J-A04045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    Ra.J.                                      :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                   v.                          :
                                               :
                                               :
    Re.J.                                      :
                                               :
                         Appellant             :   No. 2423 EDA 2019

                Appeal from the Order Entered August 28, 2019
     In the Court of Common Pleas of Bucks County Civil Division at No(s):
                               No. 2009-61801


BEFORE:          PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                 FILED MARCH 27, 2020

            Appellant, Re.J. (“Mother”), pro se, appeals from the order entered

from the bench on July 1, 2019, and in writing on August 28, 2019, denying

her motion to modify an existing custody order from 2013 for her biological

child, K.J. (“Child”), born 2005. In addition, Mother has filed an application

for post-submission communication; in response, Appellee, Ra.J. (“Father”),

submitted a motion to strike Mother’s application. After careful review, we

affirm the trial court order, grant Mother’s application for post-submission

communication, and deny Father’s motion to strike.

            In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. See Trial Court Opinion (“TCO”),


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A04045-20



dated September 27, 2019, at 1-34.          Therefore, we have no reason to

restate them at length here.

     For the convenience of the reader, we briefly note that three separate

custody evaluations have been conducted in the current action:     the first

was performed by Dr. Anthony Pisa, whose report is dated November 9,

2010 (“2010 Evaluation”); the second was performed by Dr. Margaret

Cooke, whose report is dated March 29, 2013 (“2013 Evaluation”); and the

third was performed by Dr. Gerald Cooke, whose report was dated

September 28, 2018 (“2018 Evaluation”). Father, an anesthesiologist, had

requested the 2018 Evaluation; “[s]ince the parties could not agree on who

would conduct the evaluation, th[e trial c]ourt appointed Dr. Gerald Cooke.”

Id. at 2, 36. The 2018 Evaluation recommended that Mother should have

primary physical custody of Child.    Id.    Father also engaged Dr. Steven

Cohen to critique the 2018 Evaluation. Id. at 21.

     Three hearings occurred for the motion to modify custody at issue – on

January 4, April 23, and July 1, 2019. Id. at 1. The 2013 custody order had

been entered after four hearings – on October 2, 2012, and June 6 and

August 8 and 30, 2013. Id.

     On July 1, 2019, the trial court denied Mother’s motion to modify

custody and re-entered the 2013 custody order, giving Father primary

physical custody of Child during the school year and granting Father and

Mother shared legal custody, except for educational decisions, which were to

be determined by Father alone. The trial court also ordered Mother to have

                                     -2-
J-A04045-20



partial physical custody of Child every other weekend from Friday at 4:30

p.m. to Sunday at 4:30 p.m. and on Wednesdays from 4:30 p.m. to 7:30

p.m. during the weeks that she does not have weekend custody. At the end

of the school year, the physical custody arrangements are reversed.

     Mother pro se filed a timely notice of appeal with the following concise

statement of errors complained of on appeal attached:

     1.)   The Judge failed to apply the most recent facts/evidence to
     the case including the recommendation of the court appointed,
     private, custody evaluator. The Judge ordered the updated
     evaluation and then chose to ignore facts and evidence supplied
     during the evalu[a]tion.

     2.)   The Judge also ignored evidence presented by the weekly
     therapist of the couple’s teenage daughter.

     3.)   The Judge ignored the well-reasoned preference of the
     couple’s teenage daughter.

     4.)   The judge “picked and chose” opinions- not facts- from
     two, previous, obsolete, custody evaluations to support his
     decision instead of relying on the most recent evidence in the
     case.

     5.)   The Judge allowed coun[se]l for father to introduce at trial
     a report disputing the court appointed custody evaluator’s
     recommendation even though council for mother had never
     received a copy of the report prior to it being introduced as
     required by law. Abuse of discretion. [sic]

     6.)   The Judge failed to apply the rule of law in allowing
     [M]other adequate time to provide an answer to a motion and to
     retain council before requiring her to appear in court before
     Judge McMaster[]. Mother objected by faxing a letter to Judge
     McMaster’s office, but he denied the request. (Judge McMaster[]
     heard Judge Rubenstein’s cases during his medical leave.)
     Mother’s answer to withdrawing suppor[t] for daughter’s
     therapist would mean there was no evidence to support the
     verdict.



                                   -3-
J-A04045-20


       7.)    The Judge based his decision on information from ten
       years ago that would have been explained by a witness originally
       subpoenaed to testify, but was out on medical leave.
       Information from the witness’ treatment notes should be
       permitted for review if the Judge continues to base his opinion
       on one-sided information. (Notes of subpoenaed witness, Dr.
       Shaffer from CHOP, should be allowed to be added to Appeal
       Brief.)

