In the Interest of: J.S. Appeal of: G.S.

• Court: Superior Court of Pennsylvania
• Decided: June 22, 2015
• Docket: 2582 EDA 2014
• Status: Unpublished

Opinion

J-S10029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : APPEAL OF: G.S., FATHER : No. 2582 EDA 2014

Appeal from the Order Entered July 22, 2014 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0001440-2014

BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 22, 2015

Appellant, G.S. (“Father”), appeals from the order entered in the

Philadelphia County Court of Common Pleas, which adjudicated his minor

daughter, J.S. (“Child”), dependent and committed her to the Department of

Human Services (“DHS”). We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. We add only that Father timely filed a notice of appeal and

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) on August 13, 2014.

Father raises six issues for our review:

DID THE COURT ERRONEOUSLY ADJUDICATE CHILD DEPENDENT?

DID THE COURT ERRONEOUSLY ORDER THAT CHILD BE PLACED? _____________________________

*Retired Senior Judge assigned to the Superior Court. J-S10029-15

DID THE COURT ERRONEOUSLY ORDER THAT DHS MAY CONSENT FOR MEDICATION FOR CHILD WITHOUT [FATHER’S] PERMISSION?

DID THE COURT ERRONEOUSLY FAIL TO ORDER THAT AN INTERSTATE COMPACT OCCUR FORTHWITH?

DID THE COURT ERRONEOUSLY ORDER [FATHER] TO HAVE A PSYCHOLOGICAL OR PSYCHIATRIC EVALUATION?

DID THE COURT ERRONEOUSLY RESTRICT [FATHER’S] VISITATION WITH HIS CHILD, AS TO HER DISCRETION?

(Father’s Brief at 2).1

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Vincent L.

Johnson, we conclude Father’s first, second, third, and fourth issues merit no

relief. The trial court opinion comprehensively discusses and properly

disposes of those issues. (See Trial Court Opinion, filed September 12,

2014, at 9-12; 17-18; 19-20) (finding: (issues 1 and 2) court heard

testimony from several witnesses and carefully considered all evidence

presented at adjudicatory hearing; testimony revealed that Father’s home

was in deplorable condition and was not appropriate for Child; specifically,

both DHS social worker and Child Advocate social worker testified that

Father’s home was extremely dirty, cluttered, and had repugnant odor; one

social worker could not even complete her inspection of Father’s kitchen

because foul odor was so strong; by Father’s own admission, there were ____________________________________________ 1 For purposes of disposition, we have reordered Father’s issues.

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numerous fruit flies in house and litter box had not been cleaned for some

time; additionally, social workers noted flies living in refrigerator among food

available for Child to eat; there were also fire hazards in Father’s house, as

home had no working smoke detectors or fire extinguishers; there was

excessive clutter and debris in house, as well as peeling walls and ceilings;

Father refused to permit social workers to access third floor of home, in clear

violation of court’s order to allow DHS to access entire home; based on

Father’s refusal to let social workers access third floor, whether potentially

unsafe or dangerous conditions exist on third floor remains unknown;

Father’s home has no doors on any rooms in house, which intrudes on

Child’s privacy; DHS social worker testified that paternal grandmother (who

lives with Father and Child) bathes 13-year-old Child, which makes Child

uncomfortable;2 Father said he was unaware paternal grandmother bathes

Child; Father’s family had previous history with DHS regarding similar

allegations of hoarding and deplorable conditions in home; DHS social

worker testified that Father’s home was inappropriate for Child; court found

____________________________________________ 2 Father claims the DHS social worker’s testimony about paternal grandmother bathing Child constituted inadmissible hearsay. Father did not object to this testimony at the dependency hearing or raise this complaint in his Rule 1925(a)(2)(i) statement, so it is waived. See In re S.C.B., 990 A.2d 762 (Pa.Super. 2010) (explaining that to preserve issue for appellate review, party must make timely and specific objection at appropriate stage of proceedings before trial court; failure to timely object to basic and fundamental error will result in waiver of issue on appeal); Ramer v. Ramer, 914 A.2d 894 (Pa.Super. 2006) (stating issues not raised in concise statement of errors complained of on appeal are waived).

