J-S64014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.M.W.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellant

                      v.

J.L.B.

                           Appellee                   No. 871 WDA 2014


                       Appeal from the Order April 22, 2014
                  In the Court of Common Pleas of Blair County
                       Civil Division at No(s): 2011 GN 945


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                        FILED NOVEMBER 7, 2014

         S.M.W. (“Father”) appeals from the order entered in the Court of

Common Pleas of Blair County denying his petition for special relief in this

custody matter. We affirm.

         J.L.B. (“Mother”) and Father are the parents of B.K.W., born in

September 2004, who is the subject of this custody dispute.        Mother and

Father were never married.        In 2008, B.K.W. was found dependent and

placed in foster care temporarily.      Both parents have a history of drug

abuse, which rendered them unable to parent B.K.W. at that time. There is

also a history of domestic violence.

         On July 15, 2013, the parties entered into an agreed order of custody,

wherein Mother had primary residential custody and Father had partial
J-S64014-14



physical custody.1         Father filed a petition to modify custody, seeking

primary residential custody. The court held a hearing in April 2014.

Thereafter, the court entered an order denying Father’s petition for

modification.    Father filed a timely notice of appeal, along with a Concise

Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b) (Children’s Fast Track Appeals).

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

           1. Whether the court erred by placing too much weight on the
              past and present allegations of abuse by Father?

           2. Whether the court erred in not placing enough emphasis
              on Mother’s current issues concerning the minor child’s
              stepbrother and the child’s terrible attendance at school?

           3. Whether the court erred by taking time away from Father
              due to Mother’s belief that this would benefit the child
              without expert testimony?

       In custody modification cases, our scope and standard of review are as

follows:

       In reviewing a custody order, our scope is of the broadest type
       and our standard is abuse of discretion.         We must accept
       findings of the trial court that are supported by competent
       evidence of record, as our role does not include making
       independent factual determinations. In addition, with regard to
       issues of credibility and weight of the evidence, we must defer to
       the presiding trial judge who viewed and assessed the witnesses
       first-hand. However, we are not bound by the trial court’s
       deductions or inferences from its factual findings. Ultimately,
____________________________________________


1
  Father had custody every other weekend and every Wednesday after
school until Thursday after school, with one additional night after school until
6:30 p.m.



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       the test is whether the trial court’s conclusions are unreasonable
       as shown by the evidence of record. We may reject the
       conclusions of the trial court only if they involve an error of law,
       or are unreasonable in light of the sustainable findings of the
       trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

       Further, this Court has stated,

       [t]he discretion that a trial court employs in custody matters
       should be accorded the utmost respect, given the special nature
       of the proceeding and the lasting impact the result will have on
       the lives of the parties concerned. Indeed, the knowledge
       gained by a trial court in observing witnesses in a custody
       proceeding cannot adequately be imparted to an appellate court
       by a printed record.

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

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

       Under the Child Custody Act (“Act”),2 the paramount concern is the

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

the Act provides that, upon petition, a trial court may modify a custody

order if it serves the “best interest of the child.”    See 23 Pa.C.S. § 5338.

Section 5328 lists sixteen factors the court must consider in that analysis,

including abuse/risk factors, and requires the court to give “weighted

consideration” to safety factors.         See 23 Pa.C.S. § 5328.   In particular,

section 5328(a)(2) states:
____________________________________________


2
 See 23 Pa.C.S. §§ 5321-5340. Because trial here was held in April 2014,
the Act applies to this case. See C.R.F., 45 A.3d at 445 (holding that, if the
custody evidentiary proceeding commences on or after the effective date of
the Act, i.e., January 24, 2011, the provisions of the Act apply).



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       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.

23 Pa.C.S. § 5328(a)(2).

       In his first issue, Father argues that the court erred in placing too

much weight on past allegations of abuse, including a prior PFA that Mother

had filed against him, which the court granted, as well as Mother’s testimony

of domestic violence, threats, and an assault by Father that caused her to

suffer a collapsed lung. Father acknowledged assault charges with respect

to other males,3 and admitted there was a PFA against him with respect to

Mother; however, he denied any allegations of abuse against the child. N.T.

