J-A05014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    K.B.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                  v.                           :
                                               :
                                               :
    J.J.W., JR.                                :   No. 1340 WDA 2019

                 Appeal from the Order Entered August 2, 2019
       In the Court of Common Pleas of Allegheny County Family Court at
                            No(s): FD16-7135-002


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 13, 2020

        K.B. (“Mother”) appeals from the August 2, 2019 order, which awarded

J.J.W., Jr. (“Father”) primary physical and sole legal custody of Ad.B.-W. (born

in June of 2013) and K.B.-W. (born in June of 2013) (the “Twins”), and

awarded Mother supervised custody in accordance with a schedule delineated

in the order. The order also denied Father’s petition for relocation and dictated

that Mother is solely responsible for any supervision fees. After careful review,

we affirm.

        In conjunction with its August 2, 2019 order, the trial court issued

findings of fact (“Findings”), in which it summarized the factual background

and procedural history of this case as follows:


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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              The parties are the divorced parents of three minor children:
        [Ai.B.-W. (born in July of 2008) and the Twins1]…. Mother is a
        Pittsburgh native[,] and Father was raised in Haddonfield, New
        Jersey. The parties were residing in California at the time of their
        marriage in 2006, and all three children were born in that state.
        The parties separated in May [of] 2014, and shortly thereafter[,]
        became enmeshed in extensive custody litigation.

              Ultimately, pursuant to a June 22, 2015 California
        [c]onciliated [c]ourt [a]greement and [s]tipulated [o]rder (“C[A]
        Order”), the parties agreed that the children could relocate to
        Pittsburgh with Mother. That order also provided that if Father
        moved to Pittsburgh[,] he would exercise equally shared custody
        of the children[,] following a step-up schedule. Mother moved to
        Pittsburgh in August of 2015, Father followed in November of
        2015, and custody proceedings commenced in this [c]ourt soon
        thereafter.

               Currently, Mother has sole physical and legal custody of
        [Ai.B.-W.], and he is not the subject of either the [r]elocation
        [p]etition or the [c]ustody [p]etition. Rather, the Twins are at
        issue in both petitions, the former being Father’s request to
        relocate with them to the [s]tate of New Jersey, with Mother being
        granted supervised custody, and the latter constituting Mother’s
        request to remain within the jurisdiction of this [c]ourt, with
        Father exercising supervised custody.

               To adjudicate the parties’ petitions, the [c]ourt held 10 days
        of trial and heard from a multitude of witnesses.

Findings, 8/2/19, at 1-2.

        On August 2, 2019, the court denied Father’s relocation petition and

granted Father primary physical and sole legal custody of the Twins, with

supervised custody of the Twins granted to Mother on Wednesday evenings

and every other weekend. The order also requires Mother to bear the cost of

any supervision fees. On August 30, 2019, Mother filed a timely appeal, along


____________________________________________


1   Ai.B.-W. and the Twins are referred to collectively herein as “the children.”

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with a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Mother now presents the following issues for our review:

      I.     Whether the [t]rial [c]ourt committed an abuse of discretion
             and error of law by finding that there were no credible
             allegations of abuse[, where s]uch a finding [was] against
             the weight of the evidence produced at trial[,] and by
             granting Mother only supervised visits, granting the siblings
             only supervised visits[,] and taxing the costs of the
             supervised visits solely to Mother[?]

      II.    Whether the [t]rial [c]ourt committed an abuse of discretion
             in finding that it … was in the [Twins’] best interest for
             Father to be awarded sole legal and sole physical custody
             when the evidence at trial and the court’s own analysis of
             the custody factors under 23 Pa.C.S. § 5328 [did] not
             support such a finding[?]

      III.   Whether the [t]rial [c]ourt committed an abuse of discretion
             and an error of law, and found against the weight of the
             evidence [adduced] at trial … that A[i].B.-W. was negatively
             influencing or coaching the [Twins] and separating the
             siblings was in the [Twins’] best interest[?]

      IV.    [Whether i]t was an error of law for the [t]rial [c]ourt to
             penalize or take a negative inference against Mother for
             discussing the case with others in her family, law
             enforcement, state agencies[,] and advocacy groups[?]

Mother’s Brief at 5.

      The relevant scope and standard of review are as follows:

      [T]he appellate court is not bound by the deductions or inferences
      made by the trial court from its findings of fact, nor must the
      reviewing court accept a finding that has no competent evidence
      to support it…. However, this broad scope of review does not vest
      in the reviewing court the duty or the privilege of making its own
      independent determination….         Thus, an appellate court is
      empowered to determine whether the trial court’s incontrovertible
      factual findings support its factual conclusions, but it may not
      interfere with those conclusions unless they are unreasonable in
      view of the trial court’s factual findings; and thus, represent a
      gross abuse of discretion.

