E.E.H. v. C.D.H. Appeal of: E.E.H.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2017
• Docket: E.E.H. v. C.D.H. Appeal of: E.E.H. No. 426 MDA 2017
• Status: Unpublished

Opinion

J-A20005-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.E.H. : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : C.D.H. : : : APPEAL OF: E.E.H. No. 426 MDA 2017

Appeal from the Order Entered February 9, 2017 In the Court of Common Pleas of Lancaster County Civil Division at No(s): CI-13-01719

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 11, 2017

Appellant, E.E.H. (“Father”), appeals from the order entered in the

Lancaster County Court of Common Pleas, which granted Appellee C.D.H.

(“Mother”) sole legal and physical custody of the parties’ minor child

(“Child”) (born in 2008) and suspended Father’s contact with Child. We

affirm.

In its opinions filed February 9, 2017 and April 10, 2017, the trial court

accurately set forth the relevant facts and procedural history of this case.

Therefore, we have no reason to restate them.

Father raises two issues for our review:

WHETHER THE [TRIAL] COURT ERRED IN ITS APPLICATION OF THE FACTORS CONTAINED IN 23 PA.C.S.A. § 5328 IN DETERMINING THE BEST INTERESTS OF THE CHILD INVOLVED ARE MET BY SUSPENDING ALL CONTACT, EXCEPT MAIL, BETWEEN CHILD AND HER FATHER. J-A20005-17

WHETHER THE EVIDENCE SUPPORTS A REASONABLE CONCLUSION [ON] THE PART OF THE [TRIAL] COURT THAT [FATHER] HAS CONDUCTED HIMSELF WITH HIS DAUGHTER IN SUCH A WAY AS TO CAUSE HER TO BE FEARFUL OF HIM TO THE DEGREE THAT CONTACT WOULD BE HARMFUL TO HER.

(Father’s Brief at 6).

In reviewing a child custody order:

[O]ur scope is of the broadest type and our standard is abuse of discretion. This Court 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, this Court must defer to the trial judge who presided over the proceedings and thus viewed 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.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation

omitted).

As a preliminary matter, appellate briefs and reproduced records must

materially conform to the requirements of the Pennsylvania Rules of

Appellate Procedure. Pa.R.A.P. 2101. The rules of appellate procedure

mandate that an appellant’s brief shall consist of distinct components. See

Pa.R.A.P. 2111(a). See also Pa.R.A.P. 2114-2135 (addressing specific

requirements for each subsection of brief on appeal). This Court may quash

or dismiss an appeal if the appellant’s brief does not conform to the

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applicable rules. In re Ullman, 995 A.2d 1207, 1211-12 (Pa.Super. 2010),

appeal denied, 610 Pa. 600, 20 A.3d 489 (2011).

Similarly, when an appellant fails to raise or develop his issues on

appeal properly, or where his brief is wholly inadequate to present specific

issues for review, this Court can decline to address the appellant’s claims on

the merits. Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000). See also

Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining arguments

must adhere to rules of appellate procedure and arguments which are not

appropriately developed are waived on appeal; arguments not appropriately

developed include those where party has failed to cite authority in support of

contention); Estate of Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002)

(stating appellant must support each question raised by discussion and

analysis of pertinent authority; absent reasoned discussion of law in

appellate brief, appellant hampers this Court’s review and risks waiver on

appeal).

Instantly, Father’s brief fails to conform to the requirements of an

appellate brief. Father presents two issues in his statement of questions

presented but combines his issues into one argument section, in

contravention of Rule 2119. See Pa.R.A.P. 2119 (stating: “The argument

shall be divided into as many parts as there are questions to be argued; and

shall have at head of each part─in distinctive type or in type distinctively

displayed─particular point treated therein, followed by such discussion and

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citation of authorities as are deemed pertinent”). Father’s entire brief is also

single-spaced. See Pa.R.A.P. 124(a)(3) (explaining text of appellate brief

must be double-spaced except for quotations more than two lines long and

footnotes). Significantly, Father cites virtually no law to support his

complaints on appeal, cites only two cases in his argument section, and

discusses neither in any detail. Although he mentions the relevant custody

statute (see 23 Pa.C.S.A. § 5328(a)), Father fails to discuss the custody

factors with any specificity and ignores certain factors which the court found

particularly relevant.1 (See Father’s Brief at 14). The defects in Father’s

brief constitute waiver of his claims on appeal. See Lackner, supra;

Estate of Haiko, supra; Butler, supra.

Moreover, even if Father had properly preserved his issues for our

review, his claims would merit no relief. The opinions of the Honorable

Leonard G. Brown, III, comprehensively discuss and properly dispose of the

questions presented. (See Opinion in Support of Order, filed February 9,

2017, at 12-17) (examining each factor under applicable custody statute;

concluding award of sole legal and physical custody of Child to Mother is in

Child’s best interest); and (Trial Court Opinion, filed April 10, 2017, at 16-

18) (finding: (1) court heard multiple days of testimony and analyzed each

of statutory factors under Section 5328(a); based on testimony and ____________________________________________

1 The court stated it found factors eight, nine, and fifteen particularly relevant. Father does not even mention factors eight and nine.

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evidence presented, court found Father is unable at present time to form

nurturing relationship with Child or care for Child’s emotional needs; more

troubling to court was extent and nature of Father’s mental health; Father’s

psychologist conceded Father’s personality disorder poses danger to Child’s

emotional wellbeing, Child should be older and more mature before relating

with Father; (2) custody order permits Father to send cards and gifts to

Child; but court awarded Mother sole physical custody of Child because

Father suffers from personality disorder; any contact between Father and

Child would burden Child significantly given her age, emotional state, and

immaturity; both psychologists testified that even supervised custody would

be detrimental to Child at this time;2 court’s order allowed for reevaluation

after Child’s twelfth birthday, to determine if she can reunify with Father). If

Father had properly preserved his claims, we would affirm on the basis of

the trial court’s opinions.

Order affirmed. Case is stricken from argument list.

____________________________________________

2 The record shows Child fears Father. Father wants Child to be Muslim and has held Child’s head to the floor to make her pray. Father also drove fast with Child in the car before she was buckled properly, disapproved of Child’s use of her left hand even though Child is left-handed, licked Child’s face, doused Child in perfume she did not want to wear, and asked Child to spank Father with a toy bowling pin “harder and harder.”

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2017

-6- Circulated 08/04/2017 ENTERED 11:50 AM AND FILED PROTHONOTARY'S OFFICE . ·q,... , . LANCASTER, PA ·, .. · .. . .. *Electronically Filed*•.. •

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSVf .zyX°NfAPM CIVIL ACTION - LAW

. E. H. "t='Q~hef"' Plaintiff,

v. No. CI-13-01719

t, H, It (Y)

OPINION

This case is before the court on petitions for special relief filed by both parties. Following

multiple hearings, conference calls, and presentations over one year and four months, this matter

is ripe for review. After consideration of all the evidence, the court reaches an unprecedented

conclusion for it: the custody rights of Father must be indefinitely suspended.

I. PROCEDURAL HISTORY

The court last entered a final order in this matter on November 12, 2014. Unfortunately,

events had already occurred which eclipsed that order. These events would eventually lead to the

suspension of Plaintiffs contact with the Child and bring the parties into court multiple times

over the next two years.

To briefly recount the procedural history prior to the court's November 2014 order: this

case began when Plaintiff, £. 1-1. ("Father"), filed a complaint in custody on

May 8, 2013, against Defendant C.. 1-\. ("Mother"). Following two continuances

by agreement, the court held a hearing on June 10, 2014. Due to insufficient time to complete the

testimony, the court held a second day on October 9, 2014. Both parties attended both days with.

counsel. The testimony was completed on the second day, and the court issued its November 12,

2014 order. That order granted shared legal custody and granted Mother primary custody. Until

NaliumedF, ~.r©f>FClllmer's periods of custody, and whether they were supervised or PURSUANT TO PA R.C.P. NO. 236 NOTIFICATION -THE ATTACHED DOCUMENT HAS BEEN FILED IN THIS CASE PROTHONOTARY OF LANCASTER CO., PA Feb 09 2017 4:37 PM (53}3 ·. · x.>: unsupervised, was to be determined by the Child's counselor, but Father was not to have less

than twenty hours per week. After June 1, 2015, Father was to have partial unsupervised custody

every other Friday and Saturday-but not overnight-and one weekday evening per week.

