J-A01036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.V.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    K.K.                                       :
                                               :
                        Appellant              :   No. 2128 EDA 2019

                  Appeal from the Order Entered June 26, 2019
      In the Court of Common Pleas of Montgomery County Civil Division at
                            No(s): No. 2014-28624


BEFORE:         NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                            FILED FEBRUARY 12, 2020

           K.K. (Father) appeals from the June 26, 2019 Modification of Custody

Order filed in the Court of Common Pleas of Montgomery County, by the

Honorable Kelly C. Wall. After careful review, we affirm.

           Father and A.V. (Mother) are the parents of two minor children, I.K., a

girl, who was five years old in May 2019, and N.J.K., a boy, who was then

three years old.        N.J.K. is on the autism spectrum and receives various

services provided by therapists who come to Father’s home on a weekly basis.

The parties have shared custody since the children’s birth; custody was

formalized in the form of an order entered on October 13, 2017.1 Mother’s
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1The October 31, 2017 order provided for shared legal and primary physical
custody to Father from Sunday at 7 pm through Friday at 4 pm and every
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son from a prior relationship, D.Y., lives with his paternal grandparents during

the week, but lives with Mother on weekends. Mother also has an eighteen-

year old daughter, K.S., from another relationship.

       In May 2018, Father filed an emergency petition to modify custody,

alleging that I.K. had reported to him that D.Y., who was then 12, had inflicted

minor bruises and cuts on both I.K. and N.K.J., and that D.Y. had poked I.K.

in her vagina with his finger and with small toys.        An Interim Custody

Agreement, pending the outcome of investigations by the police and by the

Office of Children and Youth (OCY), was entered on July 18, 2018 pursuant to

which the parties agreed that during Mother’s custodial periods with the

parties’ children, D.Y. would not be around them at any time.

       Following a full hearing on May 30, 2019, the trial court issued its June

26, 2019 order.        The order maintained the legal and physical custody

arrangements set forth in the 2017 order, but altered the transportation

arrangements to require Father to pick up the children at Mother’s residence

on the days that she has the children until 7 pm. In addition, the June 26,

2019 order specified the following with regard to supervision:


____________________________________________


other Saturday at 9 am through his regular weekday schedule, which extends
through Friday. Mother also has partial custody on Monday, Tuesday, and
Thursday from 4 pm until 7 pm and every Friday at 4 pm until Saturday at 9
am, except every other weekend when she has them through Sunday at 7
pm. The order further prohibited the parties’ children from entering the homes
of the “Y” family (the home of D.Y., Sr., the father of D.Y.), and D.Y., Sr.’s
extended family was prohibited from providing childcare for the parties’
children.

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            Mother’s son, D.Y. is permitted to be present in Mother’s
            home and at any activities and events when the parties’
            children are present and in her custody. HOWEVER, Mother
            must be physically present during any such times, ensure
            that D.Y. is never left alone with the minor children and must
            be aware of any contact between the children and D.Y. In
            the event an accident does occur involving D.Y., Mother shall
            immediately notify Father or risk an adverse change in
            custody.

6/26/19 Modification of Custody Order ¶ 3.C.a. The order further specified

that the parties’ children shall not be allowed in D.Y.’s bedroom alone with

him or to sleep in the same bed with D.Y. at any time; that they are not

allowed to be at or near the homes of the “Y” family; that the parties establish

an “OurFamilyWizard” account to communicate regarding the children’s

schedules; and that I.K. shall continue in therapy, with the parties

participating in the counseling as recommended by the therapist. Id. at ¶¶

3.C.d.-e., 3.D.-E. Father filed a notice of appeal.2

       Father raises the following issues before this Court:

       I.      Did the trial court abuse its discretion when the court
               disregarded substantial evidence of physical and
               sexual            abuse            and          denied
               Father’s petition to modify custody, and instead made
               only minor modifications to the existing custody order
               that did not address the factors that had placed the
               victims at risk when in Mother’s care?

       II.     Did the trial court abuse its discretion when it kept the
               physical custody schedule the same and permitted Mother
               to exercise custody of her 13-year-old son, D.Y., at the
               same time she had care of the parties’ 5-year-old
               daughter and 2-year-old son, without evidence that the
____________________________________________


2On July 22, 2019, Father filed a concise statement of errors complained of
on appeal, and on August 22, 2019, the trial court issued its opinion.

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              order was sufficient to provide adequate protection to the
              younger children?

Father’s Brief at 9.

      In reviewing Father’s issues, we are “empowered to determine whether

the   trial   court’s   incontrovertible   factual   findings   support   its   factual

conclusions,” but “we may not interfere with those conclusions unless they are

unreasonable in view of the trial court’s actual findings; and thus, represent a

gross abuse of discretion.”      C.M. v. M.M., 215 A.3d 588, 591 (Pa. Super.

2019)(internal citations omitted). Furthermore, on issues of credibility and

weight of the evidence:

              [W]e defer to the findings of the trial court, who has
              had the opportunity to observe the proceedings and
              demeanor of the witnesses.

