A.L.-S. v. B.S.

Opinion

J-A29041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.L.-S., : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : B.S., : : Appellee : No. 532 WDA 2016

Appeal from the Order entered March 10, 2016 in the Court of Common Pleas of Lawrence County, Family Court Division, No(s): Case No. 10487 of 2014, C.A.

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 13, 2017

A.L.-S. (“Mother”) appeals from the Order (hereinafter “the Custody

Order”) that awarded B.S. (“Father”) sole legal custody of the parties’ two

minor sons, W.S. (“W.”) and C.S. (“C.”) (collectively “the Children”),

awarded Father primary physical custody of C., and granted the parties

shared physical custody of W. We affirm.

The trial court thoroughly set forth, in its Memorandum accompanying

the Custody Order (hereinafter “Custody Order Memorandum”), the factual

and procedural history underlying this appeal, which we adopt as though

fully set forth herein. See Custody Order Memorandum, 3/23/16, at 1-14.1

1 We additionally note that prior to the custody trial in this matter, on July 14, 2015, Mother filed a Motion to compel Father to undergo a psychological examination (hereinafter “Motion for Psychological Exam”), asserting Mother’s belief that Father has an undiagnosed mental health condition. After hearing oral argument from the parties, the trial court denied the Motion. J-A29041-16

Following the protracted custody trial, and upon consideration of the

parties’ respective Petitions for modification of custody, the trial court

entered the Custody Order on March 10, 2016. Mother timely filed a Notice

of Appeal, along with a Pa.R.A.P. 1925(b) Concise Statement of Errors

Complained of on Appeal. Subsequently, Father filed with this Court a

Motion to Dismiss the appeal, asserting that Mother had committed several

violations of the Rules of Appellate Procedure.

Mother presents the following issues for our review:

I. Whether the trial court abused its discretion and committed reversible error by awarding [Father] primary physical custody of …C.[], as the evidence demonstrates the best interest and permanent welfare of … C.[] would be served by awarding [Mother] primary physical custody[,] subject to the partial custody rights of [Father]?

II. Whether the trial court abused its discretion and committed reversible error by awarding [Father] sole legal custody of … [the Children], as the evidence demonstrates the best interest and permanent welfare of the [] [C]hildren would be served by awarding [Mother] sole legal custody of the [C]hildren, or at least shared legal custody?

III. [Whether the] trial court [committed] reversible error by issuing an [O]rder that divides the [C]hildren and causes substantial time apart[,] as there was no evidence of record supporting that such an arrangement was in the best interest and permanent welfare of the [C]hildren?

IV. Whether the trial court abused its discretion and committed reversible error by denying [Mother’s] Motion for Psychological [Exam,] while authorizing [Father] to present testimony from Dr. Jennifer Rosenberg [“Dr. Rosenberg”] regarding a mental health evaluation she performed on [Mother] several years prior to the trial?

V. Whether the trial court committed reversible error by refusing to access the Our Family Wizard website, a court[-]

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ordered communication medium, and perform a complete review of the communications between the parties?

VI. Whether the trial court committed reversible error by improperly relied [sic] on hearsay information contained within medical reports?

VII. Whether the trial court abused its discretion and committed reversible error by relying on inadmissible evidence when it declared [that Mother] has a proclivity for making regular unfounded referrals to Children and Youth Services [“CYS,”] when it had already ruled that the disclosure of the reporting party was prohibited by statute[?]

VIII. Whether the trial court committed reversible error by relying upon the Report and Recommendations of the Guardian Ad Litem[,] as the Guardian Ad Litem failed to conduct a full and thorough investigation to fully and adequately address the needs and best interest of the [C]hildren[,] and the Report and Recommendations contains recommendations from the Guardian Ad Litem on subjects which he is unqualified and inexperienced to make and, further, he failed to employ or secure the services of a qualified expert to address the issues at hand?

Brief for Appellant at 5-6 (issues renumbered for ease of disposition).

As a prefatory matter, we must address Father’s Motion to Dismiss.

Father asks us to quash Mother’s appeal, urging that “the sheer volume and

combined nature of Mother’s violations [of the Rules of Appellate Procedure]

make effective appellate review impossible.” Motion to Dismiss, 7/5/16, at

¶ 8. Specifically, Father complains that Mother has not filed a designation of

contents of the reproduced record, in violation of Pa.R.A.P. 2154(c)(1).

Father contends that the lack of a designation of reproduced record

prejudiced him by denying him the opportunity to designate additional parts

of the record not designated by Mother. Motion to Dismiss, 7/5/16, at ¶ 14.

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Father also complains that Mother’s reproduced record omits numerous

relevant record documents/information, including docket entries, portions of

the trial transcript, and pertinent trial exhibits that Mother references in her

brief. Id. at ¶¶ 20-36. Finally, Father points out that Mother’s reproduced

record lacks pagination and a table of contents. Id. at ¶¶ 37-41; see also

Pa.R.A.P. 2173, 2174.

Contrary to Father’s assertion, we determine that Mother’s infractions

of the Rules of Appellate Procedure are comparatively minor, and do not

unduly prejudice Father or impede our review of the issues presented on

appeal. Our Pennsylvania Supreme Court has stated that the “extreme

action of dismissal should be imposed by an appellate court sparingly, and

clearly would be inappropriate when there has been substantial compliance

with the rules and when the moving party has suffered no prejudice.” Stout

v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980).

Accordingly, we decline to dismiss the appeal, and deny Father’s Motion to

Dismiss. See, e.g., Hagel v. United Lawn Mower Sales & Serv., 653

A.2d 17, 19 (Pa. Super. 1995) (declining to quash the appeal, or impose

other sanctions, where the appellant failed to designate or file a reproduced

record, but the violations of the Rules of Appellate Procedure were not so

serious as to preclude the Court’s ability to properly evaluate and address

the substantive arguments advanced by the parties); Downey v. Downey,

582 A.2d 674, 678 (Pa. Super. 1990) (declining to dismiss the appeal

because of appellant’s failure to serve the appellees with a copy of the

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designated reproduced record, and noting that “Pa.R.A.P. 2156 expressly

permits an appellee to file his own supplemental reproduced record with the

court when the parties are unable to cooperate on the preparation of the

reproduced record.”).

This Court’s standard and scope of review of custody orders is as

follows:

The appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation, ellipses and

brackets omitted). Additionally, we have explained that

[o]n issues of credibility and weight of the evidence, we defer to the findings of the trial court[,] who has had the opportunity to observe the proceedings and demeanor of the witnesses. The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion. The test is whether the evidence of record supports the trial court’s conclusions.

Id. (citations, paragraph breaks and brackets omitted); see also Ketterer

v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (stating that “[t]he

discretion that a trial court employs in custody matters should be accorded

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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.

Indeed, the knowledge gained by a trial court in observing witnesses in a

custody proceeding cannot adequately be imparted to an appellate court by

a printed record.”) (citation omitted).

When a trial court orders a form of custody, the paramount

consideration is the best interest of the child. W.C.F. v. M.G., 115 A.3d

323, 326 (Pa. Super. 2015). In assessing the child’s best interest, the trial

court must consider the seventeen custody factors set forth in 23 Pa.C.S.A.

§ 5328(a) (hereinafter “the best interest factors”). W.C.F., 115 A.3d at

326; see also J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (stating

that all of the best interest factors must be considered by the trial court

when entering a custody order).

We will address Mother’s first two issues simultaneously, as they are

related. In her first issue, Mother argues that the trial court abused its

discretion by awarding Father primary physical custody of C. See Brief for

Appellant at 17-33.2 Essentially, Mother challenges the trial court’s findings

and weighing of the evidence in several regards, and asserts that the court,

in its Custody Order Memorandum, mischaracterized the evidence and

disregarded relevant evidence favorable to Mother. See id. Mother places

heavy emphasis on the trial court’s having purportedly ignored Father’s

2 As Mother’s Argument in support of this issue spans 17 pages, we will not set forth herein each of her myriad contentions.

