J-A18041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 W.S. AND E.S.                                :   IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
                                              :
                v.                            :
                                              :
                                              :
 M.S. AND J.S.                                :
 ___________________                          :
 M.S.                                         :
                                              :
                                              :
                v.                            :
                                              :
                                              :
 J.S.                                         :
                                              :
                                              :
 APPEAL OF: J.S.                              :         No. 245 WDA 2019

                Appeal from the Order Entered January 11, 2019
               in the Court of Common Pleas of Allegheny County
                      Family Court at No(s): FD-17-009101

BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                        FILED SEPTEMBER 30, 2019

        J.S. appeals from the Order denying her Motion for Recusal in the

underlying custody action. We dismiss the appeal.

        The trial court thoroughly set forth the relevant factual and procedural

history underlying this appeal in its Opinion, which we incorporate as though

fully set forth herein. See Trial Court Opinion, 4/2/19, at 1-11.

        On appeal, J.S. raises the following issues for our review:

        I. Did the trial court abuse its discretion when it failed to recuse
        itself where substantial doubt exists as to [the trial judge’s] ability
        to preside fairly and impartially?
J-A18041-19


      II. Did the trial court err and abuse its discretion when it denied
      [J.S.’s] Motion for Recusal without a hearing?

Brief for Appellant at 5.

      Before we may entertain the merits of J.S.’s underlying claims, we must

first determine whether this Court has jurisdiction to consider the appeal. See

Murphy v. Int’l Druidic Soc’y, 152 A.3d 286, 289 (Pa. Super. 2016) (stating

that “the appealability of an order goes directly to the jurisdiction of the Court

asked to review the order.” (internal citation and quotation marks omitted));

see also Commonwealth v. Davis, 176 A.3d 869, 873 (Pa. Super. 2017)

(recognizing that this Court may raise the issue of jurisdiction sua sponte).

      “As a general rule, only final orders are appealable, and final orders are

defined as orders disposing of all claims and all parties.” Haviland v. Kline

& Specter, P.C., 182 A.3d 488, 492 (Pa. Super. 2018) (internal citations and

quotation marks omitted). However, an appeal may also be taken from an

interlocutory order as of right, an interlocutory order by permission, or a

collateral order. See Kensey v. Kensey, 877 A.2d 1284, 1287 (Pa. Super.

2005).

      In its Opinion, the trial court addressed whether the Order from which

J.S. seeks to appeal falls within any of the above-mentioned categories of

orders over which this Court has jurisdiction. See Trial Court Opinion, 4/2/19,

at 11-17. We incorporate the trial court’s cogent analysis as though fully set

forth herein. See id. The trial court emphasized the following:




                                      -2-
J-A18041-19


           [T]he [r]ecusal Order has not been labeled or deemed to be
            final or requiring an immediate appeal. Nor does it dispose
            of all claims and parties. … [N]one of the [c]ourt’s [O]rders
            have been intended to constitute a complete resolution of
            the custody claims pending between the parties;

           The [r]ecusal Order does not fall within the scope of
            [interlocutory orders appealable as of right] … under
            [Pa.R.A.P.] 311…;

           The [r]ecusal Order does not contain the requisite language
            … necessary for the Superior Court to invoke jurisdiction [for
            an interlocutory appeal by permission] pursuant to 42
            Pa.C.S.[A.] § 702(b);

           The Superior Court has held that the denial of a pre-trial
            motion to recuse does not fit into … [Pa.R.A.P.] 313
            [(governing appealable collateral orders)].

Id. at 11-12, 16, 17 (internal citations and quotation marks omitted).

     Because this Court does not have jurisdiction to entertain an appeal

from the trial court’s Order, we must dismiss the appeal.

     Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2019




                                     -3-
J-A18041-19




              -4-
                                                                                                    Circulated 09/10/2019 11:50 AM



            IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                                                    FAMILY DIVISION

      w,     .,    '
                   '                                   and E.                No: FD 17�009101-002
      SI
                                                                             Superior Court #245 WDA 2019
                                                     Plaintiffs,
             v.                                                              OPINION

      M                 s                               and                  BY:
      J(               s                                                     Honorable Susan Evashavik DiLucente
                                                                             704 City County Building
                                                      Defendants.            414 Grant Street
                                                                             Pittsburgh, PA 15219

      M                S.

                                                    Plaintiff,               COPIES TO:

              v.                                                             Counsel for W,      & E'   ,S
                                                                             C. Kurt Mulzet, Esquire
                                                                             411 71t1 Avenue, Suite 1200
                                                                             Pittsburgh, PA 15219
                                                    Defendant.
                                                                             Counsel for M        ·S
                                                                             Jennifer M. McEnroe, Esquire
                                                                             630 Oliver Building
                                                                             535 Smithfield Street
                                                                             Pittsburgh, PA 15222

                                                                             Counsel for J      .: 5

           ---·
                                                                             Richard Ducote, Esquire
                        U)
                                                                             4800 Liberty Avenue, Floor 2
                        ::�/:·r;
                        :f=} · �;-� �:::·:.
                                                                             Pittsburgh, PA l 5224
0                       I 1 l � .•
                        ,·:·· : ..-:-· ..
                                               -·


LU                      ! ...
                       s :
                                1   -
                                �->- •• •.',
                                               •
                                               '
                                                                             Guardian Ad Litem:
_.J                                                                          Lea E. Anderson, Esquire
                                                                             437 Grant Street
LL                                                                           1400 Fick Building
                                                                             Pittsburgh, PA 15219
          IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY. PENNSYLVANIA
                                                  FAMILY DIVISION

                        FAMILY DIVISION

     W.        S                    ,::md                     No: FD 17-009101-002
     Er   s
                                                              Superior Court #245 WDA 20 l 9
                                    Plaintiffs.
          v.
           ___ $                     and
               s
                                    Defendants.
                   {'
                   ,1



                                   Plaintiff,
          v.
 Jt            5'

                                   Defendant.

