J-S94005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.R.S.                                               IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

C.M.B. N/K/A C.M.W.

                            Appellant                     No. 1401 MDA 2016


                 Appeal from the Order Entered August 4, 2016
                 In the Court of Common Pleas of York County
                  Civil Division at No(s): 2006-FC-001862-03


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 15, 2017

         C.M.B. n/k/a C.M.W. (“Mother”) appeals from the order, entered in the

Court of Common Pleas of York County, granting J.R.S. (“Father”) sole legal

custody and primary physical custody of Daughter and Son, ages 15 and 17,

respectively, at the time of the custody trial in August 2016.             We are

constrained to vacate and remand.

         A review of the certified record indicates that the parties married in

1995 and separated in 2006.            Mother is an audiologist; Father is a family

physician.      When the parties separated, Mother had primary physical

custody of the children.       Father had partial physical custody (Wednesdays


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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and every other weekend).            This arrangement, adopted by court order,

continued through 2009.

       In 2008, Mother entered into a relationship with J.B., a disabled

veteran. J.B. moved in with Mother and children.

       In 2010, Mother moved to Wisconsin to assist with family health

issues. Father consented to Mother’s relocation with the children. Mother

and J.B. married in Wisconsin.          Mother and Father arranged for Father to

have custody of the children during the summer months and school breaks.

J.B. homeschooled the children.                Around this time, Father remarried;

Father’s wife (“Stepmother”) has a young daughter.

       In March 2012, while the children were visiting Father in Pennsylvania,

Daughter revealed to Stepmother, with whom she has a close relationship, 1

that J.B. had sexually assaulted her.            Father immediately notified Mother

that the children would not be returning to Wisconsin.              Mother’s initial

position was that Daughter was not being truthful and that J.B. was

innocent.     Mother stated that Daughter never told her or Son anything

directly and that “neither one of us had any idea.”             N.T. Custody Trial,

8/1/16, at 94.2
____________________________________________


1
  Daughter calls Mother by her first name, and refers to stepmother as
“mom.” Trial Court Opinion, 8/4/16, at 4.
2
  The court questioned Mother as to why she initially did not believe
Daughter. In fact, it was a year before Mother believed Daughter. Mother
stated:
(Footnote Continued Next Page)


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      In September 2013, Mother returned to York County for a court-

ordered visitation with the children, which did not go well. Mother, who was

staying at a hotel in York, arranged for a private investigator hired by J.B. to

meet with the children in the hotel room, apparently at the behest of J.B.’s

criminal defense attorney. When questioned, Daughter became upset, and

ultimately the police became involved. Thereafter, the court suspended

visitation, limiting Mother’s contact with Daughter and Son to letters and

emails.

                       _______________________
(Footnote Continued)


          [J.B.] came across as this ultra[-]Christian person. He
          would never do anything like that, I mean according to
          him[.] . . . He was very manipulative and controlling in
          many ways. [L]ike my relationship with my kids and with
          [Father] as co-parent, he got in the middle of all that . . .
          I think we had a really good co-parenting relationship
          before. . . But when [J.B.] got into it, all of a sudden there
          were always issues. . . .[H]e just wanted to control
          everything. And that whole thing with homeschooling the
          kids was like his way of controlling how often [Father] got
          to see the kids. . . . I let him walk all over me . . . he took
          control of everything and controlled me by – I was a born
          again Christian. And he took my – I was a newborn
          Christian. So he came across – and even though we
          weren’t [yet] married, he was the man of the house. And
          I had to be submissive to him and that included in regards
          to the kids.

N.T. Custody Trial, 8/1/16, at 94-96. During the in camera interview, the
court asked Daughter if there was a reason she did not tell Mother about the
sexual abuse. Daughter stated, “She never really asked. So I didn’t really –
I was little. So I didn’t realize how wrong that was, how bad that was that it
was going on.” Id. at 39.