       8.)   The Judge also altered the facts in order to justify his
       decision.

As Mother was represented by counsel at the time she filed her pro se notice

of appeal and concise statement of errors, this Court ordered counsel to file

an amended statement of errors by September 6, 2019. Counsel complied,

even though he had previously submitted a formal praecipe to withdraw as

counsel with the trial court, by filing the following amended concise

statement:1

       1.    The Honorable Court abused its discretion and erred as a
       matter of law and fact in denying Mother’s Petition to Modify
       Custody Order as stated in [its] July 1, 2019 and August 26,
       2019 Orders and in not awarding Mother any additional custody
       time and/or primary physical custody of [Child].

       2.    The Honorable Court abused its discretion and erred as a
       matter of law and fact in disregarding the clear and concise
       written recommendations and testimony of the very Custody
       Evaluator the Court recommended, and the parties agreed upon,
       and who recommended a change in [Child]’s primary physical
       custody in favor of the Mother.

       3.   The Honorable Court abused its discretion and erred as a
       matter of law and fact in disregarding the well reasoned


____________________________________________


1 This filing was counsel’s last act on Mother’s behalf, and Mother has
represented herself throughout this appeal.



                                           -4-
J-A04045-20


       preference of 14 year old [Child] who was required to testify in
       open court before her Mother and Father.

       4.    The Honorable Court abused its discretion and erred as a
       matter of law and fact in failing to make any modifications to the
       August 30, 2013 Custody Order which was approximately 6
       years old and pertained to a child who was 6 years younger.

       5.    Mother incorporates the 1925(b) statement previously filed
       by her on July 31, 2019 a copy of which is marked as Exhibit “A”
       attached hereto and made part hereof.

The trial court entered its opinion on September 27, 2019.

       On March 4, 2020, Mother filed an application for post-submission

communication with this Court, in which she “respectfully requests” to

submit an additional exhibit “under Rule 210 Pa. Code 2501.” On March 6,

2020, Father filed a motion to strike Mother’s application.

       In her appellate brief, Mother now presents the following issues for our

review:

       I.    Did the trial court abuse its discretion by denying
       [Mother’s] request for custody modification when evidence in the
       record demanded it? Was the trial court’s decision unreasonable
       and clearly the result of bias, prejudice, or ill will?

       II.   [Did the trial court err as a matter of law by relying on the
       2010 Evaluation and 2012 Evaluation to arrive at its 2019
       conclusions?2]
____________________________________________


2  The second question listed in the “Statement of Issues Involved” in
Mother’s appellate brief is identical to the third question: “Did the trial court
abuse its di[s]cretion by ignoring repeated examples of [F]ather ignoring the
health and best interests of [Child]?” Mother’s Brief at 5. We believe that
this repetition is a mere typographical error, and have adjusted Mother’s
second question to reflect the second issue raised in the “Argument” section
of Mother’s appellate brief, see id. at 19-23; although we could have found
this claim waived for Mother’s failure to include it in her “Statement of
(Footnote Continued Next Page)


                                           -5-
J-A04045-20


      III. Did the trial court abuse its di[s]cretion by ignoring
      repeated examples of [F]ather ignoring the health and best
      interests of [Child]?

      [IV.] Did the trial court abuse its discretion by ignoring the pleas
      of the 14-year-old child, whose relationship with her father is
      undeniably volatile, and who requested to return to the custody
      of her mother?

      [V.] Did the trial court err by not acting in the best interest of
      the child in failing to conduct a thorough analysis of the 5328
      factors[3] that determine a child’s best interest?



(Footnote Continued) _______________________

Issues Involved,” Pa.R.A.P. 2116(a), we have chosen in this instance to
apply our procedural rules liberally and to consider the second issue raised in
her “Argument” section on the merits. See Womer v. Hilliker, 908 A.2d
269, 276 (Pa. 2006) (“procedural rules are not ends in themselves, and that
the rigid application of our rules does not always serve the interests of
fairness and justice”).
3     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).

          (3) The parental duties performed by each party on behalf
          of the child.
(Footnote Continued Next Page)


                                          -6-
J-A04045-20


      [VI.] Did the trial court err by accusing Mother of making
      allegations of sexual abuse against paternal grandmother in
(Footnote Continued) _______________________

          (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.

          (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).



                                          -7-
J-A04045-20


      2010? Did the trial court ignore evidence in the record that
      shows Mother did not make the allegations, and, therefore,
      refuse to modify custody?

Mother’s Brief at 5 (issues re-ordered to facilitate disposition) (unnecessary

capitalization omitted).