                                                     OPINION
Evashavlk DILucente, J.                                                              April 2, 2019

I.        Background

          The parties to this action, Defendant J             s        ("Mother,,) and Plaintiff M

S·                 ("Father
                            11),
                                   married in April 2003. The marriage produced two children,A.S. (DOB:

8/6/04) and T.S. (DOB:1/27/06) (collectively, the "Children").

          On October 12, 2017, Father initiated the instant proceedings by filing a complaint for

shared legal and primary custody of the Children. Mother filed a counter-complaint seeking the

same relief, and Father subsequently filed for divorce. Shortly thereafter, the parties filed cross-

petitions for protection from abuse, which ultimately resulted in the entry of a mutual no-contact

order, with a provision for Father and Children to commence reunification counseling.


                                                          1
        The parties proceeded through Generations and participated in a hearing to establish an

interim physical custody schedule, wherein Father was granted supervised visitation. In addition

and among other things, the Children's paternal grandparents ("Paternal Grandparents") filed a

complaint for partial custody and received limited visitation, a guardian ad litem was appointed

for the Children, and psychological evaluations were ordered.

        Numerous motions were presented and this Court conducted several conciliations

regarding the status of the reunification counseling and Father's visitation, as the Children

effectively refused to participate in both. Between the October 2017 initiation of this custody

action and the entry of the October 26, 2018 Consent Order, which was the subject of Mother's

companion appeal, Father and the Children's relationship had actually deteriorated. Issues were

raised regarding the Children's emotional and mental health. Concerns arose over allegations

that the Children had become alienated/estranged from Father and Paternal Grandparents.

       In an attempt to address the alienation/estrangement and Children's health concerns,

Father presented an emergency ex parte petition regarding custody to this Court. Father averred

that the Children's defiant behaviors were escalating, putting their safety at risk. Further, he

alleged that Mother and the Children were a flight risk. In response, the Court entered an order

on October 9, 2018 (though the order was inadvertently dated October 5, 2018) providing, inter

alia, that

               •   Father received sole legal custody of the Children, see Interim Order of Court
                   Regarding Custody Dated 10/5/2018 (the "October 9 Order") at 11;

               • Father received sole physical custody of the Children, though they were
                 required on an interim basis to reside with their paternal aunt and uncle in
                 Texas pending further order of court, id. at 1 2;

               •   the Children would have no contact with Mother pending further order of
                   court, id. at � 7; and
                                                  2
               • a hearing would occur on October 25, 2018, to review the interim order itself
                     and to address Mother's no-contact order and any therapeutic interventions
                     that might be needed for the Children, id. at ,i� 9� 10 & 20.

The Children were subsequently transported to Texas where they began living with their paternal

aunt and uncle and receiving therapeutic treatment..

       Mother sought relief related to the October 9 Order in the Superior Court, which

docketed that proceeding at 96 WDM 2018. By order entered on October 17, 2018, the Superior
Court, among other things, stayed the October 9 Order, mandated that the Children be returned

from Texas, required that the parties and this Court reestablish "the status quo" that existed prior

to entry of the October 9 Order, and stated that this Court must hold a hearing within ten (10)

days of October 16, 2018, with notice to all parties.

       The Children returned from Texas and to Mother.

       After receiving the Superior Court's order in 96 WDM 2018, this Court entered an order

on October 18, 2018, expanding by one day the previously scheduled hearing related to the

October 9 Order. Accordingly, the hearing originally set for October 25, 2018, was rescheduled

for October 25 and 26, 2018.

       The parties - i.e., Mother, Father, and Paternal Grandparents - and their counsel appeared

before this Court on October 25, 2018, for the bearing. Mother's counsel then made an oral

motion for recusal (the "October Recusal Motion") based upon the October 9 Order, which the

Superior Court addressed in 96 WDM 2018, and the proceedings leading to its entry. See

October 25-26, 2018 Hearing Transcript ("HT") at 13-20. The Court denied the October Recusal

Motion. Id. at 20.

       The hearing subsequently began. Among other individuals, the court-appointed expert in

custody evaluation Dr. Neil D. Rosenblum ("Dr. Rosenblum") testified. He explained that he
                                                 3
performed a psychological evaluation for the Children's custody, and Dr. Rosenblum noted that

in doing so:

                [t]he parties, the [M]other and the [Fjather, were initially
                interviewed by [Dr. Rosenblum's] associate ... on 6/25/18 and
                6/29/18. [He then] did [his own] individual interviews with each
                parent. Father first, on 7/23/18 and 8/9/18. (Dr. Rosenblum] met
                with Mother and the [Children] ... on 8/21/18 and also
                interviewed each boy individually on that date. On 9/6/18, [he] did
                a follow-up interview with the [F]ather. On 9/10/18, [Dr.
                Rosenblum] met with the [P]atemal [G]randparents ..•. On
                9/24/18, [he] did a follow-up interview with Mother .... On
                10/1/18, [he] did a joint interview with Mother and Father. And
                lastly, on 10/4/18, [Dr. Rosenblum] met with the [Children] and
                Mother for a follow-up family interview, and then did a family
                interview with the [Children] Mother, and paternal grandmother ..


