J-S40029-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

N.L.P.,                                    : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
S.M.K.,                                    :
                                           :
                    Appellant              : No. 292 WDA 2015

                 Appeal from the Order entered February 4, 2015,
                      Court of Common Pleas, Blair County,
                         Civil Division at No. 2011 GN 134

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED JUNE 26, 2015

      Appellant, S.M.K. (“Father”), appeals from the order entered on

February 4, 2015 by the Court of Common Pleas of Blair County awarding

joint physical and legal custody of S.N.G.-K. (“Child”) to Father and

Appellee, N.L.P. (“Mother”). For the reasons that follow, we affirm.

      The relevant facts and procedural history of this case are as follows.

Mother and Father are the biological parents of Child, who was born in

September 2009. Mother and Father met while employed at Cresson State

Correctional Institute.    Mother is a registered nurse and Father was a

corrections officer.    Both Mother and Father are currently retired from

employment with the Commonwealth.          Mother and Father never married,

but lived together for a brief period, and separated when Child was

approximately fifteen months old. Mother is currently engaged to J.B., with




*Retired Senior Judge assigned to the Superior Court.
J-S40029-15


whom she has had an intimate relationship since approximately October

2013.

        Prior to the events surrounding this appeal, Mother and Father equally

shared custody of Child pursuant to an order entered by the trial court on

December 23, 2011. On October 2, 2013, Father filed a petition to modify

the custody order seeking primary custody of Child because he wanted her

to attend pre-kindergarten in Ebensburg, Pennsylvania, where he currently

resides.

        Father claims that in November 2013, Child disclosed to Father’s

mother and sister that J.B. had inappropriately touched and kissed Child.

Upon learning this information, Father took Child to the Logan Township

Police to file a report.   At that time, Sergeant David Hoover (“Sergeant

Hoover”), a child abuse investigation specialist, attempted to interview Child,

but she refused to talk to him.       Father then went to the Blair County

Courthouse to request an emergency protection from abuse order (“PFA”)

against J.B.    Father later withdrew his request for a PFA because Mother

agreed that there would be no contact between Child and J.B. pending the

outcome of a forensic interview by Logan Township Police and Blair County

Children, Youth, and Family Services (“CYF”).         Because there was no

evidence that any inappropriate touching or kissing occurred, both Logan

Township Police and CYF determined that the allegations of abuse against

J.B. were unfounded.



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      On December 31, 2013, Mother filed a petition for a custody

evaluation based upon her concern that Father was influencing Child to

make these abuse allegations against J.B. In early 2014, Douglas Ramm,

Ph.D (“Dr. Ramm”), a forensic psychologist, performed the custody

evaluation. In his report, Dr. Ramm stated that he was unable to determine

whether J.B. had sexually abused Child or whether Father had improperly

encouraged Child to lie about the allegations. Custody Evaluation, 5/6/14,

at 21-22.     Dr. Ramm concluded, however, that J.B. had a number of

negative personality traits, including narcissistic and paranoid tendencies

and that J.B. was a significant source of stress for Child. Id. at 11, 21. Dr.

Ramm further concluded that if Child was to have further contact with J.B.,

she should develop a therapeutic relationship with a therapist and that her

first contact with J.B. should occur in the presence of the therapist. Id. at

22.

      Mother engaged Shirley Knapp (“Knapp”) in response to Dr. Ramm’s

recommendation that Child receive counseling prior to having contact with

J.B. Father objected to Knapp’s counseling as Mother did not inform him of

her counseling prior to its commencement and he believed it did not follow

Dr. Ramm’s recommendations because J.B. was involved in the counseling

sessions. Knapp conducted four separate one-hour sessions with Child that

included Mother and J.B. and found Child’s interaction with J.B. was

appropriate. N.T., 7/18/14, at 5-6.



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      The trial court held a half-day custody hearing on July 18, 2014. Both

Mother and Father requested additional time to present more witnesses and

the trial court held another hearing on December 10, 2014.         Prior to the

December 10, 2014 hearing, another incident occurred prompting another

investigation by the Logan Township Police and CYF. According to Mother,

Child accidentally injured herself in her vaginal area by cutting herself with a

clothes shaver.   N.T., 12/10/14, at 40-41.     Father claimed, however, that

Child told Father’s mother that J.B. did this to her.     Father and Father’s

mother took Child to the hospital. Child reported at the hospital that J.B.

had caused her injury. Id. at 85. Only Father’s mother was with Child when

she made this report as Father had opted to stay in the waiting room. Id. at

86.   Based on these allegations, CYF arranged for a second forensic

interview and decided to place Child in foster care in order to prevent either

Mother or Father from influencing Child before the forensic interview. CYF

placed Child in the custody of Dorrie Raihl (“Raihl”).