      “In reviewing a custody order, our scope is of the broadest type and

our standard is abuse of discretion.” D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.

Super. 2014) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super.

2011)).

      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.

Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citations

and internal quotation marks omitted).        Additionally, when reviewing a

custody order:

      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.

D.K., 102 A.3d at 478 (quoting J.R.M., 33 A.3d at 650).




                                     -8-
J-A04045-20



      Preliminarily, we note that throughout her brief, Mother wishes this

Court to ignore its scope and standard of review.       Mother repeatedly asks

this Court to disregard the credibility and factual findings of the trial court

and to make independent factual determinations, which we cannot and will

not do. Id.    For example, just within the first five pages of her appellate

brief’s “Argument” section, Mother requests that this Court reassess the trial

court’s factual findings about Mother’s career, reassess the trial court’s

determination of Father’s credibility, consider a member of Father’s

household to be Child’s “babysitter/driver” and not a “housekeeper” as the

trial court designated her, give less credit than the trial court did to Father’s

decision to provide Child with a math tutor, and recalculate the amount of

vacation time that Father has per annum. Mother’s Brief at 15-19.

      Mother contends that “the most significant abuse of the trial court’s

discretion” was its reliance on the 2010 Evaluation and 2013 Evaluation “to

arrive at [its] 2019 conclusions.” Mother’s Brief at 19. Mother continues:

      The trial court is required to take into account the undis[p]uted
      changes effecting the child and the parties in this case between
      the trial court’s August, 2013 order and the July, 2019 order.
      The court[’]s failure to do so is clearly not in the best interests of
      the child and represents an abuse of discretion.

Id. (citing J.R.M., 33 A.3d at 652). In fact, Mother refers to this act as “the

most significant abuse of the trial court’s discretion[.]” Id.

      However, Mother misrepresents the record.             The trial court did

consider the 2018 Evaluation in rendering its decision and concluded that the




                                      -9-
J-A04045-20



findings of the 2018 Evaluation were consistent with the 2010 Evaluation

and the 2013 Evaluation:

       Th[e trial c]ourt’s decision to not follow the recommendations of
       Dr. [Gerald] Cooke was squarely based upon the facts in
       evidence.     Based upon the reports from all three (3)
       evaluations, and the testimony of the witnesses, it was shown
       that Mother continues to make unilateral decisions concerning
       [Child].      For example, Mother terminated the child’s
       psychotherapist at one point, and after [the 2018 E]valuation,
       she attempted to enroll the child in Germantown Academy in the
       middle of her 8th Grade year, all without Father’s knowledge or
       consent.

TCO, dated September 27, 2019, at 36 (emphasis added). In addition, the

trial court stated that it found Dr. Gerald Cooke’s evidence to be credible.

Id. at 41.    The trial court further noted that, although Dr. Gerald Cooke’s

2018 Evaluation had ultimately recommended that Mother have primary

physical custody of Child, both the 2018 Evaluation and the report of

Father’s expert, Dr. Cohen, were “consistent” in their conclusion that Mother

“suffered from a serious mental illness, ‘Ring of Fire’ [Attention Deficit

Hyperactivity Disorder (‘ADHD’)].”             Id.4   Accordingly, Mother’s contention



____________________________________________


4 The 2018 Evaluation was not the first time that Mother was diagnosed with
ADHD. Mother had been diagnosed with what was then called Attention
Deficit Disorder (“ADD”) as far back as the 2010 Evaluation. TCO, dated
September 27, 2019, at 3, 6 (citing N.T., 12/16/2010, at 40; 2010
Evaluation at 36). At that time, her own treating psychiatrist described her
ADD as “severe[.]” Id. (citing 2010 Evaluation at 36). The 2013 Evaluation
had likewise noted Mother’s ADD diagnosis, adding that Mother also “suffers
from a ‘personality disorder[.]’” Id. at 14 (citing 2013 Evaluation at 28).



                                          - 10 -
J-A04045-20


that the trial court did not consider any evidence subsequent to the 2013

Evaluation is belied by the record.

      Next, Mother argues that “the trial court abused its discretion by

ignoring repeated examples of the Father ignoring the health and best

interests of [Child].” Mother’s Brief at 24. Mother did not include this claim

in either her initial statement of errors or her amended statement of errors,

and, consequently, it is waived.       Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived”).

      To the extent that this issue is encompassed within Mother’s

overarching contention that the trial court abused its discretion by denying

Mother’s petition to modify custody, we would still find it meritless. Mother’s

assertion that Father has ignored Child’s health is based upon two alleged

incidents.