HT at 25-26. Dr. Rosenblum also prepared a thirty-four (34) page, single-spaced Psychological

Evaluation For Custody report (the "Expert Report"), which was admitted into evidence. See HT

at 88.

         Dr. Rosenblum then testified to his findings. He explained that in his "35 years of doing

these evaluationsl.]" he had never seen a worse case of alienation from a parent, here Father.

See id. at 138 & 139 ("This is the most severe pattern of alienation of any case that I've worked.

That is correct. And that will be 35 years of doing these evaluations."). He stressed that <C[w]e

saw such an escalation of symptomatology and suicidal ideation that we were reaching a crisis

point, which has already been mentioned. And that's why something more drastic, in my clinical

opinion, needed to be attempted. I would support [their return to Texas]." Id. at 142.

         Dr. Rosenblum faulted both Mother and Father for the alienation and stated the following

with respect to the danger facing the Children if the Court did not intervene:

                That, as I was saying earlier, is sometimes the unfortunate outcome
                that sometimes a court is faced with. But one, there's a distortion
                of a family legacy, a family history, a continued belief system in
                                                 4
                 which my father didn't care about me, my father was abusive, my
                 whole - my grandparents didn't care about me. That's how
                 extreme this has gotten. Two, we have a situation where children
                 are not in an environment where they're encouraged to think for
                 themselves in a healthy, independent manner, where they endorse
                 false scenarios. Three, where there's encouraged, or at least
                 accepted disrespect for rules or authority figures, like the Court,
                 like the sheriff. There is a Jot of negative learning that comes
                 along with this. And I think the boys would be fundamentally
                 damaged in terms of their mental health and in terms of their
                 ability to go out into the world.

                 Mother used the term several times that she wants her boys to grow
                    to
                 up be strong, independent individuals who can deal with life's
                 problems. And I support her in that. I think she has the right
                 goals. But it's not happening in the scenario in which they're being
                 raised right now and in the family structure in which they're being
                 raised right now. So I think the outcome would be where we have
                 children who remain damaged, who remained fragmented, who
                 remain frightened and fearful. And I believe - and I haven't gotten
                 to this yet. And I believe this is something that has happened to
                 Mother.

                 I believe ... Mother has issues with past trauma in her life that
                 have not been resolved. And I think this is contributing to the boys
                 now 'developing the sense of traumatization of an abusive parent.
                 She spoke about growing up with an abusive parent and an
                 alcoholic, an abusive father and an alcoholic mother. So I think
                 there is a lot of damage in terms of the children's future mental
                 health and ability to enter into relationships where there's trust,
                 where there's open communication.

                 As I said, the hallmark of alienation is a rigid belief systems where
                 the children cannot think openly, where they cannot recognize that
                 there's two sides to a story. They're, right now, in a very fixed,
                 rigid belief system in a false scenario of the reality around them.
                 So there's a lot of danger ... I think there's a lot of danger if the
                 Court doesn't intervene.

Id. at 146-48.

       Dr. Rosenblum explained that Pennsylvania does not have a facility "that can provide

[the Children] with appropriate care, based on the extreme pattern of alienation." Id. at 128.



                                                   5
When asked whether he recommended that the Children return to Texas or remain in

Pennsylvania, the following exchange occurred:

              A.     Well; that's complicated. If there is evidence that the boys
                     were making progress in Texas and if there's evidence that
                     in Texas there was the development of a system similar to
                     what I outlined in my report, then I would say, although, I
                     initially was somewhat skeptical about whether this could
                     work or not in that I was not familiar with the boy's
                     relationship with their cousins and with their aunt and
                     uncle, there could be - there could very well be some
                     benefits to that type of strategy. And I' 11 be very frank
                     because of the extreme degree of alienation that I believe
                     exists. We're at a point where the boys cannot even
                     tolerate looking at their father, let alone visiting him. As I
                     said just at the very beginning, before I started to testify so
                     to speak, we've reached a very extreme pattern of
                     disconnect between the boys and the paternal side of the
                     family, we would probably have to be looking at a program
                     that offered some degree of more forceful intervention.
                     And I did say that in my report, that I understood why - I
                     wasn't consulted about the Court's decision], i.e., the
                     October 9 Order], but I understood why there was a need to
                     do something, given the lack of therapeutic progress and
                     the extreme resistance the boys were showing to any type
                     of visitation whatsoever.

                                              ***
                     So if there's evidence that the boys could establish some
                     degree of comfort [in Texas], some degree of trust in that
                     environment, it might be an ideal healing agent for the boys
                     that would get them away from this entire animosity, this
                     entire- because we probably haven't talked about it
                     enough. In any divorce, children are sometimes thrust in
                     the middle. And the Court, I know, is well aware of that.

                     In this case, the boys are living and breathing this conflict.
                     It's impacting on them to a phenomenal degree. And
                     everyone agrees, Mother and Father, that the one thing-
                     and grandparents agree on, that these were great kids at one
                     time. Well adjusted, high academic achievers. There is the
                     disagreement as to whether they were involved in enough
                     social activities . . . • But they were good kids. And what
                     we have now is a system in stress and boys who are in
                                               6
     distress. And again, that's why I did support or had
     understanding, even though I was unaware of what
     intervention the Court chose [in the October 9 Order]. It
     was my professional opinion that some intervention needed
     to take place. But again, if we have the less extreme over -
     I'm convinced that no therapeutic intervention here in
     Pennsylvania alone is going to achieve enough progress ...