Custody Hearing, 4/8/14, at 6, 59-60, 83-85.       Father also contends that

since the domestic abuse was in the past, four years prior to the hearing,

the weight the court placed on this evidence was in error. We disagree.

       The fact that Father’s violence was aimed at Mother and others, and

not toward B.K.W., does not render this factor any less significant, especially

in light of the statute’s mandatory language that the court give “weighted”

consideration to safety and risk factors. See 23 Pa.C.S. § 5328. Further,

the abuse factor is not limited to abuse toward the child.        The statute


____________________________________________


3
 Mother testified that Father came to her home and assaulted her boyfriend,
and she stated that she is afraid of him. N.T. Custody Hearing, 4/18/14, at
88-89.



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specifically requires that the court consider whether there is a “continued

risk of harm to the child or an abused party.”      23 Pa.C.S. § 5328(a)(2)

(emphasis added).4 We find no error.

       Father next claims the court erred in not placing enough emphasis on

Mother’s current issues concerning the minor child’s stepbrother, age 13,

who resides with Mother and B.K.W., as well as issues concerning both

B.K.W.’s and stepbrother’s attendance at school.         Father argues that

B.K.W.’s absences were on days when he did not have custody and that

stepbrother had terrible attendance at school as well, indicating Mother had

no control over the household.5

       Father testified that B.K.W. missed twenty-one days of school in a two

and one-half-month period, that he was frequently late for school, and that

although Mother claimed the absences were due to illness, Father disagreed.
____________________________________________


4
  We note that Mother also testified that B.K.W. told her Father hits his
girlfriend, and that B.K.W. “goes into his room and turns his TV up the whole
way and jumps on the bed to try to not hear it.” N.T. Custody Hearing,
4/08/14, at 89.       Father’s girlfriend denied this, stating that if he were
physical with her, she “would have him arrested.” Id. at 144.
5
   Mother’s response to the question of why her other son, B.K.W.’s
stepbrother, had poor attendance at school was “Damian chooses not to go
to school and doesn’t want to follow my rules.” N.T. Custody Hearing,
4/08/14, at 108. At that time, stepbrother was thirteen years old. Mother
did state that she tries to make him go to school, but she cannot physically
get him up and carry him. Id. at 109. She also stated that he was in the
Truancy Protection Program to try to get back into school. Id. Mother
clarified Father’s statement that stepbrother had broken into a vehicle; she
stated that he and his friends had thrown a rock at a vehicle and it broke the
window. Id. at 111.



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He testified that when he questioned B.K.W. about why he missed school,

the child related that it was because Mother overslept.       Id. at 9.   Father

stated that stepbrother “likes to beat up on his little brother,” id. at 13, and

that Mother’s characterization of the fighting as “what brothers do” is

misleading. Father also testified about a DUI Mother received while B.K.W.

was in the car, that she has had drug relapses and used crack cocaine, and

that B.K.W. tells him there are people coming in the house and sleeping on a

mattress on the floor. Id. at 14-15. Essentially, Father claims it would be in

B.K.W.’s best interests to grant him primary custody because he does not

believe that B.K.W. lives in a safe environment. Id. at 17.    Father stated:

      It doesn’t seem like my son is in a very safe environment. He is
      not making it to school. He is not making it to baseball practices
      at all. I make sure that he attends school every day. I make
      sure that he has a home-cooked meal in him every day. I make
      sure that he goes to baseball practice. I spend time with him.
      We do things together as a family. I just think the environment
      that I provide is a lot better for learning morals and values and
      respect and get an education and growing up and becoming
      somebody. . . . Because he didn’t make it to school for so many
      days they threw him off the [school] basketball team. . . . Also,
      they were going to put him back in regular classes, but since he
      missed so many days of school and got behind, they wouldn’t
      allow him to go back into regular classes either. I’m concerned
      about everything. I’m concerned about not going to school. I’m
      concerned, you know, that he doesn’t make it to his sports. I’m
      concerned that his [step]brother is . . . not a very good person,
      and I’m afraid [B.K.W.] is going to start copying him.
      [Stepbrother] has been caught smoking; he’s been caught with
      marijuana in his room. . . . He is breaking into cars; he’s been
      arrested and put away. . . . I’m asking the Court to let me have
      full custody so I can make sure that [B.K.W.] gets to school
      every day, that [he] gets to his sports and that [he] grows up
      with an education and learns respect and morals and values and


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       can grow up and become something because the road he is on
       now, it’s bleak.