      In the first example, Child “hurt her wrist skiing on a school ski trip on

a Thursday[,]” but Mother claims that Father “ignored” Child’s pain.

Mother’s Brief at 24. Mother continues that “[e]vidence existed that [F]ather

had no appointments set up when [M]other took [Child]” to an urgent care

center and then “to the orthopedist as per Urgent Care doctor’s orders.” Id.

at 24-25.

      Nevertheless, Mother provides no date for this incident, besides “a

Thursday”; ergo, we cannot determine whether it occurred subsequent to


                                      - 11 -
J-A04045-20


the 2013 custody order or if the trial court had knowledge of and considered

this event when it entered the 2013 order.5         Furthermore, Mother’s brief

cites to pages in her reproduced record6 showing text messages between

Mother and Child. Id. at 24 (citing RR 143a, 344a-345a).7 In Child’s text,

she stated that she was taking a Motrin, RR 143a, thereby calling into

question Mother’s argument that Father “ignored” Child’s pain.         Mother’s

Brief at 24.      Moreover, the only evidence that Mother provides of this

supposed sequence of events are the aforementioned pages of text

messages between herself and Child, consisting of a total of seven

messages, and copies of e-mails that Mother herself wrote to Dr. Gerald

Cooke during the 2018 Evaluation telling him about this event.        Id. at 24

(citing RR 143a, 344a-345a, 354a-355a).            Mother’s allegation that this

____________________________________________


5  One of the print-outs of text messages between Mother and Child,
discussed hereinafter, have “Feb 2018” handwritten on it.         RR 344a.
However, there is no evidence of who wrote the date or if this date is when
the messages were sent or when they were printed.
6      A “reproduced record” is a “portion of the record that has been
       reproduced for use in the appellate court.” Pa.R.A.P. 102. It is
       prepared by the appellant and contains copies of the parts of the
       certified record that the parties elect to provide to the appellate
       court to assist it in deciding the case. Pa.R.A.P. 2154(a); see
       also Pa.R.A.P. 2151, 2171.

Erie Insurance Exchange v. Moore, 175 A.3d 999, 1006 n.4 (Pa. Super.
2017), appeal granted on other grounds, 189 A.3d 382 (Pa. 2018).
7 Mother’s brief additionally cites to RR 346a-347a, which also contains two
text messages—one from Child to Mother and vice versa; however, there is
no mention of Child’s wrist or any injury in them.



                                          - 12 -
J-A04045-20


incident even occurred is therefore based upon a paucity of evidence, and

we cannot find that the trial court abused its discretion by not relying upon

this alleged occurrence in rendering its custody decision.       See D.K., 102

A.3d at 478.

       Mother’s second example of Father “ignoring” Child’s health was when

Father “disregarded doctor’s orders when [Child] was seen for a viral

syndrome with fever.”         Mother’s Brief at 25.   Although Mother cites to a

letter from “myinstadoc urgent care” that Child “is unable to return to school

until fever free 24 hr[,]” id. at 25 (citing RR 341a), Mother presents no

evidence that Father, in fact, “disregarded” this order, besides her bald

claim.8    Again, we cannot find an abuse of discretion by the trial court

without sufficient evidence of record. See D.K., 102 A.3d at 478.

       Next, Mother contends that the trial court “abused its discretion by

ignoring the pleas of the 14-year-old child, whose relationship with her

father is undeniably volatile, and who requested to return to the custody of

her mother[,]” despite the trial court also describing Child as “[a]rticulate,


____________________________________________


8 Mother’s brief also states: “All of this evidence was readily available in the
record, but the trial court simply ignored it. (RR 78a)” Mother’s Brief at 25.
However, RR 78a is a print-out of “Page 5 of 6” (without pages 1-4 or 6) of a
report by Pamela Harrington, M.D., that states nothing about Child having a
virus.   Instead, the information on RR 78a was mainly about Child’s
behavioral health and was mostly positive, finding that Child was “[n]ot
actively suicidal” nor “emotionally or mentally abused[,]” albeit that Child
had “discomfort with [Father.]”



                                          - 13 -
J-A04045-20


bright, [and] responsive” and noting that Child “made her position as clear

as could possibly be.” Mother’s Brief at 37 (quoting N.T., 7/1/2019, at 7).

     The preference of a child in a custody case, although not
     controlling, is a factor to be carefully considered, as long as it
     is based on good reasons.               The child’s maturity and
     intelligence must be considered, and the weight to be given the
     child’s preference can best be determined by the judge before
     whom the child appears.