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A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (quoting R.M.G., Jr. v.

F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)). Moreover,

      on issues of credibility and weight of the evidence, we defer to the
      findings of the trial [court] who has had the opportunity to observe
      the proceedings and demeanor of the witnesses.

      The parties cannot dictate the amount of weight the trial court
      places on evidence. Rather, the paramount concern of the trial
      court is the best interest of the child. Appellate interference is
      unwarranted if the trial court’s consideration of the best interest
      of the child was careful and thorough, and we are unable to find
      any abuse of discretion.

Id. (quoting R.M.G., Jr., 986 A.2d at 1237 (internal citations omitted)).

      When making a decision that involves custody, the trial court must

consider the following sixteen custody factors set forth in Section 5328 of the

Child Custody Act (23 Pa.C.S. §§ 5321-5340):

      (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.

         (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.

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J-A05014-20


         (5) The availability of extended family.

         (6) The child’s sibling relationships.

         (7) The well-reasoned preference of the child, based on the
         child’s maturity and judgment.

         (8) The attempts of a parent to turn the child against the other
         parent, except in cases of domestic violence where reasonable
         safety measures are necessary to protect the child from harm.

         (9) Which party is more likely to maintain a loving, stable,
         consistent and nurturing relationship with the child adequate
         for the child’s emotional needs.

         (10) Which party is more likely to attend to the daily physical,
         emotional developmental, educational and special needs of the
         child.

         (11) The proximity of the residences of the parties.

         (12) Each party’s availability to care for the child or ability to
         make appropriate child-care arrangements.

         (13) The level of conflict between the parties and the
         willingness and ability of the parties to cooperate with one
         another. A party’s effort to protect a child from abuse by
         another party is not evidence of unwillingness or inability to
         cooperate with that party.

         (14) The history of drug or alcohol abuse of a party or member
         of a party’s household.

         (15) The mental and physical condition of a party or member
         of a party’s household.

         (16) Any other relevant factor.

23 Pa.C.S. § 5328(a). See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super.

2013).   The trial court “shall delineate the reasons for its decision on the

record in open court or in a written opinion or order.” 23 Pa.C.S. § 5323(d).

See also A.V., 87 A.3d at 823 (noting that Section 5323(d) applies to cases

involving custody and relocation). “In expressing the reasons for its decision,


                                      -5-
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there is no required amount of detail for the trial court’s explanation; all that

is required is that the enumerated factors are considered and that the custody

decision is based on those considerations.” Id. (internal citation omitted). “A

court’s explanation of reasons for its decision, which adequately addresses the

relevant factors, complies with [s]ection 5323(d).” Id.2

       Herein, the trial court issued Findings consisting, in part, of a thorough,

twenty-page analysis of the foregoing custody factors, in support of its

decision to grant Father primary physical and sole legal custody of the Twins.

Of the sixteen factors, the trial court determined that ten of the factors were

either neutral or not applicable, i.e., (a)(3)-(5), (7), (9)-(12), (14), and (15),

and that six factors favored Father, i.e., (a)(1), (2), (6), (8), (13), and (16).

The trial court did not find any of the factors to favor Mother over Father.

Based on our review, the evidence of record supports the trial court’s decision

to grant Father primary physical custody and sole legal custody.

       Mother argues, however, that the trial court erred and abused its

discretion in finding that there were no credible allegations of abuse against

Father. Mother’s Brief at 10. In fact, she insists that the “most significant

issue in this case [is the] ongoing allegations by all three children of sexual

maltreatment by Father[,]” and argues that the trial court erred in finding

____________________________________________


2 We acknowledge that Section 5337(h) of the Child Custody Act prescribes
the factors which a court must consider when determining whether to grant a
proposed relocation. We do not deem it necessary, however, to list the factors
herein, as Mother does not contest the trial court’s findings regarding Father’s
petition for relocation.

                                           -6-
J-A05014-20



these allegations incredible based on its credibility determination of numerous

expert witnesses. Id. at 12. After careful consideration, we deem Mother’s

claim to be meritless.

      The trial court provided the following detailed explanation of its finding

in favor of Father as to its analysis under section 5328(a)(2.1), relating to

consideration of child abuse and involvement of protective services:

            The [c]ourt does not find the evidence that Father abused
      the children credible or persuasive.       Almost every alleged
      disclosure has been made by [Ai.B.-W.], or made by the [Twins]
      or Mother. The disclosures started with digital vaginal penetration
      by Father of K.B.-W. and escalated to Father’s rape of all three
      children. The allegations also expanded to include third parties:
      Father was alleged to have orchestrated and filmed the [T]wins
      and a neighbor boy, Danny, engaging in deviate sexual acts;
      paternal grandmother [(“PGM”)] was accused of sexual and
      physical abuse; paternal grandfather [(“PGF”)] was accused of
      physical abuse.

