J-S75002-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.P.B.                                              IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellant

                    v.

K.J.

                                                       No. 1764 EDA 2016


                 Appeal from the Order Entered May 10, 2016
            In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 2009-02505


BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                            FILED NOVEMBER 28, 2016


       M.P.B. (“Father”) appeals from the custody order awarding K.J.

(“Mother”) primary physical custody of their minor son, D.B., and granting

him periods of partial physical custody. We affirm.

       Mother and Father never married. D.B. was born during May 2007 as

a consequence of the parties’ brief dalliance.           Five months into the

pregnancy, Mother informed Father that she was pregnant. Father attended

D.B.’s birth, but he did not maintain contact with his infant son.

       During   2008,    Mother   surreptitiously   moved   with   D.B.   to   New

Hampshire in order to marry R.J. (“Stepfather”).        After Father discovered

Mother’s location, he filed a custody complaint in Pennsylvania. On April 15,

2009, the parties fashioned a custody arrangement in which they shared
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legal   custody,    Mother     maintained      primary   physical    custody   in   New

Hampshire, and Father exercised monthly periods of partial physical custody.

        While living in New Hampshire, Mother became concerned that

Stepfather might be abusing D.B. sexually because the child started

speaking and behaving inappropriately. Mother reported her fears to child

protective services, left Stepfather, and returned with D.B. to Pennsylvania.

She reunited with Stepfather in New Hampshire after an investigation

deemed the report unfounded. During June 2012, Stepfather pled guilty in

New Hampshire to child pornography charges that did not involve D.B.

Mother initiated that investigation after alerting authorities that she had

discovered suspected child pornography on her husband’s computer.

Thereafter, Mother initiated divorce proceedings against Stepfather and

relocated with her son to Pennsylvania permanently. She and D.B. began to

reside in an apartment that Father secured for them.1               During this period,

Father exercised weekly periods of physical custody and enjoyed liberal

visitation.

        Allegations of abuse were not limited to Stepfather.             In total, five

allegations of physical abuse were leveled against Father by either Mother or


____________________________________________


1
  As a first grader, D.B. was diagnosed with Attention Deficit/Hyperactivity
Disorder (“ADHD”) and was prescribed between 5 mg and 10 mg of Ritalin
per day.     He also has diagnoses of Autism Spectrum Disorder, and
unspecified Disruptive Impulse-control and Conduct Disorder.



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D.B.’s pediatrician based upon unexplained injuries and bruises that

occurred while in Father’s care.            All of those allegations were deemed

unfounded.

      In March 2015, Mother was committed to a mental health facility for

two weeks following the sudden death of her younger brother. Mother, who

was victimized repeatedly as a child, has an extensive history of mental

illness with multiple hospitalizations dating back to 1988. She has been on

total psychiatric disability since 1993 and she has residual cognitive defects

from a traumatic brain injury that she sustained in 1999. Prior to the 2015

hospitalization, Mother’s most recent inpatient treatment occurred in 2006.

Based upon the latest hospitalization, Father filed a petition for emergency

custody, which the court granted, awarding him sole legal custody and

primary physical custody of D.B.            The order did not carve any specific

periods of partial custody for Mother, but it permitted her to visit D.B. upon

her release from the facility, so long as Father agreed.

      At the conclusion of Mother’s two-week hospitalization, Father limited

Mother’s access to D.B.        As a result, she petitioned the trial court for

modification of the emergency custody order. The trial court ordered Mother

to undergo a mental health evaluation, and upon review of the evaluator’s

findings,   it   reinstated   the   April    2009   custody   arrangement   with   a

modification that enlarged Father’s periods of alternating weekend custody.

Father sought reconsideration, which led to a series of countervailing


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petitions that ultimately culminated in the two-day custody trial that is the

genesis of this appeal.

      During the trial, Mother testified and presented her long-term

psychotherapist, Melisa Hubsher, Psy.D., to introduce evidence regarding her

mental health.         Father testified on his own behalf, and the court-ordered

custody evaluator, Gerald F. Bellettirie, Ph.D., discussed his thorough,

seventy-page custody evaluation and recommendation.                Dr. Bellettirie first

provided an extensive historical review and summarized his evaluations of

D.B. individually and with each parent in his and her respective homes.