On November 17, 2014, a mere four days after the entry of the court's order, Mother filed

a petition for special relief. This petition was denied without prejudice. Mother refiled her

petition on February 23, 2015, and Father filed a petition for special relief on the same day.

Those petitions, filed almost two years ago, bring this case again before the court.

The court entered its own order on February 23, 2015, setting a hearing, appointing Lisa

McCoy, Esq. ("GAL") as guardian ad !item, and suspending Father's contact with the Child. The

hearing was twice continued by agreement of the parties and not held until September 4, 2015. In

the interim, Father's counsel filed a petition on withdraw, as Father was not paying for services.

This request was granted. The Guardian filed a report prior to the hearing. Father attended the

September 4, 2015, hearing prose; Mother attended with counsel. Father presented two experts

at this hearing, his psychological evaluator and a sexual offender treatment specialist. Following

that hearing, the court issued an order on September 16, 2015, maintaining the effect of the

February 23rd order and laying out oflist ofrequirements for Father to complete prior to

petitioning the court for a follow-up hearing.

On February 1, 2016, Father filed a petition to modify. The court issued an order on

February 4, 2016, noting that Father should have filed a petition for follow-up rather than a

petition to modify and ordering the Office of the Prothonotary to refund his fee. The court further

noted that Father had not completed all the requirements outlined in the September 16, 2015,

order, including the requirement that he wait at least six (6) months. The court held that it would

therefore be inappropriate to schedule a follow-up hearing at the time.

2 Following this order, Father reobtained counsel, and on March 29, 2016, Father filed a

petition for a follow-up hearing. The court scheduled the hearing by ordered dated March 31,

2016. The hearing was to be held on June 3, 2016. On April 14, 2016, Mother filed a petition for

special relief, requesting that the court stay the proceedings in this custody action, as the Child's

maternal grandparents had filed an action for termination and adoption in Orphan's Court. This

request was denied by order filed on May 17, 2016. On May 2, 2016, following a telephone

conference with counsel for both parties and the GAL, the court entered an order detailing its

expectations for the June 3rd hearing and scheduling a second day for August 30, 2016.

The court held the hearing's second day on June 3, 2016. Both parties attended with

counsel and the GAL was present. Father himself testified and again presented the testimony of a

sexual offender treatment specialist. Following the hearing, the court issued an order on June 7,

2016, finding that Father had not fully complied with the September 16, 2015, order and ordering

him to do so prior to the hearing's second day. On August 30, 2016, counsel for the parties and

the GAL attended a telephone conference. Plaintiffs counsel made an oral motion to continue

the hearing scheduled for later that day. This motion was granted, and the court issued an order

that day rescheduling the third day to January 31, 2017. The GAL filed a supplemental report on

January 17, 2017, and the hearing's third day was held on January 31, 2017. Both parties

attended with counsel and the GAL was present. Father testified and presented the testimony of a

psychological evaluator. Also testifying on Father's behalf were three co-workers. Mother

offered the testimony of a psychologist who evaluated the work of the other experts and offered

his own diagnosis. Also testifying was the Child's therapist and the Child herself.

3 II. SUMMARY OF THE FACTS

Although the court entered a final order in this matter in November 2014, certain facts

occurring prior to that are essential to the larger narrative of the dispute between the parties.

Father is an Egyptian immigrant and a Muslim. Mother grew up in Lancaster County,

Pennsylvania, but she was born in South Korea prior to being adopted by her parents. Mother

and her family are Christians. Father and Mother married in 2002 in Egypt, moved permanently

to the United States in 2006, where they lived with Mother's parents, separated in 2010, and

divorced in July 2013. They have one child together, ~. H. (DOB: 4 /2008) ("Child").

At the beginning of her relationship with Father, Mother and her parents worked

diligently to understand and experience Father's culture and religion. They read books, visited an

imam in Lancaster County, participated in prayers, and even visited Egypt on multiple occasions.

They also assisted Father in obtaining US citizenship. Following the Child's birth, Mother and

Father agreed that she would be raised a Muslim, although she was exposed to both her parents'

faiths.

The Child's faith became an issue once the parties separated. Father would become angry

when Mother exposed the Child to the Christian faith, to the point where he once refused the

leave Mother's residence during a custody exchange and Mother's family resorted to calling the

police. Father also insists that the Child practice the Islamic faith. While both parents have the

right to introduce his or her faith to the Child, Father appears to have done so in a manner

emotionally damaging to the Child. At one point he held her head to the floor to make her say

her prayers. Cultural expectations have also strained the Father-Child relationship. The Child is

left-handed, but Father disapproves. In all of this, Father expresses his disapproval to the Child in

4 a manner which leaves her uncomfortable and fearful, both of Father's religion and Father

himself.

Father did not have overnight periods of custody following the parties' separation in

2010, but he did have unsupervised custody. In January 2013, Mother obtained a temporary PFA

order against Father and a final order was not entered until May 3, 2013. Prior to the entry of the

final order, the Child had been named as a protected party and did not see her Father. In order to

facilitate their reunification, the Child and Father began counseling. By the time the court entered

its November 2014 order, this reunification counseling had been ongoing for one year but had

proved only marginally effective. For one, the Child has an impeccable memory, which allows

her to recall and relive unpleasant memories created by Father. Despite this, she had made some

progress, and Father had begun exercising unsupervised custody, although the Child still

displayed some reluctance to be alone with him. Father proved a greater obstacle to the

counseling. He was quick to take offense at both the Child and the therapists. He would

occasional become combative during sessions or simply walk out. While Father agreed that the

Child needed therapy, he also expressed the opinion that her fears of him or of Islam were not

due to his actions but to the undue influence of Mother and Mother's family. He either did not

admit to any of the fear-inducing behaviors relayed by the Child to her therapist or argued that

those behaviors were not unreasonable. Still, in November of2014 the court ordered the parties

to continue to undergo reunification counseling. The court continued to give the Child's therapist

some deference, but also laid out a deadline by which Father could expect to begin exercising

unsupervised custody.

On November 17, 2014, Mother filed a petition for special relief asking the court to

suspend Father's contact with the Child until allegations of inappropriate sexual contract

5 between Father and the Child were investigated by Children and Youth Services. The court

denied this petition without prejudice. While the court order in effect at that time gave Father no

less than twenty hours with the Child, Mother withheld the Child from Father upon the

recommendation of the Child's therapist.

Mother refiled her petition on February 23, 2015. In her petition, Mother alleged that in

early November 2014, Father insisted the Child spank him with a toy bowling pin. Despite the

fact that Children and Youth Services determined the allegations to be unfounded for sexual

abuse, Mother, relying on the Child's therapists, believed this to be grooming behavior. The

court's order of February 23, 2015, suspended Father's contact with the Child.

Three hearings followed, spread over two years. At the first hearing, on September 4,

2015, the court heard the testimony of two evaluators of Father, David Berk and Dr. Jonathan

Gransee. Mr. Berk is a certified sexual offender treatment specialist employed by Triad

Treatment Specialists, Inc. He evaluated Father for four hours, conducting the Abel Assessment

of Sexual Interest. The results of this assessment were compromised, however, as Father refused

to perform the slide portion of the test, citing his religious beliefs. Mr. Berk testified that while

Father showed no deviate sexual interests on the completed portions of the Assessment, he did

consistently underreport his anger, hostility, and ability to control those emotions. Mr. Berk

recommended that Father receive therapy in coordination with psychiatric care. He expressed the

opinion that Father's contact with the Child should remain suspended until he received this

treatment.

Dr. Jonathan Gransee is a psychologist. He evaluated Father over one and one-half hours

and conducted the MMPI Assessment. Dr. Gransee diagnosed Father with impulse control

disorder. He found Father to be suffering from stress and anxiety and unable to respect

6 appropriate social boundaries with others. Dr. Gransee suggested that Father address these

through therapy and anger management classes, as well as medication. He further testified that

he himself had completed therapy session with Father and that Father was on medication for

anxiety and depression. Dr. Gransee deferred any comment on the sexual allegations to the

expert from Triad. He also refused to take a firm stance on the appropriateness of the court's

suspension of Father's contact with the Child.