Swope v. Swope, 689 A.2d 264, 266 (Pa. Super. 1997) (emphasis added)

(citations omitted); see also Altus-Baumhor v. Baumhor, 595 A.2d 1147,

1150 (Pa. Super. 1991) (“[i]nsofar as the court’s failure to be guided by the

child’s preferences is concerned . . . such preferences are not controlling”

(emphasis added)).

     After the hearing, the trial court observed that Child’s preference for

living primarily with Mother was not “based on good reasons.” Swope, 689

A.2d at 266. As the trial court comprehensively explained:

     [C]hild has a preference to live primarily with Mother however,
     th[e trial c]ourt did not find that her preference was well-
     reasoned. [The trial court] stated [at the conclusion of the 2019
     custody modification hearing]:

        Does [Child] have a preference? Absolutely. Is it well-
        reasoned? Yes, if you’re 14, it’s well-reasoned, but [the
        trial court] do[es]n’t believe it’s indicative of the maturity
        and judgment which Mother’s counsel would have [it]
        believe. [Child’s preference is] not the end-all and be-all.

     [N.T., 7/1/2019, at 34.] . . .

     Th[e trial c]ourt recounted [C]hild’s testimony regarding her
     preference to leave the primary custody of Father.

        [The trial court took] notice of the fact that New Hope-
        Solebury[, Child’s then-current school district,] is perhaps



                                      - 14 -
J-A04045-20


           considered on[e] of the finest public-school systems in this
           Commonwealth.

           [Child] was as blunt as she could possibly be, and [the trial
           court] wrote down a quote from [Child]. She says, [“]I’m
           not doing well in school, especially in math.[”] She said
           her current math grade was a 60. Her other grades were,
           quote, not so good, end of quote. She seemed to be a
           child who was, at least, failing academically. . . .

           [Child] was not enthusiastic about [her weekly therapist].
           She said that while she may be qualified, she had only
           offered [Child] some coping mechanisms. And she looked
           right at me, and she said, [“]I don’t want to cope. I want
           out.[”]

           She admitted that she personally had called Children &
           Youth and the police. . . .

           She was asked about her . . . feelings, and she said that
           she feels great sadness being with her Dad, and to confirm
           that, she said she does not want to be there.

        Id. at [8-9].

        However, [the trial court] also noted that [Child] has an agenda
        and that her reasons for wanting to live primarily with Mother
        were not based upon anything other than the wishes of an overly
        indulged 13-year-old.[9] Th[e trial c]ourt stated as follows:

           So I have, at first blush, a child who is miserable, who
           believes her father either doesn’t listen or won’t listen to
           her and has no concern with her feelings, present or past,
           or future; who is failing in school and is crying out for help,
           to the point where she calls the police and says she
           doesn’t feel safe. When I hear that I’m somewhat taken
           aback.

           What about projects in school? She says Mother helps.
           Father does not help me at all, which is possible. I believe
           the evidence we heard generally is contrary to that
           proposition.
____________________________________________


9   Child was still 13-years-old when she testified before the trial court.



                                          - 15 -
J-A04045-20


          How about cooking? Mom cooks for me, says [Child].
          Father doesn’t even provide breakfast or lunch. She was
          asked about her preference, and she said well, even
          though she is fearful of Father and she believes he is,
          quote, “scary”, she nonetheless will agree to see him only
          on the weekends.

          Then she told me about her matriculation to Germantown
          Academy. While she was happy with that choice, she said
          that Father, who may pay the bills for that education,
          doesn’t really care about her feelings. She has described
          him as insensitive. [The trial court] noted that, at least
          viewing her demeanor and her responses, that she was a
          very compelling witness. She was articulate and bright,
          and it was abundantly apparent.

          Is that really what occurred here? Well, yes. If you
          believe [Child], then the result is clear. She should be
          living with her mother primarily. The problem with that, in
          general, is we don’t decide custody cases based upon the
          request or preference of a 13-year-old child. . . .

          If I were a 14 year old and the choice were left to me, I’d
          probably want to live with (Mother). Why is that? She’s
          less stringent than Father. She has less rules. She sounds
          like a fun mom. They went on vacation to the Grenadines.
          I’d probably want to live with (Mother).

          Why wouldn’t I want to live with Father? Well, he yells
          and screams and makes me do my homework.               He
          grounds me, no exceptions. That’s the response of an
          albeit bright, but nonetheless 14-year-old child. Then I
          was somewhat quizzical about how this child can, who is
          failing so badly in such an excellent school system, even
          consider going to Germantown Academy. Somehow that
          was accomplished.[10] . . .

          [Child] volunteered that she was a minimalist, whatever
          that means.     She described it as I don’t have any
          decorations in my room. This minimalist had a $600
____________________________________________


10 During oral argument before this Court, both parties agreed that Child’s
grades have improved since she transferred to Germantown Academy.