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testimony of DHS’ witnesses credible; court also saw numerous pictures of

Father’s house in which court could see home was deplorable and looked like

burnt-out home; court also heard testimony about Child’s unaddressed

mental health issues; Child has been diagnosed with schizophrenia; DHS

social worker observed Child talking to herself extensively and pacing back

and forth; Father stated Child’s behavior is “normal” for 13-year-old without

mother or siblings; Father admitted he did not follow-up on scheduling

appointment for Child’s mental health evaluation despite informing Child’s

school that he would schedule appointment for Child; court was also

concerned with Father’s mental health, based on DHS social worker’s

interactions with Father and fact that Father had received mental health

services in past and had been hospitalized for mental health treatment;3

based on totality of evidence, DHS presented clear and convincing evidence

that Child lacks proper parental care and control; Child cannot grow and

develop properly in Father’s home; allowing Child to remain in Father’s home

would be contrary to Child’s health, safety, and welfare; thus, court properly

adjudicated Child dependent under 42 Pa.C.S.A. § 6302, and committed her

to DHS; (issue 3) court had authority under 42 Pa.C.S.A. § 6339(b) to

permit DHS to consent to medical care and mental health treatment for ____________________________________________ 3 Father contends on appeal that the DHS social worker’s testimony about Father’s past mental health treatment was based on a lack of foundation and constituted inadmissible hearsay. Father did not raise these claims in his concise statement of errors complained of on appeal, so they are waived. See id.

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Child; in fashioning order, court sought to ensure Child receives appropriate

medical treatment, especially given serious concerns about Child’s mental

health; (issue 4) Child’s maternal grandparents reside in Arkansas; court’s

order adjudicating Child dependent makes clear that DHS must explore

inter-state compact for Arkansas forthwith; thus, Father’s issue is moot4).

Accordingly, with respect to Father’s first, second, third, and fourth issues on

appeal, we affirm on the basis of the trial court’s opinion.

In his fifth issue, Father argues the trial court lacked legal authority to

compel him to submit to a psychological evaluation. Father relies on In re

T.R., 557 Pa. 99, 731 A.2d 1276 (1999) (plurality), which Father claims

stands for the proposition that a trial court cannot compel a parent to submit

to a psychological evaluation over the parent’s objection, based on the

particular parent’s constitutional right to privacy. Father suggests no

genuine distinction exists between the facts in T.R. and the facts of this

____________________________________________ 4 Father phrased his fourth issue on appeal in his Rule 1925(a)(2)(i) statement as follows: “Did the [c]ourt erroneously refuse that an interstate compact for the child’s maternal grandparents should not occur forthwith?” (Father’s Rule 1925(a)(2)(i) Statement, filed 8/13/14, at 1). Father’s complaint on appeal that the court failed to expedite the order for an inter- state compact, and merely ordered DHS to “explore” the inter-state compact, is waived based on Father’s vague concise statement. See In re A.B., 63 A.3d 345 (Pa.Super. 2013) (explaining appellant’s concise statement must properly specify error to be addressed on appeal; this Court may find waiver where concise statement is too vague to allow trial court to identify issues raised on appeal). Moreover, Father cites no law whatsoever in support of his fourth issue on appeal. See Glynn v. Glynn, 789 A.2d 242 (Pa.Super. 2001) (en banc) (holding appellant waived issue where he failed to develop it in argument and cited no legal authority to support his claim).

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case. Father contends his right to privacy is particularly significant where

Child did not come into DHS’ care based on allegations concerning Father’s

mental health. Father submits DHS did not allege Child was improperly

cared for, but only that Father chose not to take the advice of Child’s school

to have Child evaluated for mental health issues. Father insists the DHS

social worker’s testimony about Father’s “tone” is not indicative of a mental

health concern. Father declares the trial court’s ruling would essentially

allow judges to order parents to undergo psychological evaluations early on

in dependency proceedings merely because the court has suspicions or

arbitrary beliefs that the parent suffers from a mental health issue. Father

complains the court’s directive expressly contravenes the Supreme Court’s

holding in T.R., and this Court should reverse the order compelling him to

submit to a psychological evaluation. We disagree, under the circumstances

of this case.

