J-A18030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    S.B.                                             IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                              Appellee

                         v.

    S.S.

                              Appellant                  No. 74 WDA 2017


                      Appeal from the Order December 12, 2016
                  In the Court of Common Pleas of Allegheny County
                       Family Court at No(s): FD-15-008183-10


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                           FILED OCTOBER 20, 2017

           S.S. (“Mother”) appeals from the order, entered in the Court of Common

Pleas of Allegheny County, awarding S.B. (“Father”) sole legal custody and

sole physical custody of F.B.H. (“Child”) (born August 2006). After our review,

we affirm, with instructions.

           Child was born in Guatemala in 2006. Father and his first wife, A.H.,

who were married for almost twenty years, adopted Child in 2007, when he

was six months old.1 A.H. died in December 2008, when Child was two years

____________________________________________


1  A.H. was diagnosed with breast cancer in 1999 and underwent
chemotherapy. She and Father wanted to start a family, and they began the
adoption process in 2003. They contacted Palmetto Hope, an adoption agency
that specializes in Guatemalan adoptions, and after going through a home
study with Jewish Family Services in Pittsburgh and meeting the Palmetto
Hope requirements, the adoption was finalized in February 2007. N.T. Trial,
5/20/16, at 176-78.
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old. Father continued his close relationship with A.H.’s extended family, and

he raised Child, with their support, for the next four years. In May 2012,

Father met Mother on an online dating website; they married four months

later. Mother adopted Child in 2013.

       The parties’ relationship was short-lived; in November 2013, Mother

moved out of the main house and into the guesthouse. One year later, Mother

left the marital residence and moved into her own home. The parties entered

into a custody agreement on November 22, 2014.

       Father filed a complaint in custody on June 11, 2015; Mother

counterclaimed for primary custody. On October 9, 2015, the court held a

hearing and entered an interim custody order pending a custody trial. The

interim order expanded Father’s custodial time. Days later, Mother filed a

Petition for Abuse (PFA), on behalf of herself and Child, alleging Father had

sexually abused Child, and the court ordered supervision of Father’s custodial

periods. Over one month later, after a five-day trial, the court dismissed the

PFA petition.

       On January 21, 2016, the court scheduled a custody trial to be held in

April of that year; on February 2, 2016, Mother filed a second PFA petition on

behalf of herself and Child, again alleging Father’s sexual abuse of Child.2

____________________________________________


2  On February 4, 2016, Mother filed an emergency petition for special relief,
indicating Child made additional disclosures of sexual abuse and that Child
was refusing visits with Father. The court suspended visitation and contact
between Father and Child. That same day, the court appointed Maegan Susa



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Senior Judge Lee J. Mazur denied the petition without a hearing and

recommended the petition be presented again before the Honorable Kim

Berkeley Clark, who was presiding over the custody matter.         Judge Clark

denied the petition without a hearing.

       The twenty-three day custody trial commenced on May 20, 2016, and

concluded on November 18, 2016. The parties presented 24 witnesses and

offered 216 exhibits, 193 of which were admitted by the court, in addition to

the exhibits from the PFA trial that were incorporated into the custody trial.

       On December 12, 2016, Judge Clark entered her findings of fact on the

record and entered an order granting Father sole legal and sole physical




____________________________________________


Filo, Guardian ad litem (GAL), to represent Child’s best interests. On April 11,
2016, after meeting with the parties, Child, communicating with counsel for
both parties, reviewing expert reports, GAL made several recommendations,
including the following:

       Child be immediately removed from Mother’s care and placed with
       Father after attending the Family Bridges program;

       Child should be immediately reunited with A.H.’s extended family;

       Child should begin attending his former synagogue;

       Child should begin to attend his Guatemalan adoption group in
       which he participated previously with Father;

       Father should be granted sole legal custody of Child;

       Both Mother and Father should follow any recommendations made
       by Dr. McGroarty for each party’s mental health therapy.

Report and Recommendation of the Guardian ad litem, 2/4/16, at 8.

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custody. On December 14, 2016, the court entered an amended order, which

provides:

     1. Sole legal custody of [Child] is awarded to [Father] who shall
        have the sole authority to make all medical, therapeutic,
        educational, and religious decisions on behalf of the child.
        Father is hereby authorized to obtain treatment/intervention
        for [Child], as he deems necessary and appropriate for [Child’s]
        welfare.