Next, he outlined the best-interest factors set forth in 23 Pa.C.S. § 5328(a),

and recommended that Mother and Father share equal physical custody of

D.B., provided that the trial court ensure that Mother continue mental health

treatment.      Referencing the child’s aversion to change, Dr. Bellettirie

stressed the importance that D.B. remain in his current school in the district

where Mother resides. See Custody Evaluation, 11/22/15, at 70 (“Change is

a   very   difficult    adjustment   for   a   child   with   [D.B.]’s   developmental

disorders.”).    He added that “[D.B.] should not be separated from his

mother for any unnecessary extended period of time. [He] has already been

traumatized from being separated from mother for an extended period of

time in the past.” Id. at 68-69.

      At the close of the trial, the trial court presented its on-the-record

analysis of the best-interest factors and outlined the terms of the ensuing


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custody award. Five days later, on May 10, 2016, the trial court entered a

final custody order awarding Mother primary physical custody of D.B. and

granting    Father    partial    physical      custody   Wednesday   overnight   and

alternating weekends.           The custody order incorporated Dr. Bellettirie’s

recommended safeguards relating to the trial court’s monitoring of Mother's

continued mental health treatments. This timely appeal followed.

       Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise

statement of errors complained of on appeal concurrent with his notice of

appeal. The trial court entered a Rule 1925(a) opinion addressing the merits

of Father’s claims. The matter is ready for our review.

       Father frames his assertions in four prolix questions, which we

condense into two succinct issues: (1) whether the trial court’s best-interest

analysis is contrary to the statutory directive to give weighted consideration

to factors that affect the safety of the child; and (2) whether the trial court

erred in weighing the second, seventh, fifteenth, and sixteenth custody
                                                                       2
factors pursuant to 23 Pa.C.S. § 5328(a). Father’s brief at 7-8.

       In M.J.M. v. M.L.G., 63 A.3d 331 (Pa.Super. 2013), we reiterated the

applicable scope and standard of review as follows:

             In reviewing a custody order, our scope is of the
           broadest type and our standard is abuse of discretion. We
____________________________________________


2
  The first issue implicates the question Father listed as IV in his brief. The
second issue combines the questions Father presented in I-III.



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         must accept findings of the trial court that are supported
         by competent evidence of record, as our role does not
         include making independent factual determinations. In
         addition, with regard to issues of credibility and weight of
         the evidence, we must defer to the presiding trial judge
         who viewed and assessed the witnesses first-hand.
         However, we are not bound by the trial court's deductions
         or inferences from its factual findings. Ultimately, the test
         is whether the trial court's conclusions are unreasonable as
         shown by the evidence of record. We may reject the
         conclusions of the trial court only if they involve an error of
         law, or are unreasonable in light of the sustainable findings
         of the trial court.

            With any child custody case, the paramount concern is
         the best interests of the child. This standard requires a
         case-by-case assessment of all the factors that may
         legitimately affect the physical, intellectual, moral and
         spiritual well-being of the child.

      J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011) (citation
      omitted).

M.J.M., supra at 334.

      Pursuant to 23 Pa.C.S. § 5328(a), the determination of a child’s best

interest requires the examination of the following factors:

      (1) Which party is more likely to encourage and permit frequent
      and continuing contact between the child and another party.

      (2) The present and past abuse committed by a party or
      member of the party's household, whether there is a continued
      risk of harm to the child or an abused party and which party can
      better provide adequate physical safeguards and supervision of
      the child.

      (2.1) The information set forth in section 5329.1(a) (relating to
      consideration of child abuse and involvement with protective
      services).




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     (3) The parental duties performed by each party on behalf of the
     child.

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

     (5) The availability of extended family.

     (6) The child's sibling relationships.

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

     (8) The attempts of a parent to turn the child against the other
     parent, except in cases of domestic violence where reasonable
     safety measures are necessary to protect the child from harm.

     (9) Which party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the child adequate for
     the child's emotional needs.

     (10) Which party is more likely to attend to the daily physical,
     emotional, developmental, educational and special needs of the
     child.

     (11) The proximity of the residences of the parties.

