Opinion
J-A10027-13 No. 2620 EDA 2012
06-06-2013
A.B., Appellee v. P.B., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Order Entered August 28, 2012,
in the Court of Common Pleas of Bucks County,
Family Law Division, at No. A06-11-61466C
BEFORE: STEVENS, P.J., OLSON, and STRASSBURGER , JJ. MEMORANDUM BY: OLSON, J.
Retired Senior Judge assigned to Superior Court.
P.B. ("Mother") , appeals from the order entered on August 28, 2012, partially granting Mother's petition to modify a child custody order. The original child custody order (which was entered on August 31, 2011) awarded A.B. ("Father") sole physical and legal custody of the parties' two young daughters, J. (born in August 2007) and R. (born in January 2009) (collectively "the Children"). The August 28, 2012 order modified the original order by granting Mother supervised visitation and phone contact with the Children. We vacate and remand.
So as to protect the identity of the children in this child custody case, we refer to the parties by their initials only. We have amended the caption accordingly.
As will be explained below, Father filed a motion to quash the appeal and claimed that the August 28, 2012 order was interlocutory and unappealable. We deny Father's motion, as the August 28, 2012 order is a final, appealable order.
The trial court began its opinion by stating, "[t]he circumstances surrounding this case are extraordinary. It is incumbent upon this [c]ourt to provide a full recitation of the facts supporting this Opinion." Trial Court Opinion, 10/19/12, at 1. We agree that the facts of this case are extraordinary and that a full recitation of the facts is necessary to explain the events leading up to this appeal.
On May 18, 2011 - while the parties were still married - Father filed a child custody complaint against Mother. Within this complaint, Father averred that Mother was afflicted with "serious mental illnesses" and that Mother had been "regularly remov[ing] the [C]hildren from the marital residence for up to [four or five] days per week." Father's Custody Complaint, 5/18/11, at ¶ 12. As Father believed that Mother was endangering the health and safety of the Children, Father requested that the trial court grant him custody of the Children. Id. at ¶¶ 11-13.
The parties proceeded to a child custody conference and, at the conference, the parties agreed to share both legal and physical custody of the Children. On July 5, 2011, the trial court adopted the parties' custody agreement and incorporated the terms and provisions of the agreement into an order of court. Trial Court Order, 7/5/11, at 1-4.
Less than one month later, on July 28, 2011, Mother filed a pro se Emergency Petition for Modification of a Partial Custody or Visitation Order (hereinafter "Mother's Pro Se Emergency Custody Petition"). Within this petition, Mother claimed that Father had been sexually abusing the-then-three-year-old J. and that Father had been physically abusing both of the Children. Further, Mother claimed that her knowledge of this abuse derived from J. According to Mother, J. had told and shown her the multiple ways in which Father had fondled J.'s breasts and touched and penetrated J.'s genitalia. Mother's Pro Se Emergency Custody Petition, 7/28/11, at 1-3.
On August 9, 2011, Mother filed a counseled Emergency Petition for Custody and repeated her averments that Father had sexually abused J. and had physically abused the Children. Mother then requested that the trial court enter an order "suspending Father's custody rights pending completion of evaluations by professionals to determine whether the [Children had] been abused." Mother's Counseled Emergency Petition for Custody, 8/9/11, at 1-5.
Father answered Mother's Emergency Petition for Custody and denied the allegations of abuse. Moreover, Father filed new matter and averred that Mother is mentally ill and a danger to the Children. Father thus requested that the trial court award him sole legal and physical custody of the Children. Father's Answer and New Matter, 8/26/11, at 1-8.
On August 30 and 31, 2011, the trial court held a hearing on the petitions. During the hearing, Mother testified as to the reasons why she filed her pro se and counseled petitions for custody.
According to Mother, on July 25, 2011, J. told her that Father "tickles" her by rubbing his finger around her anus. N.T. Hearing, 8/30/11, at 7. According to Mother, she was shocked by this revelation and immediately called her sister, Children and Youth Services (CYS), the police, and her lawyers. Id. at 7 and 11.
