G., 63 A.3d 331 (Pa.Super. 2013), we reiterated the
applicable scope and standard of review as follows:
In reviewing a custody order, our scope is of the
broadest type and our standard is abuse of discretion. We
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2
The first issue implicates the question Father listed as IV in his brief. The
second issue combines the questions Father presented in I-III.
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must accept findings of the trial court that are supported
by competent evidence of record, as our role does not
include making independent factual determinations. In
addition, with regard to issues of credibility and weight of
the evidence, we must defer to the presiding trial judge
who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court's deductions
or inferences from its factual findings. Ultimately, the test
is whether the trial court's conclusions are unreasonable as
shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of
law, or are unreasonable in light of the sustainable findings
of the trial court.
With any child custody case, the paramount concern is
the best interests of the child. This standard requires a
case-by-case assessment of all the factors that may
legitimately affect the physical, intellectual, moral and
spiritual well-being of the child.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011) (citation
omitted).
M.J.M., supra at 334.
Pursuant to 23 Pa.C.S. § 5328(a), the determination of a child’s best
interest requires the examination of the following factors:
(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).
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(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 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.
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23 Pa.C.S. § 5328.
Herein, the trial court weighed the applicable factors in awarding
Mother primary physical custody of D.B. and granting Father periods of
partial physical custody. The trial court found that factors one, three, four,
nine, ten and sixteen militated to varying degrees in favor of Mother.
Factors two, five, six, seven, eight, eleven, twelve, thirteen, fourteen, and
fifteen were either inapplicable or did not inure to either parent’s advantage.
None of the factors entirely favored Father.
The first issue challenges the weight of the evidence adduced at trial.
Essentially, Father maintains that the trial court either ignored certain
evidence or failed to view the evidence through the prism of the “weighted
consideration” of his son’s safety. Father’s brief at 19, 34-36. He asserts,
“At the very least, proper consideration of the [f]actors weighs in favor of an
award to Father of substantially more custody time than the Order . . .
awarded him.” Id. at 34. Thereafter, he concludes, “Had the court given
the appropriate weighted consideration to Factors 2 and 15 . . . it would
have properly concluded that an award of primary custody of [D.B.] to
Father was warranted.” Id. at 36. These positions fail for at least two
reasons. First, Father misinterprets our standard of review and ignores our
deference for the trial court’s role as fact finder. Father cannot dictate the
weight the trial court attributes to any single factor. Indeed, as we
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highlighted in M.J.M., supra at 339, “it is within the trial court’s purview as
the finder of fact to determine which factors are most salient and critical in
each particular case.”
Furthermore, the trial court did, in fact, engage in the appropriate
review. Stated plainly, the trial court examined factors two and fifteen
through the prism of D.B.’s safety and, as the ultimate arbiter of fact, it
concluded that both factors were neutral. Father’s present contention
effectively demands that we re-examine the evidence presented during the
two-day hearing in a more favorable light to him in order to attain a different
conclusion. We decline to revisit the trial court’s factual findings which are
supported by the certified record in order to reassess the weight of the
evidence. J.R.M., supra at 650 (“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”). Thus, this claim fails.
In his remaining assertions, Father argues that the trial court’s
rationale was tantamount to an abuse of discretion or unreasonable as
shown by the evidence of record. Father’s arguments contest the trial
court’s deliberation as to four of the best-interest considerations: two,
seven, fifteen and sixteen. Of those factors, sixteen is the only one that the
court found to lean in Mother’s favor. The trial court deemed the second,
seventh, and fifteenth factors to be neutral.
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Concerning factor two, consideration of present and past abuses,
Father asserts that the trial court disregarded Mother’s inappropriate
responses to the allegation that Stepfather abused D.B and Stepfather’s
child pornography convictions. Specifically, he assails Mother’s judgment in
returning to New Hampshire to reunite with Stepfather after the
investigation deemed the abuse allegations unfounded. Father contends
that, in light of the statutory requirement that the trial court give weighted
considerations of the factors that affect the child’s safety, the court erred in
discounting Mother’s poor judgment as it relates to whether she can provide
adequate safeguards and supervision of her son. Father’s brief at 22-26.
He asserts that the second factor should have weighed heavily in his favor.
