J-A32025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.K.-D.                                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    D.E.D.                                     :   No. 2265 EDA 2016

                  Appeal from the Order Entered June 21, 2016
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2013-29598


BEFORE:       DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                            FILED FEBRUARY 24, 2017

        Appellant, A.K.-D. (“Mother”), appeals from the order dated June 21,

2016, denying Mother’s request for modification of the custody order. After

review, we affirm.

        This matter has been the subject of contentious litigation, and the

relevant facts are well known to the parties.            We adopt the following

background statement from the trial court’s opinion:

        [A.K.-D.] (hereinafter “Mother”) and [D.E.D.] (hereinafter
        “Father”) are the parents of one minor child [I.D.] (D.O.B.
        12/24/11). Mother resides in York, Pennsylvania[,] and Father
        resides in Indianapolis, Indiana. [I.D.] has been diagnosed with
        Autism Spectrum Disorder (hereinafter “ASD”) and requires
        services to meet developmental targets.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     On September 8, 2014[,] the [c]ourt entered a Custody Order
     which granted both parties shared legal custody as well as
     shared physical custody of [I.D.] on alternating months.

     On March 30, 2015[,] Mother filed an “Emergency Petition for
     Contempt” and a “Petition for Special Relief.”           Mother’s
     “Emergency Petition for Contempt” alleged that during Father’s
     custodial time, [I.D.] was experiencing weight loss and was not
     receiving consistent services which were causing him to regress
     developmentally. In her “Petition for Special Relief,” Mother
     requested that Father’s custodial time be reduced to one week
     per month. Father filed an “Emergency Petition for Special
     Relief” on June 30, 2015[,] and alleged among other things that:
     (1) the Goddard School, where the parties initially agreed [I.D.]
     would be enrolled, was not providing the necessary amount of
     therapy to [I.D.]; (2) [I.D.] be allowed to remain in the Applied
     Behavioral Center (ABC) while in Indiana so that he could
     continue to receive intensive therapy; (3) they cooperate with
     ABC’s suggested treatment, and (4) Mother refrain from giving
     [I.D.] excessive amounts of Pediasure unless he refused to eat
     or there was a medical necessity. Father further alleged that
     Mother was being unduly difficult about working with him to set
     up services for [I.D.] in Indiana.

     On July 10, 2015[,] Mother filed an “Answer to Father’s
     Emergency Petition for Special Relief” denying his allegations.
     Mother then filed a “Motion for Reconsideration” on July 16,
     2015[,] arguing that the [c]ourt failed to consider and/or hear
     testimony regarding the issues raised in her “Emergency Petition
     for Special Relief.” Mother further alleged that the [c]ourt had
     failed to consider [I.D.]’s special needs and requested that the
     [c]ourt reconsider the custody schedule that was in place. On
     July 13, 2015[,] the undersigned entered an Order finding that
     Father’s June 30, 2015[,] “Petition for Special Relief” was not an
     emergency noting that the parties were scheduled to appear
     before her for a protracted half-day hearing on July 20, 2015.

     The [c]ourt held hearings on this matter on July 20, 2015,
     November 17, 2015, March 15, 2016, and March 16, 2016. At
     the November 17, 2015[,] hearing, the [c]ourt denied Mother’s
     request to enter an Interim Custody Order until the conclusion of
     the trial in March explaining that it was important that both
     parties continue to have parenting time with [I.D.] until a final
     custody determination was made. On November 25, 2015,
     Mother file a “Petition for Reconsideration” of the November 9,

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     2015[,] Order which denied Mother’s request for an Interim
     Order. On January 15, 2016, the undersigned entered an Order
     denying Mother’s “Motion for Reconsideration of November 19,
     2015[,] Order Denying Interim Order.”