The court also heard from Kathrine DeStefano, the therapist directing the reunification

counseling between Father and the Child. Although a licensed therapist, Ms. DeStefano testified

as a fact witness, not an expert, and the court does not give weight to her opinion that Father

views the Child as an object of sexual desire rather than a daughter. Ms. Destefano also testified

regarding Father's behavior during their reunification sessions, that he was unable to consistently

respect the Child's feelings and boundaries and that she appeared afraid of him. Father was also

occasionally angry with the therapists or the office staff.

Also testifying at the September 2015 was Natalie McHenry, the Child's therapist. She

testified that while she was initially supportive of the reunification between Father and the Child,

she no longer holds that position. Ms. McHenry testified that despite all the therapy the Child has

received, she becomes immediately afraid at the least mention of her Father. The Child had also

recounted to Ms. McHenry the bowling pin incident, and Ms. McHenry expressed her opinion

that this was sexual grooming behavior on the part of Father. However, like Ms. DeStefano, Ms.

McHenry testified as a fact witness only, and not an expert.

The GAL also testified to add clarity to her report. She had reviewed all court documents,

as well as the records of the Child, Mother, and Father. She had also spoken to the various

evaluators and therapists, a supervisor at the Children and Youth Services Agency, and to several

7 experts on Egyptian culture and the Islamic religion. She testified to her observation that the

Child appeared genuinely afraid of Father, especially when recounting the bowling pin incident.

The GAL recommended that the current suspension of contact remain in place until Father had

followed the recommendations of Dr. Gransee and Triad.

Finally, the court heard from Father's imam. The imam testified that Father is a regular

participant at the mosque. He remembered Father bringing the Child to the mosque previously

and thought she enjoyed it no more or less than the other children. He believed Father would be

well able to care for the Child.

Following this hearing, the court issued an order on September 16, 2015, which

continued the temporary suspension of contact between the Child and Father. The court further

required Father to complete the following requirements:

1. Consultation with a licensed psychiatrist regarding anxiety medications.

2. Twenty therapy sessions with a licensed professional counselor.

3. Weekly participation in domestic violence or anger management support group for a

minimum of six months.

4. Participation in parenting education classes or work with a private parent trainer.

5. No sooner than six months, undergo reevaluation by Triad, including the slide portion of

the Abel Assessment

6. No sooner than six months, undergo reevaluation by a psychologist or psychiatrist.

Once Father completed these requirements he could petition for a follow-up hearing

At the next hearing, on June 3, 2016, the court determined that Father had not fully

complied with the requirements of the September 16, 2015, order. He had complied with

numbers 2 and 4 above and substantially complied with 1 and 5. Father failed to comply with 3

8 or 6 in that he did not participate in an anger management support group or undergo a

reevaluation by a psychologist or psychiatrist. Nevertheless, the court went forward with the

hearing in order to hear evidence on the requirements Father had completed.

The court heard testimony from Molly Simmons, a clinician with Triad Treatment

Specialists. Ms. Simmons conducted the reevaluation of Father as ordered by the court. She

admitted that Father did not wait the six months as required by the court's order, but stated that

this would not affect the results of the tests. Father redid the Abel Assessment in January 2016,

this time completing the slide portion of the test The slide portion is objective in the sense that

Father's reactions to the slides are measured, not self-reported. The test revealed that Father

showed the most sexual interest in adult females and significant sexual interest in post-pubescent

females. Father showed no significant sexual interest in pre-pubescent females.

Father also testified at the June 3rd hearing. He admitted to not fully complying with the

requirements of the court's September 16th order, but testified that he was unrepresented at the

time, has some difficulty with the language, and found the order confusing. Father testified that

the complied with portions of the order had been helpful to him. He denied having any issues

with anger or giving the Child any reason to fear him. He described the bowling pin incident as

one of play and not sexual in nature.

The final day of the hearing was held on January 31, 2017. By that time, Father had fully

complied with the requirements of the court's September 16, 2015 order. Both parties presented

the testimony of expert psychologists. Also testifying was the Child's therapist, Father, several of

Father's co-workers, and the GAL. Finally, and for the first time, the court spoke with the Child.

Father enlisted Dr. Pauline Wallin as his psychological evaluator. Dr. Wallin interviewed

Father twice, conducted the Personality Assessment Inventory, reviewed court and other records,

9 and interviewed Mother. Dr. Wallin diagnosed Father with narcissistic personality disorder,

noting that he is excessively self-centered and grandiose and reacts impulsively with anger at the

slightest criticism or rejection. This impulsivity lessens the effectiveness of any anger

management techniques Father may have learned. She further noted that there was little evidence

that Father had developed the empathy or self-insight to regulate his emotions in response to any

perceived rejection from the Child. Dr. Wallin did not interview the Child, and would not offer

an opinion on whether or not the Child would be safe in Father's custody, although she testified

that any child would need a mature level of coping mechanisms to deal successfully with Father.

Dr. Robert Gordon was retained by Mother to critique the work of the other

psychological evaluators-primarily Dr. Jonathan Gransee and Dr. Pauline Wallin-as well as

offer his own diagnosis. Dr. Gordon did not interview Father-noting that this was not necessary

under the Pennsylvania Sexual Offenders Assessment Board Standards-but instead read the

reports and records before reaching his diagnosis. Dr. Gordon offered a number of criticisms of

Dr. Gransee, most significantly his misinterpretation of Father's defensiveness scales as being

within the normal range and failure to account for this when interpreting the other measures of

the tests employed. Dr. Gordon interpreted Father's results as being very high on the

defensiveness scale and suggested that this would impact all other results. Dr. Gordon also found

it inappropriate that Dr. Gransee gave a forensic evaluation of Father while simultaneously

serving as Father's therapist.

Dr. Gordon largely agreed with Dr. Wallin's methods and many of her conclusions, and

found little in her report to criticize. However, he did offer an alternative diagnosis. Dr. Gordon

concluded that Father suffers from anti-social personality disorder. This is a more serious

diagnosis than that of narcissistic personality disorder. Dr. Gordon testified that whereas the

10 narcissist uses other people to feel important, and therefore reacts angrily to perceived rejection,

a person with anti-social personality disorder is characterized by an inability to see the impact his

behavior has on others and a disregard for their well-being. Dr. Gordon could not recommend a

resumption of the Child-Father relationship at this time, although he conceded that it would be

possible once the Child developed sufficient coping mechanisms, perhaps in early adolescence.

Both the GAL and the Child's counselor, Natalie McHenry, testified that their position

regarding contact between the Child and Father remained unchanged from the prior hearings

despite the passage of time and the continuation of therapy. The child continues to express

generalized fear of Father based on passed events, of which she retains clear memories. Child

refused to refer to Father by any name other than "him." She expresses a desire not to see Father.

Although the GAL and Ms. McHenry acknowledge the seriousness of their recommendations,

they both recommended that Father's contact with the Child remain suspended.

Father testified briefly. He again denied giving the Child any reason to fear him. Father

has not seen the Child for more than two years, and, although permitted to do so, has not sent her

any cards or letters. Father also brought three witnesses from work. All three testified that Father

was a good employee and co-worker. However, Dr. Wallin testified that this would not change

her diagnosis of Father or cause her to reconsider her recommendations regarding his

relationship with the Child.

The Child's behavior while speaking to the court was consistent with the descriptions of

her provided by the witnesses. Although initially reserved, she quickly became engaged while

speaking about her summer activities, school, music lessons, family, and friends. The subject of

her Father, however, was one on she clearly did not wish to engage. She expressed a preference

not to ·see him because of things that had happened in the past.

II III. STANDARD OF REVIEW

In making the custody determination, the Court's guiding principle is the best interests of

the child, in accordance with the factors set forth in 23 Pa.C.S. § 5328. The test as to the best

interests of the child when two parents are involved is evaluated on a scale that is initially

weighed equally as to each parent. Sawko v. Sawko, 625 A.2d 692, 695 (Pa. Super. Ct. 1993).

