J-A03002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.P.T.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

J.L.T.

                            Appellant                No. 1154 MDA 2016


                  Appeal from the Order Entered June 15, 2016
              In the Court of Common Pleas of Cumberland County
                       Civil Division at No(s): 2011-07420


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 21, 2017

         J.L.T. (Mother) appeals from the trial court’s order denying Mother’s

request to reinstate a June 2012 parenting plan, putting a new parenting

plan into place, and granting A.P.T. (Father) primary physical custody and

Mother and Father shared legal custody of the parties’ minor daughter,

D.K.T. (born 5/2003).1 After careful review, we affirm.2

         The parties were married; they separated in January 2011.     In July

2011, Father filed a custody complaint against Mother seeking shared legal

custody and partial physical custody of D.K.T. and her siblings.           On
____________________________________________


1
  Parents have three children D.K.T., A.M. (born 1/2011), and L.P. (born
9/2006). Mother has primary physical custody of L.P. and A.M. The instant
appeal involves only D.K.T.
2
    Father has not filed a brief on appeal.
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December 13, 2011, Father was awarded partial physical custody and a

visitation schedule was arranged.      Father filed a contempt petition against

Mother for failing to abide by the custody order. The court found Mother in

contempt and sanctions were imposed against her.         On June 8, 2012, the

court entered a new custody granting Mother primary physical custody and

Father partial custody; the parties retained shared legal custody.

      In July 2015, Mother filed a petition for special relief, requesting that

Father’s visits with D.K.T. be supervised, claiming that D.K.T. has suffered

sexual, mental and verbal abuse while in Father’s custody.              Mother

specifically averred that Father’s Stepfather (paternal Step-Grandfather) had

sexually abused D.K.T. The petition was denied without a hearing and the

court ordered conciliation for the parties.     On August 6, 2015, the court

appointed Grace D’Alo, Esquire, as Guardian Ad Litem (GAL) for D.K.T.

      On October 7, 2015, the Cumberland County Children and Youth

Services (Agency) received a referral alleging that Mother had emotionally

abused D.K.T. The court held a dependency hearing and a safety plan was

developed which placed D.K.T. with her maternal grandparents. On October

21, 2015, the court continued the safety plan, but permitted Father to have

periods of partial physical custody.

      On October 29, 2015, the GAL filed a report and proposed order

recommending that primary physical custody be transferred to Father. On

October 30, 2015, the court terminated dependency, granted Father primary


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physical custody, and ordered that Mother continue to have no contact with

D.K.T. unless agreed to by all parties. Father was also ordered to provide

counseling or other therapy for D.K.T.         Mother filed a motion for

reconsideration, which was denied.      On February 17, 2016, the court

appointed a second GAL, Robert Hawn, Esquire, for D.K.T. when GAL D’Alo

had to travel out of the country.

      The court held a two-day custody hearing in March 2016.          At the

hearing, Doctor Ashley Milspaw, an expert in clinical psychology, testified

that she conducted a psychological evaluation of Mother and concluded that

she “seems to be an adequate parent and [knows how to] appropriate[ly]

parent[].”    N.T. Custody Hearing, 3/2/16, at 11.           Doctor Milspaw

recommended that Mother engage in some outpatient psychotherapy to

assist her with stress and anxiety she experienced associated with the

current custody battle and to help her with her health issues. Id. Child’s

maternal grandmother testified that while she was Child’s custodian, D.K.T.

seemed withdrawn and anxious at times and would try to seclude herself

from the rest of the family. Id. at 40. Grandmother also testified that she

never saw Mother do anything that would have caused concern with regard

to how she cared for her children.   Id. at 43.   Prior to living with Father,

maternal grandmother testified that Child was actively involved in basketball

and softball leagues, id. at 53, but since then had chosen not to play those

sports and has taken up babysitting after school. Id. at 53-52.


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       On April 7, 2016, the court held an evidentiary hearing where Father’s

fiancée testified regarding her relationship with D.K.T., Father’s involvement

with and parenting of D.K.T., and any interactions she had had with Mother.