Id. at 17-21.

       Father points out in his brief that there was no testimony that B.K.W.

had excessive absences from school while in his custody, nor was there any

testimony regarding an unsafe environment or any abuse and/or neglect

while B.K.W. was in Father’s custody.

       Our comprehensive review of the record from the custody hearing

indicates that there are safety risks in both households. Both parties clearly

care for the child, and yet both parties struggle with failings that have

adversely affected their child. Mother has admitted her history of drug use,

in particular cocaine. Id. at 114. She also admitted that she had a relapse

in 2011, stating that she used crack cocaine once when her children were

with a sitter.    Id. at 115.     Father acknowledged his previous assaults, as

well as prior DUIs.

       Father also acknowledged that he did not give B.K.W. his prescribed

medication.6      Father testified that the medication had adverse effects on

B.K.W., that it was like giving “poison” to his son and he could not do it. He

stated, “I saw what it was doing to my child, and I can’t bring myself to give


____________________________________________


6
  B.K.W. has been diagnosed with AD/HD (Attention Deficit Hyperactivity
Disorder) and ODD (Oppositional Defiance Disorder), as well as a mood
disorder. B.K.W. was three years old when he was diagnosed and began
treatment. N.T. Custody Hearing, 4/8/2014, at 74.



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it to him because of what it does to him and the harm it is causing him. As

a parent, I can’t do that.” Id. at 54. Mother testified that B.K.W. spends

Wednesday evenings with Father, and Father does not give him his AD/HD

medication on Thursday morning before school; therefore, Mother claims,

B.K.W. invariably gets into trouble in school on Thursdays. Id. at 81. She

testified this occurs on Mondays at school as well after B.K.W. has spent the

weekend with his Father. Id. As a result, the trial court included in a prior

order,   in   April    2011,   the   requirement   that   Father   cooperate   with

administering B.K.W.’s medication.         Id. at 81-83.      Father’s testimony,

however, indicates that he is adamantly opposed to giving B.K.W. his

medication.

      Allison Seltzer, who holds a master’s degree in Clinical and Counseling

Psychology, testified that she is B.K.W.’s therapist, that B.K.W.’s behavior

had decompensated in the last several months, and that B.K.W. indicated to

her that when he did not take his medication it was difficult for him to be

calm and he does not do as well in school. Id. at 132. Seltzer stated that

B.K.W. also indicated to her that he does not get his medication when he

visits Father.        Id. at 133.    Additionally, Seltzer testified that B.K.W.

witnessed violent behavior in the past, that she had recently diagnosed

B.K.W. with PTSD (Post Traumatic Stress Disorder), and that when Father




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makes derogatory statement about Mother, “the trauma continues.” Id. at

135.7

        Dr. Peggy Nadenichek, a licensed psychologist, also testified.      She

stated that she had been contacted by Father for the purpose of counseling

B.K.W., beginning in April 2013. N.T. Custody Hearing, 4/11/14, at 6. Dr.

Nadenichek stated that B.K.W.’s main complaint about living with Mother

involved “his brother beating up on him. That’s pretty much what he didn’t

like about his mom’s house.” Id. at 8. She stated:

        [I]t appears to be a constant. In one of my sessions, he was
        happy that two days had passed, that [his brother] had not beat
        up on him, and, you know, he was asked to keep secrets about
        cigarettes and things like that. So, he – now, it was a constant.
        It was not just every once in a while sibling problem.

Id.     Additionally, Dr. Nadenicheck reported that B.K.W. gave her various

reasons for his absences from school:

        [H]e would say because of his headache or a stomachache and
        then he would say because his mom didn’t get him up and he
        was very concerned about missing so much school because he
        wanted to get good grades. He valued good grades and he was
        worried that he would not get good grades if he missed so much
        school. . . . [I]t was very confusing to me [with respect to
        sleeping arrangements].     He has a bed there and I think
        sometimes he was able to sleep in it; sometimes he wasn’t.
        Sometimes he stayed with his mom but if she had someone
        over, he couldn’t stay there. I believe a relative was there at
        one point and used his room. So, I really could not get a very
        clear answer from [B.K.W.] as to where he slept on a regular
____________________________________________


7
  Seltzer testified: “Statements that she is on drugs, that she smokes crack;
that . . . there are “effing N’s” under her bed.” Id. at 136.