IV. DISCUSSION

Father seeks some contact with the Child, with such contact being extended until in

conformity with the court's November 12, 2014, order. Mother seeks continued suspension of

Father's contact with the Child. The testimony and evidence produced over the three-day hearing

was largely limited to this question. While the court will consider all the facts set forth in 23

Pa.C.S. 5328(a) as they relate to the Child's best interests, the court relies in part on evidence

and testimony presented in prior hearings to find as follows:

1. Which party is more likely to encourage and permit frequent and continuing contact

between the children and another party. There is no evidence that Father would fail to

comply with a court order which allowed him contact with the Child. Mother did

withhold contact with the Child outside a court order between November 2014 and

February 2015. However, this was on the recommendation of the Child's therapists and

during a Child and Youth Investigation. The court sees no evidence that if in the future

the court ordered contact between the Child and Father that Mother would fail to comply.

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. Mother

obtained a PFA against Father, which expired on July 22, 2016. The court is aware of no

12 evidence indicating a risk of abuse to Mother. There have been numerous allegations that

Father engaged in sexual grooming behaviors with the Child during his brief periods of

unsupervised custody in the fall of 2014, most significantly the bowling pin incident.

While Triad Treatment Specialists concluded Father does not show heightened interest in

pre-pubescent females, Dr. Gordon quested the basis for this conclusion. However, Dr.

Gordon was unable to provide evidence that Father was grooming the Child outside his

more general diagnosis that Father suffers from anti-social personality disorder.

2.1 The information set forth in section 5329.1 (a) (relating to consideration of child abuse

and involvement with protective services). Children and Youth Services did investigate

Father following the bowling pin incident. The Agency marked this report as unfounded.

3. The parental duties performed by each party on behalf of the child. Mother performs the

parental duties. Father did perform parental duties during his custody periods in the past.

4. The need for stability and continuity in the child's education, family life and community

life. Mother is well suited to provide stability and continuity in the Child's education and

family and community life. The Child is doing well in school, interacts regularly with her

extended family, and is involved in community activities. Father is only somewhat less

stable. He has worked for the same employer for ten years and is by all accounts a good

employee. He is involved with a local mosque. He has also remarried, but this is his third

wife. It is not clear that Father is involved in the community.

5. The availability of extended family. Father lives with his mother and his wife and child.

Any other extended family are in Egypt. Mother lives with her parents. The maternal

grandparents have played an important role in the Child's life since her birth.

13 6. The child's sibling relationships. The Child has no full siblings. She has one half-sibling,

Father's other Child, whom she has never met.

7. The well-reasoned preference of the child, based on the child's maturity and judgment.

The Child expressed a preference to have no contact with Father. While this preference

may not be well-reasoned, the court finds it based on fears very real to the Child. While

three years of therapy have done little to abate the Child's fears of her Father, the court

hopes that with continued therapy and maturity, the Child will be able to overcome her

fears and begin a reunification process at some point in the future.

8. The attempts of a parent to turn the child against the other parent, except in cases of

domestic violence where reasonable safety measures are necessary to protect the child

from harm. As expressed at prior hearings, Father believes Mother and her parents have

brain-washed the Child, that any of her fears are their creation. The court sees no

evidence of this. Instead, the court finds that the Child's fears are based primarily on

Father's actions. Father seeming inability to admit he might be at fault for the Child's

fear is troubling to the court.

9. Which party is more likely to maintain a loving, stable, consistent and nurturing

relationship with the child adeguate for the child's emotional needs. Mother is more likely

to maintain a relationship with the Child adequate for the Child's emotional needs. While

the court did not find the testimony of Dr. Gransee persuasive, both Dr. Wallin and Dr.

Gordon agreed that Father's mental health diagnosis would place a significant burden on

the Child. These psychologists concluded that Father lacks empathy and awareness of

appropriate social boundaries. He is quick to perceive slights and rejections, and

unwilling to let these go. He appears to possess little or no awareness of how his actions

14 affect the emotion well-being of the Child. This is doubly so given her exceptional

memory and deep rooted fears based upon Father's past actions towards her. While the

court hopes the Child will develop age appropriate coping mechanisms, she has not yet

reached such a place of maturity.

10. Which party is more likely to attend to the daily physical. emotional, developmental,

educational and special needs of the Child. The Child has no special needs. Mother is

able to care for the Child's needs, and where Mother might have limitations regarding the

Child's education, the maternal grandparents are willing and able to assist. Father is not

well-suited to care for the Child's needs, especially her emotional and developmental

needs. Father's mental health diagnoses are discussed in 115, infra. The Child is afraid of

Father and things she associates with Father-primarily Islam. She needs ongoing

therapy and a supportive environment. Father appears unable to accept these fears or his

role in both causing them and addressing them. The Child will need to mature

emotionally and Father will need to address his underlying mental health before a

relationship between them is in the Child's best interests.

11. The proximity of the residences of the parties. Both parties live in Lancaster County.

12. Each party's availability to care for the child or ability to make appropriate child-care

arrangements. Both parents are capable of making childcare arrangements as necessary.

13. The level of conflict between the parties and the willingness and ability of the parties to

cooperate with one another. The level of conflict between the parties has been quite high

in the past. This will be an area of concern to the court should Father and the Child reach

a point where reunification is possible.

15 14. The history of drug or alcohol abuse of a party or member of a party's household. Not an

issue based on testimony or evidence presented.

15. The mental and physical condition of a party or member of a party's household. Neither

party has any significant physical conditions that would impair his or her ability to care

for the Child. At prior hearings the court heard testimony regarding Mother's diminished

mental capacity but found that she was well-able to care for the Child. Father's mental

health is of significant concern to the court. Three expert psychologists testified in this

case. While they did not agree on a diagnosis, even the most positive, Dr. Gransee, before

he abandoned the role of evaluator and assumed that of therapist, concluded that Father

had "poor personal boundaries and poor judgment regarding how to behave with a child."

(Dr. Gransee Psychological Evaluation, June 18, 2015, p. 15). Even so, the court finds

Dr. Gransee's conclusions less persuasive than those offered by Drs. Wallin and Gordon.

Dr. Wallin diagnosed Father with narcissistic personality disorder and testified that this

means he would be insensitive to the impact of his behavior on others or their needs. The

court finds this consistent with the testimony developed at the prior hearing, particularly

that Father forced the Child's head to the ground during prayer and his incessant demands

that she explain why she is afraid of him. Dr. Gordon returned an even more serious

diagnosis of antisocial personality disorder, which in addition to the lack of sensitivity

includes a willingness to exploit others to one's own ends. This is of special concern

given the allegations of sexual grooming behavior even though such behavior has not

been fully substantiated. Finally, even though Dr. Wallin and Dr. Gordon did not agree

on a diagnosis, they did agree that Father's personality disorder posed a threat to the

Child's emotional development and that the child should be older and more mature-with

16 better coping mechanisms-before she should be expected to bear the burden of a

relationship with Father. The court finds this persuasive.

16. Any other relevant factor. None.

Short of terminating parental rights, the conclusion reached by the court is the most

drastic that can be taken - to prohibit physical custody of a father with his daughter. The court

neither makes this decision lightly nor without much circumspection. However, the

responsibility of this court is to the best interests of the child, not the wishes of a parent. It is the

sincere hope of the court that reunification between the child and her father will occur one day

when Father has consistently worked to address his impairment and ability to interact with his

daughter, and when the Child has learned appropriate ways to cope with Father's impairments.

Upon consideration of these statutory factors, the court finds that it is in the Child's best

interest for Mother to have sole legal and sole physical custody. An appropriate order follows.

17 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW

E. H . '' ~o.·H,e'I"' "' Plaintiff,

C. \-1. "f\1other ,, Defendant.

ORDER

AND NOW, this 9th day of February 2017, upon the petitions for special relief filed by

both parties, and following a hearing on these matters over three days, and which Plaintiff

attended the first day without counsel and the second and third days with counsel, and the

Defendant attend with counsel, the court sets forth the following custody order:

I. LEGAL CUSTODY

C-. H. ("Mother") shall have sole legal custody of. ~ . -H. (DOB:

4 /2008) ("Child"). Mother shall have the right to make major decisions affecting the child,

including, but not limited to, medical, religious, and educational decisions, E. H. ("Father") shall have equal access to medical, dental and school records. Each party

shall have access to the residence address. Mother shall ensure that copies of such records or

results that she receives are mailed to Father. Each party must avail him or herself of the online

means provided by the school to obtain information regarding school programs, events,

meetings, teacher conferences, and evaluations.