Fiancée is the parent to two girls, six years old and eighteen years old,

whom she claimed have a sibling-like relationship with D.K.T.

       Father testified that he is concerned that a lot of negative talk about

him occurs when D.K.T. is at Mother’s home, coming from both Mother and

Mother’s father (maternal grandfather). N.T. Custody Trial, 3/3/16, at 45,

48.    On June 1, 2016, Hawn issued a report recommending that Mother be

awarded primary physical custody of D.K.T, with the following suggestions:

       (1)    D.K.T. promptly resume counseling sessions;

       (2)    D.K.T. actively reestablish herself in the community by
              engaging in sports, recreation, and social activities, as well
              as renewing friendships; and

       (3)    Mother undergo counseling to help her reconcile the failure
              of her marriage, resolve the issues with father, and move
              on with her life.

Guardian ad Litem Report, 6/1/16, at 18.3          In response to GAL Hawn’s

report, GAL D’Alo issued an unsolicited report contradicting GAL Hawn’s

recommendation that Mother be granted primary physical custody of D.K.T.

Specifically, GAL D’Alo made the following observations:

             Mother does not understand D.K.T.’s need for Father;
____________________________________________


3
   On July 23, 2016, GAL Hawn informed the court that he no longer
represented any party in interest in the matter after the court entered its
final custody order on June 15, 2016.



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            Mother will denigrate Father if D.K.T. is returned to her
             care;

            Mother will continue to limit D.K.T.’s contact with Father;
             and

            Mother’s reactions are not in the best interest of D.K.T.

GAL D’Alo’s Response to Report by GAL Hawn, 6/8/16, at 2.

      On June 15, 2016, the court entered the current custody order

awarding Mother and Father shared legal custody, awarding Father primary

physical custody and setting forth, in part, the following schedule:

            Mother has overnight physical custody of D.K.T. on the
             first and third weekends of even months; Father has
             overnight physical custody on the second weekend of even
             months;

            Father has overnight physical custody of D.K.T. on the first
             and third weekends of odd months; Mother has overnight
             physical custody on the second weekend of odd months;

            The parties shall attend co-parenting counseling at the
             request of either party;

            “Good night” phone calls shall be placed nightly to the
             non-custodial parent;

            Parents are encouraged to establish a mutually agreeable
             holiday custody schedule[.]

Trial Court Order, 6/15/16.      After conducting its analysis of the sixteen

section 5328(a) factors, the trial court set forth its reasons for fashioning the

instant custody award as follows:

      This Parenting Plan is strongly focused on [D.K.T.], her needs
      and best interest. This action was required by the ongoing
      drama at Mother’s house that culminated in this court reporting
      the neglect of this child to Cumberland County Children and
      Youth Services Agency. Mother is found to be duplicitous and
      insincere. She often over[-]corrects for problems she creates.

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      Mother is narcissistic, in that she seeks favorable treatment for
      herself, and automatic compliance[,] or else she will become
      exploitative. There are those who would describe Mother as a
      helicopter parent; however, truth be told there are times that
      she allows the children to be unsupervised as was demonstrated
      in the making and posting of the YouTube video. The fact that
      [D.K.T.] is thriving in her current household, in spite of all the
      tumult and uproar she has experienced this school year, is
      indicative that the prior court ruling was exactly what she
      needed and there is no reason to endanger her education any
      further. It is noted that the Guardian Ad Litem Hawn report
      believes a return to the June 2012 Parenting Plan would be in
      order and this report was duly considered. Indeed, the report
      makes several future recommendations about the best interest
      of [D.K.T.] including ongoing counseling which . . . per the last
      testimony is continuing; having Mother undergo counseling to
      help her reconcile the failed marriage, resolve her own father
      issues, and move on with her life; cut the every weekend travel
      for the chi[ld]ren; and also require Father to repay his student
      loans to assure children’s eligibility in the future.          The
      circumstances that led the [c]ourt to this drastic midyear school
      change still exist[] and without the ability of each parent to
      develop the respective co-parenting skills necessary, a strict
      structure is all the court can provide. The flexibility that co-
      parenting would provide to allow children to participate in
      extracurricular activities that occur on weekends when hey may
      be in [the] custodial time of another parent cannot be magically
      resolved by the [c]ourt. Only the parents have this ability, if
      they choose to use it, which heretofore they have not. Thus, in
      the best interest of D.K.T. . . . the above Parenting Plan has
      been established.