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

     (13) The level of conflict between the parties and the willingness
     and ability of the parties to cooperate with one another. A
     party's effort to protect a child from abuse by another party is
     not evidence of unwillingness or inability to cooperate with that
     party.

     (14) The history of drug or alcohol abuse of a party or member
     of a party's household.

     (15) The mental and physical condition of a party or member of
     a party's household.

     (16) Any other relevant factor.

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23 Pa.C.S. § 5328.

      Herein, the trial court weighed the applicable factors in awarding

Mother primary physical custody of D.B. and granting Father periods of

partial physical custody. The trial court found that factors one, three, four,

nine, ten and sixteen militated to varying degrees in favor of Mother.

Factors two, five, six, seven, eight, eleven, twelve, thirteen, fourteen, and

fifteen were either inapplicable or did not inure to either parent’s advantage.

None of the factors entirely favored Father.

      The first issue challenges the weight of the evidence adduced at trial.

Essentially, Father maintains that the trial court either ignored certain

evidence or failed to view the evidence through the prism of the “weighted

consideration” of his son’s safety. Father’s brief at 19, 34-36. He asserts,

“At the very least, proper consideration of the [f]actors weighs in favor of an

award to Father of substantially more custody time than the Order . . .

awarded him.” Id. at 34. Thereafter, he concludes, “Had the court given

the appropriate weighted consideration to Factors 2 and 15 . . . it would

have properly concluded that an award of primary custody of [D.B.] to

Father was warranted.”     Id. at 36.   These positions fail for at least two

reasons. First, Father misinterprets our standard of review and ignores our

deference for the trial court’s role as fact finder. Father cannot dictate the

weight the trial court attributes to any single factor.       Indeed, as we



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highlighted in M.J.M., supra at 339, “it is within the trial court’s purview as

the finder of fact to determine which factors are most salient and critical in

each particular case.”

      Furthermore, the trial court did, in fact, engage in the appropriate

review.     Stated plainly, the trial court examined factors two and fifteen

through the prism of D.B.’s safety and, as the ultimate arbiter of fact, it

concluded that both factors were neutral.        Father’s present contention

effectively demands that we re-examine the evidence presented during the

two-day hearing in a more favorable light to him in order to attain a different

conclusion. We decline to revisit the trial court’s factual findings which are

supported by the certified record in order to reassess the weight of the

evidence.    J.R.M., supra at 650 (“with regard to issues of credibility and

weight of the evidence, we must defer to the presiding trial judge who

viewed and assessed the witnesses first-hand”). Thus, this claim fails.

      In his remaining assertions, Father argues that the trial court’s

rationale was tantamount to an abuse of discretion or unreasonable as

shown by the evidence of record.        Father’s arguments contest the trial

court’s deliberation as to four of the best-interest considerations: two,

seven, fifteen and sixteen. Of those factors, sixteen is the only one that the

court found to lean in Mother’s favor. The trial court deemed the second,

seventh, and fifteenth factors to be neutral.




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      Concerning factor two, consideration of present and past abuses,

Father asserts that the trial court disregarded Mother’s inappropriate

responses to the allegation that Stepfather abused D.B and Stepfather’s

child pornography convictions. Specifically, he assails Mother’s judgment in

returning   to   New     Hampshire    to     reunite     with    Stepfather     after    the

investigation deemed the abuse allegations unfounded.                  Father contends

that, in light of the statutory requirement that the trial court give weighted

considerations of the factors that affect the child’s safety, the court erred in

discounting Mother’s poor judgment as it relates to whether she can provide

adequate safeguards and supervision of her son.                 Father’s brief at 22-26.

He asserts that the second factor should have weighed heavily in his favor.

      In    rejecting     Father’s   claim      regarding        Mother’s     momentary

reconciliation   with   Stepfather   prior    to   her    2012      discovery    of     child

pornography on his computer, the trial court observed that Mother returned

to New Hampshire after the allegations regarding D.B. had been deemed

unfounded and left again when she discovered Stepfather’s predilection for

child pornography.        Moreover, as the trial court pointed out, Mother

terminated contact with Stepfather and has not interacted with him for more

than three years.       In sum, the court concluded that Stepfather does not

present a risk of harm to D.B. and Father’s concerns regarding those

allegations do not implicate any current members of Mother’s household.