To begin, in the T.R. case, DHS sought a restraining order when T.R.

was ten months’ old, based on eye injuries T.R. had sustained. T.R.’s

parents were unable to explain the injuries. As well, another child in the

home had suffered similar eye injuries, resulting in blindness. The court

issued a restraining order and continued temporary commitment of T.R.,

who remained in foster care. One year later, the court adjudicated T.R.

dependent, discharged the temporary commitment, and returned T.R. to his

mother’s custody with DHS supervision. At a dependency review hearing

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another year later, evidence showed T.R. had suffered multiple rib fractures

while in his mother’s care. Four children were in the mother’s home, and

the mother claimed two of her other children had caused T.R.’s injuries.

Following the hearing, the trial court ordered the mother to undergo a

psychological evaluation to determine whether she was able to care for her

children. The mother objected, but she underwent the evaluation.

Subsequently, the trial court stayed its order requiring release of the

results of the psychological examination, to allow the mother to appeal the

court’s order directing her to submit to the evaluation. This Court affirmed,

determining the trial court properly exercised its broad discretionary powers

under the Juvenile Act to order the psychological examination. This Court

further held, inter alia, the trial court’s order did not violate the mother’s

constitutional right to privacy because the information was necessary to

carry out the purposes of the Juvenile Act.

On further appeal, the Pennsylvania Supreme Court stated:

Although the right to privacy is of constitutional dimension, it is not unqualified. Privacy claims must be balanced against state interests. Our test of whether an individual may be compelled to disclose private matters…is that government’s intrusion into a person’s private affairs is constitutionally justified when the government interest is significant and there is no alternate reasonable method of lesser intrusiveness to accomplish the governmental purpose. More recently, we have stated the test in terms of whether there is a compelling state interest. In reality, the two tests are not distinct. There must be both a compelling, i.e., “significant” state interest and no alternate reasonable method of lesser intrusiveness.

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* * *

One’s interest in not being forced to disclose such records is significant. The right to protect one’s beliefs and thoughts from intrusion by others is…one of the most comprehensive rights known to civilized [persons]. …

Set against this interest of the mother is the interest of the state in discovering enough information about the children and their parents to make intelligent decisions about the placement of the children. [The] Superior Court’s view is that the psychological evaluation was the least restrictive means to obtain information about [the mother’s] caretaking ability because the other methods of obtaining such information were either limited or failed to provide the necessary information.

We disagree that means less intrusive were not available. [DHS] argues—correctly—that there was something terribly wrong with the mother’s ability to parent. The children continued to be injured even though the department had attempted to assist the mother in caring for her children. Further, the department also points out that its attempts to assist the mother had failed. In short, even the department agrees that there is an abundance of information in the case about whether the children are being cared for properly and whether the mother is a fit parent.

Id. at 106-08, 731 A.2d at 1280-81 (internal citations and quotation marks

omitted) (emphasis added). “[W]here…there is an abundance of information

about the ability of the parent to be a parent, there is no state interest,

much less a compelling state interest, in the ordering of parental

psychological examinations.” Id. at 108, 731 A.2d at 1281. Therefore, the

Supreme Court in T.R. reversed the order instructing the mother to submit

to a psychological evaluation. Id. See also In re D.S., 102 A.3d 486

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(Pa.Super. 2014) (reversing trial court’s order directing father to undergo

psychiatric evaluation; explaining that, while there remains no absolute bar

to ordering psychiatric evaluation, trial court’s order was not least invasive

means of achieving its goal; concluding there was no compelling state

interest in ordering evaluation, where there were no specific allegations

or evidence of record that father had any particular mental health

deficiencies); In re J.Y., 754 A.2d 5 (Pa.Super. 2000), appeal denied, 564

Pa. 712, 764 A.2d 1070 (2000) (explaining T.R. stands for proposition that

court may not, under certain circumstances, invade individual’s privacy

rights by ordering psychological evaluation and revealing its results); In re

K.D., 744 A.2d 760, 761 (Pa.Super. 1999) (holding best interests of children

could be maintained without compelling mother to submit to psychological

evaluation, under circumstances of case; record reveals noticeable lack of

support for subjecting mother to psychological evaluation; mere allegation

that mother has been taking medication for mental condition and passed out

once as result of medication, is insufficient to warrant psychological

evaluation).