Trial Court Opinion, 6/15/16, at 13-14.      Mother filed a timely notice of

appeal and Pa.R.A.P. 1925(b) concise statement of matters complained of on

appeal. The trial court filed a Rule 1925(a) opinion where it incorporated, by

reference, the section 5328(a) custody factors set forth in its June 2016

Parenting Plan/Custody Order.

      On appeal, Mother raises the following issues for our review:



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      (1)   Did the trial court abuse its discretion in its analysis of the
            factors under 23 Pa.C.S. § 5328(a) by reaching
            unreasonable conclusions not supported by the evidence
            presented during the custody hearings?

      (2)   Did the trial court abuse its discretion in its analysis of the
            factors under 23 Pa.C.S. § 5328(a) by failing to address
            the subject matter of multiple factors?

      (3)   Did the trial court abuse its discretion in its Reasons for
            Award by making inferences and deductions not supported
            by the evidence of record?

Appellant’ Brief, at 4.

      The scope of review of an appellate court reviewing a child
      custody order is of the broadest type; the 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.

Kaneski v. Kaneski, 604 A.2d 1075 (Pa. Super. 1992) (citing McMillen v.

McMillen, 602 A.2d 845 (Pa. 1992)). In addition, with regard to issues of

credibility and weight of the evidence, we must defer to the presiding judge

who viewed and assessed the witnesses first-hand.         C.R.F. v. S.E.F., 45

A.3d 441, 443 (Pa. Super. 2012) (citation omitted). Moreover, the primary

concern in any custody case is the best interests of the child.

      Beginning on January 24, 2011, new legislation prescribed a number

of factors that a trial court must consider discretely in entering or modifying

a custody order. M.E.V. v. F.P.W., 100 A.3d 670, 671 (Pa. Super. 2014).

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Those factors are enumerated in 23 Pa.C.S. § 5328(a). “Notably, this Court

has held that it is not sufficient that the trial court merely state its reasoning

on the record in open court or conclusorily assert that it has considered the

enumerated factors in reaching its disposition.” Id. at 672. Rather,

      [t]he Act requires a court to consider all of the § 5328(a) best
      interest factors when "ordering any form of custody.” 23 Pa.C.S.
      § 5328(a) . . . [Subs]ections 5323(a) and (d) reinforce this
      mandate by requiring a court to delineate the reasons for its
      decision when making an award of custody either on the record
      or in a written opinion. Mere recitation of the statute and
      consideration of the § 5328(a) factors en masse is insufficient.
      C.B. v. J.B., 2013 PA Super 92, 65 A.3d 946, 950 (Pa. Super.
      2013). A trial court's failure to place its reasoning regarding the
      § 5328(a) factors on the record or in a written opinion is an error
      of law. J.R.M. v. J.E.A., 2011 PA Super 263, 33 A.3d 647, 652
      (Pa. Super. 2011). Accordingly, in C.B., when the trial court
      merely stated that it had considered the § 5328(a) factors, we
      held that the trial court's on-the-record explanation was
      insufficient under the statute. 65 A.3d at 950-51. Similarly, in
      M.P. v. M.P., [2012 PA Super 215, 54 A.3d 950, 955-56 (Pa.
      Super. 2012),] we found error where the trial court listed the §
      5328(a) factors but failed to apply them[.]

Id., citing S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014).

      On appeal, Mother’s claims boil down to one basic contention that the

court abused its discretion in coming to its custody determination.

