J-A04007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.C.,                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

A.B.,

                            Appellant                No. 3115 EDA 2016


                 Appeal from the Order Entered August 1, 2016
                In the Court of Common Pleas of Monroe County
              Civil Division at No(s): 1186 CV 2016, 193 DR 2016


BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 05, 2017

        A.B. (“Father”) appeals the order entered August 1, 2016, permitting

K.C. (“Mother”) to relocate with the parties’ minor sons, A.C.B., born in

January of 2012, and R.M.B., born in May of 2013 (collectively, the

“Children”), from Brodheadsville, Monroe County, Pennsylvania, to Seaford,

Sussex County, Delaware. The order also awarded shared legal custody of

the Children to the parties and primary physical custody to Mother with

periods of physical custody to Father.1 We affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The trial court referred to this as shared physical custody. Order, 8/1/16,
at 18, ¶2.
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       On February 19, 2016, Mother filed a complaint for primary physical

custody of the Children and a request to relocate with the Children to

Seaford, Delaware.2 On February 23, 2016, Father filed a counter-affidavit

objecting to the proposed relocation.            Mother filed a notice of proposed

relocation on February 24, 2016. On March 23, 2016, Father filed an answer

and new matter containing a modification request seeking primary physical

custody of the Children if Mother pursued relocation.3, 4

       The court conducted a custody/relocation hearing on June 1, 2016.

Mother and Father, who were both represented by counsel, each testified on

their own behalf. In addition, the court heard from: Maternal Grandmother,

A.C.; Mother’s friend, Amanda Lloyd; Father’s employer and friend, Kevin

Conkle; Father’s employer, Frank Malpere; Paternal Grandmother, K.B.; and

Father’s cousin, B.R.5 At the time of the hearing, Mother and Father, who

____________________________________________


2
   Mother grew up in the Seaford, Delaware area and her extended family,
including her mother, father, step-mother, sister, and brother, continue to
reside there. N.T., 6/1/16, at 7, 60. In addition, Mother and Father
previously resided in this area from August 2012 to August 2013. Id. at 15.
3
   At the time of the hearing, Father requested primary physical custody if
Mother relocated to Delaware. In the event Mother chose not to relocate,
Father, however, requested shared physical custody. Id. at 225-226.
4
   Upon review of the record, prior to the entry of the August 1, 2016 order,
the parties were not subject to a court order with regard to legal and
physical custody of the Children.
5
   The trial court incorrectly refers to B.R. as Father’s sister.         Opinion,
8/1/16, at 5.



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were separated and had a “strained” relationship, continued to reside

together in the same residence in Brodheadsville. N.T., 6/1/16, at 5, 13. At

the conclusion of the hearing, the court denied Mother’s oral request to

temporarily grant the relocation pending the court’s decision, and declined to

require Father to vacate the parties’ residence. Id. at 285-289.

       By order dated and entered August 1, 2016, the court granted

Mother’s request to relocate to Seaford, Delaware.           The court further

awarded shared legal custody to the parties, and primary physical custody to

Mother with physical custody to Father on alternating weekends from Friday

at 6:00 p.m. until Sunday at 5:00 p.m., at any time there is a break in the

school calendar of five consecutive days and as the parties agree.6 Also on

August 1, 2016, the court issued an opinion analyzing the required custody

and relocation factors. Thereafter, on August 26, 2016, Father timely filed a

notice of appeal and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).       On September 6, 2016, the

court filed a formal opinion pursuant to Pa.R.A.P. 1925(a) incorporating, in

part, its opinion of August 1, 2016.7

       In his brief on appeal, Father raises the following issues:
____________________________________________


6
   The court further directed the parties to maintain the current shared
physical custody schedule until relocation occurs. Order, 8/1/16, at 18, ¶2A.

7
   While the court’s opinion pursuant to Pa.R.A.P. 1925(a) was filed and
docketed on September 6, 2016, we note it was not forwarded until
September 7, 2016.



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     A. Did the court err in its application of the relevant relocation
        factors and ultimate finding that [M]other carried her burden
        of showing the relocation and change in primary custody was
        in the [C]hildren’s best interest?

     B. Was it error for the court to consider evidence not of record,
        which was not subjected to cross examination, including a
        letter referencing a drug report and testimony which was
        heard in a PFA matter on essentially the same facts by
        another judge of concurrent jurisdiction?

