J-A26045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    M.S.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
             v.                                :
                                               :
    S.S.                                       :
                                               :
                        Appellant              :
                                               :
                                               :   No. 934 WDA 2019

                 Appeal from the Order Entered May 28, 2019
       In the Court of Common Pleas of Lawrence County Family Court at
                          No(s): 10041 of 2016 C.A.


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 12, 2019

           Appellant, S.S. (“Mother”), appeals from the order entered on May 28,

2019, modifying custody with M.S. (“Father”) regarding the parties’ two

children, A.F.S. (a female born in October 2003) (“Daughter”) and A.M.S. (a

male born in January 2008) (“Son”).1 We affirm.

           We briefly summarize the facts and procedural history of this case as

follows. Mother and Father were married in 1997. They filed for divorce in

January 2016 and separated two months later. On August 8, 2016, the parties

entered into a custody agreement, memorialized by consent order, whereby

____________________________________________


1  More specifically, the order granted the parties shared physical custody of
the children on an alternating weekly basis. The trial court order further
granted the parties shared legal custody of the children, except that Father
was granted sole legal custody regarding the children’s schooling and
education and Father was given the sole right to have Daughter “examined by
any physician, psychologist, or psychiatrist […] for a second opinion or for
testing[.]” Order of Court, 5/28/2019, at 11-12.
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Mother had primary physical custody of the children.         Father had partial

physical custody of the children every other week from after school on

Thursday until Monday morning and one weekday afternoon each week.

Moreover, under their custody agreement, Mother and Father shared legal

custody.

       Father subsequently filed a petition for custody seeking sole legal

custody to make educational and medical decisions for the children. Father

maintained that he wanted Daughter, who had been home-schooled by Mother

since the fourth grade, to attend school full-time.        At the time of the

modification petition, Daughter was enrolled in several classes at the public

high school and engaged in multiple extra-curricular activities, including ballet

and dance classes, acting in musicals and plays, band, and singing.2 Father

also expressed concerned about Daughter’s medical care, claiming he was

skeptical about various ailments and diagnoses Daughter had received over

the years. Daughter has been diagnosed, inter alia, with Tourette’s syndrome,

mononucleosis, bronchitis, pneumonia, strep throat, scarlet fever, Lyme

disease, Pediatric Autoimmune Neuropsychiatric Disorder Associated with

Strep (PANDAS), herpes, memory loss, brain fog, sensitivity to sound and

touch, Obsessive-Compulsive Disorder (OCD), germ phobia, separation

anxiety, sleep disorder, and depression.


____________________________________________


2  Daughter also ran cross-country and took gymnastic classes until soreness
in her joints prevented her from participating in those activities.

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       Following a three-day hearing, on May 28, 2019, the trial court entered

findings of fact and an order of court granting physical custody of the children

on a 50-50 schedule. The trial court granted sole legal custody to Father for

educational and medical decisions, but ordered the parties to share legal

custody in all other respects. Moreover, the trial court made clear that Father

was required to consult with Mother regarding educational and medical

choices, with the ultimate decision reserved to Father alone.        This timely

appeal resulted.3

       On appeal, Mother raises the following issues4 for our review:

    1. Did the trial court commit an abuse of discretion and/or error of
       law in issuing its [o]rder of [c]ourt [] filed on the docket on May
       [28,] 2019[?]

    2. Did the trial court commit an abuse of discretion and/or error of
       law in awarding Father the sole legal right to determine where and
       how the children are educated and enrolled in school when it failed
       to conside[r] the recommendations and opinion of [Daughter’s]
       treating physician and/or evidence regarding [Daughter’s] health
       issues and need for accommodations?
____________________________________________


3  Mother filed a timely notice of appeal and corresponding concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) on June
20, 2019. The trial court relied upon its earlier findings of fact entered on May
28, 2019 as the rationale for its decision.

4 We have reordered the issues for ease of discussion. Additionally, Mother
raised two additional issues in her concise statement challenging evidentiary
rulings made by the trial court, but she abandons those claims on appeal. See
Mother’s Brief at 22 n.1. We find those issues waived. Commonwealth v.
Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (Issues raised in Pa.R.A.P.
1925 concise statement that are not developed in appellate brief are
abandoned); see also Commonwealth v. Woodward, 129 A.3d 480, 509
(Pa. 2015) (holding that “where an appellate brief fails to … develop an issue
in any [] meaningful fashion capable of review, that claim is waived.”).

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   3. Did the trial court commit an abuse of discretion and/or error of
      law when it modified the physical custody schedule and awarded
      Father the sole legal right to determine where and how the
      children are educated and enrolled in school based on facts and
      conclusions not supported by evidence of record?