            Mother testified that the children have disclosed, among
      other things, the following:

            1. [Ai.B.-W.]: [T]hat Father began sexually abusing him
         at the age of three; that the abuse continued until visitation
         was stopped in 2018; that [Ai.B.-W.] witnessed Father
         digitally penetrating the Twins’ vaginas and anuses in CA,
         NJ, and PA; that the Twins told [Ai.B.-W.] of this abuse; that
         PGM has hit him repeatedly, and physically abused him; that
         PGM has threatened to harm him and his sisters if he
         reported the physical abuse.

            2. [K.B.-W.]: [F]irst disclosed in September of 2016
         that Father put his fingers in her vagina; that Father has
         digitally penetrated her vagina and anus; that Father
         penetrated her anus with his penis; that Father put a toy in
         her vagina; that Father put his penis in her mouth; that the
         abuse is ongoing and presently continuing; that PGM
         touches her vagina and pinches her nipples; that PGF has
         hit her; that Father punched her in the stomach and hits
         her; that Father forces the [T]wins to bath[e] with a

                                     -7-
J-A05014-20


          neighbor boy named Danny, and that the children are forced
          to touch each other’s private parts and kiss each other while
          Father films them.

             3. [Ad.B.-W.]: [F]irst disclosed in October [of] 2016
          that Father put his fingers in her vagina; that Father has
          digitally penetrated her vagina and anus; that Father
          penetrated her anus with his penis; that the abuse is
          ongoing and presently continuing; that PGM touches her
          vagina and pinches her nipples; that Father forces the
          [T]wins to bath[e] with a neighbor boy named Danny, and
          that the children are forced to touch each other’s private
          parts and kiss each other while Father films them.

             The above allegations have resulted in over 100 unfounded
       [ChildLine reports,3] spanning three states. [Ai.B.-W.] and [K.B.-
       W.] have had three forensic examinations, and [Ad.B.-W.] has had
       two. All three children have been interviewed extensively, by
       forensic examiners, [Children Youth and Families (CYF)] case
       workers, doctors, and Mother. [The Twins] did make disclosures
       at the 2/7/18 forensic interview, but Jennifer Ginsburg, Children’s
       Hospital Child Advocacy Center [f]orensic [i]nterviewer, testified
       that no details were provided, and the responses to all follow-up
       questions were “I don’t know” or “I don’t remember[,”] which she
       opined was very atypical.

             The children have had multiple physical examinations, but
       the precise number is unclear. (CYF caseworker[,] Cathleen
       Ruble[,] testified that she was aware of 3-4 physical exams of one
       or both girls, including an ultrasound; Dr. Wolford testified that
       each girl had at least one physical exam, and [K.B.-W.] had an
       evidence or rape kit exam). No evidence of abuse was found.

              Criminal investigations have been initiated in Pennsylvania
       and California. Mother flew the children to CA in October of 2016,
       and [Ai.B.-W.] had a forensic examination in that state. Detective
       Orchowski, a 17-year veteran with the Allegheny County Police
       Department, with 13 years in the child abuse and sex assault unit,
       testified that she was the investigating officer on the subject case.
       She noted that Father cooperated with the investigation and took
____________________________________________


3 ChildLine, a unit within the Department of Public Welfare, operates a
statewide system for receiving indicated and actual reports of child abuse;
refers the reports for investigation; and maintains the reports for reference.
55 Pa.C.S. § 3490.4 (definition of “ChildLine”).

                                           -8-
J-A05014-20


       a polygraph. She testified that following her investigation, she did
       not recommend that charges be filed against Father. She further
       testified that she had never been involved in a case with over 100
       [C]hild[L]ines. Moreover, she stated that it was highly unusual
       and odd for the allegations of abuse to change as they did in the
       present case, and for the perpetrators of the abuse to change as
       they did in the present case. The detective also testified that she,
       her partner, and the assistant district attorney met with the
       Allegheny County District Attorney, to review the facts of the case.
       She testified that in her 17 years on the job[,] she had never
       before been summoned by the district attorney to review a case.
       She testified that the review was prompted by complaints received
       regarding the investigation, and that the district attorney agreed
       that no charges should be filed against Father.