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      Father also challenges the trial court’s consideration of the unfounded

allegations of abuse that were leveled against him in addressing this issue.

He   argues   that   the   court   inappropriately   equated    those   unfounded

allegations with Stepfather’s confirmed behavior. He is mistaken. While the

trial court referenced the allegations of physical abuse against Father and

noted the difficulty in proving how the injuries were sustained, it did not find

that Father was the perpetrator of abuse, deem Father unsafe, or assess the

factor against him due to the unfounded allegations.           Moreover, the trial

court did not equate the unproven allegations of physical abuse with

Stepfather’s perversions. In reality, in reference to Mother’s brief return to

New Hampshire, it noted that, like the unfounded accusations against

Father, the allegation that Stepfather had abused D.B. was equally difficult

to prove. Thus, to the extent the court compared the allegations of abuse

leveled in this case, the comparison was limited to the respective unfounded

accusations against Father and Stepfather. Father’s complaint that the court

equated Stepfather’s child pornography conviction with the investigation into

the unexplained bruises on D.B.’s legs distorts the trial court’s analysis.

      Finally, as it relates to Mother’s judgment, we further observe that

Mother initiated the abuse investigation against Stepfather based upon

D.B.’s comments and, while she briefly reunited with Stepfather after the

initial allegations were deemed unfounded, upon discovering the suspected

child pornography on Stepfather’s computer, she severed the relationship

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permanently and reported Stepfather to law enforcement authorities.

Contrary   to   Father’s    contentions,   Mother’s    decisions   under    these

circumstances does not evince poor judgment. Mother removed D.B. from

danger, returned when the perceived threat was deemed unfounded, and

ultimately reported her husband to authorities when she discovered that

unrelated crime.      The trial court’s determination that this factor did not

weigh in favor of either parent is reasonable as shown by the forgoing

evidence of record. Hence, we discern no abuse of discretion.

      While Father frames his next issue as a challenge to factor seven, the

well-reasoned preferences of the child, in reality he contests the trial court’s

catchall consideration under sixteen.      The crux of this complaint is that,

having determined under factor seven that D.B.’s preference to live with

Mother was not well reasoned in light of the child’s maturity, the trial court

erred in relying upon the child’s preference in considering factor sixteen.

Significantly, in addressing factor sixteen, the trial court noted D.B.’s

preference of Mother over Father and observed that the child will have

difficulty managing drastic changes to his surroundings. The portion of Dr.

Bellettirie’s report that referenced the seventh custody factor, i.e., the child’s

preference, influenced these findings. Succinctly, the report identified D.B.’s

strong preference for Mother but indicated that the preference was mitigated

by the child’s age.    Father submits that if the preference was inadequate

under factor seven, it was improper to consider it in addressing factor

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sixteen.   Reduced to its core, Father’s argument is that if the child’s

preference for Mother over Father is not well reasoned, it is innately

unreliable. Again, no relief is due.

      In addressing this issue, the trial court explained that, while it declined

to give weight to D.B.’s preference under factor seven, the child’s

commitment to Mother was nevertheless relevant to the child’s best interest

determination generally, and it was specifically germane to assessing D.B.’s

ability to manage changes to his environment and his reaction to being

separated from Mother for extended periods.       First, it is obvious that both

the court-appointed expert and the trial court found that D.B.’s preference

toward Mother was, in fact, grounded in reason, albeit the reasoning of an

eight-year-old child. During the custody evaluation, D.B. indicated that, for

two years, he had hated Father. See Custody Evaluation, 11/22/15, at 52.

D.B. perceived Father as the reason that he was separated from Mother, and

Dr. Bellettirie reported that D.B. stated that “when he was with [F]ather for

135 days[,] . . . he missed . . . [M]other and wanted to try to escape.” Id.

at 70.     Indeed, D.B.’ feelings were so fervent that he instructed Dr.

Bellettirie to inform the trial court about everything that he had said about

Father during the sessions, and, at the end of the evaluation, D.B. rebuffed

Father’s interaction and, as relayed by Dr. Bellettirie, “[D.B.] told [F]ather

that he said a lot of bad things about him [during the evaluation].”         Id.