     . . . [B]ased on the limited information that I have about
     Texas, it may well be a buffer that could be the best of both
     worlds for the boys, achieve some therapeutic progress,
     take them out of the high level of conflict. And if it is a
     safe environment, gradually integrate the boys into their
     lives, gradually reintroduce Mother into their lives in a
     healthier way that can support the end goal of the boys
     having a healthy relationship with each parent.

Q.   If the boys were to return to Texas, what would your
     recommendation be?

A.   Well, I outlined that in, you know, the beginning, on page
     32 and, largely page 33 of my [Expert R]eport. There
     needs to be a crisis team in place. There needs to be a
     consultant to the crisis team. Each boy should have their
     own individual therapists, and then conduct family therapy.
     that would involve the boys, their cousins, their aunt and
     uncle. Gradually, there would be recommendations for
     limited contact by Mother and Father in the form of, excuse
     me, letters, phone calls, Skype or Facetime session, things
     of that nature, and then actual, physical visits.

     I recommend that Mother and Father each work with an
     individual therapist here in Pittsburgh that specializes in
     high-conflict custody resolution. . . . And I would
     recommend that those therapists be allowed to maintain
     contact with the therapy team in Texas and provide parents
     with feedback so that they can be reassured that the boys
     are doing well. And as I said, gradually, plan a strategy
     through the individual therapists of Mother and Father with
     the boys' therapists of piecing this together so that
     eventually they could return to Pennsylvania, you know,
     under a situation where they have a much healthier
     understanding and a much healthier situation for how to
     relate to each parent.


                               7
                                                 ***
                        You know, one thing that I haven't stressed is that even
                        though I do believe there has been an alienating process
                        and that I do believe that Mother has fundamentally
                        contributed to that, I will say that this is not easy for her
                        either. She is stressed by the boys' reaction to this. And in
                        some ways, I think this is an avalanche that has gotten out
                        of control, and I don't know that even she knows- I mean,
                        I don't believe she knows how to reign it in either. It's just
                        gotten like a freight train that's out of control. And Mother
                        needs a way to calm down about this and to regroup and to
                        develop healthier - a healthier understanding of what's
                        happened here to her boys and why this splitting of good
                        and bad is not healthy and is not appropriate and is not in
                        her children's best psychological interest. So that's why
                        it's critical that each parent work with an individual
                        therapist.

                        I will also say this is a process. Because it is so long in
                        developing, it's going to take time for the healthier
                        introduction and reality testing that the boys need to work
                        towards, to be achieved. This is not something that
                        happened overnight. And the therapeutic process of,
                        essentially, almost reprogramming and helping them look
                        at an alternative ways of viewing relationships is going to
                        take time as well.

Id. at 80-87.

       After hearing testimony from other witnesses, on October 26, 2018, the parties, who were

all represented by counsel, signed and entered into a Consent Order of Court Regarding Custody

(the "October 2018 Order"), which the Court also signed. Therein, the following was agreed

upon and ordered:


                • Father and Mother received shared legal custody of the Children, see October
                  2018 Order at ,r 1;

                •   Dr. Rosenblum would be "involved in structuring the appropriate
                    treatment/intervention for the Children in accordance with [pages 32 and 33 of
                    the Expert Report, as discussed in the testimony quoted above,] with input
                    from the Children's [paternal aunt and uncle, in Texas], id.;

                                                  8
               • the Children would reside with their paternal aunt and uncle in Texas on an
                   interim basis pending further order of court, id. at ,r 2;

               •   Mother would fly with Children to Texas on October 31, 2018, and
                   immediately return to Pittsburgh without them thereafter, id. at 11 3;

               • neither Mother, nor Father, would have contact with the Children until such
                 contact was authorized by "the Children's treating therapistsj.]" id. at ,r 6; and

               • a status conference regarding the October 2018 Order would be scheduled for
                   some time within thirty (30) days, id. at ,t 12.
By order entered October 31, 2018, the Court scheduled the status conference referenced above

for December 4, 2018.

       Also on October 31, 2018, Mother failed to transport the Children to Texas, as required

by the October 2018 Order. As a result, the Court-with all parties' counsel present- signed an

order permitting the Allegheny County Sheriff's Department to take all steps necessary to

enforce the October 2018 Order. See 10/31/2018 Order (the "October 31 Order").

       The following day, Father presented an emergency petition for relief. Counsel for all

parties attended the petition's presentation, and the Court found that "there [wa]s a credible risk

that the [Children] •.. [were] imminently likely to be wrongfully removed from the jurisdiction

of tb[e] Court." See 11/1/2018 Emergency Order Of Court Regarding Custody {the "November

1 Order,') at 1. The Court further found that:

               the Children .•. have been missing for at least 30 hours, that they
               have not been located at Mother's home, that they have not been
               located at their respective schools, that they have not arrived in
               Texas pursuant to the Order entered on October 26, 2018, that
               Mother and the [Children] did not board the scheduled flights with
               the [Children] on October 31, 2018, and that Mother has not been
               heard from by this Court, or her counsel, or by any counsel or
               party involved in this case for at least 30 hours, and ... Mother has
               not responded to requests from multiple parties regarding the
               present whereabouts of her and [the Children].