      The second forensic interview did not reveal whether J.B. was abusing

Child or whether Father was improperly influencing Child to lie about the

sexual abuse allegations. Sergeant Hoover, who was present for the second

forensic interview, concluded that the alleged child abuse did not occur and

the allegations arose from Father’s influence. Id. at 12, 17. Furthermore,

Raihl testified that she overheard several telephone conversations between

Child and each of her parents while Child was in her care. Id. at 126-27.



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Raihl stated that Mother’s conversations with Child were appropriate, but

that Father attempted to improperly influence Child. Id.

      On February 4, 2015, the trial court entered an order granting Mother

and Father joint physical and legal custody of Child. The order stated that

Child’s primary residence during the school year was to be with Mother, that

Child was to attend school in the Altoona Area School District, and that

Mother and Father would equally share custody over the summer.                 On

February    19,   2015,   Father   filed   a   timely   notice   of   appeal   and

contemporaneously with his notice of appeal, Father filed his concise

statement of the errors complained of on appeal pursuant to Rule

1925(a)(2)(i) of the Pennsylvania Rules of Appellate Procedure.

      On appeal, Father raises the following issue for our review and

determination:

            Whether the [c]ourt erred in determining in looking
            through the custody factors that [factors one, four,
            eight, nine, ten, and thirteen] all significantly favored
            [Mother] and was the main reason why custody was
            granted toward [Mother]?

Father’s Brief at 4.

      We begin by acknowledging our scope and standard of review for

custody cases:

            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



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J-S40029-15


            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.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (quoting Durning v.

Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011)).

      “With any child custody case, the paramount concern is the best

interests of the child.” Id. The legislature enacted section 5328(a) of the

Child Custody Act in order to delineate the “factors the trial court must

consider when awarding any form of custody.” Id. at 651 (citation omitted).

Section 5328(a) sets forth a list of factors that trial courts must consider “in

a best interests of the child analysis in making any custody determination.”

E.D. v. M.P., 33 A.3d 73, 79-80 (Pa. Super. 2011) (citing 23 Pa.C.S.A.

§ 5328(a)) (footnote omitted).     The factors listed in section 5328(a) that

trial courts must consider when determining a child’s best interest include:

            (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




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J-S40029-15


          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).

          (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




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J-S40029-15


            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.

42 Pa.C.S.A. § 5328(a).

      In this case, the trial court based its custody decision on its

determination that Father improperly influenced Child to make false

allegations of abuse by J.B.   Trial Court Opinion, 2/4/15, at 9.   The trial

court’s findings regarding Father’s behavior are as follows:

            There is nothing in the record that supports Father’s
            beliefs or accusations against [J.B.] This [c]ourt
            states here that it does not believe that [J.B.] has
            had any inappropriate contact whatsoever with
            [Child] and any prohibitions of contact of [J.B. with
            Child] are no longer necessary[.]

                                *        *    *

            The [court,] relying on Sgt. Hoover, [CYF], the
            counseling report of [Knapp], and finally the report
            of conduct [by Raihl], comes to the inescapable
            conclusion that Father’s efforts to improperly
            influence   [Child   were]   done    without    any
            consideration of the consequences which they inflict
            upon her.

Trial Court Opinion, 2/4/15, at 15-16.

      Based on these findings, the trial court concluded that factors one

(which party is more likely to encourage and permit frequent and continuing



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J-S40029-15


contact between the child and another party), four (the need for stability

and continuity in the child’s education, family life and community life), eight

(the attempts of a parent to turn the child against the other parent), nine

(which party is more likely to maintain a loving, stable, consistent and

nurturing relationship with the child), ten (which party is more likely to

attend to the daily physical, emotional, developmental, educational and

special needs of the child), and thirteen (the level of conflict between the

parties and the willingness and ability of the parties to cooperate with one

another) of section 5328(a) each strongly favored Mother.1

      Father argues that the trial court’s finding that he improperly

influenced Child to make false claims of sexual and physical abuse against

J.B. is not supported by the record. Father’s Brief at 11. Father contends

that there is evidence in the record supporting Child’s claims of abuse and

neither Dr. Ramm’s custody evaluation nor either of the two forensic

interviews were conclusive as to whether Father improperly influenced child.