II. PHYSICAL CUSTODY

Mother shall have sole physical custody of the Child. Father's contact with the Child is

suspended indefinitely.

18 III. OTHER PROVISIONS

1. The Child shall continue to participate in counseling. This counseling shall address the

Child's fears of Father with the goal of alleviating those fears. The counseling shall also

help the Child develop coping mechanisms such that she shall be prepared to reunify with

Father at some future date.

2. Within sixty (60) days following her twelfth (12) birthday, the Child shall be evaluated

by an independent psychologist to determine whether or not she has developed

appropriate coping mechanisms. A copy of the report from this evaluation shall be

provided to opposing counsel.

3. Father is encouraged to participate in therapy to address his underlying mental health

diagnosis.

4. Father has permission to send cards and gifts to the Child. Father should expect any

communications with the Child to be read by Mother and the Child's therapist.

5. Mother and Mother's family shall refrain from speaking ill of Father.

6. The appointment of Lisa McCoy, Esq. as guardian ad litem is hereby VACATED.

7. The terms of the order may be modified at any time upon mutual consent of the parties or

further order of court.

BY THE COURT:

)J4 ~

LEONARD G. BROWN, III, JUDGE

ATTEST: i)kIJ»,~ COPIES TO: Richard Katz, Esq. Rebecca Cheuvront, Esq. Lisa McCoy, Esq.

19 20 ENTERED Circulated AND FILED 08/04/2017 11:50 AM PROTHONOTARY'S OFFICE LANCASTER,PA ... Electronically Flied••• ..

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PE~~l{?XNiA1 PM - CIVIL ACTION - LAW ,-:,, E. H. - ,;fu.\t)t( '' Plaintiff,

C.. H. '/{f,lO:\-\:Jev "' 1

Defendant.

PA R.A.P.1925 OPINION

The Plaintiff, - [. H. , has filed a children's fast track appeal of the court's

opinion and order dated February 9, 2017. The reasons for that custody decision are stated in the

opinion and order dated February 9, 2017, upon which the court relies in compliance with

Pa.R.A.P. 1925(a). In response to Plaintiffs statement of matters complained of on appeal, the

court addresses the matters individually and further details its rationale for ruling on Plaintiffs

petition for special relief and petition to modify custody.

This case began when Plaintiff, · £. M. • ("Father"), filed a complaint in

custody on May 8, 2013, against Defendant, t. H. ("Mother"). Following two

continuances by agreement, the court held a hearing on June 10, 2014. Due to insufficient time to

complete the testimony, the court held a second day on October 9, 2014. Both parties attended

both days with counsel. The testimony was completed on the second day, and the court issued its

November 12, 2014 order. That order granted shared legal custody and granted Mother primary

custody. Until June 1, 2015, the extent of Father's periods of custody, and whether they were

supervised or unsupervised, was to be determined by the Child's counselor, but Father was not to

have less than twenty (20) hours per week. After June I, 2015, Father was to have partial

NOTICE OF ENTRY OF ORDER OR DECREE PURSUANT TO PA R.C.P. NO. 236 NOTIFICATION ·THEA TT ACHED DOCUMENT HAS BEEN FILED IN THIS CASE PROTHONOTARY OF LANCASTER CO., PA Apr 10 2017 12:11 PM unsupervised custody every other Friday and Saturday-but not overnight-and one (1)

weekday evening per week.

On November 17, 2014, a mere four (4) days after the entry of the court's order, Mother

filed a petition for special relief. This petition was denied without prejudice. Mother refiled her

petition on February 23, 2015, and Father filed a petition for special relief on the same day.

Those petitions, filed almost two years ago, bring this case again before the court.

The court entered its own order on February 23, 2015, setting a hearing, appointing Lisa

McCoy, Esquire ("GAL") as guardian ad litem, and suspending Father's contact with the Child.

The parties waived the time requirements of Pa.R.C.P. 1915.4 for the start of the hearing, and the

hearing was twice continued by agreement. The second continuance was granted to allow Father

more time to obtain evaluations. See Order, 6/4/2015. The hearing was not held until September

4, 2015. In the interim, Father's counsel filed a petition on withdraw, as Father was not paying

for services. This request was granted. The Guardian filed a report prior to the hearing. Father

attended the September 4, 2015, hearing pro se; Mother attended with counsel. Father presented

two (2) experts at this hearing, his psychological evaluator and a sexual offender treatment

specialist. Following that hearing, the court issued an order on September 16, 2015, maintaining

the effect of the February 23rd order and laying out a list ofrequirements for Father to complete

prior to petitioning the court for a follow-up hearing.

On February 1, 2016, Father filed a petition to modify. The court issued an order on

February 4, 2016, noting that Father should have filed a petition for follow-up rather than a

petition to modify and ordered the Office of the Prothonotary to refund his fee. The court further

noted that Father had not completed all the requirements outlined in the September 16, 2015,

2 order, including the requirement that he wait at least six (6) months. The court held that it would

therefore be inappropriate to schedule a follow-up hearing at the time.

Following this order, Father reobtained counsel, and on March 29, 2016, Father filed a

petition for a follow-up hearing. The court scheduled the hearing by ordered dated March 31,

2016. The hearing was to be held on June 3, 2016. On April 14, 2016, Mother filed a petition for

special relief, requesting that the court stay the proceedings in this custody action, as the Child's

maternal grandparents had filed an action for termination and adoption in Orphan's Court. This

request was denied by order filed on May 17, 2016. On May 2, 2016, following a telephone

conference with counsel for both parties and the GAL, the court entered an order detailing its

expectations for the June 3rd hearing and scheduling a second day for August 30, 2016.

The court held the hearing's second day on June 3, 2016. Both parties attended with

counsel and the GAL was present. Father himself testified and again presented the testimony of a

sexual offender treatment specialist. Following the hearing, the court issued an order on June 7,

2016, finding that Father had not fully complied with the September 16, 2015, order and ordering

him to do so prior to the hearing's second day. On August 30, 2016, counsel for the parties and

the GAL attended a telephone conference. Plaintiffs counsel made an oral motion to continue

the hearing scheduled for later that day to have time to obtain and assess the psychological

evaluation. This motion was granted, and the court issued an order that day rescheduling the

third day to January 31, 2017. The GAL filed a supplemental report on January 17, 2017, and the

hearing's third day was held on January 31, 2017. Both parties attended with counsel and the

GAL was present. Father testified and presented the testimony of a psychological evaluator. Also

testifying on Father's behalf were three (3) co-workers. Mother offered the testimony of a

3 psychologist who evaluated the work of the other experts and offered his own diagnosis. Also

testifying was the Child's therapist and the Child herself.

The court issued its opinion and order on February 9, 2017. Father filed his notice of

appeal on March 8, 2017, and concurrently filed his concise statement of errors complained of on

appeal.

II. SUMMARY OF THE FACTS

Father is an Egyptian immigrant and a Muslim. Mother grew up in Lancaster County,

Pennsylvania, but she was born in South Korea prior to being adopted by her parents (N.T.

6/10/14, p. 93). Mother and her family are Christians (N.T. 6/10/14, p. 95). Father and Mother

married in 2002 in Egypt, moved permanently to the United States in 2006, where they lived

with Mother's parents, separated in 2010, and divorced in July 2013 (N.T. 6/10/14, p. 96, 134).

They have one child together, S. \-\. (DOB: 41 /2008) ("Child").

At the beginning of her relationship with Father, Mother and her parents worked

diligently to understand and experience Father's culture and religion. They read books, visited an

imam in Lancaster County, participated in prayers, and even visited Egypt on multiple occasions

(N.T. 6/10/14, p. 110). They also assisted Father in obtaining US citizenship (N.T. 6/10/14, p.