     On February 9, 2016, Mother filed another “Petition for
     Contempt” alleging that Father failed to comply with the
     educational and therapeutic model that the parties had agreed
     upon. Father filed an “Answer and Counterclaim to Mother’s
     Petition” on February 25, 2016[,] denying all material allegations
     found in Mother’s Contempt Petition. In his Counterclaim, Father
     sought counsel fees due to what he alleged were Mother’s
     constant filings of frivolous claims. Mother filed her “Answer to
     Father’s Answer and Counterclaim” on March 11, 2016. In her
     Answer, Mother continued to allege that Father was intentionally
     refusing to provide [I.D.] with consistent services in Indiana and
     was willfully in contempt of the September 8, 2014[,] Custody
     Order. Additionally, Mother denied all allegations with respect to
     Father’s Counterclaim for counsel fees.

     At the conclusion of the trial on March 16, 2016, and upon
     agreement of the parties, the [c]ourt entered an Interim Order
     which provided, in part, that each party would propose two to
     three educational consultants to evaluate [I.D.]. The [c]ourt
     would review [I.D.]’s evaluation prior to making a final decision
     regarding custody. On April 19, 2016[,] the [c]ourt entered an
     Order requiring the parties to share equally the cost of [I.D.]’s
     educational evaluation. On April 20, 2016, pursuant to a Court
     Order, Maria Vetter was appointed to perform an educational
     evaluation of [I.D.]. However, on or about May 27, 2016, the
     undersigned received correspondence from Mother’s attorney
     stating that neither party could afford to pay their share of the
     educational evaluation and requested that the parties be relieved
     of the [c]ourt’s April 20, 2016 order. The parties requested that
     a custody determination be made based on the testimony taken
     before the [c]ourt. Thus, on June [21], 2016[,] the undersigned
     entered a Custody Order which essentially reaffirmed the
     custody schedule from September 8, 2014. Mother now files the
     instant appeal.

Trial Court Opinion, 8/8/16, at 1-3; see also Custody Order, 06/21/2016.




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      Mother timely filed a notice of appeal, along with a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and

(b). The trial court issued a responsive opinion.

      Mother raises the following issues on appeal:

      I.     Did the court misapply the custody factors by failing to
             give more weight to the special needs of a four year old,
             non-verbal child on the autism spectrum, than the needs
             of a parent for equal custody time, by failing to consider
             the great distance of the parties’ residences that are over
             560 miles apart making equal custody time unrealistic, and
             failing to give the proper weight to the policy of keeping
             siblings together.

      II.    Did the court fail to give the proper weight to the
             testimony of the child’s neuro-developmental pediatrician
             with over 30 years of experience, who was the doctor who
             diagnosed I.D.’s special needs and saw him one week prior
             to testifying at trial, and instead gave substantial weight to
             a developmental pediatrician with less experience who had
             only seen that child once, for one hour, one year prior to
             the date she testified at trial.

      III.   Did the court err in interpreting what consistency means
             for a non-verbal special needs child, when I.D.’s physicians
             and therapist all testified that children on the autism
             spectrum need extreme consistency in as much of their
             lives as possible, and that having a custody schedule that
             changes every four weeks with two entirely different
             approaches to treatment in two different states is harming
             I.D.’s potential for a neuro-typical life in the future.

      IV.    Did the court err in failing to conclude the trial in a timely
             fashion, causing I.D. irreparable developmental harm by
             not being in a consistent program, allowing Father
             additional time to remedy his disregard for the court’s
             orders, and causing the testimony of the Mother’s
             witnesses to become stale and forgotten at the conclusion
             of the trial almost one year after the filing and eight
             months after the first hearing.


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      V.      Whether the court showed bias against Mother for
              concluding that Mother is trying to take the child away
              from Father, when evidence shows Mother has complied
              with all terms of the current and past custody orders,
              conducts daily video conferences with Father, and has
              offered custody schedules more typical for long distance
              custody arrangements and special needs children to
              provide    the    consistency   recommended      by   his
              developmental pediatrician and other therapist, and in
              spite of Father’s continued contempt of the current order
              and all previous orders.


