J-S47030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.L.C.,                                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                   Appellee

                           v.

J.M.C.,

                   Appellant                      No. 820 EDA 2014


              Appeal from the Order entered February 27, 2014,
               in the Court of Common Pleas of Lehigh County,
                    Civil Division, at No(s): 2006-FC-0884

BEFORE: MUNDY, OLSON, and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                         FILED SEPTEMBER 25, 2014

                            appeals from the amended final custody order

entered February 27, 2014, in which the trial court complied with the order

of this Court by providing reasons on the record for entering its final custody

order of April 9, 2013.         The order of April 9, 2013, awarded sole legal

                                                                          their



children are K.C. (born in December of 2000), M.C. (born in October of

2002), S.C. (born in November of 2003), and D.C. (born in October of 2005)

                                m.

      A prior panel of this Court summarized the facts and procedural history

of this case as follows.
J-S47030-14


     The record reveals that Mother initiated the underlying custody
     matter in July of 2006, approximately three months after marital
     separation. Upon consent of the parties, by order dated
     November 20, 2006, the trial court granted the parties shared
     legal custody, with Mother having primary physical custody, and
     Father having partial physical custody.      Protracted custody
     litigation ensued between the parties, the relevant history of
     which we set forth as follows.


     petition to modify custody, the trial court granted Mother sole
     legal custody and primary physical custody, and Father partial
     physical custody. Seven months later, by order dated February


     the [C]hildren to Bernville, in Berks County, the trial court
     granted Father sole legal and primary physical custody and
     Mother partial custody on alternating weekends and one
     weekday evening, inter alia.

     On January 30, 2013, Mother filed a petition for modification of
                                                             paternal

     the two youngest children, S.C. and D.C., by hitting, slapping,
     pushing, throwing, and kicking them. In addition, Mother alleged
     that Father and Grandfather curse at the [C]hildren and call
     them names.      Further, Mother alleged that Father punches
     himself on both sides of his face in front of the [C]hildren and
     utters curse words about her. Mother requested sole legal and
     primary physical custody.

                                           fication is a Protection From

     January 29, 2013, which granted Mother physical custody of the

     of the [C]hildren. Father was not a party to the PFA action.

     In light of this procedural posture, on February 15, 2013, the
     trial court held an emergency hearing so that Father could testify
     with respect to what actions, if any, he has taken to address the
                                       During the emergency hearing,
     the court incorporated into the record the notes of testimony
     from the PFA hearing on January 29, 2013. In addition, the trial
     court interviewed all of the [C]hildren, and Father and Mother

                                    -2 -
J-S47030-14


     testified on their own behalf. At the conclusion of the testimony,
     the court issued an interim order granting the parties shared
     legal custody, Mother primary physical custody, and Father
     partial custody on alternating weekends, inter alia.

     On March 14, 2013, and April 2, 2013, the court held a custody

     following witnesses testified: Dana Greene, a                licensed
     professional counselor who provides counseling               to the

     B. McGinn, a licensed psychologist who treats Father; Taryn

     counselor; Pamela Caton, the kindergarten teacher of K.C., M.C.,

     she resides; Mother; and Father. In addition, the trial court
     incorporated into the record the notes of testimony from the
     emergency custody hearing on February 15, 2013.

     By order dated April 9, 2013, and entered on April 10, 2013, the
     trial court granted Mot
     granted Mother sole legal custody and primary physical custody,
     and Father partial physical custody on alternating weekends,
     inter alia
     transfer the [C]hildren to the Hamburg Area School District, in
     Berks County, for the academic year beginning in August or
     September of 2013. Further, on April 9, 2013, the court placed
     its reasoning for the custody award on the record in open court.
     Father timely filed a notice of appeal and concise statement of
     errors complained of on appeal pursuant to Pa.R.A.P.
     1925(a)(2)(i) and (b).