             Detective Orchowski also reviewed [a] video of Mother
       interviewing [Ad.B.-W.] [4] The detective noted that Mother was
       asking the child leading questions and that [Ai.B.-W.] was
       coaching her. Detective Orchowski was the investigating officer
       in the [C]hild[L]ine filed against Mother. She testified that she
       recommended that charges be filed against Mother, and that in
       her opinion, Mother is abusing the children by subjecting them to
       repeated forensic and physical examinations.

              Dr. Wettstein, an expert in forensic psychiatry and sexual
       deviance, conducted a psychiatric evaluation of Father, which
       included an Abel assessment, and opined that there was no
       indication that he suffers from a sexual disorder, including
       pedophilic disorder. The doctor explained that if Father had
       engaged in any of the [C]hild[L]ined acts, he would have a
       pedophilic disorder, as that term includes arousal, interest, and
       behavior. The doctor also testified that it is unlikely that an
       individual with pedophilic disorder would sexually abuse both
       female and male children.

             [Sharon Profeta, the guardian ad litem (“GAL”)] testified
       that after her extensive investigation, including [the review of]
       records … and multiple interviews, she could not find one reason
____________________________________________


4 A video recorded by Mother was played at the custody hearing on July 10,
2019, transcribed by the court reporter, and marked as “Joint Exhibit 1”
(hereinafter referred to as “the video”). See N.T. Custody, 7/10/19, 162-165.




                                           -9-
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       to be concerned for the children’s safety while in Father’s care. [5]
       She reported that she found no credible evidence that Father has
       sexually abused any of the children. She further opined that it
       was difficult to know “where [Ai.B.-W.] ended and [Mother]
       began.” She believes that [Ai.B.-W.] is an advocate for Mother,
       as evidenced by his request for an emergency meeting at his
       school, where he produced his notebook and began enumerating
       his concerns regarding Father’s vacation with the [Twins]. The
       GAL testified that he articulated precise, concrete, calculated
       concerns, without any spontaneity, and she described the meeting
       as unnaturally “businesslike.” As Ms. Ginsberg noted with the
       [T]wins, the GAL commented that [Ai.B.-W.] repeats the same
       sexual allegations, using the exact same words, as if by rote, and
       is unable to provide any details, which she found very unusual.

              This [c]ourt also viewed Mother’s video of [Ad.B.-W.] The
       child did not appear to be sobbing in pain, as Mother alleged, but
       rather wailing without tears. [Ai.B.-W.] was blatantly coaching
       the child, and in fact, spoke for her.       Finally, Mother was
       extraordinarily calm and business-like in her interrogation of
       [Ad.B.-W.] Her speech sounded contrived and affected.

Findings at 8-12 (emphasis added).

       Moreover, as the trial court noted in its Pa.R.A.P. 1925(a) opinion,

       [its] responsibility is to make credibility determinations and weigh
       the evidence, among other things. See A.D.[ v. M.A.B.], 989
       A.2d [32,] at 35-36[ (Pa. Super. 2010)]. The [c]ourt did so after
       hearing and observing each witness testify and considering all of
       the evidence. Ultimately, the [c]ourt found the allegations of


____________________________________________


5When asked about her observations regarding the sexual abuse allegations
against Father, the GAL replied:

       I looked as closely as I could. This is a very serious matter. And
       these children’s lives are at stake. I tried as hard as I could to
       find any information … I possibly could. And I was not convinced
       at all that Father did anything to hurt the children.

N.T. Custody, 2/19/19, at 39.



                                          - 10 -
J-A05014-20


         abuse to be incredible. Such a finding is supported by the record,
         and, indeed, even Mother’s counsel noted:

            I would like to say that at the end of the day this [case] is
            not about proving whether or not [F]ather abused his
            children. This is a custody case and a relocation case. There
            are three people that know if [the abuse] occurred [-] the
            [Twins] and [Father]. And to date, there has been no
            independent evidence to conclusively prove whether
            or not abuse has occurred other than the children’s
            statements. We recognize that.

         Simply put, the allegations that Father sexually abused the
         parties’ children were not believable.      It is this [c]ourt’s
         responsibility and prerogative to make that assessment, and this
         [c]ourt did.

Trial Court Opinion (“TCO”), 9/30/19, at 4 (citations to record omitted;

emphasis and brackets added by trial court).            We deem the trial court’s

determination to be reasonable in light of its Findings, which are supported by

the record. Thus, we discern no abuse of discretion or error of law by the trial

court.