Instantly, at the conclusion of the dependency hearing, the trial court

ordered Father to undergo a psychological evaluation. Although Father

relies heavily on T.R. to support his position that the court lacked authority

to order Father to submit to a psychological evaluation, we recognize T.R. is

a plurality opinion, which is not precedential. See In re C.B., 861 A.2d 287

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(Pa.Super. 2004), appeal denied, 582 Pa. 692, 871 A.2d 187 (2005)

(explaining decision that does not command majority of votes is non-

precedential plurality decision). In any event, the T.R. trial court had the

benefit of more than two years’ observation of the mother’s ability to parent,

from the time DHS sought a restraining order in April 1992, until the time

the court ordered the mother to undergo a psychological evaluation in April

1994. See T.R., supra. Here, however, DHS filed the dependency petition

on or about June 18, 2014;5 approximately one month later on July 22,

2014, the court adjudicated Child dependent and ordered Father to submit

to a psychological evaluation. The testimony at the shelter care hearing and

the dependency hearing focused primarily on the deplorable conditions in

Father’s home and in paternal aunt’s home, which the court deemed unfit for

Child. Unlike the facts at issue in T.R., the record before us does not

contain an abundance of information about Father’s ability to parent

Child. (See Trial Court Opinion at 15) (explaining there is not “abundance of

information” known about Father because case just began, in contrast with

facts of T.R.).

Additionally, nothing in T.R. suggested the mother or T.R. suffered

from diagnosed mental health issues. See T.R., supra. In the present

case, DHS representative Tasha Hannah testified at the shelter care hearing

____________________________________________ 5 DHS received a general protective services report on April 15, 2014, concerning Child’s hygiene and potential mental health issues.

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that she was concerned about Child’s mental health based on her

observations of Child. At the conclusion of the shelter care hearing, the

court ordered Child to undergo a mental health evaluation. At the

dependency hearing on July 22, 2014, the court heard testimony from DHS

social worker Tina Williams-Mitchum on the results of Child’s mental health

evaluation. Ms. Williams-Mitchum reported Child was diagnosed with

schizophrenia. Ms. Williams-Mitchum also expressed concerns regarding

Father’s mental health, based on the flat tone with which Father responded

to questions and reports indicating Father had previously received mental

health services and was hospitalized for mental health treatment.6

During Father’s testimony at the dependency hearing, Father stated

Child is “gifted,” and earned high grades in the A-/B+ range until recently.

Father said he was unaware Child had any mental health issues. In

response to questions concerning Child talking to herself, Father stated he

encouraged Child to be creative and use her imagination. Father believed

Child was simply entertaining herself when she talked to herself by acting

out plays aloud. Father did not perceive Child’s actions as unusual, given

Child’s mother is deceased and Child has no siblings. When Child’s school

recommended a psychological evaluation for Child, Father said he would

make an appointment for Child with her primary physician and obtain a

____________________________________________ 6 Ms. Williams-Mitchum did not elaborate on the content of the reports and the reports are not included in the certified record.

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referral for a specialist, which Father then failed to do. Father claimed he

had no mental health issues which would impede his ability to care for

Child.7 Notwithstanding his testimony, the trial court expressed concerns

about Father’s mental health. (See Trial Court Opinion at 13) (stating:

“Further, Father testified at the adjudicatory hearing, so the [c]ourt

observed Father first-hand and had concerns about Father’s mental

health”).8 Thus, T.R. is distinguishable from the present case. Compare

T.R, supra; In re D.S., supra; In re K.D., supra.