Appellant’s Brief at 5-6 (unnecessary capitalization removed).

      Initially, we address our jurisdiction to entertain this appeal. See In

re Miscin, 885 A.2d 558, 561 (Pa. Super. 2005) (“We may examine the

issue of appealability sua sponte because it affects the Court's jurisdiction

over the case.”). It is well settled that “an appeal properly lies only from a

final order unless otherwise permitted by rule or statute.” G.B. v. M.M.B.,

670 A.2d 714, 717 (Pa. Super. 1996).           Nevertheless, this Court has

recognized that “there are important policy reasons to analyze the finality of

custody orders differently from other civil court orders.” Id. at 718 (noting,

for example, “the significant, important and immediate impact upon the

welfare of children”). Considering these policy reasons,

      a custody order will be considered final and appealable only if it
      is both: 1) entered after the court has completed its hearings on
      the merits; and 2) intended by the court to constitute a
      complete resolution of the custody claims pending between the
      parties.

Id. at 720.




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      The recent hearings in this matter commenced after Mother filed a

petition for contempt as well as a petition for special relief.   The hearings

were conducted over 18 months. During this period, Mother filed a second

petition for contempt. Following several interim orders, the court issued the

June 2016 Custody Order. However, the trial court never ruled expressly on

the petitions for contempt. Mother noted this oversight in her Rule 1925(b)

statement. In its responsive opinion, the court acknowledged its error and

requested remand to address the matter of contempt.

      In our view, the trial court’s failure to rule on Mother’s petitions for

contempt does not affect our jurisdiction to entertain Mother’s appeal.     To

the contrary, the court entered the Custody Order following several hearings

on the merits. Further, based upon its extensive findings of fact, as well as

its comprehensive analysis of the relevant, statutory factors, we conclude

that the trial court intended that the Custody Order constitute a complete

resolution of the custody claims between the parties. Id. Accordingly, we

will proceed to review the merits of Mother’s appeal.             Subsequently,

however, we shall also remand this matter to the trial court for resolution of

Mother’s contempt motions.

      Our standard of review with regard to a custody matter is as follows:

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

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           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.

     V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations

     omitted).

     “When a trial court orders a form of custody, the best interest of
     the child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396 (Pa.
     Super. 2014) (citation omitted). The factors to be considered by
     a court when awarding custody are set forth at 23 Pa.C.S. §
     5328(a).


E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015).

     Section 5328(a) provides as follows:

     (a) Factors.—In ordering any form of custody, the court shall
     determine the best interest of the child by considering all
     relevant factors, giving weighted consideration to those factors
     which affect the safety of the child, including the following:

           (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(a).

       This Court has further explained as follows:

       When deciding a petition to modify custody, a court must
       conduct a thorough analysis of the best interests of the child
       based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
       A.3d 73, 80 (Pa. Super. 2011). “All of the factors listed in
       section 5328(a) are required to be considered by the trial court
       when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
       652 (Pa. Super. 2011) (emphasis in original). . . . The record
       must be clear on appeal that the trial court considered all the
       factors. [E.D., supra at 81.]


A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).1


       Mother’s first three issues essentially challenge the weight of the

evidence supporting the court’s findings.        See Appellant’s Brief at 16-33

(asserting that the court failed to give “sufficient weight” to certain factors);

33—38 (asserting that the court failed to give the “proper weight” to her

expert testimony); 38-43 (asserting that the court ignored the testimony of

her experts).      As explained in M.J.M. v. M.L.G, 63 A.3d 331 (Pa. Super.