R.L.C.   v.   J.M.C.,   93   A.3d   514   (Pa.   Super.   2013)    (unpublished

memorandum), at 1-4 (footnotes and citations to the record omitted).

                  s prior memorandum entered on December 19, 2013



                                                                  -5340.     Our

memorandum acknowledged that the court delineated the reasons for its

April 9, 2013 custody determination on the record at the time it issued its

                                     -3 -
J-S47030-14


order. See



We noted, however, that the court considered at length the relocation

factors set forth in section 5337(h)1 but did not consider the best interest




1
    Section 5337(h) of the Act provides:

        (h) Relocation factors.--In determining whether to grant a
        proposed relocation, the court shall consider the following
        factors, giving weighted consideration to those factors which
        affect the safety of the child:

         (1) The nature, quality, extent of involvement and duration of
        the child's relationship with the party proposing to relocate and
        with the nonrelocating party, siblings and other significant
        persons in the child's life.

         (2) The age, developmental stage, needs of the child and the
        likely impact the relocation will have on the child's physical,
        educational    and   emotional     development,  taking   into
        consideration any special needs of the child.

         (3) The feasibility of preserving the relationship between the
        nonrelocating party and the child through suitable custody
        arrangements,      considering   the  logistics   and   financial
        circumstances of the parties.

        (4) The child's preference, taking into consideration the age and
        maturity of the child.

         (5) Whether there is an established pattern of conduct of either
        party to promote or thwart the relationship of the child and the
        other party.

         (6) Whether the relocation will enhance the general quality of
        life for the party seeking the relocation, including, but not limited
        to, financial or emotional benefit or educational opportunity.


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J-S47030-14


factors listed in section 5328(a).2

as a relocation matter because she used to live in Lehigh County but now



       (7) Whether the relocation will enhance the general quality of
      life for the child, including, but not limited to, financial or
      emotional benefit or educational opportunity.

       (8) The reasons and motivation of each party for seeking or
      opposing the relocation.

      (9) The present and past abuse committed by a party or
      member of the party's household and whether there is a
      continued risk of harm to the child or an abused party.

      (10) Any other factor affecting the best interest of the child.

23 Pa.C.S.A. § 5337(h).
2
  In determining the bests interests of a child when awarding custody, the
trial court must consider the 16 factors set forth in § 5328(a) of the Act,
which states:

      § 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)
        (relating to consideration of child abuse and involvement
        with protective services).
                                      -5 -
J-S47030-14




       (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.
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J-S47030-14


resided in Berks County.     We concluded that the trial court committed an

error of law because the proceeding was not before the court on an objection

to a proposed relocation.3 See 23 Pa.C.S.A. § 5337(g). Therefore, given

the precise procedural posture of the case, we said it was incumbent upon

the trial court to consider the best interest factors set forth in section

5328(a). We therefore remanded this matter to allow the trial court to set

forth its consideration of the best interest factors found in that provision.4

      On February 27, 2014, the trial court entered its amended final

custody order. The trial court attached to the order its assessment of the

section 5328(a) best interest factors. The dispositional aspects of the April

9, 2013 order remained unchanged.        Father again timely filed a notice of




         (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).
3
                                                                        i.e.
the order of February 15, 2011, which granted Father sole legal and primary
physical custody of the Children. Moreover, we noted specifically that
Mother was not seeking to relocate. In fact, the record established that
Mother had resided in Berks County since December 2010.
4
  We also observed that even if the trial court properly considered the
relocation factors in section 5337(h), it nevertheless committed an error of
law (gi
consider the best interest factors set forth in section 5328(a). J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (vacating and remanding order
granting father permission to relocate wi
revised custody schedule where the trial court failed to consider both the
section 5337(h) relocation factors and the section 5328(a) best interest
factors).
                                       -7 -
J-S47030-14


appeal, along with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      Father now raises the following issues for our review.

      1. Did the trial court err or abuse its discretion by incorporating
      the record of, and relying on, testimony from a proceeding to
      which Father was not a party?

      2. Did the trial court err or abuse its discretion by limiting the
      testimony of Dana Greene[,] M.Ed.?

      3. Did the trial court err or abuse its discretion in analyzing the
      weight of the evidence presented?

      4. Did the trial court err or abuse its discretion in making factual
      determinations?

      5. Did the trial court err or abuse its discretion in making legal
      conclusions?
                                                  5,6




5
  In his brief, Father presents his third, fourth, and fifth issues in a single
argument section.
6

are not listed in the statement of questions involved in his brief, and that
were not included in his concise statement of errors complained of on
appeal.    Specifically, Father posits that the trial court lacked personal
jurisdiction over him during the PFA proceedings, and thus was not

Brief at 15-16. Father suggests that he did not receive notice that custody
of the Children could be modified as a result of the PFA hearing, and that he
was denied an opportunity to be heard. Id. at 16-19. Father argues that
the trial court was not permitted to alter the prior custody order without a
petition to modify custody before it, and that the trial judge should have
recused himself sua sponte, because of bias against Father. Id. at 17-25.
These claims are waived.       See                                Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived                             No
question will be considered unless it is stated in the statement of questions
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J-S47030-14




      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.