Specifically, Mother contends that the court’s conclusions were unreasonable

and unsupported by the record and that the court failed to consider several

statutory factors under section 23 Pa.C.S. § 5328(a). Mother asserts that

had the court properly considered the evidence of record, it would have

concluded that the best interests of D.K.T. would be served by awarding

Mother primary physical custody.


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      We recognize that the trial court’s analysis of subsections 5328(a)(5)

(availability of extended family), (7) (preference of children), and (9) (which

parent more likely to attend to physical, emotional, developmental,

educational and special needs of child) as it applies to D.K.T. is scant or

lacking in depth. Specifically, when analyzing section (a)(5) the court does

not mention Mother’s large extended family, all of whom live close by to her

and some of whom acted as D.K.T.’s caregivers when D.K.T. was declared

dependent.    In addition, we recognize that the trial court fails to mention

D.K.T. at all, instead only discussing her brother, in its section 5328 analysis

of factor (a)(9), a critical component regarding the well-being of a child.

Finally, with regard to factor (a)(7), the court seems to rely upon “non-

verbal cues indicat[ing] that [D.K.T.] is thriving within Father’s household,”

to determine D.K.T.’s “well-reasoned” preference. However, not only is this

determination not explained or supported by specific evidence in the record,

it also fails to acknowledge that GAL Hawn noted in his report, only days

before the instant custody order was entered, that “D.K.T. lacked sufficient

maturity to express a well-reasoned preference and that D.K.T.’s preference

has in fact changed from Father to Mother.” GAL Report, 6/1/16, at 11-12,

16.

      However, after reviewing the entire record including all GAL reports,

pleadings, petitions, orders, custody trial notes and professional opinions

regarding the parties’ mental and psychological states, we cannot conclude

that the trial court’s conclusions are unreasonable.    Cf. M.E.V. v. F.P.W.,

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100 A.3d at 681 (trial court may not merely rely upon conclusory assertions

regarding consideration of section 5328(a) factors in entering an custody

order); C.A.J. v. D.S.M., 136 A.3d 504 (Pa. Super. 2016) (where trial court

only considered half of statutorily mandated custody factors in fashioning its

order, order vacated and case remanded for preparation of opinion and

order specifically addressing all section 5328(a) factors).   As an appellate

court we are mindful that our role does not include making independent

factual determinations. In re C.R.F., 45 A.3d 441, 443 (Pa. Super. 2012).

We are also cognizant of the fact that while the result of custody

proceedings no doubt has a “lasting impact on the lives of the parties

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

upon petition, a trial court can modify a custody order to serve the best

interest of the child.

      In C.W. v. K.A.W., 774 A.2d 745 (Pa. Super. 2001), our Court

recognized the role of a guardian ad litem in custody matters, noting

      A guardian ad litem is appointed by the court to represent a
      minor child in particular litigation. The function of the guardian
      is to represent and protect unrepresented minors and their
      interests. [citation omitted] A guardian ad litem is not a judicial
      or quasi-judicial officer.

                                     *   *    *

      In a non-jury trial such as this, the role of the judge is to
      interpret the law, determine the facts and apply the facts to the
      law for an eventual decision of the controversy. The trial court
      may not delegate its judicial powers [to the guardian ad litem].




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Id. at 748-49. Here, we are confident that although the two GALs provided

opposing recommendations with regard to the award of primary physical

custody, the court made an independent determination regarding what was

in D.K.T.’s best interests after observing the proceedings in the matter,

assessing the credibility of the many witnesses, and weighing the requisite

factors under section 5328. C.R.F., supra; 23 Pa.C.S. 5328 (“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[.]”); M.J.M. v. M.L.G., 3 A.3d

331, 336 (Pa. Super. 2013 (“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.”). Under such circumstances we are obligated to affirm the

court as its order is neither manifestly unreasonable nor a gross abuse of

discretion.




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     Order affirmed.

     Judge Dubow joins this Memorandum.

     Judge Stabile notes his dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2017




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