         Next, Mother claims that the trial court erred in finding that it was in the

Twins’ best interest for Father to be awarded primary physical and sole legal

custody.     She argues that there was no clear and convincing evidence to

support this custody determination. Mother’s Brief at 17. In support of her

argument, Mother asserts that the trial court ignored the testimony of Dr. Eric

Bernstein.     Id. at 18.6    Dr. Bernstein recommended that Mother maintain

primary physical custody of the Twins and that Father be granted partial

____________________________________________


6 Dr. Bernstein testified as an expert witness at the custody hearing on behalf
of Mother. See N.T. Custody, 5/2/19, at 8-9. He was tasked with evaluating
the Twins’ best interest regarding custody and relocation. Id. at 9.

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custody, with a neutral party periodically checking in during Father’s custodial

time to assess that the Twins are comfortable. N.T. Custody, 5/2/19, at 76-

77. He explained that check-ins by a neutral party were to serve as an extra

layer of protection for Father from any further abuse allegations, as much as

they were to protect the Twins. Id. Dr. Bernstein also made it clear that in

his court-ordered evaluation, he made no determination as to the truth or

falsity of the abuse allegations against Father. N.T. Custody, 5/16/19, at 5.

      Contrary to Mother’s assertion, it is clear that the trial court did not

“ignore” Dr. Bernstein’s testimony in reaching its custody decision. Numerous

aspects of Dr. Bernstein’s testimony were cited by the trial court multiple

times within its analysis of the Section 5328(a) custodial factors. See Findings

at 12-13, 17, 21.     The court also took into consideration, however, the

testimony of other expert witnesses. See id. at 9-12, 16-17, 19-21. With

respect to the amount of weight a court is to place upon expert testimony in

custody matters, this Court has stated the following:

      [W]hen [an] expert evaluation is uncontradicted or unqualified, a
      child custody court abuses its fact finding discretion if it totally
      discounts expert evaluation. To say a court cannot discount
      uncontradicted evidence, however, is merely to rephrase the
      requirement that a child custody court’s conclusion have
      “competent evidence to support it.” So long as the trial court’s
      conclusions are founded in the record, the lower court [is] not
      obligated to accept the conclusions of the experts.

Nomland v. Nomland, 813 A.2d 850, 854 (Pa. Super. 2002) (emphasis

added).   As we have already determined that the trial court’s conclusions




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regarding custody are supported by the record, the court was not obligated to

accept Dr. Bernstein’s recommendation regarding custody.

       To the extent that Mother suggests the trial court’s decision to grant her

supervised visitation of the Twins is “troubling” and “defies logic[,]” as she

currently has sole physical and legal custody of Ai.B.-W., and is considered

“an acceptable parent for [him],” Mother’s Brief at 19, we note that Ai.B.-W.

is not subject to this custody dispute. Mother has sole custody of Ai.B.-W.,

because Father decided to cease his efforts to repair his relationship with him

in 2017, as Father believed those efforts were too detrimental to his son. See

TCO at 5; Findings at 2, 6. The custody decision outlined in the August 2,

2019 order pertains to the Twins only, and is fully supported by the record.

       Mother further avers that even if the record supported the granting of

supervised custody to her, “requiring visits … be at her sole expense places

an impermissible limitation on [her] custodial periods.” Mother’s Brief at 19.

Mother claims that she currently spends in excess of $3,000 per month to see

the Twins. Id. It is within the trial court’s discretion to impose the cost of

supervision on Mother. We discern no abuse of discretion. Thus, Mother is

not entitled to relief on this claim.7

       Additionally, Mother asserts that Dr. Bernstein “did not support

separating the siblings[,]” and argues that the trial court ignored his testimony
____________________________________________


7  We uphold the trial court’s decision that Mother shall bear the costs
pertaining to her periods of supervised custody, without prejudice to Mother’s
right to seek modification of the custody order with the trial court in the future.


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regarding the same. Mother’s Brief at 18. Again, we note that the trial court

is not obligated to accept the conclusion of an expert witness, so long as its

determinations are supported by competent evidence in the record.           See

Nomland, supra. In its analysis under Section 5328(a)(6), regarding the

Twins’ sibling relationships, the trial court acknowledged that the Twins are

bonded with their brother, Ai.B.-W., and that they have a close and loving

relationship with him.         See Findings at 13 (relying on Dr. Bernstein’s

testimony).      While the trial court recognized the importance of promoting

and protecting sibling bonds, it further stated that it was “concerned with

[Ai.B.-W.’s] influence over the [Twins.] [Ai.B.-W.] clearly coached [Ad.B.-W.]

on the video Mother made, and [the court] is concerned that [Ai.B.-W.] will

attempt to influence [their] opinions of Father.” Id. We deem the court’s

concern to be duly supported by the record and, thus, we discern no abuse of

discretion.8

       As to Mother’s assertion that the trial court failed to address the impact

of removing the Twins from Mother’s custody, and separating them from their

brother, school, friends and extended family on Mother’s side, we deem her

claim to be meritless. In its analysis under Section 5328(a)(4) regarding the

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


8 See N.T. Custody, 2/25/19, at 27 (where Detective Orchowski testified that
it was clear to her that Ai.B.-W. was coaching K.B.-W. in the video); N.T.
Custody, 7/1/19, at 32 (where Dr. Wolford recalled viewing the video and
testified that she believed Ai.B.-W. was suggesting answers to K.B.-W. in
response to Mother’s questions).