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       In April 2013, J.B. was convicted of first-degree sexual assault against

a child and was sentenced to two consecutive fifteen-year sentences. Trial

Court Opinion, 8/4/16, at 8.          At the custody trial, Mother testified that,

although estranged from J.B, she had not commenced divorce proceedings

on the advice of counsel due to ongoing bankruptcy proceedings, but intends

to file for divorce. Mother also noted that she has had substantial therapy

since J.B.’s conviction.     She has apologized several times to Daughter, by

letter, by videotape, and at a reunification counseling session she attended

with Daughter. Mother has also apologized to Father.

       Mother filed a petition for modification of custody, seeking to re-

establish physical custody.3         At the custody trial, the court interviewed

Daughter and Son in camera, and heard testimony from Mother, Father, and

Stepmother. Both Daughter and Son expressed a preference to maintain the

status quo, continuing a weekly schedule of telephone calls with Mother.

Essentially, Daughter stated that she is not ready to have physical contact

with Mother, but agreed to continue reunification counseling. At the time of

the custody trial, Daughter and Mother had participated in two reunification

counseling sessions together.




____________________________________________


3
 Mother currently lives alone. She works for a consortium of schools, and
her work schedule is tied to the school calendar.




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       Son, who is almost eighteen, expressed a desire to continue the

relationship on his own terms.4          Father supports Mother’s and Daughter’s

reunification counseling, and is not opposed to ultimate contact, but his

position is that the relationship should proceed at Daughter’s pace.

       Following the custody trial, the court entered an order on August 4,

2016, awarding Father sole legal custody. See 23 Pa.C.S. § 5332(a)

(defining “sole legal custody” as ‘[t]he right of one individual to exclusive

legal custody of the child.”).         The court did allow Mother access to the

children’s medical, dental, religious and education records pursuant to 23

Pa.C.S. § 5336. The court granted Father primary physical custody of the

children,5 and permitted Mother one phone call per week for each child until

each child reached 18 years of age.            The court also permitted Mother to

contact the children by email and letters. The order further stated:

       The parties are free to modify the terms of this Order, but in
       order to do so, the Court made it clear that both parties must be
       in complete agreement to any new terms. That means both
       parties must consent on what the new terms of the custody
       arrangement or schedule shall be.

       In addition to the above, the Court orders the following:

       (1)    Mother shall engage in one session of counseling with Ann
              Shorb[,] Ph.D. to address issues of reunification with
              Daughter. If acceptable to Dr. Shorb, Mother may
____________________________________________


4
  Although the custody order at issue pertains to both children, the issues
before us concern only Daughter.
5
  We note that Father’s custody award, at present, is more properly labeled
sole physical custody. 23 Pa.C.S. § 5323



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           participate via phone.      Mother shall be responsible for
           payment.

     (2)   Upon completion of the above, Mother and Daughter shall
           have one joint session [of] reunification counseling. If
           acceptable to Dr. Shorb, Mother may participate via phone.
           Responsibility for payment shall be with Mother.

     (3)   Upon completion of the above, Dr. Shorb shall notify
           Mother and Father of her recommendation as to the value
           of continued reunification counseling between Mother and
           Daughter. If counseling is to continue, Dr. Shorb shall
           determine the method and duration of counseling. If
           counseling is to be terminated, Mother shall have no
           physical contact with [Daughter].

     (4)   If recommended by Dr. Shorb, Mother may enjoy
           temporary physical custody with Daughter in York County
           for brief periods of time as designated by Dr. Shorb.

Final Custody Order, 8/4/16, at 1-6.

     Mother filed a timely notice of appeal from the final custody order.

On August 25, 2016, the court entered an order requiring Mother to file a

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

1925(b), which Mother timely filed that day. The court filed a Rule 1925(a)

opinion. Mother raises the following issues for our review:

     1. Did the trial court err by failing to provide [M]other any rights
        of legal or physical custody, effectively terminating her
        parental rights?

     2. Did the trial court err by failing to provide any discernible
        path towards reconciliation of the relationship between
        [M]other and [D]aughter?

     3. Did the trial court err by abdicating its responsibility of
        fashioning the order, deferring instead to [Daughter’s]
        counselor to determine what, if any, rights of custody
        [M]other shall have?



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Appellant’s Brief, at 5.