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

M.A.B., 989 A.2d 32, 35 36 (Pa. Super. 2010).



by incorporating the testimony from the prior PFA hearing involving

Grandfather during the emergency hearing of February 15, 2013, in violation

of his right to due process. Id. at 11, 15-26. In response, the trial court

explains that Father has failed to preserve this claim for our review.       See

Trial Court Opinion, 4/14/2014, at 4. The trial court directs our attention to




involved or is fairly suggested thereby.     Krebs v. United Refining Co. of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) We will not ordinarily
consider any issue if it has not been set forth in or suggested by an appellate
brief's statement of questions involved, and any issue not raised in a
statement of matters complained of on appeal is deemed waived.
omitted).


                                      -9 -
J-S47030-14


       [The trial court:] So my thought was that we incorporate this
       record [from the PFA hearing], and now that Father has had a
       chance to read the transcript, we would now interview the

       whatever questions she asks.

       In other words, we would not go back and redo what is done and
       take them through all of that and just let Attorney Dougherty


       question, she will be allowed to ask those, but we would start
       with that.

       Is that acceptable?

       Ms. Dougherty: Yes, Your Honor.

N.T., 2/15/2013, at 7-8.7

       After reviewing this portion of the transcript in context, we agree that

Father has waived his claim. It is well-settled that,

       [i]n order to preserve an issue for appellate review, a party must
       make a timely and specific objection at the appropriate stage of
       the proceedings before the trial court. Failure to timely object to
       a basic and fundamental error will result in waiver of that issue.
       On appeal the Superior Court will not consider a claim which was
       not called to the trial court's attention at a time when any error
       committed could have been corrected. In this jurisdiction . . .
       one must object to errors, improprieties or irregularities at the
       earliest possible stage of the adjudicatory process to afford the
       jurist hearing the case the first occasion to remedy the wrong
       and possibly avoid an unnecessary appeal to complain of the
       matter.

In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010), quoting Thompson v.

Thompson, 963 A.2d 474, 475 476 (Pa. Super. 2008); see also Pa.R.A.P.

7
    Prior to this discussion, the trial court stated incorrectly that the PFA

does not appear that there was any confusion as to which hearing was


                                      -10 -
J-S47030-14


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

raised for the first time on appeal.



that the PFA testimony be incorporated into the record.        To the contrary,



and no relief is due.

      Father next claims that the trial court erred by limiting the testimony

                    ounselor, Dana Greene, during the custody hearing on

                                        -35. Father argues that the trial court

held incorrectly that he could not question Ms. Greene about her counseling

sessions with the Children. Id.

      Our standard of review is well-settled:

      When we review a trial court ruling on admission of evidence, we
      must acknowledge that decisions on admissibility are within the
      sound discretion of the trial court and will not be overturned
      absent an abuse of discretion or misapplication of law. In
      addition, for a ruling on evidence to constitute reversible error, it
      must have been harmful or prejudicial to the complaining party.

      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied, or
      the judgment exercised is manifestly unreasonable, or the result
      of partiality, prejudice, bias or ill-will, as shown by the evidence
      or the record, discretion is abused.

Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014), quoting Stumpf v.

Nye, 950 A.2d 1032, 1035 36 (Pa. Super. 2008), appeal denied, 962 A.2d

1198 (Pa. 2008).



                                       -11 -
J-S47030-14




to Ms. Greene were covered by the psychiatrist/psychologist privilege. The

relevant statute provides as follows.

       No psychiatrist or person who has been licensed under the act of
       March 23, 1972 (P.L. 136, No. 52), to practice psychology shall
       be, without the written consent of his client, examined in any
       civil or criminal matter as to any information acquired in the
       course of his professional services in behalf of such client. The
       confidential   relations  and    communications      between    a
       psychologist or psychiatrist and his client shall be on the same
       basis as those provided or prescribed by law between an
       attorney and client.