134). Following the Child's birth, Mother and Father agreed that she would be raised a Muslim,

although she was exposed to both her parents' faiths (N.T. 6/10/14, p. 102-03).

The Child's faith became an issue once the parties separated. Father would become angry

when Mother exposed the Child to the Christian faith, to the point where he once refused to leave

Mother's residence during a custody exchange and Mother's family resorted to calling the police

(N.T. l 0/9/14, p. 304-05). Father also insists that the Child practice the Islamic faith (N.T.

6/10/14, pp. 173, 198). While both parents have the right to introduce his or her faith to the

4 Child, Father appears to have done so in a manner emotionally damaging to the Child (See N.T.

6110114, p. 104). At one point, he held her head to the floor to make her say her prayers (N.T.

6/10/2014, p. 34). Cultural expectations have also strained the Father-Child relationship. The

Child is left-handed, but Father disapproves (N.T. 6/10/14, pp. 14, 21, 26, 199; N.T. 10/9/14, p.

260; N.T. 9/4/15, p. 136). In all of this, Father expresses his disapproval to the Child in a manner

which leaves her uncomfortable and fearful, both of Father's religion, Father's culture, and

Father himself(N.T. 6/10/14, pp. 35, 38, 77, 85; N.T. 9/4/2015,p. 56).

Father did not have overnight periods of custody following the parties' separation in

2010, but he did have unsupervised custody (N.T. 6/10/14, p. 99; N.T. 9/4/15, p. 37). In January

2013, Mother obtained a temporary PF A order against Father and a final order was not entered

until May 3, 2013 (N.T. 6/10/14, p. 100). Prior to the entry of the final order, the Child had been

named as a protected party and did not see her Father. To facilitate their reunification, the Child

and Father began counseling (N.T. 6/10/14, p. 15). By the time the court entered its November

2014 order, this reunification counseling had been ongoing for one (1) year but had proved only

marginally effective. For one, the Child has an impeccable memory; this allows her to recall and

relive unpleasant memories created by Father (N.T. 6/10/14, pp. 13, 20; N.T. 10/9/14, pp. 351-

53; N.T. 9/4/15, p. 47). Despite this, she had made some progress (N.T. 10/9/14, p. 349), and

Father had begun exercising unsupervised custody, although the Child still displayed some

reluctance to be alone with him.

Father proved a greater obstacle to the counseling. He was quick to take offense at both

the Child and the therapists. He would occasionally become combative during sessions or simply

walk out (N.T. 6/10/14, p. 26, 36; N.T. 10/9/14, p. 356-58). While Father agreed that the Child

needed therapy, he also expressed the opinion that her fears of him or of Islam were not due to

5 his actions but to the undue influence of Mother and Mother's family (N.T. 10/9/14, p. 289-90).

He either did not admit to any of the fear-inducing behaviors relayed by the Child to her therapist

or argued that those behaviors were not unreasonable (N.T. 10/9/14, p. 291). Still, in November

of 2014 the court ordered the parties to continue to undergo reunification counseling. The court

continued to give the Child's therapist some deference, but also laid out a deadline by which

Father could expect to begin exercising unsupervised custody (See Order, 11/12/14).

On November 17, 2014, Mother filed a petition for special relief asking the court to

suspend Father's contact with the Child until allegations of inappropriate sexual contract

between Father and the Child were investigated by Children and Youth Services. These

allegations included Father asking the Child to spank him with a plastic bowling pin, after which

he laid on the floor for some time breathing heavily. Father also regularly kissed the child all

over her face, hands, and feet and had her straddle his lap for prolonged periods of time. All of

these requests were upsetting to the Child. The court denied this petition without prejudice (See

Order, 11/17/14). While the court order in effect at that time gave Father no less than twenty (20)

hours with the Child, Mother withheld the Child from Father upon the recommendation of the

Child's therapist (N.T. 9/4/15, p. 35-37).

Mother refiled her petition on February 23, 2015. In her petition, Mother alleged that in

early November 2014, Father insisted the Child spank him with a toy bowling pin (See also N.T.

9/4/15, p.39). Even though Children and Youth Services determined the allegations to be

unfounded for sexual abuse, Mother, relying on the Child's therapists, believed this to be

grooming behavior (N.T. 9/4/15, p. 47). The court's order of February 23, 2015, suspended

Father's contact with the Child.

6 Three (3) hearings followed, spread over two (2) years. At the first hearing, on September

4, 2015, the court heard the testimony of two (2) evaluators of Father, David Berk and Dr.

Jonathan Gransee. Mr. Berk is a certified sexual offender treatment specialist employed by Triad

Treatment Specialists, Inc. (N.T. 9/4/15, p. 5). He evaluated Father for four (4) hours, conducting

a number oftests, including the Abel Assessment of Sexual Interest (N.T. 914115, p. 8-9). The

results of this assessment were compromised, however, as Father refused to perform the slide

portion of the test, citing his religious beliefs (N.T. 9/4/15, p. 10). Mr. Berk testified that while

Father showed no deviate sexual interests on the completed portions of the Assessment, he did

consistently underreport his anger, hostility, and ability to control those emotions (N.T. 9/4/15, p.

15). Mr. Berk recommended that Father receive therapy in coordination with psychiatric care. He

expressed the opinion that Father's contact with the Child should remain suspended until he

received this treatment (N.T. 9/4/15, pp. 18-19).

Dr. Jonathan Gransee is a psychologist (N.T. 9/4/15, pp. 88-89). He evaluated Father

over one (1) and one-half (1/2) hours and conducted the MMPI Assessment (N.T. 914115, p. 92).

Dr. Gransee diagnosed Father with impulse control disorder. He found Father to be suffering

from stress and anxiety and unable to respect appropriate social boundaries with others (N.T.

9/4/15, pp. 101-02, 107). Dr. Gransee suggested that Father address these through therapy and

anger management classes, as well as medication (N.T. 9/4/15, pp. 103, 106). He further testified

that he himself had completed therapy session with Father and that Father was on medication for

anxiety and depression (N.T. 9/4/15, pp. 110-11). Dr. Gransee deferred any comment on the

sexual allegations to the expert from Triad (N.T. 9/4/15, p. 109). He also refused to take a firm

stance on the appropriateness of the court's suspension of Father's contact with the Child (N.T.

9/4/15, pp. 103-04).

7 The court also heard from Kathrine DeStefano, the therapist directing the reunification

counseling between Father and the Child (N.T. 9/4/15, p. 34-35). Although a licensed therapist,

Ms. DeStefano testified as a fact witness, not an expert, and the court did not give weight to her

opinion that Father views the Child as an object of sexual desire rather than a daughter (See N.T.

914115, p. 47). Ms. Destefano also testified regarding Father's behavior during their reunification

sessions, that he was unable to consistently respect the Child's feelings and boundaries and that

she appeared afraid of him. Father was also occasionally angry with the therapists or the office

staff (N.T. 9/4/15, p. 45-46).

Also testifying at the September 2015 hearing was Natalie McHenry, the Child's

therapist (N.T. 9/4/15, p. 66). She testified that while she was initially supportive of the

reunification between Father and the Child, she no longer held that position (N .T. 9/4/15, p. 69).

Ms. McHenry testified that despite all the therapy the Child has received, she becomes

immediately afraid at the least mention of her Father (N.T."9/4/15, p. 67-70). The Child had also

recounted to Ms. McHenry the bowling pin incident, and Ms. McHenry expressed her opinion

that this was sexual grooming behavior on the part of Father (N.T. 9/4/15, p. 70- 73). However,

like Ms. DeStefano, Ms. McHenry testified as a fact witness only, and not an expert.

The GAL also testified to add clarity to her report. She had reviewed all court documents,

as well as the records of the Child, Mother, and Father. She had also spoken to the various

evaluators and therapists, a supervisor at the Children and Youth Services Agency, and to several

experts on Egyptian culture and the Islamic religion (N.T. 914115, pp. 128-30). She testified to

her observation that the Child appeared genuinely afraid of Father, especially when recounting

the bowling pin incident (N.T. 9/4/15, p. 133). The GAL recommended that the current

8 suspension of contact remain in place until Father had followed the recommendations of Dr.