Mother testified that, later in the day on July 25, 2011, J. told her that she "hurt below," and talked of someone named "John" who was "daddy's friend" and who "touches her when she is at nap time." Id. at 7-8. According to Mother, J. showed her what John did by inserting her pinky finger in and out of her own vagina. Id. at 10. Mother testified that, after hearing this, she spoke to a CYS employee and the CYS employee suggested that J. be examined at the Doylestown Hospital emergency room. Id. at 8 and 12.
Mother brought J. to the hospital that night and, at 11:50 p.m., the emergency room doctor examined J. The doctor who examined J. found no evidence of any abuse. Further, the emergency room doctor noted that Mother was "quite controlling of the conversation, leading and prompting her child" and that, when Mother was out of the room, J. told the doctor that no one had been hurting her, and that she felt safe with Father. Id. at 42-43.
Mother testified that, several days after the emergency room visit, J. provided more details regarding Father's sexual molestation. Id. at 9. According to Mother, J. said that Father twisted her nipples and inserted his finger into her vagina and anus. Id. at 9-10. Mother also claimed that J. told her, "daddy has a big thing between his legs" and when she sleeps at Father's house, her back hurts her because "daddy's big thing is in it." Id. at 10. Mother testified that J. also said that an unknown individual named "Uncle Tom" touched her in the same way that Father did. Id. at 12.
According to Mother, these statements from J. led Mother to file her Pro Se Emergency Custody Petition on July 28, 2011, to file her Counseled Emergency Petition for Custody on August 9, 2011, and to withhold the Children from Father. Thus, Father did not see the Children from July 25, 2011 to the time of the hearing on August 30, 2011. Id. at 13.
Mother also testified that she took J. to the Doylestown Hospital emergency room on July 15, 2011 - or, ten days prior to J.'s July 25, 2011 revelations. According to Mother's direct testimony, Mother had J. examined because Mother believed J. had marks on her back that did not appear to be normal bruises and because J. would complain that Father had regularly "hit" both J. and R. Id. at 15. The hospital report, however, stated that the doctors found no evidence of physical abuse. Id. at 25; Emergency Room Report, 7/15/11, at 1.
When Mother was cross-examined as to the July 15, 2011 hospital visit, Mother denied that she had requested the doctors to examine the Children for evidence of sexual abuse. N.T. Hearing, 8/30/11, at 41. Indeed, Mother testified that - on July 15, 2011 - she "had no reason to think that sexual abuse was anywhere remotely near [sic]." Id. at 23. However, the July 15, 2011 doctor's report explicitly declared that "Mother requested" the doctor to examine J. for evidence of sexual abuse. Emergency Room Report, 7/15/11, at 1. The report declared:
Mother requested I check genital area for any evidence of abuse. Genital exam [within normal limits]. [No] evidence of bruising, abrasions. No irritation, swelling or discharge noted of vagina or rectum. Hymen intact.
Id.
In addition, the report declared that Mother asked the hospital not to inform Father of the July 15, 2011 examination. Id.; N.T. Hearing, 8/30/11, at 40.
Mother also testified that she feared that something would happen to the Children if the trial court permitted Father to see them, and that Mother did not feel that the Children should be alone with Father "until at least evaluations were done and professionals had made a professional opinion." N.T. Hearing, 8/30/11, at 20. Mother, however, acknowledged on cross-examination that the investigation by CYS had been completed, and that CYS had already dismissed her complaint as "unfounded." Id. at 21. In fact, Mother and Father had each received a letter from CYS (dated August 4, 2011) that stated the agency had determined that the incident alleged by Mother "could not be substantiated," and "was not of a serious enough nature to warrant further social services or did not occur." Id. at 22.