                                                  9
Id. at 2. Among other things, the Court ordered that Mother surrender the Children "to

Allegheny County Children Youth and Families, pending their transfer to" Texas to live with

their paternal aunt and uncle pursuant to the October 2018 Order. Id. at 1! 3.

        The Children were ultimately located. On November 2, 2018, after a shelter hearing at

which counsel for all parties participated, this Court entered an order (the "November 2 Order")

directing the Allegheny County Sheriffs department to accompany the Children to the airport to

ensure they boarded the flight to Texas.

       The Children were thus transported to Texas, where they currently reside with their

paternal aunt and uncle; Mother was criminally charged for her conduct related to the October

2018 Order.

       A status conference regarding the Children's custody was held on December 4, 2018 (the

"December 4 Status Conference").

       In January 2019, Mother presented (i) a petition to vacate the October 2018 Order (the

"Petition to Vacate") and (ii) a motion for recusal. By order dated January 11, 2019, the Court

denied the Petition To Vacate and required Mother to pay Father $750.00 in counsel fees as a

sanction (the "January 2019 Order"). The Court also denied Mother's motion for recusal the

same day (the "Recusal Order").

       Mother appealed both the January 2019 Order and the Recusal Order to the Superior

Court. The Superior Court docketed the appeal related to the former at 246 WDA 2019; the

appeal concerning the latter has been docketed at 245 WDA 2019.

       Requests to quash Mother's appeals were filed with the Superior Court. By order filed

March 29, 2019, the Superior Court quashed the appeal regarding the January 2019 Order, i.e.,

the appeal at 246 WDA 2019. On the same day, the Superior Court entered an order with respect


                                                10
  •

to Mother's appeal of the Recusal Order, stating: "The motion to quash filed at 245 WDA 2019

is hereby DENIED without prejudlee to the moving party's right to again raise this issue, if

properly preserved, in the appellate brief or, if the brief has already been filed, then in a new

application that may be filed after the appeal has been assigned to the panel of this Court that

will decide the merits of the appeal."



II.     Propriety of Mother's Outstanding Appeal

        Before the Court addresses the allegations of error Mother intends to raise in her pending

appeal, the Court feels compelled to address the general propriety of the appeal itself. Indeed,

"[tjhe appealability of an order directly implicates the jurisdiction of the court asked to review

the order." Estate of Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa. Super. Ct. 2009)

(citation and quotation marks omitted). In this Commonwealth, an appeal may be taken from

only four types of orders, see id., and the Recusal Order Mother seeks to appeal does not fit

within any category.

       First, a litigant may appeal a final order. G.B. v. M.M.B., 670 A.2d 714, 717 (Pa. Super.

Ct. 1996); see also 42 Pa. C.S. § 5105; Pa. R.A.P. 341. A final order either "disposes of all

claims and of all parties" or is so labeled by the tribunal after determining that "an immediate

appeal would facilitate resolution of the entire case." Pa. R.A.P. 341(b) & (c).

       Here, the Recusal Order has not been labeled or deemed by this Court to be final or

requiring an immediate appeal. Nor does such order dispose of all claims and parties. Brief

comment on finality and custody law as well as the procedural posture of this case is now

warranted. Our appellate courts have held that in the custody context, an "order will be

considered final and appealable only if it is both: 1) entered after the court has completed its


                                                 11
hearings on the merits; and 2) intended by the court to constitute a complete resolution of the

custody claims pending between the parties." G.B., 670 A.2d at 7'2IJ. Such a holding, the

Superior Court has explained:

                 will protect [a] child from the protraction of custody litigation
                 through repetitive appeals while still allowing prompt and
                 comprehensive review of custody determinations. It will support
                 judicial economy and efficiency and uphold the integrity of the
                 trial court's process in deciding custody matters. On the one hand,
                 to permit piecemeal appeals subjects the child to the uncertainties
                 of ongoing litigation. A custody proceeding, whether on the trial
                 or the appellate level, threatens a child's stability. On the other
                 hand, a custody decision once finally made must be subject to
                 review. Drawing a bright line by which finality may be
                 determined will encourage judicial economy and efficiency by
                 making it clear both to litigants and to trial courts when the
                 appellate process may properly be invoked. [The] holding also
                 serves to uphold the integrity of the trial process by not interfering
                 with the trial court's efforts to craft a final decision and by not
                 permitting premature challenges to those efforts. In striking a
                 balance between postponing and granting an appeal, [the courts]
                 have attempted to serve primarily the best interests of the child.

Id. at 720-21.

       In the instant proceedings, the Court has not completed a custody hearing on the merits

and none of the Court's orders have been intended "to constitute a complete resolution of the

custody claims pending between the parties." Id. at 720. Indeed, the October 2018 Order notes

that the Children will- "[o]n an interim basis" - temporarily reside with their aunt and uncle

"pending further Order of Court," See October 2018 Order at ,r 2. Said order also clearly

contemplates continued treatment and therapeutic intervention for the Children under Dr.

Rosenblum's direction, which treatment/intervention is necessary before a final decision on

custody can be made. See id. at� 1. The October 2018 Order additionally states that "[a] Status

Conference with counsel regarding the provisions of th]e] ... Order shall be convened and

scheduled by the Court no later than thirty (30) days from the date of th[e] ... Order of Court."