     2. Father shall have sole physical custody of the Child.

     3. Father shall pursue reunification with the Child through Family
        Bridges: A Workshop for Troubled and Alienated Parent-
        Child Relationships ("Family Bridges").

     4. Following the completion of the Family Bridges workshop,
        and before returning home with [Child], Father shall take
        [Child] on a vacation of no less than five days in duration. The
        Court expects that [Child] will apply what he has learned during
        the Family Bridges workshop to improve their interactions
        with his Father during and following their vacation.

     5. Father has the right to conceal from Mother the location of any
        intervention sought for [Child] (e.g., educational or mental
        health intervention) in the interests of protecting [Child] and
        the intervention from intrusion, interruption, and harassment.

     6. Following the completion of the Family Bridges workshop,
        Family Bridges or the aftercare Specialist shall provide
        recommendations as to the next steps for the parties
        (counseling, contact, etc.)

     7. Until such time as the Child can be taken to the Family Bridges
        Workshop, [Child] shall be cared for by [S.B. and S.B.]. If
        possible, Mr. or Mrs. B[.] shall pick the child up from school. A
        copy of this Order shall be provided to the school, if necessary.

     8. Defendant, [Mother] shall cause to be delivered by a third
        party: clothing flor [Child] for two; (2) weeks, his birth
        certificate and citizenship papers, and his most important
        personal effects to the home of [S.B. and S.B.]. Personal
        effects should include, at a minimum, stuffed animals [Child]
        sleeps with, pajamas, his school backpack, books he is


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        currently reading, his school folder with current assignments,
        and his iPad with his favorite games on it. Said items shall be
        delivered by 7:00 P.M. December 12, 2016.

     9. Mother is to ensure that all of [Child’s] remaining belongings
        are delivered by a third party to Father's home or other agreed
        upon location within 14 days.

     10. Father is authorized, if he deems necessary and/or
        appropriate, to hire or designate other persons to facilitate and
        assist with the transfer of [Child] to the location where any
        intervention will be conducted. [S.B. and S.B.] are expressly
        authorized to travel with the Child.

     11.   Father has the sole authority to consent to [Child’s] travel.

     12. A copy of any custody evaluations and other evaluations of
        [Child] and/or the parties and all other relevant information
        shall be provided to any professional whom Father engages to
        assist with [Child], including Family Bridges team leaders.

     13. [Child] shall have no contact with Mother, her family, or her
        friends and/or associates not participating in the intervention,
        and relatives, friends, and associates of Mother, and any
        parents of [Child’s] friends whose influence might foreseeably
        interfere with [Child] progress in effectively repairing the
        damaged relationship with Father, except as directed by
        Family Bridges, or the aftercare professional, or any other
        professional designated by Father or the Court.

     14. "Contact" includes all forms of contact and communication,
        including but not limited to phone contact, text messages,
        letters, contact via computer, in-person contact, and
        communication via third parties.

     15. The duration of the no-contact order shall be determined by
        the Court, but shall be no less than 90 consecutive days from
        return of the family to the home of the custodial parent, or
        other designated post Family Bridges residence after the
        successfully completion of the structured Family Bridges
        workshop and the post Workshop vacation period.

     16. Should any person subject to the no-contact order have
        contact with [Child] prior to the expiration of the Court-
        imposed 90-day no-contact period, the period of no contact
        begins again. For example, if on day 45 Mother and [Child]


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        have any form of contact that is prohibited by the Court Orders,
        the clock counting down the 90 day period of no contact is reset
        to zero and the 90 consecutive day period of no contact begins
        anew. For each subsequent incidence of parent-child contact
        prior to the expiration of the no-contact period, the clock will
        be reset to zero until 90 consecutive days have passed without
        parent-child contact.

     17. Father, through counsel, shall notify the court when he and
        [Child] have returned to live in father's residence in Allegheny
        County within 72 hours of their return. Upon notification, that
        [Child] and Father have returned, the court will schedule and
        hold a judicial conference to determine what other therapeutic
        interventions, if any, should be ordered and to determine
        Mother's partial custody. The Court will determine the
        conditions, timing, and nature of resumption of contact
        between [Child] and Mother with the assistance and input from
        the aftercare professional.