                                          - 16 -
J-A04045-20


        haircut in New York. She gets to pick and choose.          No
        pictures, but take a little off the top.

     Id. at [10-14.]

     Th[e trial c]ourt questioned how genuine [C]hild’s alleged
     problems in school were and whether there was an ulterior
     motive to her claims of failing grades.

        Then as [Child] was testifying, [the trial court thought,
        “T]his is, by all accounts, a very bright, responsive,
        articulate little girl. Is she failing in school purposely so
        that [the court will] believe that Father is not attending to
        her academics? Is that something that she conjured up?
        Again, it’s within the equation. . . .

        She is academically sound enough to be accepted to
        Germantown Academy, but her grades are not 60’s and
        failing - - She is, if not thriving, doing well enough. So,
        her testimony, at least, on that score doesn’t have the ring
        of truth. I think she engaged in hyperbole when the facts
        are otherwise. . . .

        [Child], in [the trial court’s] view, has an agenda. [The
        trial court does not] think it’s diabolical. She’s a 14-year-
        old girl. She wants to live with her Mother, and as [the
        court] said, if I were that age, I’d want to live with Mother.
        It’s a lot easier.

        So when [Child] speaks here in court, and when she talks
        to Dr. (Gerald) Cooke, she will exaggerate all of Mother’s
        pluses, of which there are many, and she will exaggerate
        all of Father’s minuses, and [the trial court is] sure there
        are plenty, as well, as there are with Mother.

     Id. at [15-16, 26.]

TCO, dated September 27, 2019, at 32, 38-41 (some formatting).

     The record supports the trial court’s findings, and we see no abuse of

discretion that would warrant reversal on this ground.      See Swope, 689

A.2d at 266; see also Ellingsen v. Magsamen, 486 A.2d 456 (Pa. Super.

1984) (children’s stated preference to remain with their father because of a


                                    - 17 -
J-A04045-20



large yard, a pony, more friends, and less noise “lacked a sufficient basis to

be accorded controlling weight”). We are satisfied that Child’s preference,

despite being overruled, was nevertheless considered by the trial court. See

Swope, 689 A.2d at 266; Altus-Baumhor, 595 A.2d at 1150.11

       Mother next contends that “the trial court erred by not acting in the

best interest of the child in failing to conduct a thorough analysis of the 5328

factors that determine a child’s best interest.” Mother’s Brief at 28 (citing

M.E.V. v. F.P.W., 100 A.3d 670 (Pa. Super. 2014)). However, Mother did

not include this claim in either her pro se or counseled concise statement,

and, consequently, it is waived. Pa.R.A.P. 1925(b)(4)(vii).

       Assuming this claim were not waived, it is belied by the record. The

trial court addressed the custody factors enumerated in 23 Pa.C.S. §

5328(a) at the close of the July 2019 custody hearing and in its opinion.

       For the first custody factor, “[w]hich party is more likely to encourage

and permit frequent and continuing contact between the child and another

party[,]” id. § 5328(a)(1), the trial court stated that “both [parents] were

____________________________________________


11Nonetheless, we note that Child is nearing the age of the “Elephant Rule.”
See E.B. v. D.B., 209 A.3d 451, 468 (Pa. Super. 2019) ("It has been said
that an older teenage child is like an elephant – she sleeps wherever she
wants. While the 'Elephant Rule' is not incontrovertible, such as if a
teenager’s safety were at risk, or if the other factors strongly demonstrated
that a teenager's preference was against her best interest, courts have to
recognize the limitations of their power in determining where older
teenagers must reside.").



                                          - 18 -
J-A04045-20


capable of permitting frequent and continuing contact, Father more so than

Mother.” TCO, dated September 27, 2019, at 32; see also N.T., 7/1/2019,

at 33.    For the second custody factor, “[t]he 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[,]”

23 Pa.C.S. § 5328(a)(2), the trial court asserted that “there was no abuse

found[.]” TCO, dated September 27, 2019, at 32; see also N.T., 7/1/2019,

at 34. For the third custody factor, “[t]he parental duties performed by each

party on behalf of the child[,]” 23 Pa.C.S. § 5328(a)(3), the trial court noted

that “both parents are capable of performing their parental duties.”       TCO,

dated September 27, 2019, at 32; see also N.T., 7/1/2019, at 34. For the

fourth custody factor, “[t]he need for stability and continuity in the child’s

education, family life and community life[,]” 23 Pa.C.S. § 5328(a)(4), the

trial court observed that while, generally, “[t]here is stability and continuity

in [C]hild’s life[,]” it expressed concern about Mother’s ability to provide

stability and continuity in Child’s education.     TCO, dated September 27,

2019, at 32; see also N.T., 7/1/2019, at 34. For the fifth custody factor,

“[t]he availability of extended family[,]” 23 Pa.C.S. § 5328(a)(5), the trial

court considered that “both parents have strong support systems.”          TCO,

dated September 27, 2019, at 32; see also N.T., 7/1/2019, at 34.             The

sixth custody factor, concerning sibling relationships, is inapplicable, as Child