                                                   12
Id. at ,r 12. Thus, the October 2018 Order on its face requires further action with respect to

custody, and all parties and counsel understood the plain fact that the Court had yet to make a

final determination pursuant to 23 Pa. C.S. § 5323(a) (defining the types of custody that can be

awarded).

        Nothing about the January 2019 Order-which declined to vacate the October 2018

Order - alters this analysis. Said order did nothing to the custodial framework in place at the

time it was entered. The interim arrangement established by the Court in late 2018 remained in

place and continues to remain in place. That arrangement is temporary and remedial in nature.

This Court intended, but has been unable due to the appeals Mother filed, to regularly review the

therapeutic progress of the children and parties and to adjust the interim order if appropriate.

Once sufficient progress had been made to return the children to Pennsylvania, and their

conditions stabilized, a custody trial could and can be scheduled.

        Turning to the Recusal Order, it is thus clear that the same is a pre-trial order, one made

in advance of further and already contemplated custody proceedings. The Superior Court has

clearly held that "a pre-trial motion seeking to recuse a judge from further proceedings is not a

final order." Krieg v. Krieg, 743 A.2d 509, 511 (Pa. Super. Ct. 1999). Such is the case even in

the child custody context. See generally id.

       Accordingly, the Recusal Order is not a final order. This Court has not labeled it as final

or determined that an immediate appeal is necessary. Moreover, neither the October 2018 Order,

nor the January 2019 Order, created a permanent or even allegedly permanent custodial

framework, making the Recusal Order a pre-trial order not subject to immediate review. This

Court thus respectfully submits that the Superior Court cannot base jurisdiction of Mother's

appeal on its review of a final order.

                                                 13
       Second, a litigant may appeal from certain interlocutory orders as of right. See Stahl v.

Redcay. 897 A.2d 478, 485 (Pa. Super. Ct. 2006). Rule 311 of the Pennsylvania Rules of

Appellate Procedure sets forth the types of interlocutory orders that qualify. See also Pa. R.A.P.

311. Among other things, Rule 311 states:

               (a) General rule.--An appeal may be taken as of right and without
               reference to Pa.R.A.P. 341(c) from:
               (l)Affecting judgments.--An order refusing to open, vacate, or
               strike off a judgment. H orders opening, vacating, or striking off a
              judgment are sought in the alternative, no appeal may be filed until
              the court has disposed of each claim for relief.
               (2)Attachments, etc.--An order confirming, modifying, dissolving,
               or refusing to confirm, modify or dissolve an attachment,
               custodianship, receivership, or similar matter affecting the
              possession or control of property, except for orders pursuant to 23
               Pa.C.S. §§ 3323(1), 3505(a).
              (3) Change of criminal venue or venire. --An order changing venue
              or venire in a criminal proceeding.
              (4) Injunctions.--An order that grants or denies, modifies or refuses
              to modify, continues or refuses to continue, or dissolves or refuses
              to dissolve an injunction unless the order was entered:
              (i) Pursuant to 23 Pa.C.S. §§ 3323(f), 3505(a); or
              (ii) After a trial but before entry of the final order. Such order is
              immediately appealable, however, if the order enjoins conduct
              previously permitted or mandated or permits or mandates conduct
              not previously mandated or permitted, and is effective before entry
              of the final order.
              (5) Peremptory judgment in mandamus.--An. order granting
              peremptory judgment in mandamus.
              (6)New trials.--An order in a civil action or proceeding awarding a
              new trial, or an order in a criminal proceeding awarding a new trial
              where the defendant claims that the proper disposition of the
              matter would be an absolute discharge or where the


                                               14
Commonwealth claims that the trial court committed an error of
law.
(7) Partition.--An order directing partition.
(8) Other cases. --An order that is made final or appealable by
statute or general rule, even though the order does not dispose of
all claims and of all parties.
(b) Order sustaining venue or personal or in remjurisdiction.--
An appeal may be taken as of right from an order in a civil action
or proceeding sustaining the venue of the matter or jurisdiction
over the person or over real or personal property if:
(1) the plaintiff, petitioner, or other party benefiting from the order
files of record within ten days after the entry of the order an
election that the order shall be deemed final; or
(2) the court states in the order that a substantial issue of venue or
jurisdiction is presented.
(c) Changes of venue, ete.-An appeal may be taken as of right
from an order in a civil action or proceeding changing venue,
transferring the matter to another court of coordinate jurisdiction,
or declining to proceed in the matter on the basis of forum non
conveniens or analogous principles.
(d) Commonwealth appeals in criminal cases.v-In a criminal
case, under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end the
entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the
prosecution.
(e) Orders overruling preliminary objections in eminent
domain cases.--An appeal may be taken as of right from an order
overruling preliminary objections to a declaration of.taking and an
order overruling preliminary objections to a petition for
appointment of a board of viewers.
(f) Administrative remand.--An appeal may be. taken as of right
from: (1) an order of a common pleas court or government unit
remanding a matter to an administrative agency or hearing officer
for execution of the adjudication of the reviewing tribunal in a

                                  15
                manner that does not require the exercise of administrative
                discretion; or (2) an order of a common pleas court or government
                unit remanding a matter to an administrative agency or hearing
                officer that decides an issue that would ultimately evade appellate
                review if an immediate appeal is not allowed.