Gransee and Triad (N.T. 9/4/15, p. 132).

Finally, the court heard from Father's imam. The imam testified that Father is a regular

participant at the mosque (N.T. 9/4/15, p. 27). He remembered Father bringing the Child to the

mosque previously and though she had seemed happy to be there, to learn Arabic and study the

Koran (N.T. 9/4/15, p.28-9). He also testified that it was not acceptable within the Islamic faith

for a parent to ask a child to strike in on the buttocks, or for a parent to kiss a child to the point

where the child was made uncomfortable by the parents' behavior. (N.T. 9/4/15, pp. 32-33).

Following this hearing, the court issued an order on September 16, 2015, which

continued the temporary suspension of contact between the Child and Father. The court further

1. Consultation with a licensed psychiatrist regarding anxiety medications.

2. Twenty (20) therapy sessions with a licensed professional counselor.

3. Weekly participation in domestic violence or anger management support group for a

minimum of six (6) months.

4. Participation in parenting education classes or work with a private parent trainer.

5. No sooner than six (6) months, undergo reevaluation by Triad, including the slide portion

of the Abel Assessment

6. No sooner than six (6) months, undergo reevaluation by a psychologist or psychiatrist.

Once Father completed these requirements, he could petition for a follow-up hearing.

At the next hearing, on June 3, 2016, the court determined that Father had not fully

complied with the requirements of the September 16, 2015, order. He had complied with

numbers 2 and 4 above and substantially complied with 1 and 5. Father failed to comply with 3

9 or 6 in that he did not participate in an anger management support group or undergo a

reevaluation by a psychologist or psychiatrist. Nevertheless, the court went forward with the

hearing to hear evidence on the requirements Father had completed.

The court heard testimony from Molly Simmons, a clinician with Triad Treatment

Specialists (N.T. 6/3/16, p. 5). Ms. Simmons conducted the reevaluation of Father as ordered by

the court. She admitted that Father did not wait the six (6) months as required by the court's

order, but stated that this would not affect the results of the tests (N.T. 6/3/16, p. 8). Father redid

the Abel Assessment in January 2016, this time completing the slide portion of the test. The slide

portion is objective in the sense that Father's reactions to the slides are measured, not self-

reported (N.T. 6/3/16, p. 11). The test revealed that Father showed the most sexual interest in

adult females and significant sexual interest in post-pubescent females. Father showed no

significant sexual interest in pre-pubescent females (N.T. 6/3/16, p. 15).

Father also testified at the June 3rd hearing. He admitted to not fully complying with the

requirements of the court's September 161h order, but testified that he was unrepresented at the

time, has some difficulty with the language, and found the order confusing (N.T. 6/3/16, p. 40).

Father testified that the complied with portions of the order had been helpful to him (N.T. 6/3/16,

p. 46). He denied having any issues with anger or giving the Child any reason to fear him. He

described the bowling pin incident as one of play and not sexual in nature (N.T. 6/3/16, pp. 72-

73).

The final day of the hearing was held on January 31, 2017. By that time, Father had fully

complied with the requirements of the court's September 16, 2015, order. Both parties presented

the testimony of expert psychologists. The Child's therapist, Father, several of Father's co-

IO workers, and the GAL also testified. Finally, and for the first time, the court spoke with the

Child.

Father enlisted Dr. Pauline Wallin as his psychological evaluator. Dr. Wallin interviewed

Father twice, conducted the Personality Assessment Inventory, reviewed court and other records,

and interviewed Mother (N.T. 1/31/17, pp. 6-8). Dr. Wallin diagnosed Father with narcissistic

personality disorder, noting that he is excessively self-centered and grandiose and reacts

impulsively with anger at the slightest criticism or rejection (N.T. 1/31/17, p. 18). This

impulsivity lessens the effectiveness of any anger management techniques Father may have

learned. She further noted that there was little evidence that Father had developed the empathy or

self-insight to regulate his emotions in response to any perceived rejection from the Child (N.T.

1/31/17, pp. 38-40). She testified that Father would overreact emotionally to any perceived

rejection from the Child (N. T. 1 /31 I 1 7, p. 41 ). Dr. Wallin did not interview the Child, and would

not offer an opinion on whether or not the Child would be safe in Father's custody (N.T. 1/31/17,

p. 39), although she testified that any child would need a mature level of coping mechanisms to

deal successfully with Father (N.T. 1/31/17, pp. 45, 50).

Dr. Robert Gordon was retained by Mother to critique the work of the other

psychological evaluators-primarily Dr. Jonathan Gransee and Dr. Pauline Wallin-as well as

offer his own diagnosis (N.T. 1/31/17, p. 54). Dr. Gordon did not interview Father but instead

read the reports and records before reaching his diagnosis. Dr. Gordon offered several criticisms

of Dr. Gransee, most significantly his misinterpretation of Father's defensiveness scales as being

within the normal range and failure to account for this when interpreting the other measures of

the tests employed. Dr. Gordon interpreted Father's results as being very high on the

defensiveness scale and suggested that this would impact all other results (N.T. 1/31/17, pp. 64-

11 65, 68). Dr. Gordon also found it inappropriate that Dr. Gransee gave a forensic evaluation of

Father while simultaneously serving as Father's therapist (N.T. 1/31/17, p. 64).

Dr. Gordon largely agreed with Dr. Wallin's methods and many of her conclusions, and

found little in her report to criticize. However, he did offer an alternative diagnosis. Dr. Gordon

concluded that Father suffers from anti-social personality disorder (N.T. 1/31/17, p. 56). This is a

more serious diagnosis than that of narcissistic personality disorder. Dr. Gordon testified that

whereas the narcissist uses other people to feel important, and therefore reacts angrily to

perceived rejection, a person with anti-social personality disorder is characterized by an inability

to see the impact his behavior has on others and a disregard for their well-being (N.T. 1/31/17, p.

58-59). Dr. Gordon could not recommend a resumption of the Child-Father relationship at this

time, although he conceded that itwould be possible once the Child developed sufficient coping

mechanisms, perhaps in early adolescence (N.T. 1/31/17, p. 76-77).

Both the GAL and the Child's counselor, Natalie McHenry, testified that their position

regarding contact between the Child and Father remained unchanged from the prior hearings

despite the passage of time and the continuation of therapy (N.T. 1/31/17, pp. 117, 154). The

child continued to express generalized fear of Father based on passed events, of which she

retains clear memories. Child refused to refer to Father by any name other than "him." She

expresses a desire not to see Father (N.T. 1/31/17, p. 152-53). Although the GAL and Ms.

McHenry acknowledge the seriousness of their recommendations, they both recommended that

Father's contact with the Child remain suspended (N.T. 1/31/17, pp. 113-14, 154).

Father testified briefly. He again denied giving the Child any reason to fear him. Father

also brought three (3) witnesses from work. All three (3) testified that Father was a good

employee and co-worker (N.T. 1/31/17, pp. 130, 136, 142).

12 The Child's behavior while speaking to the court was consistent with the descriptions of

her provided by the witnesses. Although initially reserved, she quickly became engaged while

speaking about her summer activities, school, music lessons, family, and friends. The subject of

her Father, however, was one on she clearly did not wish to engage. She expressed a preference

not to see him because of things that had happened in the past (N.T. 1/31/17, pp. 194-199).

III. ST AND ARD OF REVIEW

A. Trial Court Standard of Review

"[T]he paramount concern in child custody proceedings is the best interestof the child."

Moore v. Moore, 634 A.2d 163, 169 (Pa. 1993). In making the custody determination, the court's

guiding principle is the best interests of the child, in accordance with the factors set forth in 23

Pa.C.S.A. § 5328. The test as to the best interests of the children when two parents are involved

is evaluated on a scale that is initially weighed equally as to each parent. Sawka v. Sawka, 625

A.2d 692, 695 (Pa. Super. Ct. 1993). In a custody action, the particular circumstances of the case

must be considered, and each case is to be decided on its own individual facts. N.H.M. v. P.0.T.,

947 A.2d 1268, 1273 (Pa. Super. Ct. 2008); E.A.L. v. L.J.W., 662 A.2d 1109, 1118 (Pa. Super.

Ct. 1995).