   4. Did the trial court commit an abuse of discretion and/or error of
      law when it ordered that the parents should share physical
      custody when the evidence showed that Father works full time and
      is frequently unavailable on evenings and weekends, that Father
      does not have proper accommodations for the children, the
      children prefer to remain in Mother’s primary custody, and Mother
      had provided a stable home life as the primary physical custodian
      for the children?

   5. Did the trial court commit an abuse of discretion and/or error of
      law when it considered the testimony and recommendation of the
      Guardian [A]d [L]item [(GAL)], even though the GAL did not
      conduct a thorough and independent investigation, failed to speak
      with [Daughter’s] primary physician and only interviewed
      witnesses whose names were provided by Father?

Mother’s Brief at 22.

         Mother’s issues overlap and broadly challenge the trial court’s decisions

regarding custody. However, three primary categories emerge from Mother’s

complaints on appeal.       Mother challenges the grant of sole legal custody to

Father regarding the children’s education and Daughter’s medical care. She

also challenges the trial court’s grant of equal shared physical custody of the

children. Finally, Mother contends that the GAL did not conduct a thorough

and independent investigation before making her recommendations to the

court.

         Mother’s chief complaints, however, relate to the legal custody

determination with regard to Daughter. Mother argues that the trial court



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failed to account for Daughter’s “complicated and lengthy medical history.”

Id. at 26. She claims that over the years Daughter has been diagnosed with

the aforementioned ailments. Id. at 26-31. In 2015, the parties agreed to

have Daughter treated by Dr. Allen Lewis and later consulted him regarding a

plan for part-time enrollment in public school. Id. at 27-28. In January 2016,

Dr. Lewis opined that Daughter’s public school schedule not be increased until

her symptoms of Lyme disease and PANDAS dissipated.             Id. at 28-29.

Moreover, Mother argues that “in spite of [Father’s] skepticism regarding Dr.

Lewis’s diagnosis and treatment, [Father] failed to offer any medical testimony

or evidence to contradict the opinions of [Daughter’s] long-term physician or

to demonstrate that it is not accurate.” Id. at 42.

      Relatedly, Mother argues that it was error to grant Father sole legal

custody regarding Daughter’s education.     Mother claims that although the

parties disagreed over the number of public school classes in which to enroll

Daughter, “both parties are fit parents who have been able to cooperate and

compromise regarding difficult issues, [thus] there [was] no basis in the

record for modification of legal custody.” Id. at 33. Mother complains that in

rendering its decision regarding legal custody, there was no evidentiary

support for the trial court to opine that Daughter “would not be able to attend

college or hold down a regular job” unless educational changes were made on

her behalf.   Id. at 39-40.   Finally, by determining that if Daughter could

participate in strenuous physical extra-curricular activities that required her

to travel distances, she could attend public school full-time, Mother argues

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that, “the court ignored testimony that [Daughter] frequently misses

rehearsals and activities due to illness.” Id. at 41. Accordingly, Mother argues

that by “awarding [Father] sole legal custody for purposes of making

educational decisions, the court failed to consider that [Father] intended to go

against medical advice without providing any basis for doing so.” Id. at 43.

      Our standard of review in child custody cases is 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, 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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

      “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors that a trial court must consider when awarding

custody are set forth at 23 Pa.C.S.A. § 5328(a):

      (a) Factors.--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.

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       (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.

       (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.



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         (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.A. § 5328(a). All relevant factors shall be considered by the trial

court, and the only factors that should be given “weighted consideration” are

factors that “affect the safety of the child[.]” M.J.M. v. M.L.G., 63 A.3d 331,

338 (Pa. Super. 2013) (citation omitted).