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      basis. [H]e had mentioned sleeping downstairs; I believe it was
      the couch.

Id. at 9-10.     Dr. Nadenicheck also testified as to her conversation with

B.K.W.’s teacher and the teacher’s reported observations, which, essentially,

were not consistent with either Mother’s testimony or that of therapist

Seltzer:

      [His teacher] really likes [him] and just wanted to be open with
      the information she shared and she felt that she could not –
      there was no set pattern to his behavior related to medication
      taking, except she did notice that when he started up again in
      October after Dr. Cho prescribed the Concerta, he wasn’t the
      same bubbly child that he had been but she did state that
      B.K.W. has said he doesn’t always take it at his mom’s; he
      doesn’t take it always at his dad’s so she never saw any real
      pattern to his behavior consistent with knowing when or when he
      wasn’t taking his medicine.

Id. at 11. Dr. Nadenichek acknowledged B.K.W.’s anger problems and the

ODD diagnosis; however, she was guarded with respect to the AD/HD

diagnosis.

      The    record    contains    blatant   inconsistencies    in   each   party’s

characterizations of what occurs in the other’s household, as well as

conflicting expert testimony. The trial court was in the unenviable position

of having to sort through these discrepancies, and this Court must defer to

the determinations of the trial court as to the credibility and weight it gave

to each party’s testimony. See C.R.F., 45 A.3d at 443. Therefore, Father’s

claim that the court placed too little weight on the sibling situation is

insufficient, in itself, to find error or an abuse of discretion.



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        In his final issue, Father argues the court erred in awarding Mother

primary custody during the school week, thereby taking time away from

Father’s custody, without expert testimony. He argues the court relied only

on Mother’s testimony that this would benefit B.K.W. He also argues that

Mother’s household is not conducive to better attendance at school,           that

stepbrother is a bad influence on B.K.W., and that stepbrother’s actions

toward B.K.W. border on abuse.            In sum, Father claims the court did not

place enough weight on the stability factor, see 23 Pa.C.S. § 5328(a)(4)

(“the need for stability and continuity in the child’s education, family life and

community life”), and, therefore, its decision was error.8     We disagree.

        First, we note that the court relied on more than Mother’s testimony;

both parties presented witnesses and the court had a sufficient record before

it.   The court acknowledged its concerns with the sibling relationship and

questioned whether B.K.W.’s interactions with stepbrother were in B.K.W.’s

best interests.     However, rather than weighting this against Mother, the

court chose to place no weight for either party with respect to the “sibling

relationship” factor, see 23 Pa.C.S.§ 5328(a)(6). In light of the conflicting

testimony, this was not an abuse of discretion.

        The trial court also considered the fact that Father did not attend any

school conferences, that Father was not compliant in dispensing B.K.W.’s

____________________________________________


8
    We note that neither party sought to have B.K.W. interviewed by the court.




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AD/HD medication, and that he was not compliant with any of the requests

for evaluations by Blair County Child Youth and Families.9        In fact, the

court’s April 5, 2011 order directed Father to insure B.K.W. take his

medication as prescribed. Father testified that he will not comply with this

provision of the order, and the court noted Father’s pattern of disregarding

court orders.      See Trial Court Opinion, 4/22/14, at 16-17. The court,

therefore, weighed factor 5328(a)(12) (“[e]ach party’s availability to care for

the child or ability to make appropriate child-care arrangements”) slightly in

favor of Mother.

       The court also weighed factor 5328(a)(13) (“[t]he level of conflict

between the parties and the willingness and ability of the parties to

cooperate with one another”) in favor of Mother.        The court noted that

Mother testified she was willing to talk with and cooperate with Father,

whereas Father testified he did not want to speak with Mother, had no

respect for her, and all communications and arrangements were handled by

his girlfriend.