     18. The resumption, timing and nature of contact between
        [Child] and Mother will be based on the cooperation of [Child]
        and Mother with these Orders, with the Family Bridges
        program, and with the aftercare professional, after a judicial
        conference upon praecipe by either party following the
        completion of the 90-day period.

     19. Father has the authority to confiscate and prevent [Child’s]
        use of communication devices; including but not limited to: cell
        phone, pagers, blackberries, tablets, and computers, even if
        Mother provides such equipment.

     20. If the child is ill and must be hospitalized or unable to leave
        the home, the custodial parent shall notify the non-custodial
        parent as soon as possible, but no later than within 24 hours.

     21. During the no-contact period, Mother shall stay at least 100
        yards away from Father and [Child], their residence, the
        residences of members of Father's and the H[.] families,
        Father's vehicle, and all other places frequented by [Child].
        Until further Order of' Court, Mother shall not be on the grounds
        of Shadyside Academy Junior School.

     22. Mother shall not harass, attack, strike, threaten, assault,
        hit, follow, stalk, molest, destroy personal property, disturb the
        peace, keep under surveillance, or block movements of Father
        and/or [Child].

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      23. Mother shall relinquish to Father, [Child’s] passport,
         citizenship papers, the original adoption papers, birth
         certificate, and all other important documents and shall be
         entitled to obtain and/or renew [Child’s] passport without
         Mother's consent. Father shall have possession and control of
         these documents.

      24. Neither party shall subpoena the records of any of the
         professionals who assist the Father and [Child] in making the
         transition to the Court Orders, including Family Bridges team
         leaders, nor shall either party seek testimony in any future
         Court hearings by Family Bridges team leaders. This does not
         prohibit Family Bridges team leaders from communication
         with aftercare professionals and any professionals, such as
         guardians ad litem, appointed by the Court.

      25. Neither parent will go to the home or office of a Family
         Bridges team leader unless for prescheduled appointments,
         nor approach the Family Bridges team leaders at any time in
         public, nor phone excessively, nor send threatening
         communications.

      26. Neither party shall relocate outside of Allegheny County with
         the child, without notice to and the written consent of the other
         party OR with permission from this court. Any party seeking
         relocation shall strictly adhere to the requirements of 23
         Pa.C.S.A. § 5337.

      27. The police and/or other law enforcement agencies shall
         enforce the terms of this Order and lend all necessary
         assistance, if necessary, to allow Father to maintain sole
         custody of [Child], and enforce the no contact order.

      28. The matter of Counsel Fees shall be set for argument before
         this court.

      29. This order supersedes all other orders previously entered in
         this case.

Amended Order, 12/14/16 (emphasis in original).

      On December 27, 2016, the court filed detailed Findings of Fact in

support of its order. The court also filed an opinion analyzing each witness’s



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testimony, including the testimony of Child and the guardian ad litem, and

applying the statutory custody factors.          Mother filed a timely appeal on

January 13, 2017.3 She raises the following issues for our review:

          1. Did the trial court err as a matter of law or abuse its
             discretion in finding that the parties’ child was not sexually
             abused by Father?

          2. Did the trial court err as a matter of law or abuse its
             discretion in finding it to be in the Child’s best interest that
             he be placed in Father’s sole custody and in severely
             restricting Mother’s custody, contact, and involvement in his
             life?

          3. Did the trial court err as a matter of law or abuse its
             discretion in using the dictates and demands of the Family
             Bridges program protocol as the basis for the details of the
             custody order regarding the suspension of Mother’s custody
             and contact, in delegating decision-making authority to such
             a program, and in prohibiting Mother from subpoenaing the
             Family Bridges records and from procuring future testimony
             from Family Bridges personnel, and was such a deprivation
             of her state and federal constitutional due process and
             parental rights?

Appellant’s Brief, at 10.

       In any custody case decided under the Custody Act, 23 Pa.C.S.A. §§

5321–40, the paramount concern is the best interests of the child. See 23

Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition,

____________________________________________


3 Mother filed an “Application for the Exercise of King’s Bench Power or
Extraordinary Jurisdiction” in the Pennsylvania Supreme Court on February 1,
2017. See 42 Pa.C.S.A. § 726. Father filed an answer on February 8, 2017.
The Supreme Court denied Mother’s application on February 24, 2017 by per
curiam order. S.B. v. S.S., 8 WM 2017, filed 2/24/17. Mother’s appeal was
argued before this Court on July 19, 2017.



