J-A29031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Sean P. McCarthy, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
Heather Adams : No. 768 WDA 2021
Appeal from the Order Entered June 2, 2021
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD 18-009106-017
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 3, 2022
Sean P. McCarthy (Father) appeals from the order entered in the Court
of Common Pleas of Allegheny County (trial court) maintaining the parties’
status quo custody arrangement by granting sole legal custody and primary
physical custody of their son F.M. (Child, D.O.B. 5/15) to Heather Adams
(Mother) subject to Father’s periods of supervised physical custody in Mother’s
home. Father challenges the court’s refusal to increase his limited award of
custody and claims the court demonstrated unfair prejudice towards him
during the virtual proceedings. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29031-21
I.
A.
The relevant facts and procedural history of this case are as follows.
Child is autistic and attends special education classes with an aid in the
classroom. Child participates in counseling and in-home therapy sessions, all
of which have been arranged by Mother. The parties divorced in April 2019
and since that time Mother has performed all parental duties and has made
all educational and health care decisions. Father has never lived with Child or
exercised unsupervised custody of his son.
Father filed a complaint for custody in February 2020 seeking shared
legal and physical custody of Child. Father claimed that Mother was
overwhelmed by the responsibility of caring for Child given that she suffers
from multiple sclerosis (MS) and has been hospitalized in the past. In her
March 2020 complaint seeking confirmation of the parties’ existing custody
arrangement, Mother averred that she has been Child’s sole caretaker and
that Father has practiced only supervised visits in Mother’s home on Sundays
from 10:00 a.m. until 12:30 p.m. and occasionally during the week when Child
did not have school. Mother alleged that Father behaves erratically and is
verbally abusive towards her during the visits and that he has offered to
relinquish custody of Child in exchange for financial payment. After attempts
to resolve the matter through conciliation conference failed, the trial court
scheduled a two-day custody trial.
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B.
At the May 10-11, 2021 custody trial, the court heard testimony from
psychologist J. Anthony McGroarty, Father, Mother and Mother’s adult
daughter, R.F. Dr. McGroarty had prepared a child custody evaluation report
concerning Child and the parties stipulated to his qualifications as an expert
witness. Dr. McGroarty interviewed both parents and observed their
interactions with Child remotely due to restrictions necessitated by the Covid-
19 pandemic1 and he also administered a personality inventory to them. Child
was nearly six years old at the time of trial.
Regarding Child’s special needs, Dr. McGroarty testified that Mother
accepted the autism diagnosis and that she is dealing with the circumstances
as pragmatically as she can by working with professionals to develop skills
that she can use with and pass on to Child. (See N.T. Trial, 5/10-11/21, at
23). He explained that Mother has not exaggerated Child’s special needs and
has “learned and utilized every technique suggested to her to give [Child] the
opportunity to regulate his behavior and emotions . . . [Father] is only
beginning to demonstrate the ability to utilize the techniques.” (Id. at 25).
Dr. McGroarty described Mother as very cooperative in participating in
the evaluation process and opined that the status quo custody arrangement
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1 The trial court was operating under emergency protocols approved by the
Pennsylvania Supreme Court in response to the pandemic at the time. The
custody trial was conducted using Zoom video teleconferencing.
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should be maintained, instead of adjusted as requested by Father. Regarding
Father’s view of Child’s autism, he stated: “[Father’s] overall belief is that
[Mother] essentially caused [Child’s] limitations that have been diagnosed as
autism because she hasn’t offered him enough opportunities for socialization.
And [Father’s] idea is that if [Child] were with him he would provide many
more opportunities for socialization and essentially help him to overcome all
of these limitations that he has.” (Id. at 32). Dr. McGroarty testified that
Father blames Mother for Child’s autism and this unfounded belief impacts his
disconnect with Child and his co-parenting with Mother. (See id. at 34). Dr.
McGroarty explained that autistic children progress with consistency in their
routines and through implementation of parenting techniques targeted at
aiding their ability to regulate emotions, effectively plan out their day and
avoid confusion.
Father testified that he has been involved in Child’s life since he was
born and that he has no difficulty handling Child’s autism. (See id. at 64).
Father represented that Mother tries to keep him from seeing Child and has
allowed visitation “at her whim every now and then.” (Id. at 66). He diverted
into a sexual description of his relationship with Mother, describing it as a
“never ending cat and mouse game” and characterized her allegations against
him as an unfair attempt to jeopardize his relationship with Child. (Id. at 67).
Father expressed concern about Mother’s MS because she had previously been
hospitalized and was prone to seizures. (See id. at 68).
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Mother described Father’s conduct towards her as erratic, varying with
his mood. She stated: “sometimes he is very sexual in his nature.