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community life, the trial court recognized that the Twins have completed

kindergarten and have lived primarily with Mother from the parties’ separation

until the shared custody schedule commenced in Pittsburgh. See Findings at

12. The trial court noted Dr. Bernstein’s testimony that “Mother serves as the

[Twins’] primary attachment, and Father their secondary attachment.” Id. at

13. The court added, however, that Dr. Bernstein also opined that “a child’s

primary attachment does not equate to a superior or more important

attachment.” Id.9

       Additionally, with respect to Section 5328(a)(5), regarding the

availability of extended family, the trial court found that the Twins are bonded

____________________________________________


9 Dr. Bernstein further explained the distinction between a primary verses
secondary bond as follows:

       It’s really within the perspective of attachment theory…. So[,] the
       primary vs. secondary bond is going to signify the immediate
       connection … between the parent who assumes the majority of
       responsibility and time spent with the child, who is most attentive
       to and responsible for their needs, consistent in responsivity and
       also overall care.

       It doesn’t necessarily equate to a healthy bond. It just signifies
       that it is the first and most significant connection with another
       human being at the time of the immediate birth and early
       development. Somebody with a secondary bond or tertiary bond
       can have a significant role in a child’s life. It’s not … mutually
       exclusive.

N.T. Custody, 5/2/19, at 74-75. Dr. Bernstein further acknowledged that a
secondary bond can be more important or healthier than a primary bond,
especially where the primary attachment is with a person with an unhealthy
influence over the child and the secondary person is “more stable and
consistent in their role[,] albeit limited in so far as frequency of interaction is
concerned.” Id. at 81.

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with Mother’s extended family in the area, but that Father’s relatives live in

New Jersey and the Twins also see them regularly.        Id.   Moreover, in its

analysis under Section 5328(a)(8), the trial court found:

      Mother and her family members refuse to interact with Father and
      his family members. This behavior occurs in front of the [Twins].
      Mother and her family members will not even acknowledge or
      return a simple greeting. As would be expected, the [Twins]
      follow Mother’s lead when in her company. Father testified that
      the [Twins] will not acknowledge his presence or even look at him
      when Mother is present. While Mother denied this behavior, her
      testimony was not credible.

      Father testified that he ensures that the [Twins] greet and
      converse with Mother while in his custody during any activities or
      events when Mother is present. Mother did not refute this
      testimony. Father also testified that he has kept a photo of Mother
      and the three children in the [Twins’] bedroom since his move to
      Pittsburgh.

Id. at 14. Based on the foregoing, it is clear that the trial court carefully

considered the impact of removing the Twins from Mother’s custody and

separating them from their school and Mother’s extended family. We discern

no abuse of discretion by the trial court.

      Next, Mother claims that the trial court erred in finding that Ai.B.-W.

was negatively influencing or coaching the Twins. She insists that “all the

testimony at trial” indicated that “the children had a very close and loving

relationship[,]” Mother’s Brief at 21, and she asserts that the trial court made

“absolutely no inquiry or analysis as to the possible harm to the [T]wins or to

[Ai.B.-W.]” from the act of separating the siblings. Id. at 22. The record

clearly belies Mother’s claim.



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      The trial court provided the following analysis under Section 5328(a)(6),

regarding the Twins’ sibling relationships:

            The [T]wins have a brother, [Ai.B.-W.], who resides with
      Mother and has no contact with Father. The [T]wins are bonded
      to [Ai.B.-W.] and have a close and loving relationship with him.
      Mother testified that [Ai.B.-W.] is extremely stressed and anxious
      when the girls are in Father’s custody. She testified that he feels
      guilty for not disclosing Father’s abuse earlier, and feels
      responsible for the [Twins’] continuing abuse. [Ai.B.-W.] told Dr.
      Bernstein that the [Twins] need to “keep fighting and be strong.”

             While it is important to promote and protect sibling bonds,
      this [c]ourt is concerned with [Ai.B.-W.’s] influence of the [Twins.]
      [He] clearly coached [Ad.B.-W.] on the video Mother made, and
      this [c]ourt is concerned that [he] will attempt to influence the
      [Twins’] opinions of Father.