B. Appellate Standard of Review

It is well established that the scope ofreview of this court in child custody disputes is of

the broadest type-abuse of discretion. In re Arnold, 428 A.2d 627, 628 (Pa. Super. Ct. 1981);

Commonwealth ex rel. Spriggs v. Carson, 368 A.2d 635 (Pa. 1977). An abuse of discretion in the

context of child custody does not consist merely of an error in judgment. K.B. II v. C.B.F., 833

A.2d 767 (Pa. Super. Ct. 2003); T.B. v. L.R.M., 753 A.2d 873 (Pa. Super Ct. 2000), order affd,

786 A.2d 913 (Pa. 2001 ). Abuse of discretion exists only when trial court overrides or misapplies

13 the law in reaching its conclusion or when its judgment is manifestly unreasonable or the result

of partiality, prejudice, bias, or ill will, as shown by the evidence of record. N.H.M. v. P.O.T.,

947 A.2d 1268, 1272 (Pa. Super. Ct. 2008); K.B. II v. C.B.F., 833 A.2d 767 (Pa. Super. Ct.

2003).

An appellate court is bound by the trial court's factual findings if they are supported in

the record; the appellate court exercises its own independent deductions and inferences from

facts as found by trial court judge. Anderson v. McVay, 743 A.2d 472 (Pa. Super. Ct. 1999);

K.W.B. v. E.A.B., 698 A.2d 609 (Pa. Super. Ct. 1997). Because the Superior Court's role does

not include making independent factual determinations, when reviewing a custody order, the

Superior Court must accept findings of the trial court that are supported by competent evidence

ofrecord. J.M.R. v. J.M., 1 A.3d 902, 911 (Pa. Super. Ct. 2010) quoting Collins v. Collins, 897

A.2d 466, 471 (Pa. Super. Ct. 2006); In re K.T.E.L., 983 A.2d 745, 749 (Pa. Super. Ct. 2009).

About issues of credibility and weight of the evidence, the Superior Court must defer to the

presiding trial judge who viewed and assessed the witnesses first-hand. J.M.R., 1 A.3d at 911

quoting Collins, 897 A.2d at 4 71

Father raises three errors in his statement of matters complained of on appeal

("Statement"). The court addresses each in turn.

A. The Psychological Testing

Father submitted to numerous psychological tests during the custody proceedings. He

now argues that this testing was inappropriate and the court erred in relying on it in making its

custody decision. Father's first complaint on appeal is as follows:

The Lower Court erred in accepting the results of psychological testing which were conducted in a language and having cultural content which is not the

14 first language of the Appellant and with which he exhibited difficulty; and using such as a basis for its decision.

Statement. ~ 1.

First, at no point during the proceedings did Father object to the language of the

psychological tests. Nor did Father object that these tests reflected a particular cultural context.

In fact, Father did not object in any way to the introduction of any evidence or testimony

concerning Father's performance in the tests. Because Father failed to object to this evidence,

this issue is waived.

In order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue. On appeal the Superior Court will not consider a claim which was not called to the trial court's attention at a time when any error committed could have been corrected.

Summers v. Summers, 35 A.3d 786, 790 (Pa. Super. 2012) quoting Hong v. Pelagatti, 765 A.2d

1117, 1123 (Pa. Super. 2000).

Even if the appellant court finds that this issue is not waived due to Father's failure to

object, the court did not commit an abuse of discretion in relying on the psychological tests and

using them as a basis for its decision. Father underwent the following psychological evaluations:

1. With David Burk - the Abel Assessment of Sexual Interest (partial). 2. With Dr. Gransee - the Minnesota Multiphasic Personality Inventory. 3. With Molly Simmons - the Abel Assessment of Sexual Interest (full). 4. Dr. Wallin -the Personality Assessment Inventory.

For each of these tests, Father either brought an interpreter with him or used an interpretation

application on his mobile device (N.T. 1/31/17, p. 8). In each case, the evaluators gave Father the

time necessary to complete the assessments. While the evaluators testified regarding the impact

of Father's language and culture differences on the test results none of them expressed any

15 hesitations in relying on those results (See N.T. 6/3/16, pp. 13-14, 30; N.T. 1/31/17, p. 81). As

such, the court did not err in relying on the results in making its custody decision.

B. The Factors

Father next argues that "[tjhe Lower Court erred in its assessment of the statutory factors

in awarding sole legal and physical custody to the Appellee." Statement, 12. The court's primary

concern in custody proceedings is the best interests of the child. See § III.A, supra. The Domestic

Relations statute allows for an award of both sole legal custody and sole physical custody. See

23 Pa.C.S.A. 5323(a)(4), (7). The court heard three (3) full days of testimony on this matter, and

analyzed in its opinion each of the statutory factors enumerated under 23 Pa.C.S.A. 5328(a). Of

particular concern to the court were factors 8, 9, and 15. Based on the evidence and testimony

presented at the hearing, the court found that at the present time Father would be unable to form

a nurturing relationship with the Child and unable to care for the Child's emotional needs

(Factors 8 and 9). More troubling to the court was the extent and nature of Father's mental health

diagnosis (Factor 15). Even the psychologist retained by Father testified that Father's personality

disorder posed a threat to the Child's emotional well-being and that the child should be older and

more mature before she should be expected to bear the burden of a relationship with Father. The

court gave this evidence significant weight, and this determination cannot be disturbed on appeal

absent any abuse of discretion. See M.J.M v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013)

("[W]ith regard to issue of credibility and weight of evidence, [the appellate court] must defer to

the presiding trial judge who viewed and assessed the witnesses first-hand.") (emphasis added).

C. No Contact

Father's final issue raised on appeal is that "[t]he Lower Court erred in providing no

contact with the Parties' child by the Appellant." Statement, 13. Contrary to Father's assertion,

16 the court's order does not prohibit all contact between Child and Father. The order specifically

gives Father permission to send cards and gifts to the child, something he has been encouraged to

do since the filing of this case, but has not done. Opinion, p. 19. However, the order does not

provide Father with any physical custody of the Child, even supervised physical custody. The

custody statute allows for an award of sole physical custody. See 23 Pa.C.S.A. § 5323(a)(4).

Such an award is an alternative to, inter alta, supervised physical custody. 23 Pa.C.S.A. §

5323(a)(5). The court made this award based on the evidence presented by both Mother and

Father that Father suffers from a significant personality disorder and any contact between Father

and Child would significantly burden the Child given her age, emotional state, and level of

maturity. Both psychologists testified that even supervised physical custody would not be in the

Child's best interest at the present time. The court's award of sole physical custody to Mother

and denial of any custodial time to Father is not a termination of Father's parental rights,

however. As the court noted at the conclusion of its Opinion: "It is the sincere hope of the court

that reunification between the child and her father will occur one (1) day when Father has

consistently worked to address his impairment and ability to interact with his daughter, and when

the Child has learned appropriate ways to cope with Father's impairments." Opinion, p .. 17.

Furthermore, the court directed that "[w]ithin sixty (60) days following her twelfth (12) birthday,

the Child shall be evaluated by an independent psychologist to determine whether or not she has

developed appropriate coping mechanisms." Id. at 19.

V. CONCLUSION

The scope of appellate court review in child custody disputes is of the broadest type-

abuse of discretion. In re Arnold, 428 A.2d 627, 628 (Pa. Super. Ct. 1981); Commonwealth ex

rel. Spriggs v. Carson, 368 A.2d 635 (Pa. 1977). In this case, the court carefully considered the

17 best interests of the Child, and reached the conclusion to prohibit physical custody of a father

with his daughter. The court did not make this decision lightly nor without much circumspection.

The court did not override or misapply the law, and the court's conclusion was not manifestly

unreasonable or the result of partiality, prejudice, bias, or ill will, as shown by the evidence of

record. N.H.M. v. P.O.T., 947 A.2d 1268, 1272 (Pa. Super. Ct. 2008). The court's decision

should be upheld.

4fZ LEONARD G. BROWN, III, JUDGE

ATTEST: \~~\(uvll. COPIES TO: Richard Katz, Esq. Rebecca Cheuvront, Esq.