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inadequate and infrequent communication with Mother on important matters

(concerning the Children’s education, doctors’ appointments, and

extracurricular activities), which, she claims, interfered with her custodial

rights. Id. at 23-25.

In her second issue, Mother argues that the trial court abused its

discretion by awarding Father sole legal custody of the Children, where the

evidence indicates that she is the party more likely to act in the Children’s

best interests. See id. at 33-40. According to Mother, the trial court

improperly overlooked (1) Father’s failure to obtain important medical

treatment for the Children; (2) Father’s lack of adequate supervision/care for

W., which resulted in injuries to W.; and (3) Mother’s superior efforts to

ensure that W. is receiving proper education/therapy. See id. at 33-38.

In the Custody Order Memorandum, the trial court thoroughly

addressed the best interests of the Children, including a comprehensive

analysis of the best interest factors, and determined that it was appropriate

to award Father sole legal custody of the Children, and primary physical

custody of C. See Custody Order Memorandum, 3/23/16, at 15-27. Our

review reveals ample support in the record for the trial court’s cogent

analysis, and the court’s consideration of the Children’s best interests was

careful and thorough. See A.V., supra (stating that “[a]ppellate

interference is unwarranted if the trial court’s consideration of the best

interest of the child was careful and thorough, and we are unable to find any

abuse of discretion.”). Mother essentially asks this Court to disturb the trial

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court’s findings and weighing of the evidence, in favor of the findings and

inferences that Mother proposes. This we cannot do. See id.; see also

M.J.M. v. M.L.G., 63 A.3d 331, 337 (Pa. Super. 2013) (rejecting

appellant/mother’s argument asking this Court to reconsider the trial court’s

findings and credibility determinations with regard to the best interest

factors). Accordingly, as we discern no abuse of discretion, we affirm with

regard to Mother’s first two issues based on the trial court’s rationale. See

Custody Order Memorandum, 3/23/16, at 15-27.

In her third issue, Mother contends that the custody Order “divides the

[C]hildren and causes substantial time apart[, and] there was no evidence of

record supporting that such an arrangement was in the best interest … of

the [C]hildren.” Brief for Appellant at 45; see also id. at 46 (explaining

that, under the custody schedule, the Children will spend approximately ten

days per month apart). Mother points to this Court’s decision in Johns v.

Cioci, 865 A.2d 931 (Pa. Super. 2004), wherein we observed that “the

policy in Pennsylvania is to permit siblings to be raised together, whenever

possible …. Absent compelling reasons to separate siblings, they should be

reared in the same household to permit the continuity and stability

necessary for a young child’s development.” Id. at 942 (citations and

quotation marks omitted); see also 23 Pa.C.S.A. § 5328(a)(6) (requiring a

court to consider the child’s sibling relationships when ordering a form of

custody); Brief for Appellant at 46.

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Here, the trial court addressed Mother’s claim in its Custody Order

Memorandum, stating that it had, in fact, considered the policy articulated in

Johns, but determined that the award of physical custody entered was in

the respective, and different, best interests of the Children. See Custody

Order Memorandum, 3/23/16, at 25-26. The trial court was free to form this

conclusion in evaluating the Children’s best interests, and we discern no

abuse of discretion. Therefore, we affirm on this basis in rejecting Mother’s

third issue, see id., with the following addendum. The Johns Court

explained that the policy against separation of siblings is only one factor –

and not a controlling factor – in the ultimate custody decision, wherein the

best interests of each individual child is paramount. Johns, 865 A.2d at

942; see also M.J.M., 63 A.3d at 339 (stating that “[i]t is within the trial

court’s purview as the finder of fact to determine which factors are most

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salient and critical in each particular case.”) (citation omitted).3

In her fourth issue, Mother asserts that

the trial court committed reversible error by (a) denying [Mother’s Motion for Psychological Exam] of [Father;] (b) after denying [Mother’s Motion] …, allowing [Father] to present testimony [at the custody trial concerning Mother’s mental health diagnosis] from Dr. [] Rosenberg; and (c) relying on the testimony of Dr. Rosenberg when evaluating [Mother’s] mental health status.

Brief for Appellant at 16-17. Mother points out that the trial court permitted

Dr. Rosenberg to testify, over Mother’s objection, that, approximately four

years earlier (in connection with the Ohio proceedings), she had diagnosed

Mother with Narcissistic Personality Disorder. Id. at 15; see also id.

(asserting that Dr. Rosenberg’s diagnosis of Mother was “stale” for being

four years old). According to Mother, “the trial court deemed Dr. Rosenberg

credible and used that information in [the court’s] determination concerning

3 Moreover, in the prior custody proceedings in Ohio, presided over by the Honorable Diane M. Palos (“Judge Palos”) in the Cuyahoga County Court of Common Pleas (hereinafter “the Ohio proceedings”), Judge Palos stated as follows concerning the policy articulated in Johns:

The [c]ourt finds that although[,] traditionally[,] siblings learn from each other and have a positive impact by being together, in this matter there would be a greater positive impact on C.[] should he have more alone time with each parent[,] so that his or her attention could be focused on him and not on W.[,] when he is present. In addition, while [C.] should have some time with W.[] so that they continue to bond as brothers and learn from each other, C.[] should not have to live under the shadow of the extensive and significant restrictions and care involved in W.[]’s life.

Plaintiff’s Exhibit 14 (Judge Palos’s November 1, 2013 Findings of Fact/Order), at 7.

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the [best interest] factor [at] 23 Pa.C.S.A. 5328(a)(15)[,]” i.e., “the mental

and physical condition of a party or member of a party’s household.” Id.

Mother asserts that

not only did [the trial court’s] ruling place [Father] in a superior position and allow him to present testimony on this issue[,] while effectively barring [Mother] from having the opportunity to present similar testimony, it also prevented the trial court from completing a full best interest analysis. Given the special needs of W.[,] and the great deal of care that must be constantly provided to this non-verbal child …, the mental health of the parties is crucial to the best interest analysis.

Id. at 16.

Pursuant to Pa.R.C.P. 1915.8(a), the court in a custody case “may

order the child(ren) and/or any party to submit to and fully participate in an

evaluation by an appropriate expert or experts.” Id. (emphasis added); see

also Jordan v. Jackson, 876 A.2d 443, 455 (Pa. Super. 2005) (interpreting

Rule 1915.8(a) and stating that “[i]t is clearly within the court’s discretion

whether to order an evaluation.”).

Concerning Mother’s challenge to the trial court’s admission of Dr.

Rosenberg’s testimony, we are mindful that “the admission or exclusion of

evidence is within the sound discretion of the trial court. In reviewing a

challenge to the admissibility of evidence, we will only reverse a ruling by

the trial court upon a showing that it abused its discretion or committed an

error of law.” R.K.J. v. S.P.K., 77 A.3d 33, 41 (Pa. Super. 2013) (citations

and quotations omitted).

Here, in its Pa.R.A.P. 1925(a) Opinion, the trial court opined that

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insufficient reason was presented to justify a mandate that the parties undergo new psychological evaluations[,] with the accompanying expense, especially in view of the relatively recent completion of the comprehensive and extensive custody proceedings held in Ohio that resulted in the entry of the November 1, 2013 Order by Judge … Palos ….

Trial Court Opinion, 5/9/16, at 1-2 (unnumbered).4 We are persuaded by

the trial court’s reasoning, and determine that the court properly exercised

its broad discretion in denying Mother’s Motion for Psychological Exam. See,

e.g., Jordan, 876 A.2d at 455 (holding that the trial court properly

exercised its discretion in refusing a party’s request for the court to order

the mother to undergo a psychological examination prior to the custody

hearing). Merely because Mother had previously been diagnosed with a

mental health disorder, in connection with the Ohio proceedings, does not,

therefore, mean that the trial court in the instant case was required to

compel Father to undergo a psychological examination.