       Upon careful review of the certified record, we discern no abuse of

discretion or error of law in determining legal custody. Here, the trial court

thoughtfully considered the sixteen factors regarding custody as set forth in

Section 5328. The trial court measured Daughter’s extensive medical history

and her entire educational experience in determining that Father was the party

best suited to meet her best interests in these regards.        The evidence

presented at the custody hearing showed that Daughter is a capable, often

described as gifted, student who would benefit from additional formal

education in a public school setting.       Daughter’s current public school

educators testified consistently that Daughter does not display the physical

manifestations of her illnesses at school, she thrives academically, and there

are appropriate individual educational plans in effect that specially address

Daughter’s needs while in school. N.T., 4/22/2019, at 31-33, 198-200, and

217.   Moreover, while Father did not offer additional medical testimony to

refute Daughter’s current diagnoses, he sought legal custody to seek another


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J-A26045-19



medical opinion because:      (1) the unrefuted evidence presented showed

Daughter’s long-term treatment has not been entirely successful and she still

reported symptoms, and (2) Father could not unilaterally obtain a second

medical opinion, while still sharing legal custody equally with Mother, without

Mother’s express consent.      Daughter has not been presenting physical

symptoms at school.     However, her treating physician recommended that

Daughter’s partial school schedule remain the same because of her ailments

and Mother unyieldingly opines that Daughter’s current medical care and

education is proper. Thus, we conclude that, based upon the record before

us, it was appropriate for the trial court to award Father sole legal custody to

obtain a second medical opinion and make continued medical decisions on

behalf of Daughter. Furthermore, Daughter testified that she would like to

attend college. Id. at 133.    A guidance counselor testified that Daughter’s

preparation for college and chance for admission would increase with

additional public schooling, especially in specialized areas of study.   Id. at

249. The record supports the trial court’s determination that Father is suited

to provide for the children’s educational best interests.

      Next, Mother asserts that the trial court erred in granting Father shared

physical custody of both children. Mother’s Brief, at 33-39. Mother challenges

the trial court’s application of several of the sixteen required factors for

custody modification pursuant to 23 Pa.C.S.A. § 5328. Id. Mother claims

that Father’s work schedule is demanding and “he offered no evidence to show

how he would accommodate the children’s after school and evening

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obligations[,]” what arrangements he would make while working, and/or if he

could “provide care for [Daughter] should she fall ill during his custody time

or how he would monitor her medical needs.”        Id. at 36.    Mother further

argues that the trial court failed to consider Father’s lack of suitable housing

for custodial visitation as Father lives in a two-bedroom apartment and sleeps

in the living room when the children visit. Id. at 37. Mother claims that the

children prefer to remain in Mother’s primary custody and that “the court’s

finding that [Son] told the GAL that he preferred to live primarily with [Father]

is not supported by either the record or the GAL’s report.” Id. at 38. As such,

Mother argues that the trial court “provided no analysis of how a change to

the current schedule would be of a benefit to the children.” Id.

      The record supports the trial court’s determination that shared physical

custody was appropriate.      The trial court specifically considered Father’s

employment schedule and housing and determined that shared physical

custody met the children’s needs. The record evidence shows that the children

were often tardy and frequently missed school while in Mother’s care.

Whereas, there was no evidence that Father’s employment schedule interfered

with his ability to meet the children’s ongoing needs. Regarding housing, Son

testified that the bedroom at Father’s apartment is specifically for him. Son

“chose the covers and the curtains and all of the things that are in it.” N.T.,

4/22/2019, at 175. Father sleeps in that room when Son is not visiting and

sleeps on a sofa bed in the living room during custodial periods. Id. Father




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has provided each of the children with a private, individually tailored separate

space to stay during his periods of custody.

      We also reject Mother’s contention that there was no evidence that Son

told the GAL that he preferred to live with Father. In fact, when asked directly,

Son testified that he thought he did tell the GAL he would like to live with

Father, but just could not remember. Id. at 154-155 (“I think. If [the GAL]

wrote that down, I think I did, I just don’t remember.”). Moreover, the GAL

specified that, in making her recommendations to the trial court, she

considered the children’s preferences, but they expressed their preferences in

confidence and she would not betray that trust.         N.T., 5/2/2019, at 30.

Accordingly, for all of the foregoing reasons, we conclude that the record

supports the trial court’s determination that the parties share physical custody

of the children.

      In her final related issue, Mother claims that the GAL did not conduct a

thorough or independent investigation, failed to speak with Daughter’s

primary physician, and only interviewed witnesses provided by Father.

Mother’s Brief at 44-46. The GAL stated that, as is her usual practice, she did

not speak directly with doctors in rendering her recommendations and,

instead, relied upon their depositions during her investigation.           N.T.,

5/2/2019, at 15-16.    The GAL testified that the various community members

she spoke with had sought her out and she did not contact them. Id. at 29.

The GAL further testified that she “would have been glad to talk to anybody”

had Mother provided the names of potential witnesses.          Id.   The record

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supports the GAL’s conclusions. Mother does not contend that she provided

the GAL with witness names and the GAL failed to interview them. In fact, on

appeal, Mother does not offer any specific additional witnesses that were

necessary to the GAL’s determination and, instead, makes only a bald

allegation that her investigation was not thorough. We conclude that Mother

is not entitled to relief on her final claim.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2019




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