See id. at 13-18. Father also points to other evidence in his favor, such as

Dr. Ramm’s report revealing that Child told Dr. Ramm that J.B. abused her

and Dr. Ramm’s conclusion that J.B. was a significant source of stress for

Child. See id. at 15-16.




1
   The trial court found that the remaining factors of section 5328(a) either
did not apply or minimally influenced its decision. See Trial Court Opinion,
2/4/15, at 9-14.


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      Father’s argument asks to reweigh the evidence in his favor and

disregard the evidence of record relied upon by the trial court.        This we

cannot do.    See J.R.M., 33 A.3d at 650.       The certified record on appeal

supports the trial court’s determination. Raihl, Child’s foster parent, testified

that she overheard Father attempting to improperly influence Child to lie

about J.B. N.T., 12/10/14, at 126-27. Specifically, Raihl testified:

             Q.    Okay, and Ms. Raihl, there’s been conflicting
             testimony that one or the other parent made efforts
             to contact [Child] prior to when she went to that
             evaluation. Would you have known of any contact
             that was made to [Child] while she was under your
             care, ma’am?

             A.    She had regular phone calls with both parents
             usually on a daily basis.

             Q.    Okay. And would you have as part of what you
             do, do you listen to those phone calls, Ms. Raihl?

             A.    She --- [Child] sat rather close to me a few
             times and I could overhear some of the phone calls.

             Q.     Okay. And Ms. Raihl, from the conversations
             that you directly heard, did either parent make any
             efforts at all to influence or to persuade [Child] to
             say one thing or another?

             A.    I never heard her mother say anything other
             than she missed her and loved her[,] normal
             conversations. There [were] a few conversations
             with her father that [Child] got extremely upset
             about and my husband and I both were listening to
             the one phone call because it didn’t sound right and
             he was talking about something about taking her
             away and asked her if she liked airplanes and trains
             and something else, it’s only forty some dollars to
             take her to Disney and as soon as he gets her and if



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               she does what he tells her to do he’s going to buy
               her all this stuff and take her on a trip. So that kind
               of sounded odd so I wrote that all down and turned
               that in the day of that [sic] she went to State
               College.

                                   *     *      *

               A.    There [were] a few times that, you know, they
               were talking about something called the truth or like
               daddy’s truth and another truth and I wasn’t really
               sure what they were talking about.           When I
               questioned [Child,] she just said that her daddy gets
               mad that she doesn’t lie. I didn’t know what she
               was talking about so I asked her and she just said
               that she’s supposed to lie about this guy named
               [J.B.] and I said who’s [J.B.]       She said that’s
               mommy’s boyfriend and that she liked him and she
               liked her mommy but she was afraid of her daddy
               because he would get angry whenever she wouldn’t
               lie and that was the only thing that [Child] ever told
               me.

Id.   Sergeant Hoover likewise testified that based on his experience and

time spent with Child, he believed that Father was influencing Child to lie

about the allegations of abuse pertaining to J.B. Id. at 17.

      Moreover, there is ample evidence of record supporting the trial court’s

conclusion that J.B. had not been abusing Child. Sergeant Hoover testified

that there has never been sufficient evidence to charge J.B. with any crime.

Id. at 16-17. Kirin McCaulley testified on behalf of CYF that the outcomes of

both of CYF’s investigations into the claims of abuse against J.B. were

unfounded and that there was not enough evidence to support any of the

allegations.    Id. at 122-23.    Furthermore, Knapp testified that during her




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counseling sessions with Mother, J.B., and Child, she observed Child and J.B.

exhibit a healthy interaction during which Child appeared “very carefree, no

anxiety noted, no stress.” N.T., 7/18/14, at 6.

      Therefore, based upon our review of the certified record, the evidence

supports the trial court’s determination that Father improperly influenced

Child to make false allegations of sexual abuse against J.B. and that factors

one, four, eight, nine, ten, and thirteen of section 5328(a) favored Mother.

Accordingly, Father is not entitled to any relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/26/2015




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