Concerning Mother’s challenge to the trial court’s admission of Dr.

Rosenberg’s testimony regarding Mother’s diagnosis of Narcissistic

Personality Disorder, we discern no abuse of discretion. See R.K.J., supra.

At the custody trial, the trial court considered extensive argument from the

parties’ respective counsel regarding the admissibility of this evidence, and

4 Judge Palos presided over a five-day custody trial, after which she issued exhaustive findings of fact in support of her custody Order. See Plaintiff’s Exhibit 14 (Judge Palos’s November 1, 2013 Findings of Fact/Order), at 1- 13. Therein, Judge Palos addressed, inter alia, the mental health of Father and Mother, and determined that “while [] [M]other has alleged that [Father] has taken some mental health medications, his mental health has not been called into question in this matter.” Id. at 8.

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determined that it was admissible. See N.T., 1/5/16, at 4-23. Moreover,

the trial court did not preclude Mother from cross-examining Dr. Rosenberg

or presenting Mother’s own evidence concerning her mental health.5

Additionally, in the Custody Order Memorandum, the trial court did not

expressly state that Mother’s diagnosis (or Dr. Rosenberg’s testimony in

general) weighed against Mother under the best interest factor at section

5328(a)(15); rather, the court merely noted the diagnosis. Custody Order

Memorandum, 3/23/16, at 23. Finally, even if, arguendo, we agreed with

Mother’s characterization of Dr. Rosenberg’s diagnosis as being “stale,” this

goes to the weight to be accorded that Dr. Rosenberg’s testimony, which is

within the sole purview of the fact-finder. See A.V., supra. Accordingly,

Mother’s fourth issue does not entitle her to relief.

In her fifth issue, Mother contends that the trial court improperly

refused to review all of the parties’ email communications and schedule

entries made via the “Our Family Wizard” website (“OFW”), a court-ordered

communications and scheduling platform to which the trial court was

granted access. See Brief for Appellant at 40-42. According to Mother,

“[t]he entirety of the information contained within [OFW] … is vital[,] as it

demonstrates [that Father] completely failed to properly utilize [OFW] to

post the [C]hildren’s scheduled medical and dental appointments[,] along

5 We further observe that Father introduced Dr. Rosenberg’s testimony, in part, to rebut Mother’s trial testimony that she had never been diagnosed with a mental health disorder. See N.T., 12/14/15, at 132-35; see also N.T., 1/5/16, at 23 (wherein the trial court ruled that Dr. Rosenberg’s testimony would be admissible, in part, to impeach Mother’s credibility).

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with the schedule of their extracurricular activities.” Id. at 40-41; see also

id. (urging that “[Father’s] failure to provide the aforementioned critical

information to [Mother] on [OFW] was a primary focus of the custody trial in

this matter.”).

The trial court addressed this claim in its Pa.R.A.P. 1925(a) Opinion as

Although [Mother] claims that the trial court refused to access the [OFW] website and review all of the communications between the parties …,[6] it is counsel’s and the parties’ responsibility to present evidence that they consider relevant, and to refer the court to those communications deemed important, with opportunity for opposing counsel to object to any communications believed to be objectionable and inadmissible. It is not the court’s obligation to review the parties’ communications to ferret out those parts of the exchanges that might be relevant and material.

Trial Court Opinion, 5/9/16, at 2 (unnumbered; footnote and emphasis

added). We are persuaded by the trial court’s rationale and, discerning no

abuse of discretion, affirm on this basis in rejecting Mother’s fifth issue. See

id.

In her sixth issue, Mother argues that the trial court committed

reversible error by relying on inadmissible hearsay evidence contained within

6 It is undisputed that the parties had exchanged a large number of emails via OFW. See Brief for Appellant at 41 (wherein Mother concedes that “the communications between the parties are so numerous that it would have been incredibly burdensome to present all of the relevant communications during the trial”); see also Brief for Appellee at 24 (asserting that there were 3,000 OFW emails). Additionally, the record reveals that at trial, the trial court, in fact, admitted into evidence 42 OFW exhibits, which included numerous email exchanges between the parties.

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the Children’s medical records. See Brief for Appellant at 42-43.

Specifically, Mother avers that,

[a]t trial, neither party presented the testimony of the [C]hildren’s physicians or pediatricians … concerning the [C]hildren’s medical records. However, the trial court clearly relied upon the information contained within those medical records for the truth of the matter asserted[,] as the trial court stated, in its [Custody Order] Memorandum …, that [Mother] urged the emergency room physician to make a referral to the Children’s Advocacy Center ….

Id. at 43.

Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Pa.R.E. 801(c); In re K.A.T., 69 A.3d 691, 702 (Pa.

Super. 2013). “Hearsay is not admissible except as provided by these rules

[the Rules of Evidence], other rules prescribed by the Pennsylvania Supreme

Court, or by statute.” Pa.R.E. 802.

Initially, as the trial court correctly observes in its Pa.R.A.P. 1925(a)

Opinion, “[Mother] alleges that the [trial c]ourt relied on inadmissible

hearsay in medical reports …, but does not identify the medical reports or

objectionable hearsay.” Trial Court Opinion, 5/9/16, at 2 (unnumbered);

see also id. (stating that “[a]fter review of the [trial c]ourt’s [Custody

Order] Memorandum, it is assumed that [Mother] is referring to page 12 of

the Memorandum[,] where the [c]ourt made reference to the comment in

the Akron Children’s Hospital record[,] identified at trial as Exhibit ‘H.’”).

Even if, arguendo, we determined that the trial court erroneously referred to

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certain hearsay statements, this would not warrant a reversal of the Custody

Order, for, as the trial court correctly determined, any such error was

harmless and did not contribute to the trial court’s decision.7 See id.; see

also Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000)

(recognizing that not all trial errors constitute reversible error; rather, the

complaining party must demonstrate that an error was harmful before a new

trial may be awarded); In re M.T., 607 A.2d 271, 281 (Pa. Super. 1992)

(holding that admission of hearsay statements of children was harmless

error where the statements could not have contributed to the trial court’s

decision). Accordingly, Mother is not entitled to relief on this issue.

In her seventh issue, Mother contends that the trial court erred by

“relying on inadmissible evidence when it declared [that Mother] has a

proclivity for making regular unfounded referrals to [CYS.]” Brief for

Appellant at 43. Mother asserts that “[e]ven though the trial court properly

determined that disclosing the identity of the reporting individuals and/or

agencies was prohibited by statute, the trial court committed reversible error

by repeatedly attributing those reports to [Mother,] and utilizing those

reports in its analysis for entering its [Custody O]rder ….” Id. at 45.

The trial court addressed this claim in its Pa.R.A.P. 1925(a) Opinion as

7 The trial court explained that “[t]he reference was intended only as illustrative of the uncertainty as to the number of fractures [in W.’s foot], and in no manner was a factor in the [c]ourt’s decision and establishment of the custody arrangement contained in [the Custody] Order.” Trial Court Opinion, 5/9/16, at 2 (unnumbered).

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The basis for the trial court’s comment on [Mother’s] proclivity for making unfounded referrals … was the evidence of [Mother’s] urging of a report to children’s services when she took W[.] to the emergency room at Children’s Hospital for examination in October[] 2014; [Mother’s] transport of C[.] to the Pennsylvania State Police on June 6, 2015, and then [a] subsequent visit to the Children’s Advocacy Center; and [Mother’s] transport of C[.] to Jameson Hospital and referral to the Children’s Advocacy Center on or about December 17, 2015. The trial court is not aware of the identity of referral sources that might be recorded in [CYS] records and reports.