Findings at 13. Additionally, the court noted:

            Mother testified repeatedly that she believes the children’s
      reports of sexual abuse. However, as Dr. Wettstein testified,
      people convince themselves that untrue things are true all the
      time. He opined that Mother may have convinced herself, as well
      as others, of the validity of the sexual abuse allegations. He
      further testified that Mother may have unconsciously helped
      create the abuse allegations. He explained that “…people without
      awareness act out all sorts of emotions and convictions and
      feelings and conflicts and beliefs.” He explained that anxiety is
      contagious. A parent’s anxiety may be shared with children, and
      over time may become intensified, amplified, and take on new
      forms.

            Drs. Wettstein, Wolford, and Bernstein all testified that
      children are susceptible to suggestion and easily manipulated. Dr.
      Wettstein explained that “even asking a question can create an
      idea in someone’s head that an event has occurred when it
      hasn’t.” Coaching can also be non-verbal, such as “showing or
      demonstrating or revealing one’s anxiety about a situation….”
      Thus, if the children come home from a visit with Father and
      Mother anxiously checks and examines them, she is, whether
      consciously or unconsciously, conveying the message that
      something bad happened to them or that they should be afraid of

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J-A05014-20


      Father. Likewise, repeated forensic and physical examinations
      can create a belief that abuse has occurred.

             [Ai.B.-W.] may be exacerbating this phenomenon. Dr. Katz
      testified that [Ai.B.-W.] had an anxious attachment to Mother and
      mirrored [her] distrust of Father. Dr. Wettstein acknowledged
      that the [Twins] may be influenced by [Ai.B.-W.’s] anxiety or by
      conversations with him. They may also be indirectly influenced
      by the fact that he does not have visitation with Father.

Findings at 20-21 (citations to record omitted).

      While we agree with Mother that the law favors keeping siblings

together, absent a compelling reason to the contrary, this is but one factor to

be considered in determining the best interest of the child. See Nomland,

813 A.2d at 856. After careful review, it is clear that the trial court carefully

weighed Ai.B.-W.’s influence over the Twins verses the impact of separating

the siblings. We deem the court’s finding in favor of Father with respect to its

analysis regarding the sibling relationships to be supported by the record.

      Finally, Mother argues that the trial court penalized her for discussing

the custody case with others in her family, law enforcement, state agencies,

and advocacy groups. Mother’s Brief at 23. Mother claims that she had not

shared information regarding the case to the general public to vilify Father

but, rather, “to obtain assistance in helping her children regarding the

allegations of ongoing abuse because she felt the system had failed them.”

Id. at 24. Mother states that it is reasonable to conclude, based on the fact

that she lost primary custody of the Twins, that the trial court took a negative

inference from her words and actions. She concludes that it was impermissible




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for the trial court to find her protected speech as a negative factor against her

when analyzing the custody factors. Id. at 25.

      To the contrary, the trial court opined:

            The court’s order was not punitive in nature. That the order
      caused a change in Mother’s custodial relationship with the Twins
      may be—and likely is—difficult for her, but it is a reality she must
      face, not a punishment. The order was required to be and was
      made in the children’s best interest, not according to Mother’s
      desires or preferences.1
         1The order was also not made in accordance with Father’s
         desires or preferences. If it were, then Father’s relocation
         petition would have been granted.

            Moreover, the court took no inappropriate negative
      inference against Mother for distributing information about these
      proceedings. Instead, the court—as set forth at length in its
      Findings, see Findings at 15-16—merely noted the facts of
      Mother’s conduct, that the same has exposed the parties’ children
      to the world in a way that cannot be controlled or reversed, and
      that said actions were relevant to the court’s analysis of the
      factors set forth in 23 Pa.C.S. § 5328(a).

TCO at 8 (unnecessary capitalization omitted).

      The trial court did not seek to deny Mother of her right to free speech.

Rather, it is clear from the record that the trial court was concerned with

Mother’s judgment and the effect that her words and actions may have on the

Twins, as reflected in its analysis under Section 5328(a)(9):

            The court believes that both parties have and will maintain
      loving, stable, consistent, and nurturing relationships with the
      [Twins.]    The court is concerned, however, with Mother’s
      judgment. Mother continues to assert that the [Twins] are being
      abused, and she has pursued every conceivable avenue available
      to expose Father, with no regard for the consequences to the
      [Twins.] The evidence disclosed that there have been more than
      100 unfounded [C]hild[L]ine [reports], multiple forensic and
      physical examinations, and multiple unsuccessful criminal

                                     - 19 -
J-A05014-20


     investigations. Mother testified that a [ChildLine report] was
     made just one week before her July 2019 trial testimony. Mother
     testified that she believes that Father’s sexual abuse of the
     [Twins] is ongoing and that she will do anything in her power to
     stop it. The GAL testified that Mother stated she would fight until
     her last breath to keep the [Twins] from Father.