Pa. R.A.P. 311. The Recusal Order does not fall within the scope of the above. See also Krieg,

743 A.2d at 511 ("an appeal from a denial of a pre-trial motion to recuse does not fit into any of

the categories listed in Rule[] 311 ... "). Accordingly, this Court respectfully submits that Rule

311 does not provide the Superior Court with a basis to conclude it has jurisdiction over

Mother's pending appeal.

        Third, a litigant may appeal an interlocutory order if given permission to do so. See 42

Pa. C.S § 702(b); see·also Pa. R.A.P. 312. The governing statute states:

               When a court or other government unit, in making an interlocutory
               order in a matter in which its final order would be within the
               jurisdiction of an appellate court, shall be of the opinion that such
               order involves a controlling question of law as to which there is
               substantial ground for difference of opinion and that an immediate
               appeal from the order may materially advance the ultimate
               termination of the matter, it shall so state in such order. The
               appellate court may thereupon, in its discretion, permit an appeal to
               be taken from such interlocutory order.

42 Pa. C.S. § 702(b). The Recusal Order does not contain the requisite language set forth above,

and for good reason: the Court does not believe the Recusal Order meets the requirements

necessary for the Superior Court to invoke jurisdiction pursuant to 42 Pa. C.S. § 702(b).

Notably, Mother has also not asked this Court to include the language needed to trigger 42 Pa.

C.S. § 702(b). Jurisdiction based on an interlocutory order appealable by permission does not>

this Court respectfully submits, exist.



                                                16
        Finally, a litigant may take an appeal as of right from a collateral order. See Pa. R.A.P.

313(a}. "A collateral order is an order separable from and collateral to the main cause of action

where the right involved is too important to be denied review and the question presented is such

that if review is postponed until final judgment in the case, the claim will be irreparably lost,"

Pa. R.A.P. 313(b). The Superior Court has held that the denial of a "pre-trial motion to recuse

does not fit into ... Rule] ] ... 313/' see Krieg, 743 A.2d at 511; accordingly, the Recusal Order

is not collateral or, therefore, appealable at this time.

        Based on the foregoing, this Court respectfully submits that the Superior Court does not

have jurisdiction over Mother's appeal of the Recusal Order. Said appeal does not involve a

final order, interlocutory order appealable as of right or by permission, or collateral order.

Mother's appeal should, therefore, be quashed.



III.   Mother's Allegations of Error

       Should the Superior Court disagree and not quash Mother's appeal, the Recusal Order

should be affirmed.

       Mother raises two purported errors regarding said order. First, she alleges that

"substantial doubt exists as to [the Court's] ability to preside fairly and impartially." Mother

bases her allegation on the Court's entry and the circumstances surrounding the entry of the

October 9 Order, the October 2018 Order, the October 31 Order, and the November 1 Order. In

addition, Mother cites to the off-record December 4 Status Conference as well as her belief that

the Court was required to be a necessary witness at a hearing on the Petition to Vacate and in

Mother's criminal proceedings. Mother's position fails.




                                                   17
        At the outset, and should the Superior Court deem the Recusal Order ripe for appeal, this

Court notes that Mother's allegations about the Court's conduct and ability to preside fairly and

impartially are belied by her own actions. Mother and her counsel - who were familiar with the

appellate process and seeking relief through the same - never sought to appeal or challenge the

Court's denial of the October Recusal Motion. They also never appealed or challenged the

October 2018 Order prior to January 2019, the October 31 Order, the November 1 Order, or the

November 2 Order. Indeed, they did not seek this Court's recusal after entry of the October

2018 Order through and including the December 4 Status Conference, despite much activity

occurring in this case. Only when Mother sought to present her Petition to Vacate, did she re-

allege a basis for recusal.

       Our Supreme Court has stated that "the law is clear[:] [i]n this Commonwealth, a party

must seek recusal of a jurist at the earliest possible moment, i:e., when the party knows of the

facts that form the basis for a motion to recuse." Lomas v. Kravitz, 170 A.3d 380, 390 (Pa.

2017). "If the party fails to present a motion to recuse at that time, then the party's recusal issue

is time-barred and waived." Id.

       Mother's issue here is, thus, arguably waived and time-barred. As noted, she took no

action with respect to the denial of the October Recusal Motion. She and/or her counsel attended

and participated in the October 25 and 26, 2018 hearing, and the entry of the October 2018

Order. She did not object to or challenge this Court's impartiality during (i) the proceedings

leading to the entry of the October 31 Order, the November 1 Order, and the November 2 Order

or (ii) the holding of the December 4 Status Conference.

       Even if not waived, the Court notes that the law "presumes judges of this Commonwealth

are honorable, fair and competent, and, when confronted with a recusal demand, have the ability

                                                 18
to determine whether they can rule impartially and without prejudice," Commonwealth v.

Kearney, 92 A.3d 51, 60 (Pa. Super. Ct. 2014) (quotation marks and citation omitted). Indeed:

                [ajs a general rule, a motion for recusal is initially directed to and
                decided by the jurist whose impartiality is being challenged. In
                considering a recusal request, the jurist must first make a
                conscientious determination of his or her ability to assess the case
                in an impartial manner, free of personal bias or interest in the
                outcome. The jurist must then consider whether his or her
                continued involvement in the case creates an appearance of
                impropriety and/or would tend to undermine public confidence in
                the judiciary. This is a personal and unreviewable decision that
                only the jurist can make. Where a jurist rules that he or she can
                hear and dispose of a case fairly and without prejudice, that
                decision will not be overruled on appeal but for an abuse of
                discretion.