2013):

       The Custody Act requires only that the trial court articulate the
       reasons for its custody decision in open court or in a written
       opinion or order taking into consideration the enumerated
____________________________________________


1
  We have clarified that the Section 5328(a) factors are not required to be
addressed where the modification does not impact the form or type of
custody, such as where the court is dealing with a discrete and ancillary
issue. See S.W.D. v. S.A.R., 96 A.3d 396, 401-03 (Pa. Super. 2014); M.O.
v. J.T.R., 85 A.3d 1058, 1062-64 (Pa. Super. 2014)




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       factors. 23 Pa.C.S.A. §§ 5323(d), 5328(a). … [T]here is no
       required amount of detail for the trial court’s explanation; all
       that is required is that the enumerated factors are considered
       and that the custody decision is based on those considerations.

Id. at 336 (internal citation and footnotes omitted).

       In the present case, the trial court weighed all of the Section 5328(a)

factors prior to making its custody order. See Custody Order, Analysis, at

1-6 (not paginated); Trial Court Opinion at 3-14. It is clear that the court

considered the child’s special needs, the distance between the parties,

sibling   relationships,    and     both       parties’   expert   testimony   regarding

treatment.     Id.   Mother is essentially asking this Court to re-evaluate the

trial court’s credibility determinations and re-weigh the evidence, which we

will not do.    V.B. v. J.E.B., 55 A.3d at 1197.            After careful review of the

record, we determine that the trial court has properly weighed all the

relevant factors set forth in Section 5328 and that it adequately articulated

its reasons for its custody decision, which were fully supported by the

record.

       Mother’s fourth issue is that the trial court failed to conclude the trial

in a timely fashion and that this failure was prejudicial to her in that the

testimony proffered by her experts was “stale.” See Appellant’s Brief at 44.2

This claim is without merit. While there was a considerable delay between

____________________________________________


2
  Mother also suggests the delay afforded Father an undeserved opportunity
to remedy his contemptuous behavior, yet Mother incongruously asserts that
Father failed to do so. See Appellant’s Brief at 44. We reject this argument.



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the filing of Mother’s petition and the court’s final order, the trial court

attributes the delay to Mother’s witnesses, whose testimony took up a

considerable amount of time.     See Trial Court Opinion at 5. Further, it is

evident from the trial court’s opinion, as well as its original Section 5328

analysis, that the court carefully considered the testimony of all of the

witnesses. See, e.g., Trial Court Opinion at 5-8. There is simply no support

in the record that the testimony of Mother’s experts was rejected by the

court as “stale.”

      In her fifth issue, Mother contends that the court was biased against

her and requests that we remand for an unbiased trial judge to conduct

further proceedings. See Appellant’s Brief at 57.

      As a general rule, a motion for recusal is initially directed to and
      decided by the jurist whose impartiality is being challenged. In
      considering a recusal request, the jurist must first make a
      conscientious determination of his or her ability to assess the
      case in an impartial manner, free of personal bias or interest in
      the outcome. The jurist must then consider whether his or her
      continued involvement in the case creates an appearance of
      impropriety and/or would tend to undermine public confidence in
      the judiciary. This is a personal and unreviewable decision that
      only the jurist can make. Where a jurist rules that he or she can
      hear and dispose of a case fairly and without prejudice, that
      decision will not be overruled on appeal but for an abuse of
      discretion. In reviewing a denial of a disqualification motion, we
      recognize that our judges are honorable, fair and competent.

Chadwick v. Caulfield, 834 A.2d 562, 571 (Pa. Super. 2003).

      Here, Mother never filed a motion for recusal. Accordingly, we deem

this claim waived.   See V.B. v. J.E.B., 55 A.3d at 1206 (finding waiver

where father failed to request the trial court to recuse itself); Pa.R.A.P.


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302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”).3

       Order affirmed.        This matter is remanded solely to address the

Emergency Petition for Contempt and the Petition for Contempt, each filed

by Mother. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




____________________________________________


3
  Absent waiver, we observe that Mother’s claim of bias is premised upon the
trial court’s adverse rulings. See Appellant’s Brief at 47-56. However,
adverse rulings do not establish bias. Chadwick, 834 A.2d at 571; see
also Arnold v. Arnold, 847 A.2d 674, 680 (Pa. Super. 2004).



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