Trial Court Opinion, 5/9/16, at 2-3 (unnumbered). Upon review, we discern

no reversible error by the trial court in this regard. At no point did the trial

court state a belief that Mother was the source of the reports. Rather, the

court merely commented upon the admissible evidence, and the reasonable

inferences to be drawn therefrom, which it was entitled to consider in

addressing the best interests of the Children. Moreover, as Mother

concedes, the trial court ruled that the evidence of the source reporter in

CYS records was inadmissible. Accordingly, this issue does not entitle

Mother to relief.

In her eighth and final issue, Mother argues that the trial court erred

by relying on the Report and Recommendations (“GAL Report”) issued by the

court-appointed Guardian ad litem, Ryan C. Long, Esquire (hereinafter “the

Guardian”).8 See Brief for Appellant at 47-52. According to Mother, the

Guardian, a layperson, was permitted to issue unqualified opinions and

recommendations that “require specialized knowledge, education and skill in

8 We observe that Mother was the party who initially sought the appointment of a Guardian ad litem.

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the area of psychology or child development[.]” Id. at 50. Additionally,

Mother complains that “the vast majority of [the GAL Report] focused on an

analysis of the [best interest] factors[,] and [the Guardian] provided his

opinion as to the ultimate issues concerning the custody arrangement he

believed was proper, which was solely within the purview of the [trial c]ourt

….” Id. at 51; see also id. at 52 (wherein Mother asserts that the

“recommendations” section of the GAL Report “should have been stricken by

the trial [court,] as it contained opinions of a lay witness on the ultimate

issue before the [c]ourt and is based upon hearsay statements of individuals

who did not testify at trial.”).

The statute concerning the appointment of guardians ad litem in

custody matters, 23 Pa.C.S.A. § 5334, provides that a trial court may, on its

own motion or the motion of a party, appoint a guardian ad litem to

represent the child in the action. Id. § 5334(a). Section 5334 requires and

authorizes a guardian ad litem to, inter alia, meet with the child, conduct

further investigation, interview potential witnesses, and make

recommendations to the court. Id. § 5334(b); see also L.M.P. v. E.C.,

2016 PA Super 232, *5 (Pa. Super. 2016). However, this Court has

observed that a guardian ad litem is not a judicial or quasi-judicial officer,

and a trial court may not delegate its judicial power to a guardian ad litem.

C.W. v. K.A.W., 774 A.2d 745, 749-50 (Pa. Super. 2001).

The trial court addressed Mother’s claim in its Pa.R.A.P. 1925(a)

Opinion as follows:

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The Guardian’s [GAL] Report and testimony documented his extensive and thorough investigation[, which] exceeded that which routinely is performed in custody cases. The Guardian related his experience in custody litigation, his knowledge of the applicable principles and factors to be applied in custody litigation, and familiarity with the factual issues. The Guardian performed his mission professionally, based his findings and opinions on the results of his efforts, and expressed his recommendations in accordance with his duty to present the result that, in his opinion, would be most likely to serve the [C]hildren’s best interests. The trial court does not perceive error in its consideration of his recommendations.

Trial Court Opinion, 5/9/16, at 3 (unnumbered). The record supports the

trial court’s determination. Contrary to Mother’s assertion, the trial court did

not merely substitute the Guardian’s judgment for its own, as the court

issued thorough, independent reasoning concerning the best interest factors.

See, e.g., Yates v. Yates, 963 A.2d 535, 541 (Pa. Super. 2008) (rejecting

the father’s claim that the trial court improperly delegated its judicial

decision-making authority to a court-appointed parenting coordinator); cf.

C.W., 774 A.2d at 749-50 (holding that the trial court erred in delegating its

judicial powers to the guardian ad litem, stating that “[t]hroughout the

custody proceedings, the trial court repeatedly asked the guardian ad litem

his opinion on evidentiary rulings and followed his opinions,” and the court’s

custody order “closely followed the recommendations of the guardian ad

litem[.]”). Finally, to the extent Mother complains that the GAL Report

contained inadmissible hearsay information,9 we discern no support for this

claim.

9 Mother fails to identify the purported hearsay statements.

- 19 - J-A29041-16

Order affirmed. Motion to Dismiss denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/13/2017

- 20 - Circulated 01/18/2017 03:27 PM

IN THE COURT OF COMMON PLEAS OF LAWRENCE COUNTY PENNSYLVANIA

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) V. ) c:) ...~---~... --·~ ... i'-·--'[=-~ ) ,::::::; :~: .< Bl •snRra , Defendant ) ) t.~J .... __ ., ....r""

Li. ...:"o ;--! cc ~L:! c,

MEMORANDUM TO ACCOMPANY THE COURT'S MARCH 10, 2016 ORDER

Fike, S.J. March 23, 2016

Before the Court are a Petition to Modify Custody filed by Plaintiff, At/II L-- SI at ("Mother"), and a Counter-Petition for Modification of Custody filed by

Defendant, B-S•A ("Father"). The subjects of the proceedings are the parties'

two sons-W ... S la , born January 15, 2007, and CW SIQJll1,born June 2, 2008.

Prior to initiation of the instant litigation in Lawrence County, Pennsylvania,

custody of the children had been the subject oflitigation in the state of Ohio. In 2012, the

parties had entered into an agreed-upon Shared Parenting Plan that was approved by the

Ohio Court then having jurisdiction. However, shortly thereafter, dispute arose between

the parties that resulted in the filing of various petitions and motions, and ultimately in a

five-day custody trial before Judge Diane M. Palos of the Cuyahoga County, Ohio, Court

I of Common Pleas. Judge Palos decided the outstanding custody issues by a November 1,

2013 Opinion and Order directing, inter alia, ( 1) that the patties would share custody of

w.-... on an alternating weekly basis, with the exchange to take place on Mondays,

either at school, 01\ if no school, at 8:00 a.m., with the relinquishing parent to return the

child to the other parent's residence; (2) that Father would have custody of C.. for a

period of two weeks, then Mother would have custody for one week, with the schedule

then repeating so that Father would have (llilllll two weeks out of every three, and with

the exchange to take place on Wednesdays, either at school or summer camp, or if no

school or summer camp, at 8:00 a.m., with the relinquishing parent to return the child to

the other parent's residence; (3) that, on any Monday or Thursday during the time that

Father had custody of both children, Mother would have the option of an overnight with

C- on either Monday or Thursday night; (4) that Mother "shall, where ever possible,

use a nanny or caregiver for the exchanges;" (5) that the parties were to "continue to use

Our Family Wizard to communicate, for scheduling, and to post their routines so that

they be as consistent as possible in each household;" and (6) that Father was to have

"decision making as to school enrollment, medical and dental treatment for both of the

children," but requiring Father to consult with Mother for her input at least four weeks

before school enrollment or "significant or non-routine medical or dental treatment," and

with Mother then to have two weeks to make her recommendations, which were to be

considered by Father in making his decision.

In May 2014, Mother filed a Motion to Register Foreign Custody Order and a

Motion to Modify Custody in the Court of Common Pleas of Lawrence County,

Pennsylvania. Lawrence County Judge John Hodge concluded that Lawrence County did

I , not yet have jurisdiction to modify the Ohio Order. However, on Mother's appeal, the

Superior Court reversed and remanded. After renewed filing of Mother's Petition to

Modify Custody and filing of Father's Counter-Petition for Modification of Custody, the

case came on for trial, which was held on December 10, 11, 14, 29 and 30, 2015 and

January 5, 7, 21 and 25, 2016.

Both parties are physicians-Mother is an OB/GYN; Father is an orthopedic

surgeon. They were married on August 6, 2005 and separated in August 2011. They

were living in Ohio at the time. Father moved out of the marital residence and began

living with his parents in New Wilmington, Pennsylvania. Mother remained in Ohio.