42 Pa.C.S.A. § 5944.8




privilege has been found to be waived, and that, even if the court were not



of any potential rebuttal testimony by Dana Greene, M.Ed. did not justify

                                                                           r

                                                      -8, citing Gormley v.

Edgar, 995 A.2d 1197, 1204 (Pa. Super 2010). The trial court also states

that, because of their age, the Children could not waive confidentiality

without consent of a parent or guardian, and points out that Mother did not




8
    We note that Ms. Greene did not specify that she is a psychiatrist or a


at 3/14/2013, at 14.
                                        -12 -
J-S47030-14


consent to waive confidentiality.    Trial Court Opinion, 4/14/2014, at 6-8,

citing 55 Pa. Code § 5100.33(a).9

        Father makes no effort to challenge the applicability of 42 Pa.C.S.A.

§ 5944 or 55 Pa. Code § 5100.33(a) to the present case. Instead, Father




contends that the privilege was waived because Mother and the Children



                          Id.




9
    55 Pa. Code § 5100.33(a) provides, in relevant part:

        When a client/patient, 14 years of age or older, understands the
        nature of documents to be released and the purpose of releasing
        them, he shall control release of his records. . . . In the event
        that the client/patient is less than 14 years of age or has been
        adjudicated legally incompetent, control over release of the
        client's/patient's records may be exercised by a parent or
        guardian of the client/patient respectively.

                         to records of persons seeking, receiving or having
received mental health services from any facility as defined in
Health Procedures Act (MHPA), 50 P.S. §§ 7101 7503. 55 Pa. Code §
5100.31(a). The MHPA
treatment of mentally ill persons, whether inpatient or outpatient, and for all


care center, base service unit, community mental health center, or part
thereof, that provides for the diagnosis, treatment, care or rehabilitation of
                                                            50 P.S. § 7103.


                                      -13 -
J-S47030-14


     Father asserts first that Mother waived the privilege by reading a

portion of a petition for special relief on the record during the prior PFA

                              -29, 31-35. Father also argues that, even if the

relevant privilege were not waived in its entirety, it should be found to be

waived in part. Id. at 30-32. Accor

want to open all

specific to what had already been testified to by the Children to offer

relevant evidence to refute the testimony    Id. at 30 (emphasis in original).



                   Id. at 32-33.

     Father is not entitled to relief, as he has failed to advance any claim

                                                           sue in the instant

case. When interpreting the scope of the statutory psychiatrist-psychologist

privilege found at 42 Pa.C.S.A. § 5944, this court has explained:

     [Section 5944] pertains only to confidential communications
     between psychiatrists or psychologists and their patients/clients
     that were made in the course of treatment, not to all records and
     documents regarding mental health treatment. Gates v. Gates,
     96
     psychologist/patient privilege is to aid in the effective treatment
     of the client by encouraging the patient to disclose information
                                                                 Zane v.
     Friends Hospital, [836 A.2d 25, 33 (Pa. 2003)]. The privilege
     is based upon a strong public policy designed to encourage and
     promote effective treatment and to insulate the client's private
     thoughts from public disclosure. Kalenevitch v. Finger, 595
     A.2d 1224 (Pa. Super. 1991). This Court holds this privilege in
     the highest regard, recognizing that such confidential statements
     are the key to the deepest, most intimate thoughts of an
     individual seeking solace and treatment.            However, such

                                     -14 -
J-S47030-14


        confidential communications are only protected to the same
        extent as those between an attorney and his client.       The
                                                          10
        privilege is not absolute; it may be waived.              Our
        Commonwealth Court in Rost v. State Board of Psychology,
        659 A.2d 626, 629 (Pa. Cmwlth. 1995), held that the privilege


        circumstances, the client himself or herself has turned the key to
        voluntarily unlock those privileged communications.

Gormley, 995 A.2d at 1204 (footnote in original; parallel citations omitted).