            Mother has distributed the [protection from abuse (PFA)
     hearing] transcript and various documents pertaining to the
     subject case to a wide variety of people. She testified that she
     couldn’t remember the number of people to whom she and her
     family had distributed that transcript, as she did not have a list.
     Mother gave Paul Van Osdol and WTAE news[] copies of the PFA
     transcript, [ChildLine reports], medical records, and the [c]ourt’s
     opinion related to the PFA. She did not redact any of the
     documents and acknowledged that she had no control over what
     was aired. She gave a television interview and allowed the Twins
     to be filmed. While her face and the Twins’ faces were blurred,
     the interior of her home, and the [last] name … on the transcript
     were not. Mother testified that she has reported the abuse to “so
     many people” across the U.S. and Pennsylvania, that she couldn’t
     recall them all without a list. She did remember speaking to the
     attorney general, auditor general, [the] Department of Homeland
     Security, [S]tate [R]epresentative Costa, the Center for Judicial
     Excellence, various women’s shelters, the Center for Victims,
     [Pennsylvania] state police, and North Fayette police. Mother was
     opposed to sealing the court docket when it was open to the
     general public and contained extensive detailed allegations of
     sexual abuse committed against all three children, who were
     named.

           Various members of the faculty and staff at the children’s
     elementary school and religious school are aware of the abuse
     allegations. Mother testified that [Ai.B.-W.] has made disclosures
     to the principal, assistant superintendent, guidance counselor,
     and numerous teachers at the school [which] he and the Twins
     attend. He has also made disclosures to the priest at the family’s
     church. Mother acknowledged that she advised the education
     director of the children’s religious school of the abuse.

           Mother is seemingly unaware of the likely ill-effects of her
     actions on the children. In her crusade to expose Father, Mother
     has also exposed the children. Countless unredacted records and
     documents have been disseminated to a wide range of people and
     organizations. Mother has no control over these documents and

                                   - 20 -
J-A05014-20


      there is no way to predict in what medium they will appear or in
      whose hands they will land.

            Dr. Wolford, a physician at UPMC Children’s Hospital, and an
      expert in pediatrics and child abuse pediatrics, opined that the
      Twins are the “…victims of abuse by Mother in the form of medical
      child abuse (Munchasusen by Proxy Syndrome), physical abuse
      (repeated unnecessary evaluations) and emotional abuse
      (continued harm and developmental disruption by these repeated
      allegations of sexual abuse by [Father].)” Dr. Wolford testified to
      the various future ill-effects of this abuse, including but not limited
      to, a mistrust of the medical system, the impairment of basic child
      development, maladaptive coping mechanisms, poor resiliency,
      increased stress levels, depression and anxiety.

             Dr. Bernstein, of Allegheny Forensics Association, also
      testified to the ill-effects of subjecting the children to continued
      interviews and examinations, which he described as tragic.
      Among other things, the doctor testified that the children’s idea of
      familial safety, and their opinion of Father, will become polluted,
      they may develop difficulties with boundaries, the development of
      their sexuality and identity could be compromised, and their self-
      esteem, confidence, and self-assurance may be affected.

             Dr. Wolford testified that in her medical assessment[,] the
      children were being coached by Mother and that they were
      “parroting” Mother. She testified that children are extremely
      impressionable, eager to please, and can be convinced something
      is true by simple repetition. Dr. Bernstein, on the other hand,
      testified that he did not believe the children were being coached
      by Mother. However, Dr. Bernstein was unable to view Mother’s
      video interview of [Ad.B.-W.]. He also testified that proof of the
      existence or non-existence of [the alleged neighbor,] Danny[,]
      would lend a great deal of credibility to either Mother’s or Father’s
      position.    Mother attempted to deflect the questions posed
      regarding whether a private investigator had been hired to locate
      Danny.      She finally admitted that her sister had hired an
      investigator for this purpose. It appears that the results were
      negative since no testimony in this regard was offered, Father
      testified that no such child exists, and that CYF’s attempts to
      locate the child were unsuccessful.

Findings at 14-18 (unnecessary capitalization omitted). We discern no abuse

of discretion by the trial court.


                                      - 21 -
J-A05014-20



      For the reasons stated above, we affirm the court’s August 2, 2019 order

denying Father’s petition for relocation and granting primary physical and sole

legal custody of the Twins to Father and supervised custody to Mother.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2020




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