Divorce was finalized in October 2012. Mother moved to Pennsylvania in July 2013.

W- has been diagnosed with autism in the moderate to severe range. He is

nonverbal and has been trained to communicate by way of a laptop computer specially

programmed for that purpose. He is also a "toe walker." As explained in Father's

Findings of Fact (FN 1 ), toe walking is the inability to make heel contact with the floor

during the initial phase of the gait cycle and the absence of full foot contact with the

ground during the remainder of the gait cycle. When the children lived in Ohio, W ...

attended classes for children with autism at the Cleveland Clinic Lerner Center for

Autism, and then the Monarch Center for Autism until the spring of 2013. In January

2013, Father registered the children for attendance in the New Wilmington Area School

District in Pennsylvania, the school district that Father had attended as a child, with

WIi!Jl~o be placed in a Midwestern Intermediate Unit IV ("MIU4") special class for

enrolled in, the Mahoning Valley Montessori School in Ohio, the Montessori school

II rescinded his acceptance. When the parties thereafter could not agree upon the

appropriate educational program for C .. , the Ohio Court directed that C .. attend

the New Wilmington schools in the fall of 2013, where he now is in the second grade.

Because of his special needs, an Individualized Education Plan ("IEP") was

developed for Wllll. He now attends school at the MIU4 class designed for children

with autism located at Pulaski Elementary School in the New Wilmington School

District. There are six children in the class, served by a teacher trained in education of

autistic children, multiple therapists, a psychologist and other staff.

As noted, supra, C... is in the second grade in the New Wilmington School

system. Although diagnosed at one point in his earlier years as being on the autism

spectrum, he has progressed and is developing appropriately, exhibits intelligence

appropriate for his age, and, although relatively quiet and sensitive, is doing well socially

and exceptionally well academically at school.

However, Mother believes that C- is experiencing difficulties with other

students. In the fall of 2015, Mother reported that CIIII appeared upset, telling

Mother of what he thought were other students' belittling and taunting actions and name-

calling. Mother reported to the school that she thought that c:-. was being bullied. Upon their investigation, school officials found no evidence of bullying to support

Mother's allegations.

At times, C.. becomes upset when experiencing transitions.

On several occasions, when arriving at school, C- has cried and resisted

exiting the car to go into the school, at times prompting school staff to provide assistance.

I According to Mother, C- still would not exit the vehicle. At approximately 9:30

was taking him to her home. However, Mother took

emergency room for evaluation. C- p.m., Father texted Mother inquiring as to her intentions. Mother informed him that she

to the Jameson Hospital

Problems seem to arise when Mother transports or accompanies her nanny on

C-' return to Father's home. Father claims that Mother is violating conditions that

Judge Palos imposed on Mother when returning the children either to Father or to school.

As noted, supra, Judge Palos' Order states that when returning the children, Mother

"shall, where ever possible, use a nanny or caregiver for the exchanges." Despite the

Order's directive, Mother transports or accompanies the nanny on exchanges. From

Mother's testimony, it appears that Mother does not interpret the Order as restricting her

presence at the exchanges, but as requiring only that a nanny should be present.

In the past, the parents have been unable to agree upon the appropriate medical

treatment and educational programs for the children, and upon the appropriate treatment

for W.. 's autism, that, in the Ohio custody proceedings resulted in Judge Palos'

Order designating Father as the parent with final authority to make decisions regarding

the children's medical care and education.

Mother continues to oppose Wiiia's present placement in the MIU4 special class

and program for autistic children, and disagrees with C... ' enrollment in the New

Wilmington Area School District, with the implied corollary that Father's decisions

regarding education are not in the children's best interests.

In October 2013, Mother appeared at the school, demanding to see W-'s

teacher and classroom. After causing serious disturbance and alarm, and loudly

I confronting W .... ' s teacher and criticizing her with profane language in front of school

staff and other children, the police were called. Criminal charges were filed against

Mother that were resolved by Mother's acceptance into the Accelerated Rehabilitative

Disposition program. However, as a result of her conduct, Mother is prohibited from

entering the school's property. As a result, meetings to which parents are invited to

attend are held off school grounds. Although Mother has now been able to interact with

school staff with relative civility, W-'s teacher is remains apprehensive.

Mother requested review of the IEP that the MIU4 implemented for W .... ,

claiming a violation ofW ... 's right to a free appropriate public education. Mother

points to the decision of the Special Education Hearing Officer as evidence of the

unacceptable faults in the MIU4 program. (Plaintiffs Trial Exhibit "5"). However, while

finding serious fault with the Mill's failure to perform a functional behavioral analysis

prior to devising the IEP, and, in dictum, criticizing the District and MIU for failing to

collect data from Wiiia's previous school in Ohio in a timely fashion, the Healing

Officer, in fact, found that the MIU was providing an appropriate education for W-,

found no violation of the statutory requirement, and dismissed Mother's complaint. The

MIU promptly arranged for the completion of a functional behavioral analysis, as

directed by the Hearing Officer.

Mother called Attorney Charles Steele, of the Pittsburgh, Pennsylvania law film of

Steele Schneider as a witness. Attorney Steele represented Mother in her challenge to

W-'s IEP and the adequacy ofW... 's education in the MIU4 class for autistic

children. Attorney Steele's firm regularly represents parents in litigation addressing

whether a child is receiving a free adequate public education. Mother also called Dr.

I 7 Maryann Anderson, an educational consultant employed by Attorney Steele's finn to

provide expert opinion in support of clients' claims. Dr. Anderson expressed her opinion,

inter alia, regarding the efficacy of an applied behavioral analysis regimen in the

treatment of autistic children, the importance of consistency and use of the regimen in all

settings, and the importance of a positive behavioral support plan and a functional

behavioral analysis. She criticized W.. 's September 19, 2013 MIU4 Individual

Education Plan for lack of specificity, and absence of a supporting functional behavioral

analysis and positive behavioral support plan. In her Report, Dr. Anderson made two

recommendations. Her first recommendation was based on her opinion that "[m]ost

public schools do not have skilled certified staff who can designate their time to assuring

fidelity to ABA strategies with specific children;" and that it is difficult for a regular

school environment to provide a facility with "separate physical spaces designated to

meet sensory needs," and "to help students learn how to regulate their behaviors without

distractions," (Dr. Anderson's Report, p. 9, Plaintiff's Trial Exhibit "9"), apparently

implying that the MIU4 classroom and staff were not adequate and that W-should

be placed in a different facility and program. Her second recommendation was based on

the fact that Plaintiff is not permitted on the MIU4 school grounds. Dr. Anderson had not

observed W.. 's MIU4 classroom and had not interviewed the MIU4 staff.

In view of the fact that Dr. Anderson is employed by Mother's lawyer to provide

expert opinions on behalf of clients, it is no surprise that her testimony was designed to

advance Mother's arguments. However, aside from the possible effect of her

employment on her opinions, given the generality of the basis for her first

recommendation; evidence of the education, training, experience and dedication of the

I MIU4 staff; composition of the MIU4's multiple service providers, and description of

Wtlllt' s classroom facilities and class size; together with the evidence of the MIU4' s

subsequent development of a positive behavioral support plan, functional behavioral

analysis, re-evaluations, and revised individual education plans, Dr. Anderson's first

recommendation carries little weight. In making her second recommendation, Dr.

Anderson did not express any knowledge of the basis for the restrictive school policy,

and did not take into account Mother's participation in school meetings and her

interaction with school staff despite the school policy prohibiting her presence in

Wlllllit's school. In any event, Mother herself, or through her litigation team, cannot

validly criticize and claim inadequacy of the MIU4 for taking appropriate measures

caused by Mother's grossly improper conduct.