Id. (citation omitted).

        The Court made the calculus required by the above and determined that it could and can

assess the instant case "in an impartial manner, free of personal bias or interest in the outcome."

Id. In addition, the Court concluded - and still believes - that its continued involvement in the

case did not and does not create "an appearance of impropriety" and would not and will not

"tend to undermine public confidence in the judiciary." Id. The Court thus properly denied

Mother's request for recusal,

       That Mother desired to call the Court as a witness does not compel a contrary conclusion.

Regarding the Court's potential testimony at a hearing on the Petition to Vacate, said hearing did

not occur and for good reason: Mother premised such a petition upon a breach of contract

theory, and such a theory did not justify granting her relief. Accordingly, no hearing on the

Petition to Vacate was needed.

        Children "cannot be made the subject of a contract with the same force and effect as if

[they] were ... mere chattel." In Com. ex. rel. Veihdeffer v. Veihdeffer, 344 A.2d 613, 614 (Pa.

                                                  19
Super. Ct. 1975). Indeed, "it is well settled that an agreement between ... parties as to custody

is not controlling', on courts, which are instead required to take into account all relevant

considerations. Id. Ultimately, any agreement between the parties that is - after all relevant

considerations are reviewed - adopted by a court into an order acts to "bind the parties and

governs further court action in the same manner as any other custody order issued by a court,"

Supko v. Monoskey, 461 A.2d 253, 256 (Pa. Super. Ct. 1983) (citation omitted) (original

emphasis omitted) (new emphasis added). Accordingly, a consent custody order, like the

October 2018 Order which was the subject of Mother's Petition to Vacate, must be treated like

any other custody order, not a contract.

       Mother did not cite any case law to the contrary or that held consent custody orders

constituted contracts and must be interpreted as such. See Petition To Vacate at fl 9-17; see also

Sams v. Sams, 808 A.2d 206 (Pa. Super. Ct. 2002) (cited by Mother and using principles of

contractual interpretation, in part, to analyze a child support agreement. not a custody order, and

also noting that "[a] mother cannot, by contract, bargain away the right of her minor children to

adequate support from the father, regardless of the validity of the agreement as between the

parents themselves •.. [because i]n each case it is for the court to determine whether or not the

terms of the agreement are reasonable, made without fraud or coercion, and have been carried

out in good faith" (citation omitted)); Adams v. Adams, 848 A.2d 991 (Pa. Super. Ct. 2004)

(cited by Mother and applying rules of contractual interpretation to a settlement agreement

concerning marital property rights, not custody of Children); Bianchi v. Bianchi, 859 A.Zd 511

(Pa. Super. Ct. 2004) (cited by Mother and discussing principles of contractual interpretation in

relation to a property settlement agreement between husband and wife, not a custody order);

Yates v. Yates, 936 A.2d 1191 (Pa. Super. Ct. 2007) (cited by Mother and involving a custody

                                                 20
order, but not applying principles of contractual interpretation to the same and noting, among

other things, that the trial "court ... [wa]s certainly correct in observing that where a custody

agreement between the parties is incorporated into a court order that agreement becomes as

binding upon the parties any other portion of the court's order"); Colonna v. Colonna, 791 A.2d

353 (Pa. Super. Ct. 2001) (cited by Mother and involving an antenuptial agreement); Kraisinger

v. Kraisinger, 928 A.2d 333 (Pa. Super. Ct. 2007) (cited by Mother and pertaining to the child

support portion of a marriage settlement agreement); Ferguson v. McKieman, 940 A.2d 1236

(Pa. Super. Ct. 2007) (cited by Mother and involving agreement as to child support between

mother and sperm donor).

       This Court, therefore, did not hold a hearing to adjudicate Mother's Petition to Vacate.

Said petition could not obtain relief through a breach of contract theory. No hearing would have

changed that result. Accordingly, no hearing was held in the instant proceedings at which the

Court was required to testify.

       Concerning any criminal trial/hearing involving Mother's conduct with respect to the

instant custody proceedings, the Court notes that it has not been called to testify and, moreover,

would not be presiding over such a matter in any event, making Rule 605 of the Pennsylvania

Rules of Evidence - cited by Mother - inapplicable. See Pa.R.Evid.P. 605 ("The presiding

judge may not testify as a witness at the trial or other proceeding." (emphasis added)).

       Second, Mother contends the Court erred by entering the Recusal Order without holding

a hearing. Notably, Mother did not request a hearing in her motion for recusal. She also never

objected to the lack of a hearing until she filed her statement pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. Accordingly; Mother has not properly preserved

this allegation of error for appellate review. See Pa.R.A.P. 302(a) ("[i]ssues not raised in the


                                                 21
..

     lower court are waived and cannot be raised for the first time on appeal"); see also Beemac

     Trucking, LLC v. CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa. Super. Ct. 2016) ("[a]n issue

     raised for the first time in a concise statement is waived').

             The Court submits, therefore, that based on the foregoing, if the appeal at 245 WDA 2019

     is not quashed, the Recusal Order should be affirmed, Mother's arguments are either waived or

     lack merit.

     IV.    Conclusion

            For the reasons set forth above, Mother's pending appeal should be quashed. In the event

     it is not, the Recusal Order should be affirmed.



                                                             BY THE COURT:


                                                               � i:
                                                             ____________, J.
                                                                                  V)
                                                             Susan Evashavik DiLucente




                                                        22