                                     - 19 -
J-A04045-20


has no siblings. 23 Pa.C.S. § 5328(a)(6); TCO, dated September 27, 2019,

at 32.

         The trial court provided extensive analysis for the seventh custody

factor, “[t]he well-reasoned preference of the child, based on the child’s

maturity and judgment[,]” 23 Pa.C.S. § 5328(a)(7), as discussed above.

TCO, dated September 27, 2019, at 32, 38-41; see also N.T., 7/1/2019, at

8-16, 26, 34.

         For the eighth custody factor, “[t]he 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[,]”

23 Pa.C.S. § 5328(a)(8), the trial court found: “Neither party has attempted

to turn the child against the other parent. Mother may have in the past, but

there is no recent evidence.” TCO, dated September 27, 2019, at 32; see

also N.T., 7/1/2019, at 35.        For the ninth and tenth custody factors,

“[w]hich party is more likely to maintain a loving, stable, consistent and

nurturing relationship with the child adequate for the child’s emotional

needs” and “[w]hich party is more likely to attend to the daily physical,

emotional, developmental, educational and special needs of the child[,]”

respectively, 23 Pa.C.S. § 5328(a)(9)-(10), the trial court concluded that

“[b]oth parties are able to maintain a loving, stable, consistent, and

nurturing relationship with the child and they are able to address her

physical and emotional development.” TCO, dated September 27, 2019, at


                                      - 20 -
J-A04045-20


32; see also N.T., 7/1/2019, at 35. For the eleventh and twelfth custody

factors, “[t]he proximity of the residences of the parties” and “[e]ach party’s

availability to care for the child or ability to make appropriate child-care

arrangements[,]” respectively, 23 Pa.C.S. § 5328(a)(11)-(12), the trial court

stated:     “The parents live in different counties, however . . . the distance

between the parents is not impossible to overcome, and both are capable of

making alternative childcare arrangements.”         TCO, dated September 27,

2019, at 32-33; see also N.T., 7/1/2019, at 35. For the thirteenth custody

factor, “[t]he level of conflict between the parties and the willingness and

ability of the parties to cooperate with one another[,]” 23 Pa.C.S.

§ 5328(a)(13), the trial court acknowledged that “[t]here is a high level of

conflict” but did not find this factor in favor of either party.      TCO, dated

September 27, 2019, at 33; see also N.T., 7/1/2019, at 35-36. The trial

court found the fourteenth custody factor, “[t]he history of drug or alcohol

abuse of a party or member of a party’s household[,]” 23 Pa.C.S. §

5328(a)(14), inapplicable, as “there is no evidence of alcohol or drug

abuse.” TCO, dated September 27, 2019, at 33; see also N.T., 7/1/2019,

at 36.

         The trial court discussed the fifteenth custody factor, “[t]he mental

and physical condition of a party or member of a party’s household[,]” 23

Pa.C.S. § 5328(a)(15), at length:

         The mental and physical conditions of the parties was the most
         important issue in this case. Th[e trial c]ourt was still concerned

                                       - 21 -
J-A04045-20


     about Mother’s mental health issues and Mother’s assertion that
     her prior ailments are cured. [The trial court] stated:

        Personality disorders do not appear and then disappear.
        I’m not saying that as a psychiatrist.         I’m not a
        psychiatrist.   It’s just common sense.       Again, what
        happened before; is it likely to happen again? I hope not,
        but it’s more likely to happen with Mother than with
        Father.

     [N.T., 7/1/2019,] at 27.

     With regard to [Child]’s need for continuing psychotherapy we
     stated:

        Again, Mother’s counsel is right. Don’t dwell on the past.
        Look to the present. Okay. That’s a little over a year ago,
        and [the trial court] mentioned this before. Mother makes
        a mistake.      Not a horrible mistake, but a unilateral
        decision.    She in no uncertain terms says to [Child’s
        weekly therapist,] you are done; that is it. You are not
        treating [Child] anymore.

        What is the reason she did that?       Because [Child’s
        therapist] was ineffective? Because she wasn’t qualified?
        No, she did it because she believed that the child’s
        therapist was siding with the father.