Mother also revealed on cross-examination, for the first time, that she had taken J. to the emergency room at the Children's Hospital of Philadelphia ("CHOP") on July 26, 2011 - one day after the examination at Doylestown Hospital had revealed no evidence of sexual abuse. Id. at 23. The CHOP medical report that Mother withheld from Father reported the examination of J. as "normal," declared that there was no evidence of sexual abuse, and stated that J. did not need to be seen again. J.'s CHOP Report, 8/26/11, at 1-3. The CHOP records also revealed that Mother had asked the hospital to examine R. for signs of sexual abuse, that the evaluation of R. was "normal," and that R. did not need to be seen again. R.'s CHOP Report, 8/26/11, at 1-2. The only recommended follow-up in the CHOP report was a recommendation that Mother seek counseling. See, e.g., J.'s CHOP Report, 8/26/11, at 3.
In her testimony, Mother insisted that J. was still declaring that Father and a man named "John" performed sexual acts upon J., that sometimes Father and "John" would molest J. together, and that Mother believed J. Id. at 36-39. Mother also testified that she believed Father's mother hit J. and R. on numerous occasions, and that the Children needed protection from their grandmother. Id. at 45.
When questioned about whether she had ever been under the care of a psychiatrist, Mother stated, "I have to think" and then answered, "[p]ossibly, once" in the "late 1990s." Id. at 46. Faced with documentary evidence that a psychiatrist had diagnosed her in 2007 as having an adjustment disorder and mixed depression, Mother acknowledged that the psychiatrist may have made such a diagnosis but claimed, "this is the first time I'm seeing this." Id. at 50. Mother later testified that she had been admitted to the psychiatric ward at Doylestown Hospital in 2000 or 2001 for a week, just prior to her marriage to Father, and testified that the reason for her admission was because Father's mother's had verbally abused her. Id. at 53. Mother denied that she had attempted suicide at the time, even though the physician's report stated that she had taken 10 sleeping pills with vodka. Id. at 87.
During cross-examination, Mother further acknowledged that she was diagnosed with bipolar disorder in 2001 and that she was prescribed medication for that condition. Id. at 54. Mother testified that a counselor named Alisa Levin and a doctor at Doylestown Hospital had treated her for psychiatric issues after her discharge from the psychiatric ward, that psychologist Dr. Barry Ginsberg had treated her in 2007, and that psychologist Dr. Jeffrey Fremont had begun treating her in May 2011. Id. at 55-57. Mother acknowledged a recent hospitalization for issues relating to her prescriptions for Paxil and Lexapro. Id. at 57-58. Moreover, Mother revealed that she took medication for depression as early as her teenage years. Id. at 61.
Mother testified that the "twisting of the nipples" and the "tickling of the anus" were things that Father had done to her against her will after she repeatedly asked him not to. Mother, however, denied transferring her experience to J. and insisted that J. described those things on her own. Id. at 94. Mother also revealed that she had a history of sexual abuse and had accused a priest of sexually molesting her in third grade. Id. at 52.
A.W., a friend of Mother, testified that Mother and the Children resided with her and her husband. Id. at 105. A.W. testified that, in late July 2011, J. "spontaneously" stated that Father and "John" touched J.'s breasts and genitalia. Id. at 109-111. A.W. also testified that she accompanied Mother and J. to the emergency room on July 15, 2011, because of the purported physical abuse to J. A.W. testified that, after the emergency room doctor examined J.'s back and found no cause for concern, the doctor suggested on her own and without any prompting, that she should also examine J.'s genital area for signs of sexual abuse. Id. at 108.
During Father's testimony, Father testified that Mother was acting irrationally in 2001 and that she had checked herself into the psychiatric ward at Doylestown Hospital because she was hearing voices. N.T. Hearing, 8/31/11, at 6-8. Father also testified that, on Memorial Day in 2011, Mother had simply taken the Children and moved out of the house. According to Father, Mother did not allow Father to see the Children for the next 18 days. Id. at 28-29.
Father denied sexually molesting J. or R. Id. at 36. He described Mother's accusations as "abnormal," and he could not identify a man named John who could have molested the girls. Id. at 31-34.
Father's mother, M.B., also testified at the hearing and denied that she had ever hit the Children or abused them in any way. Id. at 80.