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a trial court may modify a custody order if it serves the best interests of the

child. 23 Pa.C.S.A. § 5338; see also E.D. v. M.P., 33 A.3d 73, 80–81 n.2 (Pa.

Super. 2011). Section 5328(a) sets forth a list of sixteen factors4 that the
____________________________________________


4   § 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.

          (2.1) The information set forth in section 5329.1(a)(1) and
                (2) (relating to consideration of child abuse and
                involvement with protective services).

          (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



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trial court must consider when making a “best interests of the child” analysis

for a custody determination. See 23 Pa.C.S.A. § 5328(a).

Moreover, section 5323(d) mandates that, when the trial court awards

custody, it “shall delineate the reasons for its decision on the record in open

court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d).


____________________________________________


          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.

23 Pa.C.S.A. § 5328(a).




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      The relevant scope and standard of review are as follows:

      [T]he appellate court is not bound by the deductions or inferences
      made by the trial court from its findings of fact, nor must the
      reviewing court accept a finding that has no competent evidence
      to support it. . . . However, this broad scope of review does not
      vest in the reviewing court the duty or the privilege of making its
      own independent determination. . . . Thus, an appellate court is
      empowered to determine whether the trial court’s incontrovertible
      factual findings support its factual conclusions, but it may not
      interfere with those conclusions unless they are unreasonable in
      view of the trial court’s factual findings; and thus, represent a
      gross abuse of discretion.

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

Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover, on issues

of credibility and weight, we defer to the trial court, which has had the

opportunity to observe the proceedings and demeanor of the witnesses.

R.M.G., Jr., supra at 1237.

      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.

Id. (internal citations omitted). In sum, this Court will accept the trial court’s

conclusion unless it is tantamount to legal error or unreasonable in light of the

factual findings. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014).

      After our review, we conclude that Mother’s claims are meritless.       The

core of this custody case is not allegations of sexual abuse; it is isolation and

alienation.   Child’s vulnerability and susceptibility to Mother’s influence was



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not lost on Judge Clark, and it is not lost on this Court. Our review of the

record indicates that Mother has systematically engineered an isolation plan,

at Child’s psychological expense.

      Judge Clark’s opinion provides a careful and detailed examination of the

evidence, see Trial Court Opinion, 12/27/16, at 8-51, and a comprehensive

analysis of each of the section 5328(a) factors. See id. at 52-55. The court

determined there was no evidence that Father sexually abused Child.          In

making this determination, the court considered Child’s relationship with

Father and with Mother both before and after the allegations of sexual abuse,

the timing of the abuse allegations, the parties’ psychological testing reports,

the testimony from the GAL, family members, friends, former babysitters and

neighbors, as well as the expert testimony from the custody evaluator, from

Child’s therapist and forensic interviewers, and Mother’s therapist. The court

also found that Child was alienated from Father by Mother, id. at 51, and that

the extent of alienation in this case warranted a restrictive and intensive

reunification program.   Contrary to Mother’s claim, the trial court did not

delegate its duty; our instructions below reinforce the court’s decision-making

responsibility.

      Our review of the record reveals extreme alienation; Father has not had

contact with Child for over a year.           The record supports the court’s

determinations that the timing of Mother’s allegations of sexual abuse are

suspect, that there is no evidence to support Mother’s claim that Father

sexually abused Child, and that Mother has deliberately marginalized Father

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in Child’s life. She has also isolated Child from Father’s extended family and

his first wife’s (and Child’s first adopted Mother’s) family.

      We   share   the    court’s   perspective   that,   although   controversial,

reunification therapy of the type promoted by Family Bridges is necessary to

repair the extensive damage done to the Father/Child relationship. The court

may consider the recommendations of the agency and mental health

professionals but it is ultimately the court’s responsibility to determine what

will truly promote Child’s best interests. We therefore affirm the court’s order.

      We rely on Judge Clark’s December 22, 2016 opinion to affirm the

custody order, and we advise the parties to attach a copy of that opinion in

the event of further proceedings.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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