              The parties cannot dictate the amount of weight the
              trial court places on evidence. Rather, the paramount
              concern of the trial court is the best interest of the
              child. Appellate interference is unwarranted if the trial
              court’s consideration of the best interest of the child
              was careful and thorough, and we are unable to find
              any abuse of discretion.

 R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)(internal

citations omitted).

        Father’s two issues are intertwined: he asserts that the trial court

abused its discretion because its modified order disregarded substantial

evidence of inappropriate sexual contact, and does not therefore adequately

protect I.K. and N.J.K. from D.Y. Father posits that I.K. and N.J.K. would not

need the protections incorporated into the modified order if something had



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not happened between them and D.Y., and that Mother is incapable of

supervising the children as ordered, especially since she does not acknowledge

that any abuse could have occurred. Father asks the trial court to prohibit

D.Y. from any interaction with I.K. and N.J.K.

      In its 1925(a) Opinion, the trial court set forth relevant factual

background:


            As a result of a large settlement due to an injury to
            his foot, Father has significantly more resources than
            Mother does. He owns a large home, does not work
            due to his injury and can devote all his time to the
            children. Mother, on the other, has two (2) older
            children, along with the parties’ two (2) young
            children, and is very busy taking care of all of them
            and providing for their financial support. She is a
            school bus driver and works irregular hours
            throughout the weekdays.

            Her work schedule has created a challenge in affording
            her significant custodial time with the children. Mother
            realizes this and although she would like a “9 to 5”
            job, she is making the best of her current situation
            and has scheduled her custody around her job to
            ensure that she maximizes her time with
            them. Mother gets the children on alternate
            weekends and in the afternoon and evenings a few
            days per week. She does not have weekday
            overnights because her bus run begins too early in the
            morning. These factors have worked to Father’s
            advantage in regard to the custodial arrangement
            between the parties.

            Finally, there have been issues between Father and
            the father of D.Y. in the past. Because of these issues,
            Father required that a provision be placed in the
            parties’ original Custody Order issued on October 1,
            2017, keeping D.Y.’s father and other family members
            away from the parties’ children. Father made abuse

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            allegations against Mother’s current boyfriend a few
            years ago and paid to have him take a lie detector test
            that came back negative.


Trial Court 1925(a) Opinion at 9-10 (citations to N.T. omitted).

      In making a determination as to custody, the court must make a

determination as to the best interests of the child. 23 Pa.C.S. § 5232. Section

5328 of the Custody Act provides an enumerated list of sixteen factors a trial

court must consider in determining the best interests of the child, and the

court is to give “weighted consideration” to those factors that affect the safety

of the child. 23 Pa.C.S. Section 5328. In Findings of Facts issued following

the hearing, the trial court fully addressed all of those factors, listed in Section

5328(a); regarding factor #2, “[t]he 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,” the trial court

offered a full history of the allegations of abuse and its related findings

thereon.
            In late April of 2018, Father testified that I.K. told him
            that D.Y. had poked her genitals with his finger, a
            broccoli toy and a puzzle letter. Father also found I.K.
            making humping gestures…and when asked why she
            did this, I.K. told him that D.Y. [tells her to do this]
            when he is “poking” her…[Father] took I.K. to CHOP
            [Children’s Hospital of Philadelphia] where she
            repeated this information to the health care providers.
            CHOP referred Father to Mission Kids to have the child
            interviewed. After the Mission Kids interview, there
            was no follow-up by OCY [Office of Children and
            Youth] and no criminal charges were filed. This Court


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            reviewed a video of the interview and had concerns
            after viewing the same.

Trial Court Findings of Fact (F.F.), Custody Factors at 2 (emphasis supplied).

However, in its 1925(a) opinion, the trial court stated “[w]hile this Court did

have concerns after viewing the Mission Kids interview, this is but one factor

that the Court had to take into consideration in determining what would be in

the best interests of the parties’ children to protect their safety and well-

being.” 1925(a) Opinion at 6. In its findings of facts, the trial court set forth

a detailed description of I.K.’s counseling sessions, noting that it questioned

“the appropriateness of Father being present during [two sessions] wherein

he told [the therapist], apparently in front of I.K., about the alleged abuse by

D.Y.” and “it was after Father related the information regarding the “bed

sharing” that [the therapist] made a report to OCY.” Id. at 7. The trial court

further found that after this report, and a subsequent investigation, the

information was determined to be “unfounded,” and after 14 subsequent

therapy sessions, the therapist never made another report to OCY. Id.        The

trial court found “as the counseling sessions continued with I.K., [the

therapist] entered a note on her report…stating that she was concerned that

both parents talk negatively about the other in front of I.K., causing [I.K.] to

have a skewed view of each parent” and further noted that the therapist

expressed confusion as to which parent was telling her the truth about various

scenarios related to her by each one; the trial court found these assessments

to be significant factor underlying the issues in this case. Id. at 8.