        While Father claims that we should find waiver, at least in part,



                                                       ief at 32, Father fails to




issues. Irwin Union Nat. Bank and Trust Co. v. Famous, 4 A.3d 1099,

1103 (Pa. Super. 2010), appeal denied, 20 A.3d 1212 (Pa. 2011) (citing

Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n. 5 (Pa. 1997)). To




that we can consider it in determining whether he is entitled to relief. Father




10
     The statutory psychiatrist-psychologist/patient-client privilege, 42 Pa.C.S.

confidential communications between psychiatrists/psychologists and their
clients will be treated in the same way as communications subject to the
attorney-client privilege. The statutory provision governing the attorney-
client privilege in civil actions, 42 Pa.C.S. § 5928, expressly states that the
privilege may be waived.
                                       -15 -
J-S47030-14


has not overcome the evidentiary privilege found in section 5944 based upon




relief opened the door to otherwise privileged testimony from Ms. Greene.

See                        -34.   Specifically, Father quotes the following




waived confidentiality under section 5944:

      [R.C]: When [the Children] have told their therapist, Dana
      Green, that they are hit by their [F]ather and grandfather,
      Father physically abuses them for having done so.             The
      [C]hildren are now afraid to tell their therapist about the abuse
      because of retaliation by Father afterwards.

                    quoting N.T., 1/29/13, at 48.

      We fail to see how the quoted passage placed the mental health of the

Children at issue in the present custody dispute.       Although the mental

well-being of children is always a concern in custody proceedings, it was the

physical safety of these Children (and specifically their safety while in




waiver under Naglak v. Pennsylvania State University, 133 F.R.D. 18

(M.D. Pa. 1990). In Naglak, the trial court held that the plaintiff waived her

attorney/client privilege because she disclosed statements allegedly made by

counsel during settlement negotiations and relied upon those statements to


                                    -16 -
J-S47030-14


prove her claim. Id. at 22-23. Here, there were many instances of abuse

referenced in the testimony before the trial court.         Thus, the details

surrounding the Children

suffered at the hands of their Father and grandfather, by themselves, were

not a central component in the custody claims advanced by Mother. These

confidential statements between the Children and their therapist were not



the Children reported physical abuse was what was important. There is no

basis for setting aside the privilege and permitting Father carte blanche

access to the Childre




the trial court are either contradicted or unsupported by the recor

Brief at 35-



as follows.

      While not articulated by the trial attorney, the testimony of
      Patricia Johnson is devastating to this finding of fact. Judge
      Johnson took testimony from the three boys on January 29 th
      2013. After this testimony and before the next court date, they
      met with Patricia Johnson and told her a different story. By the
      next court date, the story changed back to the version they told
      the judge and attorneys in this case.         This is evidence of
      coaching on the record. This evidence concerns an evolution of
      the stories the children are telling while under the care of Mother
      in this case. Fathe

      testified; meaning the only source of this knowledge in the

                                     -17 -
J-S47030-14



      threatened Father with legal


      this language is from Mother, as the threats were always
      directed against Father. The evolution of the testimony of the
      Children from 1-29-2013 to 2-15-2013, after two weeks with
      Mother to prepare, is also evidence of coaching . . . .

                   -36.



coached the Children, but explains that it did not find this assertion

persuasive.   Amended Final Custody Order, 2/27/2014, at Appendix pgs.

2-3. As noted supra, the trial court was free to weigh the evidence and to

make credibility determinations as it saw fit. V.B., 55 A.3d at 1197.      We

discern no abuse of discretion.




Father, however, makes no effort to explain how this finding was




danger of abuse, whic                                                      Id.



excessively on acts of past abuse, rather than the danger of present abuse,

                                             ment of questions involved or his



                                     -18 -
J-S47030-14


concise statement. Therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii);

Pa.R.A.P. 2116(a); Krebs, 893 A.2d at 797.

       Finally,   Father    lists   19   different   factual   findings   and     legal

determinations that he claims are unsupported by the record.                    Father,

however, has not developed and advanced individualized challenges to these

assessments nor has Father detailed how the factual record refutes these

                                                                                     e

                                                         Irwin Union Nat. Bank

and Trust Co., 4 A.3d at 1103.           To the extent Father argues that it was



presented as to the availability



finding, and to any evidence of record showing that this was an erroneous

determination.        Father has made no effort to do so here, and he is not

entitled to relief.

       Moreover, even if we were to conclude that one or more of the listed

findings are without the support in the record, we would still affirm the



reve

and behaves erratically, and that Mother should be awarded primary



best interest factors listed in section 5328(a). Thus, no relief is due.


                                         -19 -
J-S47030-14

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/25/2014




                          -20 -