      In custody cases, our standard and scope of review are 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 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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see

also M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (“An

abuse of discretion is not merely an error of judgment, but if the court’s

judgment is manifestly unreasonable as shown by the evidence of record,

discretion is abused. An abuse of discretion is also made out where it

appears from a review of the record that there is no evidence to support the

court’s findings or that there is a capricious disbelief of evidence.”);

Bulgarelli   v.   Bulgarelli,   934   A.2d   107,   111   (Pa.   Super.   2007).

Additionally, this Court has observed that

      [t]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge
      gained by a trial court in observing witnesses in a custody



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       proceeding cannot adequately be imparted to an appellate court
       by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation

omitted).

       The primary concern in any custody case is the best interests of the

child. “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004). Section 5328 of the Child Custody Act, 23 Pa.C.S.

§§ 5321-5340, provides an enumerated list of factors a trial court must

consider in determining the best interests of a child when awarding any form

of custody.6

____________________________________________


6
    § 5328. Factors to consider when awarding custody

       (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.
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

          (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 childcare 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.
(Footnote Continued Next Page)


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      Here,    the     trial   court   considered   each   factor   and   provided   a

comprehensive analysis in its opinion in support of the order.              See Trial

Court Opinion, 8/4/16, at 1-19. Of the fifteen factors enumerated, the court

found that ten favored Father and the remainder were “neutral.” Mother’s

complaint is not with the court’s analysis, however. Instead, she argues that

the court’s order is effectively a termination of her parental rights, and that

the court erred in deferring the custody decision to Dr. Shorb.7
                       _______________________
(Footnote Continued)


23 Pa.C.S. § 5328(a)(1)-(16).
7
  Section 5323(a) delineates the various types of custody awards and
provides, in relevant part:

      5323. Award of Custody.

      (a) Types of award.—After considering the factors set forth in
      section 5328 (relating to factors to consider when awarding
      custody), the court may award any of the following types of
      custody if it is in the best interest of the child:

          (1) Shared physical custody.

          (2) Primary physical custody.

          (3) Partial physical custody.

          (4) Sole physical custody.

          (5) Supervised physical custody.

          (6) Shared legal custody.

          (7) Sole legal custody.

23 Pa.C.S. § 5323(a).          The Act defines the types of custody awards, in
relevant part:

(Footnote Continued Next Page)


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         First, we point out that the court’s order is not a termination decree.

Although the order is restrictive, it does not preclude the reunification of

Mother and Daughter.

         In Kimock v. Jones, 47 A.3d 850, 854-55 (Pa. Super. 2012), a child

support case, we addressed a similar argument. There, the trial court had

entered an order granting mother sole legal and sole physical custody of

child.    The court determined:         (1) reunification therapy would not benefit

child; (2) father was incapable of making reasonable child-rearing decisions

for child; (3) child did not recognize father as a source of security and love;
                       _______________________
(Footnote Continued)

         § 5322. Definitions.

                             ...

         “Partial physical custody.”.—The right to assume physical
         custody of the child for less than a majority of the time.

         “Physical custody.”.—The actual physical possession and control
         of a child.

         “Primary physical custody.”.—The right to assume physical
         custody of the child for the majority of time.

                             ...

         “Sole physical custody.” The right of one individual to exclusive
         physical custody of the child.

                             ...

         “Sole legal custody.”.—The right of one individual to exclusive
         legal custody of the child.

23 Pa.C.S. § 5322(a).




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(4) father and mother could not cooperate concerning child’s development

and well-being; and (5) shared legal custody was no longer in child’s best

interests. Consequently, the court limited father’s contact with child as

permitted and deemed appropriate by mother, and allowed father access to

child’s medical, dental, religious, and/or school records indirectly, through

mother.       Father argued on appeal that his custody order so severely

restricted his custodial rights that it amounted to an involuntary termination

of his parental rights under the Adoption Act. See 23 Pa.C.S. § 2511.       He

claimed, therefore, that the court should extinguish his child support

obligation.