At the close of the hearing on August 31, 2011, the trial court summarized the testimony and announced its decision. The trial court declared that it found Mother's testimony not credible. As the court noted, portions of Mother's testimony directly contradicted statements that were contained in hospital records. For example, the trial court declared, Mother testified that during the July 15, 2011 emergency room visit, Mother did not initiate the examinations for sexual abuse. The hospital records, however, explicitly stated that "Mother requested [the doctor to] check [J.'s] genital area for any evidence of abuse." Id. at 102-103. Moreover, the trial court found Mother's July 15, 2011 request - that J. be examined for evidence of sexual abuse - particularly significant, given the absence of any "allegations" of sexual abuse at the time. Id. at 102. The trial court declared:
On July 15, 2011, ten days prior to any allegation of sexual abuse, ten days before it occurs, Mother says to the doctor, "check her genitals." There's no allegation and she wants the child to be probed. They don't sit down and say, [J.], tell me what happened. They utilize a speculum. They take cultures. They have the child sitting on the edge of a coldId. at 113.
chair. You put her through this before there is an allegation.
The trial court further stated that it "was taken aback" when Mother revealed, for the first time at the hearing, that she had taken the Children to CHOP on July 26, 2011. Id. at 105. The trial court noted it was also strange that, while at CHOP, Mother insisted that the doctors examine R. for signs of sexual abuse, even though there was no indication of anything that would warrant an examination. Id. at 107.
The trial court then stated:
What evidence do I have? Children and Youth says it's unfounded. Their mission is to protect children. They didn't believe that any other intervention was necessary. Doylestown Hospital, nothing. Mother even asked that we examine her genitals, although she brought her in for bruises, and we did that to accommodate her, and there's nothing. [CHOP], there is no evidence. And by the way, [R.] who makes no complaints, who seems to be a happy well-adjusted child, there's nothing. In the end, there is nothing.Id. at 109.
After reviewing Mother's specific, repeated allegations of abuse against Father - all of which were investigated and revealed to be unfounded - the trial court concluded that the best interests of the Children required that they be separated from Mother. The trial court declared:
I don't believe that [J.] and [R.] are safe with Mother. Not at all. Unless I do something dramatic and drastic here this is what will happen: Mother will descend into madness. The allegations will continue. [J.] will be taken back toId. at 114-116.
Doylestown Hospital. She'll be examined. She'll be taken back to CHOP. . . .
Well, back then, [Mother], you got to make the decision. Today, I get to make the decision. You're evil or you're mentally ill, or maybe both, but there's no evidence for me to grant you the extraordinary relief, from denying this man the right to see his children. More importantly, the right of the [C]hildren to see him.
This has nothing to do with you being abused by a priest or getting hit by a wooden spoon. This is not about you[.] It's about the [C]hildren. So while [J.] and [R.] may feel safe with you, I don't feel safe having them with you.
Effective immediately the [c]ourt orders both parties to submit all documents and funds necessary to effectuate a [Court Conciliation and Evaluation Service ("CCES")] evaluation. Mother at her own expense, within 30 days, shall consult a licensed psychiatrist. She shall authorize that psychiatrist to release a detailed report concerning her diagnosis, prognosis, and prior mental history to both counsel and the [c]ourt and to no one else. Mother shall be solely responsible for that consultation. The financial burden shall be hers.
Effective today, and I mean today, Mother will turn over the [C]hildren, [J.] and [R.] to Father. He shall have sole legal and physical custody. Mother shall have no right to custody of the [C]hildren. If I do, I'm throwing them into the cauldron and I'm not going to do that to your kids. This is a temporary [o]rder. Of course, it could be modified.
Mother engaged Richard E. Fischbein, M.D., to conduct the court-ordered psychiatric evaluation. After examining and evaluating Mother, Dr. Fischbein concluded:
In answer to your question as to whether or not [Mother] suffers from [a] psychiatric diagnosis it is my medical opinion within a reasonable degree of medical certainty that she has had a history of major depression recurrent which isFischbein Report, 9/15/11, at 9-10.
presently being treated with Lexapro at 10 mg which is a reasonable dose for a woman her size and age.