Moreover, the Commonwealth’s interest in the proper placement of

Child is an important and compelling interest that can outweigh Father’s

right to privacy. See Matter of Adoption of Embick, 506 A.2d 455

(Pa.Super. 1986), appeal denied, 513 Pa. 634, 520 A.2d 1385 (1987)

(recognizing constitutional analysis involves balancing of competing

interests; state’s interest in proper placement of children, as well as interest

in keeping families intact whenever possible, is important and compelling

interest that can outweigh individual’s right to privacy). See also In

____________________________________________ 7 The court found the testimony of DHS’ witnesses credible; the court found Father’s testimony largely incredible. (See Trial Court Opinion at 7-8.) See also In re E.B., 898 A.2d 1108 (Pa.Super. 2006) (explaining that on review in dependency cases, this Court affords great weight to trial court because it is in position to observe and rule upon credibility of witnesses and parties who appear before it; this Court will not overrule trial court’s findings if they are supported by competent evidence). 8 The trial court also noted that Child’s mother had committed suicide approximately ten years ago. (See id. at 1.)

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Interest of Bender, 531 A.2d 504 (Pa.Super. 1987) (recognizing there are

certain instances where statutory privileges must yield to disclosure of

communication; where court is concerned with whether child is presently

without proper parental care and, if so, whether that care is immediately

available, we must hold that injury that would inure to relationship by

disclosure of protected communication is not greater than benefit gained for

correct disposition of significant issues at play in dependency proceedings).

Based on the lack of evidence of record concerning Father’s ability to

parent Child, and the testimony at the shelter care and dependency hearings

regarding both Child and Father’s mental health issues, the trial court’s

order directing Father to submit to a psychological evaluation was the least

restrictive means to obtain information about Father’s parenting ability

under the circumstances of this case. Here, Pennsylvania’s interest in

providing for the safety and welfare of Child, who has been adjudicated

dependent and who has serious mental health issues, outweighs Father’s

privacy interest under these facts. See id.; Embick, supra. See also In

re Davis, 502 Pa. 110, 112, 465 A.2d 614, 620 (1983) (stating: “It should

be obvious that in rendering the disposition best suited to the protection and

physical, mental and moral welfare of [a dependent] child, the hearing court

and the reviewing court must take into account any and all factors which

bear upon the child’s welfare and which can aid the court’s necessarily

imprecise prediction about that child’s future well-being”) (internal quotation

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marks omitted) (emphasis in original). The trial court can certainly review in

camera the results of Father’s psychological evaluation, limit disclosure of

the results, and keep the record sealed, to preserve Father’s privacy. See

T.R., supra (Newman, J., dissenting) (suggesting in camera review of

mother’s psychological evaluation and disclosure of results to only parties of

interest; by requiring in camera review by ultimate arbiter, Commonwealth

can achieve its interest in making informed custody placement without

disclosure of private information). Thus, Father’s fifth issue merits no relief.

In his sixth issue, Father asserts the current goal in this case is

reunification, so the court cannot deny him visitation with Child, unless

visitation will pose a grave threat to Child. Father acknowledges he was not

denied visitation with Child outright, but Father insists the court’s order

providing for visitation at Child’s discretion is tantamount to denying Father

visitation. Father contends the court lacked justification for its order. Father

submits the court should have let Child testify in camera to discern the

reasons for Child’s decision not to visit with Father, or ordered

therapeutic/supervised visits, to address Child’s concerns. Father

emphasizes Child did not testify at the dependency hearing. 9 Father claims

DHS presented no evidence that Father poses a danger to Child. Father

____________________________________________ 9 The First Home Care caseworker testified that Child did not wish to visit with Father. On appeal, Father claims the caseworker’s testimony constituted hearsay. Father did not present this issue in his Rule 1925(a)(2)(i) statement, so it is waived. See Ramer, supra.

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suggests someone might have coached Child to say she does not want to

see Father. Father concludes the court’s restriction on Father’s visitation

with Child was erroneous. We disagree.

In dependency cases, the standard to measure visitation depends on

the goal mandated in the family service plan. In re C.B., supra at 293.