In rejecting Father’s claim regarding Mother’s momentary
reconciliation with Stepfather prior to her 2012 discovery of child
pornography on his computer, the trial court observed that Mother returned
to New Hampshire after the allegations regarding D.B. had been deemed
unfounded and left again when she discovered Stepfather’s predilection for
child pornography. Moreover, as the trial court pointed out, Mother
terminated contact with Stepfather and has not interacted with him for more
than three years. In sum, the court concluded that Stepfather does not
present a risk of harm to D.B. and Father’s concerns regarding those
allegations do not implicate any current members of Mother’s household.
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Father also challenges the trial court’s consideration of the unfounded
allegations of abuse that were leveled against him in addressing this issue.
He argues that the court inappropriately equated those unfounded
allegations with Stepfather’s confirmed behavior. He is mistaken. While the
trial court referenced the allegations of physical abuse against Father and
noted the difficulty in proving how the injuries were sustained, it did not find
that Father was the perpetrator of abuse, deem Father unsafe, or assess the
factor against him due to the unfounded allegations. Moreover, the trial
court did not equate the unproven allegations of physical abuse with
Stepfather’s perversions. In reality, in reference to Mother’s brief return to
New Hampshire, it noted that, like the unfounded accusations against
Father, the allegation that Stepfather had abused D.B. was equally difficult
to prove. Thus, to the extent the court compared the allegations of abuse
leveled in this case, the comparison was limited to the respective unfounded
accusations against Father and Stepfather. Father’s complaint that the court
equated Stepfather’s child pornography conviction with the investigation into
the unexplained bruises on D.B.’s legs distorts the trial court’s analysis.
Finally, as it relates to Mother’s judgment, we further observe that
Mother initiated the abuse investigation against Stepfather based upon
D.B.’s comments and, while she briefly reunited with Stepfather after the
initial allegations were deemed unfounded, upon discovering the suspected
child pornography on Stepfather’s computer, she severed the relationship
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permanently and reported Stepfather to law enforcement authorities.
Contrary to Father’s contentions, Mother’s decisions under these
circumstances does not evince poor judgment. Mother removed D.B. from
danger, returned when the perceived threat was deemed unfounded, and
ultimately reported her husband to authorities when she discovered that
unrelated crime. The trial court’s determination that this factor did not
weigh in favor of either parent is reasonable as shown by the forgoing
evidence of record. Hence, we discern no abuse of discretion.
While Father frames his next issue as a challenge to factor seven, the
well-reasoned preferences of the child, in reality he contests the trial court’s
catchall consideration under sixteen. The crux of this complaint is that,
having determined under factor seven that D.B.’s preference to live with
Mother was not well reasoned in light of the child’s maturity, the trial court
erred in relying upon the child’s preference in considering factor sixteen.
Significantly, in addressing factor sixteen, the trial court noted D.B.’s
preference of Mother over Father and observed that the child will have
difficulty managing drastic changes to his surroundings. The portion of Dr.
Bellettirie’s report that referenced the seventh custody factor, i.e., the child’s
preference, influenced these findings. Succinctly, the report identified D.B.’s
strong preference for Mother but indicated that the preference was mitigated
by the child’s age. Father submits that if the preference was inadequate
under factor seven, it was improper to consider it in addressing factor
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sixteen. Reduced to its core, Father’s argument is that if the child’s
preference for Mother over Father is not well reasoned, it is innately
unreliable. Again, no relief is due.
In addressing this issue, the trial court explained that, while it declined
to give weight to D.B.’s preference under factor seven, the child’s
commitment to Mother was nevertheless relevant to the child’s best interest
determination generally, and it was specifically germane to assessing D.B.’s
ability to manage changes to his environment and his reaction to being
separated from Mother for extended periods. First, it is obvious that both
the court-appointed expert and the trial court found that D.B.’s preference
toward Mother was, in fact, grounded in reason, albeit the reasoning of an
eight-year-old child. During the custody evaluation, D.B. indicated that, for
two years, he had hated Father. See Custody Evaluation, 11/22/15, at 52.
D.B. perceived Father as the reason that he was separated from Mother, and
Dr. Bellettirie reported that D.B. stated that “when he was with [F]ather for
135 days[,] . . . he missed . . . [M]other and wanted to try to escape.” Id.
at 70. Indeed, D.B.’ feelings were so fervent that he instructed Dr.