Mother claims, also, that the program for autistic children provided by the MIU4 is

inadequate and is not addressing Wlllill)'s special needs, because, in her opinion,

W ..... is not progressing but, in fact, is regressing; that the practices used by the school

staff are not producing positive results; and that W ... 's maladaptive behaviors have

worsened.

Mother contends that W .. 's severe finger biting became evident only after

beginning the MIU4 class, and that W ... 's maladaptive behavior has worsened and

has occurred more frequently during the school year. The "daily sheets" admitted into

evidence (e.g. Plaintiff's Trial Exhibit "6") show the ebb and flow ofW .. 's behavior

at school, with Wlllillltapparently responding well for a period oftime and then

exhibiting negative behavior on other days. It appears that Wlllll's finger biting

I Q experience showed that his finger biting was occurring prior to W .. 's start of school

at New Wilmington. However, it appears, also, that W ... 's aggressive actions toward

others began occurring as the school year progressed.

Although cognizant ofWllll's continuing maladaptive behavior, the difficult

task of treating autistic children is recognized also.

The evidence supports the finding that the MIU4 staff is well-qualified and

extremely dedicated, that the services and programs provided are comprehensive and

appropriate, and that the techniques utilized are approved and accepted in the profession.

Given this finding and the testimony from W-'s teacher and other attending school

professionals regarding W .... and his programs and treatment in the MIU4 classroom,

the evidence is persuasive that, at least at this time, Father's decision to maintain

attendance at the MIU4 is appropriate. Mother's countervailing claim and evidence are

not sufficient to support a finding that the MIU4 staff and program are deficient and that

W~'s attendance in the MIU4 class is not in his best interest.

Mother complains that there is a lack of necessary consistency in the programs and

approaches utilized in school, at Mother's home, and at Father's home, and emphasizes

the merits of the applied behavioral analysis regimen, apparently advocating that

technique as the exclusive and only methodology that should be used in the treatment of

an autistic child. The evidence reveals that all involved providers are well-acquainted

with, and are competent in utilizing, applied behavioral analysis in practice, and that

ABA theory and practice is used by all, although not exclusively in all cases, but in

conjunction with other treatment and educational models under one "umbrella."

Nevertheless, it appears that the approaches to Wl!llllk's treatment should be coordinated

I 1() On or about June 29, 2015, upon return of W ... to her custody, Mother noticed

a difference in w.-.,s gait. At a follow-up appointment with W .... 's then attending

physician, Mother requested an x-ray that revealed a fracture in W.. 's left foot.

Mother presented evidence that in early June 2015, WIIIIL's right foot was

fractured. On June 1, Mother's nanny retrieved Wllllla from school and took him to a

neurology appointment. The nanny noticed that W ... was dragging his right foot, and

took the child to Mother's office. After being notified by email, Father expressed his

opinion that the problem might be caused by W .... 's walking flat-footed. However,

Mother proceeded to order x-rays at Jameson Hospital in New Castle. The next morning

Jameson notified Mother that the x-ray showed a fracture ofW-'s right foot. Mother

took Wlllli. out of school, advising Father that W- did not feel well, and

transported him to Akron Children's Hospital in Boardman, Ohio. That evening, Mother

notified Father of her actions, and Father authorized the Akron Children's Hospital

physician to treat W-' s foot as a fracture. However, the record from Akron

Children's Hospital (Defendant's Trial Exhibit "H") indicates that, apparently the staff at

Akron Children's Hospital could not identify any fracture on the Jameson Hospital x-ray.

Mother presented evidence, also, of an injury to W-'s right foot that was

treated as a fracture when she took him for examination of a lump on his foot on or about

November 2, 2015. Father approved the attending physician's treatment.

At trial, using an x-ray of one of W-'s fractures, Father explained the fracture

as an avulsion fracture, pointing out how an avulsion fracture differs from an actual break

of the bone, and testified that, on at least one occasion, there was not a new and different

fracture, but rather, a failure of a previous fracture to heal.

I 1? On other occasions, Mother has taken the children to hospital emergency rooms for

examination and x-rays. On October 7, 2014, Mother took W... to the emergency

room because of bruises she observed on W..._,s body when he had been returned to

her custody the day before. On October 20, 2014, Mother again took W ... to the

emergency room because of bruises on W-'s body. On or about December 14, 2014,

Mother transported W .. for an x-ray of his bruised hand. On May 26, 2015 Mother

took C .... to a hospital emergency room for x-ray of his foot.

Mother testified that, on many occasions when W.... is returned to her custody,

either from Father's home or from school, bruises are observed on w..-,,s body,

especially in the buttocks and thigh areas. Mother has made it a practice, and has

instructed her nanny, to photograph or video, W ... 's body when leaving Mother's

custody and again upon his return.

Father attributes the bruises to W ... 's tendency to bruise easily and his lack of

balance and agility that causes him to fall or bump into objects, as well as to the usual

play activities that a young child normally experiences.

Multiple referrals have been made to Lawrence County Children and Youth

Services after observation of W-' s bruises and diagnosis of his foot fractures.

A referral was made on or about July 9, 2014 regarding W-'s foot fracture that

had been diagnosed and treated on June 16, 2014. On or about October 7, 2014, when

Mother took W ... to the emergency room because of bruises, at Mother's urging, the

emergency room doctor made a referral to the Agency. On October 21, 2014, when

Mother transported W- to the UPMC emergency room for evaluation of bruises

observed on W.... 's body, another referral was made. On January 12, 2015, a referral

I was made to the Agency on the basis that WIIIIIhad returned home from his father's home with unexplained injuries, and that Clllllllhad informed Mother that the paternal

grandfather had grabbed W- making him cry. A referral was made, also, on June 12,

2015, designated as a law enforcement referral. After investigation, all of the referrals

were determined to be unfounded, and either screened out or the cases closed without

further action, except for the January 12, 2016 referral. However, the Lawrence County

Children and Youth Services intake supervisor testified that there are no concerns for

C .. ' safety at home or at school, and she believed that the latter referral would be

closed as unfounded.

On June 6, 2015, Mother transported C- for a custody exchange at Father's

residence. According to Mother, C- became very upset, crying and hysterical,

stating that Mr. Kennedy messes with him. Mother drove CMa to a Pennsylvania State

Police Station for interview. After receiving information from the State Police, Mother

returned to Father's residence and transferred custody to Father. Subsequently, after

W-- was returned to her custody, Mother took C- to the Child Advocacy Center

of Lawrence County fora forensic interview. Mother was informed that there was no

evidence of any conduct warranting further action.

As described, supra, on December 17, 2015, difficulties arose when Mother arrived

at Father's residence for a custody exchange, caused, according to Mother, by~,

erratic behavior and refusal to exit her vehicle, because, according to Mother, C..

saw Mr. Kennedy's truck in Father's driveway. Mother took C- to the hospital

emergency room for evaluation and again called the Child Advocacy Center. The Child

Advocacy Center did not open a case.

I 14 In any custody proceeding, including a parent's complaint for custody or, as

in the present case, a petition to modify the existing custody arrangement, the Court's

main concern is the most appropriate custody arrangement for the child. 23 Pa.C.S.A.

§5327(a); K.B. v. C.B.F, 833 A.2d 767, 771 (Pa. Super. 2003). In a custody contest,

such as the case now before the Court, where the dispute arises between two parents, the

burden of proof is shared equally between the parties, as the Court will not presume that

custody should be awarded to a particular parent, Id. In making its determination, the

Court bases its conclusion on how the best interests of the child may be served. Arnold v.

Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). Specific factors that a court must consider

are set forth in 23 Pa.C.S.A. §5328(a).

As in many custody cases, so in the instant case, both parents are requesting

primary physical custody, and, to that extent, both parents are interested in limiting the

other's contact with the children. Given the conflict between the parties, it would not be

surprising to find that each of the parties would prefer as much time as possible with the

children, if only to minimize the opportunities for disagreement and argument.