“Where reunification still remains the goal of the family service plan,

visitation will not be denied or reduced unless it poses a grave threat. If the

goal is no longer reunification of the family, then visitation may be limited or

denied if it is in the best interests of the child….” Id. (quoting In re B.G.,

774 A.2d 757, 760 (Pa.Super. 2001)).

The “grave threat” standard is met when the evidence clearly shows that a parent is unfit to associate with his…children; the parent can then be denied the right to see them. This standard is satisfied when the parent demonstrates a severe mental or moral deficiency that constitutes a grave threat to the child.

In re C.B., supra at 294 (internal citations and some quotation marks

omitted). Nevertheless, “[i]n rare instances, we have approved restricting

or temporarily suspending visitation even though there has been no

showing of such severe mental or moral deficiencies in the parent as would

constitute a grave threat to the child’s welfare.” In re Damon B., 460 A.2d

1196, 1198 (Pa.Super. 1983) (emphasis in original) (holding reduction of

mother’s visitation rights was appropriate, even absent showing of mother’s

severe mental or moral deficiencies which would constitute grave threat to

child’s welfare, where visits were counterproductive and child experienced

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severe stress during visits; reduction of visitation was temporary and limited

in time, where court scheduled review hearing within next seven months).10

Instantly, the trial court did not outright deny Father visitation with

Child. The court allowed visitation to occur if Child chooses; if Child wants to

visit with Father, the trial court ordered supervised/therapeutic visits to

occur at DHS. Specifically, the trial court stated at the conclusion of the

dependency hearing that it would wait to receive a report from Child’s

psychologist to decide whether visitation with Father is in Child’s best

interests. The court temporarily gave Child the choice regarding visitation

until the court received and reviewed the report from Child’s psychologist.

The trial court explained its rationale as follows:

Here, the Child is thirteen years old and has chosen not to have any visitation with her Father. Although the wishes of a child are not controlling, they certainly constitute an important factor for the [c]ourt to consider in deciding what the appropriate visitation arrangement should be. The [c]ourt will not compel a thirteen-year old child to visit her father if she does not want to, given the circumstances of this case and the absence of any recommendation by a therapist. The [c]ourt referred the Child to obtain mental health treatment so presumably any issues regarding the Child’s desire to visit with her Father will be addressed in her treatment. Indeed, the [c]ourt specifically stated that it wanted to hear from the Child’s therapist in a written report regarding visitation with Father. ____________________________________________ 10 In Damon B., the trial court improperly applied the “best interest” standard instead of the “grave threat” standard. This Court concluded the best interest standard was inappropriate; nevertheless, this Court explained the trial court’s error did not require reversal of the order reducing visitation because the Superior Court can affirm the trial court’s ruling on any basis. See id.

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Based on the foregoing, the [c]ourt properly found that visitation with Father was at the Child’s discretion at the present time.

(Trial Court Opinion at 17) (emphasis added).

The trial court did not expressly state it had applied either the “best

interest” or the “grave threat” standard. In any event, the court’s visitation

decision is temporary. The court permitted visitation to occur at Child’s

choice until the court receives a report from Child’s psychologist, at which

time the court can make an appropriate decision concerning parent-child

visitation. See In re Damon B., supra. Given Child’s diagnosis of

schizophrenia, Child’s present choice not to visit with Father, Father’s

potential mental health issues, and the temporary nature of the trial court’s

order of visitation, the order was appropriate.11 Thus, Father’s sixth issue

merits no relief. Accordingly, we affirm.

Order affirmed.

Judge Platt joins this memorandum.

Judge Stabile files a concurring and dissenting memorandum.

____________________________________________ 11 If, after reviewing the report from Child’s psychologist, the trial court decides to cease visitation or to continue visitation at Child’s discretion on a long-term basis, then the court must apply the grave threat standard. See id. at 1198 n.1 (stating: “Our decision in this case is influenced by the fact that this is a temporary reduction in visits rather than a long-term cessation of visits. In the latter case, of course, the trial court must find, by clear and convincing evidence, that visitation poses a grave threat to the child”) (emphasis in original).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/22/2015

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