Sometimes he congratulates me about being a good mother and sometimes
he is very abusive to me.” (Id. at 98). A text message Father sent to Mother
on May 15, 2020, read: “You’re much better to fuck.” (Id. at 99). Although
Mother asked Father to stop this conduct, he continued sending unsolicited
graphic text messages. Father also consistently accuses her of “harming
[Child’s] development [and keeping] him a baby to suit [her] needs and keep
[her] MS in remission” and he repeats this allegation to “everyone that will
listen,” including Child’s doctors. (Id. at 101). Mother stated that she has
done everything in her power to accommodate Child’s needs, including
scheduling all of his evaluations, participating in therapy, working closely with
his school and following all of the professional advice of those that treat him.
Mother recounted two incidents that occurred during Father’s visitation
with Child on March 14, 2020, and January 3, 2021. Mother’s home
surveillance video camera footage supported her testimony that Father
touched her several times on various parts of her body, including her buttocks
while he ignored Mother’s repeated requests that he stop. Mother testified
that Father whispered “things about my privates of a sexual nature” during
the incidents. (Id. at 109). Mother also maintained that Father’s participation
in Child’s treatment sessions was not helpful because since his involvement,
Child “became more aggressive towards me . . . . It was [] rough to see him
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like that when I saw the progress before because he was doing so well before.”
(Id. at 115). During visits, Father allowed Child to use the cell phone he gave
Child continuously throughout their sessions, which Mother believes is
detrimental to his progress. Mother stated that when Child is home with her
on a routine schedule, he does very well, although he struggles with
transitioning, anger and aggression. She opined that a change in Father’s
visitation schedule would be harmful to Child and averred that she will involve
Father and make him aware of Child’s progress. Mother also noted her
concern that Father would “fight me every step of the way” if joint custody
were granted, especially with regard to Child’s autism treatment. (Id. at 123).
R.F. described Father as verbally, mentally and physically abusive
towards her, her siblings and Mother when she lived with him as an eleven-
year-old child. She described Mother as her best friend and a “great mom
[who] does everything for [Child.]” (Id. at 141). R.F. indicated that Mother’s
MS was never an impediment to her parenting and that despite some
setbacks, Mother has managed her health condition very well for years.
C.
On June 2, 2021, the trial court entered its Memorandum and Order
awarding Mother sole legal and primary physical custody of Child subject to
Father’s weekly Sunday visits from 10:00 a.m. until 12:30 p.m. and on specific
holidays, including Thanksgiving and Christmas. The Order provided for
Father’s ability to communicate regularly with Child by phone or computer and
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a clause allowing for modification of the custody schedule by mutual
agreement. The trial court addressed the custody factors delineated in 23
Pa.C.S. § 5328(a)2 and specifically credited Mother’s testimony regarding the
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2
(a) Factors.─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, including the following:
(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
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inappropriate behavior of Father during his visitation periods and found Father
“dishonest.” (Trial Court Opinion, 8/02/21 at 13; see also Memorandum and
Order, 6/02/21, at 2-7). The court further found no evidence indicating
Mother’s health condition hampered her ability to parent Child. The trial court
____________________________________________
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.
23 Pa.C.S. § 5328(a)(1)-(16).
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denied Father’s motion for reconsideration on July 1, 2021. Father timely
appealed and he and the trial court complied with Rule 1925. See Pa.R.A.P.
1925(a)(2)(i)-(ii).3
II.
A.
Father first contends that the trial court’s restrictive custody schedule is
not in accord with Child’s best interests. Father maintains that because he is
a fit parent, the order erroneously provides no mechanism for increasing his
custodial time with Child and “forever” restricts his ability to form a father-
son relationship with him. (Father’s Brief, at 33). Father also claims the court
failed to provide a reasonable basis for its decision in light of his willingness
to actively handle all aspects of Child’s autism.
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3
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately, the
test is whether the trial court’s conclusions are unreasonable as
shown by the evidence of record. We may reject the conclusions
of the trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial court.
E.C.S. v. M.C.S., 256 A.3d 449, 461 (Pa. Super. 2021) (citation omitted).
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“The primary concern in any custody case is the best interests of the
child.” B.S.G. v. D.M.C., 255 A.3d 528, 533 (Pa. Super. 2021) (citation
omitted). “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately affect the child’s physical, intellectual,
moral, and spiritual well-being.” Id. (citation omitted). When considering a
request to modify custody, a court must conduct a thorough analysis of the
best interests of the child based on all of the Section 5328(a) factors. See
A.V. v. S.T., 87 A.3d 818, 821 (Pa. Super. 2014). However, it is within the
purview of the trial court as fact-finder to determine which factors are most
salient in each particular case. See B.S.G., supra at 535. “The discretion
that a trial court employs in custody matters should be accorded the utmost
respect, given the special nature of the proceeding and the lasting impact the
result will have on the lives of the parties concerned.” D.Q. v. K.K., 241 A.3d
1112, 1117 (Pa. Super. 2020) (citation omitted).