That obvious aspect aside, considering Mother's disparagement of Father's

parenting abilities, her allegations of Father's disregard for the children's well-being and

accusations of failure to take care of their needs, and her opposition to Father's decisions

regarding the children's schooling and implementation of a treatment plan ofW ... 's

autism, it is apparent that Mother would be unlikely to encourage extended liberal

continuing contact between the children and Father. However, especially when taking

into account Mother's proposed order, it does not seem likely that Mother would attempt

to eliminate contact.

I 1 " On the other hand, it could be expected that Father would welcome less contact

with Mother, but with that aversion to contact a logical response caused by Mother's

unwarranted overbearing actions. Mother's constant messaging by text and email serves

to discourage immediate and unfailing response. It could be expected, also, that Father

legitimately would prefer that the children not be subjected to Mother's proclivity for

regular unfounded referrals to children and youth agencies and police with consequent

repetitive interviews and investigations, and that they not be exposed to Mother's conduct

and statements in the children's presence regarding the children's care when in Father's

custody, that can be taken only as criticism and accusation against Father. However,

there is no evidence that Father would attempt to eliminate the children's contact with

Mother.

As reflected in the custody schedule established in the accompanying March 10,

2016 Order, the Court concludes that Father's request for further restriction on Mother's

custodial time with C- is warranted.

Mother's referrals to the Pennsylvania State Police and to Lawrence County

Children and Youth Services are outlined, supra. All of the allegations have been

dismissed as unfounded, except the referral of January 12, 2016, that remains under

investigation.

The effect on the children, and on CIIIIII, in particular, of the regular

photographing and video recording of WIIII and the custody exchanges, unfounded referrals to Children and Youth Services and the Children's Advocacy Center, the

subjecting of c•••to State Police interview, disparagement of Father's care and of the

I lh children's school, and unwarranted interference with the children's school and education,

provides strong evidence supporting Father's primary custody of Cll•I•

The fractures incurred by W- and the bruises observed by Mother are a

concern. However, there is no evidence that the fractures and bruises are caused by

neglect, or from any cause other than W-'s vulnerability to bruising, his self-

injurious behavior, and the effects of his autism on his gait and balance. Of special

interest was Father's explanation of the type of fracture observed on the x-ray of

w-._'sfoot.

Both parties are able, and can be expected, to provide adequate physical safeguards

and supervision of the children. However, Father must acknowledge the benefit of, and

ensure, diligent monitoring of W...._ so that prompt notice of injury and any necessary

treatment can be given to Mother. Hopefully to allay any suspicion and mistrust, Father

should assure Mother of diligent monitoring ofW~ while he is in Father's care, and

promptly report any injury to Mother, together with explanation.

Both parents perform the routine duties expected of a parent when the children are

in their care. Each parent provides the basic necessities and interaction with the children

that accompanies parental responsibility. Father is involved with the children's schooling

and W""''s special education program, the children's extracurricular activities,

exposure to religious experience, and play activities. Mother is involved in the children's

education and schooling as well, and interacts with the children in activities when they

are with her.

However, although obviously involved, Mother's attitude toward several facets of

the children's upbringing and care must be noted as counterproductive.

I 17 Mother's interest in the children's education is intense, but to the extreme of

attempting to impose her opinions, recommendations and choice of educational program

and school upon Father and others involved in the children's care. This overly aggressive

activism is illustrated by her relentless requests of W--'s school and teachers for

information, her constant criticism of the MIU4's program and teachers, and her seriously

inappropriate conduct at W.._'s school in October 2013, described, supra.

Although obviously interested in the children's medical care, Mother refuses to

follow the directive in Judge Palos' Order giving Father authority over the children's

schooling and medical treatment, to the point of independently taking the children for x-

rays, diagnosis, and treatment.

The unwillingness to consider opinion and observations of others involved in the

children's care that are contrary to her beliefs, the attempts to impose her views upon

others without considering the evidence supporting their opposing positions, and her

frequent behavior and actions in the company of the children implying disparagement,

wrongdoing and misconduct on the part of Father and other caregivers, can only serve to

cause undue stress and anxiety in the children's minds and plant the seeds of antipathy

toward Father and other caregivers that will not serve the children's best interests.

Given the inability to discuss and arrive at even a common ground to serve as the

basis for decision-making regarding the children, and Mother's efforts to interject conflict

and crisis into the children's lives by refusing to accept the provisions of the presently

governing Order, creating supposed emergencies from what should be dealt with as

incidents to be resolved by calm discussion and agreement, and by intervention in the

children's educational program and school environment thatcan be described only as

I 1R disruptive, compared with the relatively consistent, straight-forward, and experience-

based approach exhibited by Father, consideration of the statutory factor designated as

the need of the children for stability and continuity in education, family life and

community life weighs in favor of an order that attempts to enhance the influence and

presence of Father in the children's lives.

Father's parents live in close proximity to Father and, after Father moved to his

present residence, became closely involved with the children, providing supervision and

caregiving when needed, as well as enjoying the relationship that normally exists

between grandparents and grandchildren.

Mother's parents live in Ohio and, therefore, do not have frequent contact with the

children, although there is no evidence that the children do not enjoy a good relationship

with the maternal family.

However, because ofW-'s special needs and Mother's concern regarding

ability to provide unassisted care in an emergency, the March 10, 2016 Order requires a

qualified caregiver to be present with W ....

W- and C- enjoy a very close relationship and bond that should be

considered when devising a custody schedule that will serve their mutual best interests.

W- became 9 years old while this case was being tried, but, as noted above, is

nonverbal and was not interviewed. Clllll is only 7 years old, will be 8 in June, and

was not interviewed.

There is insufficient evidence that ether parent attempts directly to tum the children

against the other. However, as expressed in some detail, supra, it must be recognized

I lQ that Mother's frequent conduct implying criticism of Father, and her words disparaging

Father's abilities and choices, can be expected to poison the children's minds.

It is apparent that each of the parents, in his or her own style, love and care for the

children and want only the best education and environment for their development.

However, Mother's volatile nature and conduct; her constant opposition to the views,

opinions and decisions of others; her disruption of the children's educational program;

her interpretation of circumstances as presenting crisis and necessitating emergency

action; her beliefs about C ... ' health, mental status, interaction with other students,

and adjustment at school that are not borne out by the available evidence and reports

from those entrusted with his care; her actions that inappropriately involve the children in

the custody dispute and in Mother's disagreement with the children's school program;

provide strong argument that Mother is less likely to maintain a stable, consistent and

nurturing relationship with the children adequate for their emotional needs.

Both parties can be expected to attend to the daily physical needs of the children,

and the special needs of w-.. Both patties employ qualified tutors and nannies, and

have arranged for therapeutic staff support in their homes. However, in this regard, the

evidence of inappropriate conduct by one of Father's previously hired nannies is noted.

Also noted is Father's prompt remedial action after being advised of the circumstances.

Nevertheless the incident should alert Father to the need to ensure a comprehensive

investigation of potential nannies and other caregivers, including personal contact with

references, to eliminate, to the extent possible, any further incident, and to alert Father to

the need for close and diligent monitoring.

I ?() If one were to consider only time spent and effort exerted, the evidence might

support the conclusion that Mother is more likely to attempt to attend to the children's

daily emotional, developmental and educational needs. However, although expending a

great amount of time presuming to attend to, and expressing intense interest in, the

children's development, Mother engages in conduct that causes one to question the

quality of her involvement, including, for example, interference in the children's

educational process by seriously inappropriate aggressive behavior and excessive

continual and repeated requests for information and detail from the school personnel; the

disregard shown for the medical and educational decision making procedure and other

direction contained in the Ohio Court's November 1, 2013 Order, including her strained

and self-serving interpretation of the requirement of third-party transportation for custody

exchanges; her frequent initiation of emergency room treatment and requests for x-rays

when a more deliberate approach appears to have been called for after consultation with

Father; and her including the children in various aspects of the custody dispute by

disparagement of Father and other caregivers in the children's presence, and involvement

of C.._. in photographing Wi!lll. These examples of Mother's overreaching and

counterproductive behaviors supports the conclusion that, although subjectively well-

intentioned, Mother would be less likely than Father to attend actually and properly to the

daily emotional, developmental and educational needs of the children.