       The court also weighed factors 5328(a)(14) (history of drug or alcohol

abuse of a party) and 5328(a)(15) (mental and physical condition of a party)
____________________________________________


9
  On March 17, 2008, the court ordered Father to obtain a mental health and
drug and alcohol evaluation. On December 16, 2011, the court reiterated
these requirements and ordered Father to provide to the Blair County
Custody Office documentary proof of the results of such evaluations and any
recommended treatment. Father failed to comply with these orders and
provided no reason for his failure or refusal to do so.



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in favor of Mother. Although both parties admitted to prior drug addictions,

the court found Mother’s testimony forthright; she admitted to her 2011

relapse and followed through with drug tests, whereas Father failed a 2011

drug test but never followed through with the court’s order that he complete

a drug and alcohol evaluation.   Further, Father never followed through on

the court’s order that he complete a mental health evaluation.      The court

expressed its concern with Father’s “unwillingness to follow through with

those reasonable directives[.]” Trial Court Opinion, supra at 21.

     Additionally, with respect to the child’s medication and the competing

expert testimony, the court stated:

     The child may be overmedicated. However, the Court does not
     know if this is the case. We wish the parties could work together
     as parents to determine the appropriate conclusion. However, it
     is extremely clear that this will not occur soon. It could be that
     the Father is right and the child does not need the medication.
     However, a physician has prescribed the medication. In light of
     this fact the court will not act as a medical expert. The court is
     therefore left to conclude that the Mother’s opinion that the
     medication helps the child and the fact that the medication is
     prescribed by a physician that it is proper to continue the
     medication until the evidence suggests otherwise. Due to this
     fact, the Court believes that it is necessary to consider the
     Mother’s request that the Father’s periods of partial
     custody be modified. . . . [She] believes that this is
     important for stability reasons and believes that it is
     necessary so that she may be able to give the child the
     medication before school on the school days since the
     Father will not do so.         We believe that the Mother’s
     request in this regard is reasonable and appropriate. In
     addition, we do believe that stability through the school
     week is important for a child that has numerous cognitive
     disorders that deal with his ability to focus and behave
     appropriately at school. We believe that this stability
     through the school week will hopefully provide more

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       structure. We believe that granting the Mother’s request
       at the present time will serve the child’s best interests.
       Therefore, we will fashion an Order that will modify the
       Father’s periods of custody during the school year. We
       will make up for this by granting him some additional
       hours during the summer when school is not an issue.

Id. at 21-22 (emphasis added).

       Contrary to Father’s claim, the court clearly relied on much more than

Mother’s sole testimony in reaching its decision.      After our review of the

parties’ briefs, the record, and the relevant law, we find that the trial court’s

conclusions are supported by competent evidence in the record.          The trial

court properly considered the section 5328(a) factors, explained how it

weighed the relevant factors, and determined that it was in B.K.W.’s best

interests to deny Father’s petition for modification, to award the parties

shared legal and physical custody of the child, and to award Mother primary

residential custody and Father partial physical custody.10 See C.B. v. J.B.,

65 A.3d 946, 950 (Pa. Super. 2013) (court must delineate reasons for
____________________________________________


10
    The court’s order awarded Father partial physical custody as follows:
during the school year: every other weekend (Friday after school until
Sunday at 6:30 p.m., every Wednesday and Thursday after school until 6:30
p.m.); During the summer months, Father shall have partial physical
custody every other weekend from Friday at noon until Monday at 8:00 p.m.
and every Wednesday from noon until Thursday at 8:00 p.m. Father shall
also have a partial custody from 11:00 a.m. to 8:00 p.m. on those Mondays
following the weekends that Father does not have partial custody.
Additionally, both parties shall have a consecutive two-week period with
child during the summer months. The court set forth a holiday schedule,
and also stated in the order that Father comply with “all reasonable requests
of the child’s treating physician regarding medication.”         See Order,
4/22/14.



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decision when making award of custody either on record or in written

opinion; mere recitation of statute and consideration of § 5328(a) factors en

masse is insufficient).   We find no error or abuse of discretion.   C.R.F.,

supra.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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