Instantly, the trial court explained the reasons for its custody decision
as follows:
[T]his Court did not find it to be in the child’s best interest
to order a step-up basis [for an increase of visitation with Father].
Father has never exercised any unsupervised custody of the child,
who has special needs. During his court-ordered visitations that
coincided with the child’s therapy, Father was unable to focus on
his parental duties and instead behaved inappropriately towards
Mother and served as a distraction for the child. Father appears
to have a lack of insight concerning the child’s special needs, as
testified to by Dr. McGroarty, and he blames Mother for the child’s
autism and believes he can cure the same.
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That said, the Order specifically permits the parties to
modify the physical custody schedule as they mutually agree. To
her credit, Mother has been more than accommodating to Father
by continuing to permit his visits in her home despite his
inappropriate behavior towards her and his presence serving as a
distraction for the child. This court is of the opinion that Mother
would agree to increase Father’s physical custody should his
behavior improve in the future. And in the event Mother does not
agree to increase Father’s physical custody, there is nothing
preventing Father from filing a petition for modification in the
future.
* * *
This Court is of the opinion that Father’s visits require
supervision, not because he poses a danger to the child, but
because he is currently incapable of caring for child’s special
needs. . . . Father has always had limited physical custody of the
child. However, rather than spend the visits meaningfully
engaged with the child and helping the child to progress in his
therapy, Father chose to spend his time berating Mother, groping
Mother, and distracting the child. These are not the behaviors of
a parent who is interested in caring for his child’s special needs.
And until Father is interested in caring for his child’s special needs,
he will be unable to do so effectively.
(Trial Ct. Op., 8/02/21, at 10-11).
The record reflects that the court addressed each custody factor and
properly exercised its discretion in focusing on those most salient to the facts
and circumstances of this case. The court did not find Father’s self-serving
testimony that he was willing and able to care for all aspects of Child’s needs
credible after he failed to do so and instead was content to let Mother take
care of since Child’s birth in 2015. Importantly, Father also failed to make
any progress in developing skills to care for Child during his weekly supervised
visits or show any interest in doing the same.
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Additionally, as the trial court points out, the custody order affords
flexibility for the parties to mutually agree on increased custodial time if Father
focuses his efforts on improving his relationship with and ability to care for
Child. If Mother does not agree that additional visitation is warranted, Father
can seek modification at a later date. Thus, we conclude the trial court acted
within its discretion in determining that preserving the parties’ current custody
arrangement is in Child’s best interests. The record fully supports the court’s
credibility determinations and reflects that it carefully weighed all information
available to it in conjunction with the statutory custody factors in making its
ruling based on the best interests of Child, and Father’s failure to present
salient persuasive evidence to establish that modification was warranted.
Father’s claim to the contrary merits no relief.
B.
Father next advances a claim of prejudice in the trial court proceedings
based on what he characterizes as the judge’s bias towards him. (See
Father’s Brief, at 36). Father maintains that the trial judge intimidated him
and exhibited bias against him based on Mother’s unfounded testimony that
his behavior was erratic and the text messages/videotapes depicting their
interactions. In doing so, Father cites to caselaw addressing the general
proposition that “the court should be ever so careful not to demonstrate bias
or an opinion concerning credibility of a witness . . . in questioning a
witness[.]” (Id. at 39). This argument fails for multiple reasons.
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First, Father fails to cite to any reference in the record at all to illustrate
this allegation of bias in violation of our appellate rules and hindering our
ability to review his claim. See Pa.R.A.P. 2119(c); see also Rule 2101.
Moreover, our examination of the trial record and court order uncovered no
evidence of bias or intimidation of Father whatsoever. To the contrary, as
explained in detail above, the record reflects that the court appropriately
evaluated the credibility of the parties and carefully weighed the evidence
before it. The court also noted that although Father is not presently in a
position to care for Child in light of Child’s special needs, it acknowledged that
Father may acquire these skills if he works on them and stated there is nothing
preventing him from seeking modification in the future. (See Trial Ct. Op. at
10-11).4
Order affirmed.
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4 Insofar as Father argues that the trial court did not allow him to confront
witnesses during the proceedings, this claim is belied by the record which
shows that Father’s counsel was given the opportunity to cross-examine Dr.
McGroarty, Mother and R.F., and that counsel thoroughly questioned these
witnesses. Further, Father noted in his brief that he “appreciates that given
the COVID restrictions, that the court scheduled such an important hearing
via Zoom,” thereby acknowledging any changes in protocol of the proceedings
were necessitated by the pandemic. (Father’s Brief, at 37).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2022
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