Father’s Brief at 10 (emphasis omitted).

     In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.

§§ 5321-5340, our standard of review 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 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) (internal citation

omitted).

     We have stated:

     the 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) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

     In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard:

     Although we are given a broad power of review, we are
     constrained by an abuse of discretion standard when evaluating
     the court’s order. 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.

Id. at 18-19 (quotation and citations omitted).

     With any custody case decided under the Act, the paramount concern

is the best interests of the child.          See 23 Pa.C.S. §§ 5328, 5338.

     Section 5323 of the Act provides for the following types of awards:

     (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.

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          (7) Sole legal custody.

23 Pa.C.S. § 5323(a).

      Section 5338 of the Act provides that, upon petition, a trial court may

modify a custody order if it serves the best interests of the child. 23 Pa.C.S.

§ 5338.   Section 5328(a) sets forth the best interest factors that the trial

court must consider.    E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.

2011).

      Section 5328(a) of the Act provides as follows:

      § 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.

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           (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.

23 Pa.C.S. § 5328(a).

     Further, Section 5337(h) sets forth the relocation factors that a trial

court must consider when ruling on a relocation petition. E.D., 33 A.3d at


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79. Where a request for relocation of the subject child is involved, the trial

court must consider the following ten relocation factors set forth within

Section 5337(h) of the Act:

      (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.

         (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.

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         (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. § 5337(h). See E.D., 33 A.3d at 81 (“Section 5337(h) mandates

that the trial court shall consider all of the factors listed therein, giving

weighted consideration to those factors affecting the safety of the child.”)

(emphasis in original).

      Further, with regard to the custody and relocation factors, we have

stated as follows:

      “All of the factors listed in [S]ection 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). Section 5337(h) requires courts to consider all
      relocation factors. E.D., supra at 81. The record must be clear
      on appeal that the trial court considered all the factors. Id.

      Section 5323(d) provides that a trial court “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). Additionally,
      “section 5323(d) requires the trial court to set forth its
      mandatory assessment of the sixteen [Section 5328(a) custody]
      factors prior to the deadline by which a litigant must file a notice
      of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
      appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). Section
      5323(d) applies to cases involving custody and relocation.
      A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa.Super. 2013). A.V. v.
      S.T., 87 A.3d 818, 823 (Pa. Super. 2014).

      In expressing the reasons for its decision, “there 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.” M.J.M.
      v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,
      [620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of



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      reasons for its decision, which adequately addresses the relevant
      factors, complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014) (emphasis in

original). Moreover, “When a custody dispute involves a request by a party

to relocate, we have explained ‘there is no black letter formula that easily

resolves relocation disputes; rather, custody disputes are delicate issues that

must be handled on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417,

421 (Pa. Super. 2012) (quoting Baldwin v. Baldwin, 710 A.2d 610, 614

(Pa. Super. 1998)).

      Turning to Father’s first issue, he asserts that the trial court misapplied

the relevant relocation factors and erred in finding Mother established that

primary physical custody and relocation was in the Children’s best interest.

Father’s Brief at 14.    Father argues that, as he was involved with the

Children on a daily basis, his “full-time role . . . was not adequately

addressed, the order was inappropriate under the law, and not in the

children’s best interest.”   Id.   Referencing a lack of career advancement,

poor educational performance, the necessity for daycare and impact on daily

routine, and severance of family bonds, he proffers that Mother presented

“no compelling reason” for relocation and “[a]bsent[] the alleged conflict

between the parties, relocation is clearly not warranted.” Id. Father avers

relocation affords “no great improvement” to the quality of life for Mother or

the Children. Id. at 16-17. Likewise, given his and his family’s extensive

involvement with the Children, coupled with Mother’s desire to relocate three



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and one-half hours away, Father argues there is no adequate substitute

custody arrangement. Id. at 17. Lastly, Father questions the trial court’s

finding of no educational advantage weighing towards the Children’s quality

of life and long-term well-being in light of the evidence of Seaford School

District’s poor performance.       Id. at 18.   Noting the statistical evidence

presented as to the two school districts in question, Father states, “Despite

these facts, the trial court found, that ‘neither School has an educational

advantage over the other,’ which is clearly against the facts as presented.”

Id. (internal citation omitted).