        So, here’s the options. You contact [Child’s therapist] and
        say I think you’re missing the boat with [Child]. She’s told
        me the following; you’re not reaching her, or you bite your
        lip and you call Father and say we have the impression
        that there’s no real connection between [the weekly
        therapist] and [Child], and perhaps we ought to find a
        different therapist who will exercise a different modality.

        Instead, of all the options, she chooses the worst one,
        which is you’re done.

     Id. at 28-29.

TCO, dated September 27, 2019, at 33 (some formatting).

     Finally, for the sixteenth “catch-all” custody factor, “[a]ny other

relevant factor[,]” 23 Pa.C.S. § 5328(a)(16), the trial court expressed its


                                   - 22 -
J-A04045-20


“concerns about Mother’s ability to get the child to school on time.”        TCO,

dated September 27, 2019, at 34. The trial court declared:

      Much was said about [Child]’s enrollment at Germantown
      Academy. It’s something that involves travel time. . . . [The trial
      court] believe[s] to the core that Father will do as he says. He
      will get [Child] on that train no matter how she might protest on
      a given day, and he’ll wait for her to get on that car, knowing full
      well that before 8 o’clock she'll be at Germantown Academy. Of
      that [the court is] sure.

      [The trial court] would hope that if the circumstances were
      different, Mother, who lives 35 miles away from Germantown
      Academy, would do the same, except [M]other has for many
      years complained about traffic and being tied up in traffic.

N.T., 7/1/2019, at 30; see also TCO, dated September 27, 2019, at 34.

      Thus, Mother’s contention that the trial court “fail[ed] to conduct a

thorough analysis of the 5328 factors[,]” Mother’s Brief at 28, is contradicted

by the record. Moreover, Mother’s brief fails to specify which of the custody

factors were allegedly not considered by the trial court. See id. at 29-33.

      Mother’s final issue – that “the trial court erred by accusing Mother of

making allegations of sexual abuse against paternal grandmother in 2010[,]

despite evidence in the record that shows Mother did not make the

allegations, the trial court refused to modify custody[,]” Mother’s Brief at 33

– is also waived for Mother’s failure to include it in either of her concise

statements.    Pa.R.A.P. 1925(b)(4)(vii).      Assuming arguendo that this

question were not waived, we would note that, in its analysis, the trial court

only made one, brief reference to Mother possibly falsely accusing Child’s

paternal grandmother of sexual abuse and that it was merely used as one of


                                     - 23 -
J-A04045-20


many examples of Mother’s erratic behavior. See N.T., 7/1/2019, at 22-23;

TCO, dated September 27, 2019, at 37-38.12

       For the foregoing reasons, we find no abuse of discretion in the trial

court’s disposition of this matter. See D.K., 102 A.3d at 478. We therefore

affirm the trial court’s denial of Mother’s motion to modify custody.

       Finally,   we    consider     Mother’s      application   for   post-submission

communication, which stated that it was submitted “under Rule 210 Pa.

Code 2501.”        We believe that Mother refers to Pennsylvania Rule of

Appellate Procedure 2501, which controls post-submission communications

and states in relevant part:

       After the argument of a case has been concluded or the case has
       been submitted, no brief, memorandum or letter relating to the
       case shall be presented or submitted, either directly or indirectly,
       to the court or any judge thereof, except upon application or
       when expressly allowed at bar at the time of the argument.

Pa.R.A.P. 2501(a) (emphasis added).             Accordingly, Mother’s application for

post-submission communication was permitted pursuant to this Rule, and we

consequently grant the application. As Mother’s application was appropriate

under our Rules, we deny Father’s motion to strike said application.




____________________________________________


12 Mother had also previously falsely claimed that Child, who was four-years-
old at the time, had been sexually abused by another student at her
daycare.    TCO, dated September 27, 2019, at 2, 4-5 (citing N.T.,
12/16/2010, at 70; 2010 Evaluation at 27-30).




                                          - 24 -
J-A04045-20



Nevertheless, we find that the submitted communication, which purports 13 to

be a transcript of an argument between Child and Father, is duplicative of

other evidence and does not alter our disposition.

       Order    affirmed.       Mother’s       application   for   post-submission

communication granted. Father’s motion to strike denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




____________________________________________


13 We say “purports,” because Mother has provided no authentication of this
conversation and fails to specify when or where it allegedly occurred.
(Furthermore, if it is genuine but was recorded without Father’s permission,
that recording may be illegal.) Ultimately, its validity is irrelevant, because
it has no bearing on our decision.



                                           - 25 -