The parties live in close proximity and, therefore, distance between residences is

not a factor. However, the parties live in different school districts, and it would not be in

the children's best interests to establish a custody arrangement that required the children

to change schools.

I ?1 As noted, supra, both parties employ nannies and tutors in their respective

residences. Father's parents also have assumed an active role in providing supervision

and care when needed. Appropriate childcare arrangements are available to both parents.

The level of conflict between the parties is extreme. They are not able to

communicate effectively in person and disagree upon almost all facets of the children's

care. As a result, it is not practical to expect that the provisions of a coUI1 order will

cause the parties suddenly to be able to interact, discuss issues and reach amicable

resolution of important issues regarding the children's care, guidance and development.

With respect to communication itself, as noted by the Guardian Ad Litem in his

Report, it appears that both parties are somewhat at fault. Mother's communications are

excessively numerous and detailed, which, in tum causes Father's sometimes erratic or

delayed response, and his communication at times by excessively sh011 and incomplete

messages. Based on the history of the case and the :findings and conclusions expressed

above in this Memorandum, as well as a review of the emails and texts admitted into

evidence, the reasonable inference is that Father is reacting to the frequency, volume and

tone of Mother's requests and comments. However, communication is a two-way street,

and although possibly annoying or an irritant, in the interest of attempting to foster a

more cooperative and less antagonistic interaction, Father should be more attentive to

ensuring complete and prompt response to Mother's questions, and should be more

willing to initiate proposals for discussion that might lead to some agreement, at first on

small issues, but hopefully, as time passes, to productive discussion of the more difficult

questions.

I ?? In addition, the evidence supports a finding that, at times, Father does not

communicate with Mother regarding proposed medical and educational decisions, and

fails to provide Mother with complete and timely information regarding the children's

activities. Father is reminded and admonished to ensure timely prior notification of

Mother of the times and dates of all scheduled appointments, and information regarding

other events and activities of which Mother might not be not aware.

Mother is reminded and admonished to comply with the provisions of the

accompanying Order that award sole legal custody to Father. Unilateral action regarding

medical, educational and other important issues involving the children without

consultation with, and the express approval of, Father cannot be tolerated.

There is no evidence of a history of drug or alcohol abuse on the part of either

party or members of their households.

In 2012, Mother was diagnosed with narcissistic personality disorder.

There is no evidence that either party suffers from any physical condition that

affects ability to care for the children.

After granting Mother's motion for appointment of a Guardian, by agreement of

the parties, attorney Ryan C. Long, a member of the Lawrence County Bar, was

appointed Guardian Ad Litem for the children. Attorney Long performed an extensive

investigation, submitted his Report and Recommendation, and testified at trial.

Attorney Long recommended that the existing custody schedule be modified to

provide that Father have sole legal custody of the children; that C .... live primarily

with Father, with alternate weekend custody with Mother; and, although not opposing the

I same schedule for W TJf f; that the existing alternate week schedule be maintained for w... Review of the many and extensive Exhibits and record of the nine-day trial was

time-consuming. However, time must be taken in any custody case for careful

deliberation, and especially in a case such as the instant one where the record is

voluminous. After review of the record, evaluation of the evidence applicable to each of

the statutorily required factors, and consideration of the Guardian's Recommendation and

counsel's Proposed Findings of Fact and Conclusions of Law, the Court entered its

March 10, 2016 Order that this Memorandum accompanies, which awards sole legal

custody of the children to Father; primary physical custody of C- to Father, and

partial physical custody to Mother on alternating weekends; shared physical custody of

W.... to the parties on an alternating weekly basis; specified summer and holiday

custody; and liberty to the parties to modify the schedule if they mutually agree.

After evaluating the evidence in the light of the factors mandated for consideration

by statute, the evidence preponderates in favor of providing C- with a more stable,

less contentious, and more engaging environment that hopefully will encourage a more

accepting and stable outlook and ability for C- to adjust to transition. It is expected

that with less turmoil regarding school and custody, C .. ' aversion to entering school

will subside.

As indicated, supra, when discussing the applicable statutory factors, Mother's

overbearing attitude and conduct, including continual disparagement of the New

Wilmington schools, involving the children in repeated trips to medical facilities and law

enforcement, routine photographing of WMl5, and outward expression of disdain for

I ?4. the decisions and care provided by others, must be taken into account. Mother's erratic

behavior must cause stress for the children that can be expected to exhibit itself in

expression of anxiety and in unpredictable behavior.

The history of the custody dispute and litigation cannot be ignored, including Ohio

Common Pleas Court Judge Palos' November 1, 2013 Order that established the present

custodial arrangement.

The evidentiary scales are tipped in favor of C-' primary physical custody

with Father as reflected in the March 10, 2016 Order. Weighing heavily in favor of

extended periods of custody with Father are CIIIIJ' need for stability and continuity in

education, family and community life; maintenance of a stable, consistent and nurturing

relationship adequate for his emotional needs; attention to his physical, developmental

and educational needs; and the inability of Mother to consider the views and opinions of

others that might differ from her views and opinions.

Adding to the logic of the custody arrangement established by the March 10, 2016

Order is the strong recommendation of the children's Guardian Ad Litem.

Recognition is accorded the policy that siblings should be raised together whenever

possible, referred to by Mother's counsel, citing to Johns v. Cioci, 865 A.2d 931 (Pa.

Super. 2004) (citing Wisoski v. Wiskoski, 629 A.2d 999 (Pa. Super. 1993)). However, as

the Guardian Ad Litem suggests, because of the differing needs of the two boys, the

custody arrangement appropriate for W.... might not coincide with the schedule that is

in C-' best interest.

Because of Wlllla' s need for supervision, special care, therapy and tutoring

programs, and Mother's intense interest in overseeing and monitoring Wiiia's therapy,

I tutoring and other special programs, it is concluded, as noted by the Guardian, that

Mother should continue to share physical custody of W.... with Father on an equal

time basis.

However, C .... ' needs and interests differ, and although contact between the

siblings is to be encouraged to maintain the sibling bond, the evidence suggests that

C- is in need of the stability provided by a less volatile atmosphere, and an

environment absent Mother's constant preoccupation with the custody dispute and

embroilment of C- in that dispute, and without the risk of being influenced by

Mother's outspoken criticism of his school. Also, the schedule established by the March

10, 2016 Order will provide C- with the opportunity to grow without the influence

ofW ... 's special needs, and to become more independent and able to deal more

readily with transitions.

addressing the differing interests of CIIIII overrides the policy that siblings be raised

together.

Given the extreme inability of the parties to communicate effectively, and to

discuss compromise and reach agreement on the basic issues involving the children's

care, schooling and development, shared legal custody is not a viable alternative. Given

Mother's uncompromising attitude and approach to child-rearing in this divorced parent

situation; her inability to consider any alternative that does not coincide with her position;

her disregard for the authority granted Father in Judge Palos' Order; her erratic behavior;

and her willingness to subject the children to the potentially traumatizing effect of

repeated trips for "emergency" treatment, Children and Youth Services and other agency

I involvement and interview by aw enforcement, with the inevitable implication

disparaging of Father, the award of sole legal custody to Father is warranted.

After evaluation of the evidence and statutory factors, and having considered the

patties' and counsel's arguments and the Guardian Ad Litem' s recommendations, it was

determined that the custody arrangement and direction contained in the March 10, 2016

Order best serves the children's interests.

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