        As we construe this issue, Father questions the trial court’s findings of

fact and determinations regarding credibility and weight of the evidence.

Under the aforementioned standard of review applicable in custody matters,

these are not disturbed absent an abuse of discretion. See C.R.F., 45 A.3d

at 443. Upon review, we find no abuse of discretion.

        In the case at bar, as required by law, the trial court carefully analyzed

and addressed the factors under Section 5328(a) and Section 5337(h) in

considering the Children’s best interests and relocation. Opinion, 8/1/16, at

5-13.    Significant to the trial court were Father’s anger and threatening

behavior and the resulting conflict between the parties, as well as Father’s

drug use. Id. at 6-10, 13-14.

        Mother described the home environment as “toxic” and “hostile”

noting, “[Father] is very angry. He does not communicate well, so it tends

to lead to arguments, lots of yelling, lots of screaming. . . .” N.T. 6/1/16, at

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31.   She confirmed that this led to destructive behavior, such as Father

breaking things and putting holes in walls. Id. at 32-33.

      Moreover, evidence was also presented of Father’s threatening

behavior.      Most   recently,   approximately    one   week     prior   to   the

custody/relocation hearing and the morning of the pre-hearing, Mother

indicated that she called the police after Father became angered that she

gave child A.C.B. milk in bed, and he threatened Mother. N.T., 6/1/16, at

38. Mother testified, “He was very angry. He had threatened against [sic]

me he was going to harm me. And then when he left in his fit of anger, he

took his handgun with him and left the house very abruptly.” Id. at 38-39.

Specifically, as reported by Mother, Father stated “he was going to knock

[me] out and he should have done it a long time ago.”           Id. at 38, 115.

Similarly, Mother recounted another incident where Father became angered

and flipped the mattress after A.C.B. had an accident and wet the bed. Id.

at 33-34. Discussing this incident, Father admitted he was “not a great role

model” for his children. Id. at 265.

      In yet another incident, Mother described Father becoming angered

with and confronting another driver with a gun while the Children were in

the car.    N.T., 6/1/16, at 40-41.    In addition, altercations between Father

and his brother-in-law, as well as Father and his uncle, were related. Id. at

19-20, 43. Further, Mother testified that Father smoked marijuana “daily,”

including while the Children were in his care.       Id. at 42.    While Father

indicated his intent not to smoke in the future, he acknowledged that he last

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smoked two and one-half to three weeks prior to the custody/relocation

hearing. Id. at 235, 262.

     In summarizing its analysis, the trial court stated as follows:

           In conclusion, we find that the factors weigh more heavily
     in favor of the Children relocating to Seaford, Delaware. We
     make this determination after careful review of the record and
     evidence. While no one factor alone outweighs any other factor,
     we must consider all the factors together to determine what is
     best for the Children. Father has had repeated outbursts, the
     last one which resulted in the issuance of a PFA. In addition,
     after Father indic[a]ted that he does not want to use drugs, he
     recently tested positive for a controlled substance. We are
     concerned about the level of hostility between the parties and
     Father’s apparent inability to control his anger. We will require
     Father to continue with anger management counseling and drug
     and alcohol treatment. In weighing all if [sic] these factors; we
     believe that it would be in the best interests of the Children to
     relocate with Mother.      Accordingly, we will grant Mother’s
     request to relocates [sic] and her request for primary physical
     custody of the Children.

           Nevertheless, we recognize that Father has been involved
     in the Children’s lives. As such, we will grant Father extended
     periods of visitation over school holidays and during summer
     school vacation. We believe, however, that Mother will be better
     able to continue to provide the care and support for the Children
     and that the relocation will be in the best interests of the
     Children. . . .

Trial Court Opinion, 8/1/16, at 13-14.

     After review of the record, we determine that the trial court’s findings

regarding the custody factors set forth in Section 5328(a) and relocation

factors set forth in Section 5337(h) and determinations regarding the

Children’s best interests and relocation are supported by competent

evidence in the record. See C.R.F., 45 A.3d at 443. As we find that the


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trial court has not abused its discretion, and its conclusions are not

unreasonable in light of the sustainable findings of the trial court, we will not

disturb them. Id.

       In his second issue, Father maintains the trial court committed

reversible error by considering extra-judicial evidence not subject to cross-

examination in violation of his right to due process.8      Father’s Brief at 19.