Bellettirie to inform the trial court about everything that he had said about
Father during the sessions, and, at the end of the evaluation, D.B. rebuffed
Father’s interaction and, as relayed by Dr. Bellettirie, “[D.B.] told [F]ather
that he said a lot of bad things about him [during the evaluation].” Id.
Thus, contrary to Father’s characterization of the D.B.’s partiality as
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intrinsically unreliable, Dr. Bellettirie did not merely reject D.B.’s preference
as unreasoned. Instead, the custody evaluator discounted the child’s
preference under factor seven because it was formed through the
perspective of an eight-year-old child as compared to an older child. See
B.C.S. v. J.A.S., 994 A.2d 600, 604 (Pa.Super. 2010) (as children grow
older, more weight must be given to preference).
Moreover, as the trial court pointed out, Dr. Bellettirie testified that
change is difficult for D.B. and that, in light of D.B.’s strong attachment to
Mother, “[Dr. Bellettrie] did not think it would be a good idea for this child to
be away from his mother for prolonged periods of time[.]” N.T., 5/5/15, at
34-35. Mindful of D.B.’s statements to Dr. Bellettirie regarding his
perspective of Father, it was reasonable for the trial court to reference D.B.’s
overwhelming fondness for Mother in considering what changes the child
could manage and the potential impact of granting Father primary custody.
Thus, even though the trial court declined to weigh the child’s preference
independently under factor seven, to the extent that the trial court
referenced D.B.’s preference in weighing the child’s rigidity and aversion to
change under factor sixteen, the trial court did not abuse its discretion.
Finally, concerning factor fifteen, a parent’s physical and mental
condition, Father contends that the trial court disregarded the significance of
Mother’s chronic mental illness in concluding that this factor does not
militate in his favor. The crux of Father’s assertion is that “the issues that
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Mother continues to experience are serious and continue to manifest
themselves in her life.” Father’s brief at 32. The record belies Father’s
contention.
In rejecting this claim in its Rule 1925(a) opinion, the trial court first
noted Mother’s extensive struggles with mental illnesses in the form of bi-
polar disorder, eating disorder, major depressive disorder, post-traumatic
stress disorder, and borderline personality disorder. The court also recalled
that Mother has had various commitments and suicide attempts and has
used psychotropic medication and electroconvulsive therapy, formerly known
as electroshock therapy. In addition, Mother has engaged in therapy with a
psychologist for the last fifteen years. However, unlike Father, who argues
that Mother’s mental health problems present a current risk of harm to D.B.,
the trial court highlighted that Mother is addressing her illnesses
appropriately. She was committed only once since D.B.’s birth, the 2015
hospitalization that led to Father receiving emergency custody, and she is
diligently monitoring her mental health and managing her disorders. The
court continued that, despite the brief setback associated with the tragic
death of her younger sibling, Mother maintained primary custody of D.B. for
the majority of his life without incident. In addition, she has avoided any
other obstacles to her mental health, and she regularly attends her
appointments with her mental health professionals.
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The certified record supports the trial court’s conclusion that Mother’s
history of chronic mental health problems does not preclude her from
maintaining primary physical custody of D.B. In addition to the foregoing
evidence supporting the trial court’s position that Mother has been
consistent with treatment, we observe that Dr. Bellettirie concluded that
Mother’s mental health was not fatal to her ability to parent. He testified,
“certainly just the presence of a mental health diagnosis does not mean you
can't function to take care of your child.” N.T., 5/5/16, at 41. Indeed, as
we noted, supra, Dr. Bellettirie recommended that Mother and Father share
physical custody of D.B. equally, and he recommended specific safeguards to
ensure that the trial court monitor Mother’s mental health. The trial court
adopted Dr. Bellettirie’s positon that Mother’s various diagnoses were not
impediments to caring for D.B., and it implemented the safeguards in
fashioning the custody order granting Mother primary physical custody of
her son. N.T. Excerpted Findings of Fact, 5/5/16, at 17-18. The increase
from shared custody to primary custody, which the court attributed to
Mother’s demonstrated progress during the six months since Dr. Bellettirie
issued his recommendations and D.B.’s aversion to change, does not negate
the custody evaluator’s endorsement of her parenting ability. Since the
certified record belies Father’s assertion that Mother’s mental illness poses a
risk to D.B. when he is in her primary physical custody, no relief is due.
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As the trial court’s custody determination is reasonable in light of the
evidence of record, we will not disturb it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2016
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