Thus, contrary to Father’s characterization of the D.B.’s partiality as

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intrinsically unreliable, Dr. Bellettirie did not merely reject D.B.’s preference

as unreasoned.      Instead, the custody evaluator discounted the child’s

preference   under factor    seven because      it   was formed through the

perspective of an eight-year-old child as compared to an older child. See

B.C.S. v. J.A.S., 994 A.2d 600, 604 (Pa.Super. 2010) (as children grow

older, more weight must be given to preference).

      Moreover, as the trial court pointed out, Dr. Bellettirie testified that

change is difficult for D.B. and that, in light of D.B.’s strong attachment to

Mother, “[Dr. Bellettrie] did not think it would be a good idea for this child to

be away from his mother for prolonged periods of time[.]” N.T., 5/5/15, at

34-35.    Mindful of D.B.’s statements to Dr. Bellettirie regarding his

perspective of Father, it was reasonable for the trial court to reference D.B.’s

overwhelming fondness for Mother in considering what changes the child

could manage and the potential impact of granting Father primary custody.

Thus, even though the trial court declined to weigh the child’s preference

independently under factor seven, to the extent that the trial court

referenced D.B.’s preference in weighing the child’s rigidity and aversion to

change under factor sixteen, the trial court did not abuse its discretion.

      Finally, concerning factor fifteen, a parent’s physical and mental

condition, Father contends that the trial court disregarded the significance of

Mother’s chronic mental illness in concluding that this factor does not

militate in his favor. The crux of Father’s assertion is that “the issues that

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Mother continues to experience are serious and continue to manifest

themselves in her life.”      Father’s brief at 32.        The record belies Father’s

contention.

      In rejecting this claim in its Rule 1925(a) opinion, the trial court first

noted Mother’s extensive struggles with mental illnesses in the form of bi-

polar disorder, eating disorder, major depressive disorder, post-traumatic

stress disorder, and borderline personality disorder. The court also recalled

that Mother has had various commitments and suicide attempts and has

used psychotropic medication and electroconvulsive therapy, formerly known

as electroshock therapy. In addition, Mother has engaged in therapy with a

psychologist for the last fifteen years. However, unlike Father, who argues

that Mother’s mental health problems present a current risk of harm to D.B.,

the   trial   court   highlighted   that     Mother   is   addressing   her   illnesses

appropriately.    She was committed only once since D.B.’s birth, the 2015

hospitalization that led to Father receiving emergency custody, and she is

diligently monitoring her mental health and managing her disorders.                The

court continued that, despite the brief setback associated with the tragic

death of her younger sibling, Mother maintained primary custody of D.B. for

the majority of his life without incident. In addition, she has avoided any

other obstacles to her mental health, and she regularly attends her

appointments with her mental health professionals.




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      The certified record supports the trial court’s conclusion that Mother’s

history of chronic mental health problems does not preclude her from

maintaining primary physical custody of D.B.      In addition to the foregoing

evidence supporting the trial court’s position that Mother has been

consistent with treatment, we observe that Dr. Bellettirie concluded that

Mother’s mental health was not fatal to her ability to parent. He testified,

“certainly just the presence of a mental health diagnosis does not mean you

can't function to take care of your child.” N.T., 5/5/16, at 41. Indeed, as

we noted, supra, Dr. Bellettirie recommended that Mother and Father share

physical custody of D.B. equally, and he recommended specific safeguards to

ensure that the trial court monitor Mother’s mental health. The trial court

adopted Dr. Bellettirie’s positon that Mother’s various diagnoses were not

impediments to caring for D.B., and it implemented the safeguards in

fashioning the custody order granting Mother primary physical custody of

her son. N.T. Excerpted Findings of Fact, 5/5/16, at 17-18. The increase

from shared custody to primary custody, which the court attributed to

Mother’s demonstrated progress during the six months since Dr. Bellettirie

issued his recommendations and D.B.’s aversion to change, does not negate

the custody evaluator’s endorsement of her parenting ability.        Since the

certified record belies Father’s assertion that Mother’s mental illness poses a

risk to D.B. when he is in her primary physical custody, no relief is due.




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      As the trial court’s custody determination is reasonable in light of the

evidence of record, we will not disturb it.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2016




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