Specifically, Father points to a letter forwarded post-hearing that referenced

drug test results from Catholic Social Services, as well as a Protection from

Abuse (“PFA”) order entered against Father post-hearing.9            Id.   Father

suggests the trial court’s consideration of this evidence “had a prejudicial

effect” on the court’s analysis and determination of the relevant factors. Id.

Moreover, Father argues the court’s consideration of this evidence was in

violation of his right to due process and the “in court presentation of

evidence.”      Id. at 19-20.         Father further maintains that the court’s

consideration of this evidence as it relates to the PFA order was in violation

of the coordinate jurisdiction rule. Id. at 20. Father posits that, with the

PFA, Mother was attempting to exclude Father from the joint home based

upon the same evidence presented at the June 1, 2016 custody/relocation

hearing, where she was unsuccessful. Id. at 22.
____________________________________________


8
  We observe Father proceeded to provide extra-judicial evidence of his own
with his submissions to this Court.
9
    A final PFA order was entered against Father on July 25, 2016.



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      In assessing this challenge, the trial court found a lack of prejudice to

Father with regard to its ultimate determination regarding custody and

relocation. The trial court stated:

            [Father] complains that we erred in considering evidence
      which is not of record, a Protection from Abuse (“PFA”) Order.
      The PFA Order was entered after our hearing but before our
      Opinion was filed. We took judicial notice of the PFA Order
      which was issued by another judge of this Court. Nevertheless,
      we found [Mother] credible in her testimony concerning
      [Father’s] anger and outbursts. The issuance of the PFA did not
      have a prejudicial effect on our consideration of the factors for
      custody or granting of [Mother’s] request to relocate.

             In his next point of error, [Father] complains that we
      committed an error in admitting evidence related to an alleged
      positive test by [Father] for controlled substances. First, we did
      not admit the letter into evidence which references the positive
      test by [Father] for controlled substances. However, we agree
      that we should not have addressed the positive test by [Father]
      in our Opinion. Nevertheless, it does not change our decision
      about what is in the Children’s best interest and permitting the
      relocation to Seaford, Delaware. We find no error in this issue.

Statement Pursuant to Pa.R.A.P. 1925(a), 9/6/16, at 1-2 (unpaginated).

With this, we agree.

      An error will be deemed harmless if:

      (1) the error did not prejudice the defendant or the prejudice
      was de minimus; or (2) the erroneously admitted evidence was
      merely cumulative of other untainted evidence which was
      substantially similar to the erroneously admitted evidence; or (3)
      the properly admitted and uncontradicted evidence . . . was so
      overwhelming and the prejudicial effect of the error was so
      insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007).                     See

Foflygen v. Allegheny General Hospital, 723 A.2d 705, 708 (Pa. Super.

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1999) (“[Evidentiary] rulings must be shown to have been not only

erroneous but also harmful to the complaining part[y].”).

        Instantly, as indicated above, evidence was presented that Father

smoked marijuana on a daily basis, including while the Children were in his

care.    N.T., 6/1/16, at 42.        Father himself admitted to having smoked

marijuana within two and one-half to three weeks of the custody/relocation

hearing. Id. at 235, 262. Moreover, Father had not completed a drug and

alcohol evaluation as court-ordered.10 Id. at 234-235, 260-262.

        As to Father’s anger and abusive behavior, evidence was presented

regarding incidents involving Father’s outbursts and threatening behavior,

including those directed to and in the presence of the Children and involving

firearms. Id. at 33-34, 38-41. In addition, Father had not completed anger

management, as court-ordered.11 Id. at 233-234, 257-259. As such, there

was sufficient evidence with regard to Father’s drug use and anger that the

post-hearing evidence regarding drug test results and a PFA was merely



____________________________________________


10
     By order dated March 15, 2016, and entered March 18, 2016,
incorporating the recommendations of the custody conciliation conference,
Father was directed to submit himself to Catholic Social Services for a drug
and alcohol evaluation and follow all recommendations for treatment. Order,
3/18/16, Recommendation, ¶2.

11
      Also by order entered March 18, 2016, Father was instructed to attend
family counseling focusing on anger management at Catholic Social Services
for consecutive weeks. Order, 3/18/16, Recommendation, ¶1.



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cumulative and was not prejudicial, thereby rendering any error harmless.

Thus, Father’s claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2017




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