      In rejecting father’s argument, our Court stated:

      The proceeding for involuntary termination of parental rights
      stands upon a different foundation, a different standard of
      review, and requires judicial determinations in keeping with
      these statutory requirements. There is no provision for
      termination of parental rights at common law and, like adoption,
      it is purely a creature of legislation. . . . [T]ermination of
      parental rights for all practical purposes ends the parent/child
      relationship as unequivocally as the death of the child. . . .
      Additionally, [a] decree . . . terminating all rights and duties of
      a parent entered by a court of competent jurisdiction shall
      extinguish the power or the right of the parent to object to or
      receive notice of adoption proceedings. Because an order
      terminating parental rights forever severs that relationship, an
      order terminating parental rights also terminates a parent’s
      obligation to pay child support.

Kimock, 47 A.3d at 854 (citations and quotations omitted).       The Kimock

Court further stated that: “Importantly, the court's order left open the

possibility for reunification between Father and Child at some time in the


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future[,] and allowed Father to have contact with Child and access to Child's

records, albeit under restricted means.” Id. at 857.          The Court concluded,

therefore, that the restrictive custody order did not “effectively” terminate

father’s parental rights. Id.

      The trial court here imposed similar restrictions.              The court also

ordered a joint reunification counseling session and left “open the possibility

of reunification” between Mother and Daughter.                 Id.     We conclude,

therefore, that Mother’s argument that the court’s order terminated her

parental rights is meritless.

      We agree, however, with Mother’s argument that the trial court erred

in deferring the custody determination to Dr. Shorb.           This Court has long

held that, in child custody disputes, a trial court has the “authority and the

responsibility to attempt to save any family relationship which exist[s].”

Lewis    v.   Lewis,   414      A.2d   375,     378   (Pa.   Super.    1979)   (citing

Commonwealth ex rel. Ermel v. Ermel, 393 A.2d 796 (Pa. Super. 1978)).

      The trial court acknowledged that Mother does not pose a danger to

Daughter, but recognized Daughter’s lack of trust and security with respect

to Mother. Further, it appears the court gave considerable weight to

Daughter’s in camera testimony.          See Ketterer, supra at 540 (child’s

preference is “an important factor that must be carefully considered in

determining the child's best interest.”); Grieb v. Driban, 458 A.2d 1006,

1007 (Pa. Super. 1983) (“The weight to be accorded the child's preference




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varies with the age, maturity and intelligence of the child and the reasons

given for the preference.”).

      Daughter was fifteen years old and in tenth grade at the time of her in

camera testimony.    She testified as follows:

      Q:    Does [Mother] believe you now?

      A:    Yeah. She says that she does.

      Q:    Do you believe that?

      A:   Yeah. But I mean I don’t remember if she is really like – like, I
      know – I feel like she was sorry. But I felt like she doesn’t really care
      about what I need. Like, she just wants to start pushing forward even
      though it is not forward for me. It is forward for her.

                                     ***

      Q:    What would you want [your relationship with Mother] to look
      like?

      A:     Well, right now I don’t really see having a relationship with her.
      Like, I don’t really want that right now. But I mean, like, I can’t really
      see just talking to her like everything is fine, you know I’d talk to her
      if nothing happened like the way I talk to [Stepmother]. I can’t
      picture talking to her like that, just hanging out. I just can’t see that.
      It doesn’t seem realistic.


N.T. Custody Trial, 8/1/16, at 46-49.

      To be clear, in less than two years Daughter will reach the age of

majority and can decide the extent of her relationship with Mother.        Until

that time, however, this matter is before the court, and it is the trial court’s

responsibility to determine what is in Daughter’s best interest.      From our

review, it is apparent that the court abdicated this duty, deferring to Dr.


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Shorb’s professional judgment as to whether, after “one joint session of

reunification counseling[,]” counseling should continue or be terminated, in

which case Mother shall have no physical contact with Daughter. Further,

the order states that the “Mother may have temporary physical custody with

Daughter in York County for brief periods of time as designated by Dr.

Shorb[]” if recommended by Dr. Shorb.         Final Custody Order, 8/4/16

(emphasis added).

     Accordingly, we vacate the custody order and remand so that the court

may enter an order consistent with this memorandum.

     Vacated and remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2017




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