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      In its analysis under Section 5328(a), custody factor #2, the trial court

found, regarding sleeping arrangements, that prior to October 2018, Mother

had been living in a two-bedroom apartment with her sister, her sister’s

boyfriend, her oldest daughter, and D.Y., when he was there on weekends.

F.F., Custody Factors at 4. However, in October 2018, Mother moved into her

boyfriend’s three-bedroom townhouse, wherein Mother and her boyfriend

have a bedroom, her boyfriend’s daughter has a bedroom, N.J.K. has his own

bedroom when he is there, and Mother’s daughter, K.S., sleeps in the finished

basement, where I.K. also sleeps when she is with Mother. D.Y. sleeps on the

couch or in the room of the boyfriend’s daughter when she is not there. Id.

      The trial court also noted Mother’s vehement denial that any physical

and/or sexual abuse has taken place, or would ever take place against the

parties’ children by D.Y. F.F., Custody Factors at 5.     Mother describes D.Y.

as a good student, a talented athlete and a typical teenager, who is more

interested in sports and playing video games than in spending time with his

half-siblings. Id. Mother believes that Father is coaxing I.K. to make false

accusations because he does not like D.Y., and one of the reasons the parties

separated was due to Father’s poor treatment of D.Y. Id.

      The trial court found, in its analysis of custody factor #9, “which party

is more likely to maintain a loving, stable, consistent and nurturing

relationship with the child adequate for the child’s emotional need,” that:

            [Mother] testified that she is always present when
            D.Y. is with the children and that she looks after all of
            her children. Mother appears to be a kind and loving

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            parent who genuinely has the best interest of all of
            her children at heart.     She credibly refutes the
            allegations made against D.Y. and the claims that she
            does not properly supervise and protect the parties’
            children.    The Court believes that Mother does
            supervise the children when D.Y. is present and she
            does not permit them to be around the [“Y”] family,
            unless it is at a sporting event where D.Y. is
            participating…The Court feels comfortable from
            Mother’s testimony that she keeps the parties’
            children safe, even though some safeguards are
            necessary to ensure their continued well-being.

F.F., Custody Factors at 8. In its findings of fact, the trial court concluded that

“despite some of the reasonable concerns raised by Father, this Court finds

Mother to be a loving parent who will do whatever is necessary to protect all

of her children.” F.F., Conclusion at 11 (emphasis in original). The trial court

denied Father’s request, but stated that “[w]hile Mother may have the best

intentions in protecting her children and although there has been no

finding of abuse by her son against the children, it will benefit everyone

involved to make sure that there is no opportunity for any further potential

allegations to be made.” F.F., Custody Factors at 12 (emphasis supplied).

      In its 1925(a) opinion, the trial court acknowledged that it had stated

at the May 30, 2019 hearing that I.K. appeared “truthful in her description of

what occurred with D.Y.” 1925(a) Opinion at 5 (citing May 30, 2019 N.T. at

5). However, the trial court further stated that it soon became apparent that

Father’s credibility and motivation for bringing the case may have influenced

both I.K. and I.K.’s therapist. 1925(a) Opinion at 5. The trial court concluded




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that no credible evidence had been presented that D.Y. had inappropriately

touched or abused I.K., stating:

            It is the responsibility of this Court to assess the risk
            of harm and to determine if the children are safe in
            Mother’s care. Allegations of inappropriate touching
            and abuse of a young child must be investigated by
            the proper professionals. Father did this by calling the
            child’s pediatrician, who then sent them to [Children’s
            Hospital of Philadelphia]. An OCY investigation was
            opened and the child was interviewed by Mission Kids.
            After interviewing all of the parties involved, the OCY
            investigation came back “unfounded.” Upon reviewing
            the Mission Kids interview, the District Attorney’s
            Office did not find grounds for any criminal
            charges. There has been no validation by an agency
            or professional of the allegations of abuse of I.K. by
            D.Y. While Father contends that there is “credible”
            evidence that I.K. was inappropriately touched and
            abused by D.Y., no such evidence was presented to
            this Court.

1925(a) Opinion at 8 (citations to N.T. omitted). The trial court explained that

although there was “no proof that D.Y. has abused either of the parties’

children,” such claims necessarily raise concerns in and of themselves, and

found that such concerns needed to be addressed not only to ensure the

childrens’ safety, but “also to protect D.Y. from future allegations.” Id. at 11.

According to the trial court, while it believes that Mother would supervise D.Y.

while in the presence of the parties’ children even in the absence of the Court’s

direction, its order serves to enforce the need to do so, and provides legal

recourse if the directive is not complied with by Mother. Id. at 14.

      We find that the trial court engaged in a detailed, thoughtful analysis

of the Section 5328(a) custody factors, and specifically of factor #2, regarding


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assessment of risk of harm to the parties’ children and the provision of

adequate safeguards and supervision for them.       We discern no abuse of

discretion, and deem the trial court’s conclusion to be reasonable in light of

the record evidence. Accordingly, we affirm the June 26, 2019 custody order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/20




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