It also appears that she is suffering from an anxiety disorder which could be characterized by some generalized anxiety as a result of her situation presently with a divorce proceeding and custody evaluation needing to be performed.
On Axis II, based on the testing of Dr. Michael Church . . . [,] I do believe there are mixed personality traits including some passive/aggressive and obsessive/compulsive traits. The testing revealed [Mother] tried to present herself in a more positive manner than what most testing would reveal.
. . .
In answer to your question if in fact [Mother] suffers from a psychiatric diagnosis what treatment recommendations and follow-up would maximize her chances of being a good parent, keeping in mind I did not see her interact with the [C]hildren, it is my opinion she should maintain herself on an antidepressant such as Lexapro. She could have the dose increased for some of her obsessional thoughts and behavior patterns. This can also help with some of her anxiety concerning the pending marital discord and separation along with custody evaluation.
It is also clear to this examiner that both she and her separated husband would benefit from communication therapy for the well[-]being of the [C]hildren. This would be to make sure they communicate and not [use] the [C]hildren or put the [C]hildren in the middle of the issues at hand. I also believe [Mother] would benefit from individual supportive and explorative psychotherapy to get a better handle on her high level of frustration and anger over the present situation. This would maximize her chances of being the mother she would like to be.
After receiving Dr. Fischbein's report, Mother filed a petition to modify the August 31, 2011 custody order. Mother requested that the trial court either grant her joint custody of the Children or, at the very least, allow her weekly periods of supervised partial custody of the Children. Mother's Petition for Emergency Relief (hereinafter "Mother's Petition to Modify Custody"), 12/1/11, at 1-5. The trial court held a hearing on Mother's petition on April 18, 2012. Testifying at this hearing were Dr. Fischbein; a former massage client of Mother, K.A.K.; Mother's sister, M.M.; and Mother's brother, D.S.
Dr. Fischbein testified that, in his opinion, Mother did not accuse Father of sexual abuse "just to nail him." N.T. Hearing, 4/18/12, at 39. Rather, Dr. Fischbein declared:
[Mother's] previous attorney suggested [that Mother report Father to the authorities] and the two adults [Mother] bounced it off of suggested she do it, so she didn't [make the accusations] unilaterally. However, more importantly, because [Mother] does obsess and compulse and because of the history she had of being abused herself and concerns, I think it clouded her ability and made it possibly seem worse than it was. She clearly says in therapy and even in the evaluation she had with Dr. [Naomi Lennox during a December 14, 2011 CCES Evaluation] that Dr. Lennox also believes [Mother] can put it behind her. It is a done deal, thank God the [C]hildren weren't molested, and she can move on from it.Id. at 40.
Dr. Fischbein concluded that, as of the date of the April 18, 2012 hearing, Mother was "markedly improved from when [he] first saw her" and that Mother's anxiety and depression had partially subsided from when he initially examined her. Id. at 41-43. The doctor also testified that Mother is compliant with both her Lexapro medication and her mental health counseling. Id. at 43-44. Dr. Fischbein testified that he did not believe that Mother would present any harm to the Children. Id. at 49.
Dr. Fischbein referred to Dr. Lennox's recently completed CCES Evaluation, dated December 14, 2011, which recommended that Mother be awarded supervised visitation for four hours each week for the first three months, followed by four hours of unsupervised visitation each week if Mother was compliant with the clinical recommendations for therapy. See CCES Report, 12/14/11, at 13. The CCES report further contemplated that Mother could gradually increase her visitation hours if she continued to progress with her therapy, with the ultimate goal of Mother sharing legal and physical custody of the Children with Father. Id. After reviewing Dr. Lennox's CCES Report, Dr. Fischbein testified: "I think [Dr. Lennox] and I are pretty much on the same page." N.T. Hearing, 4/18/12, at 50.
During cross-examination, Dr. Fischbein was asked whether "anything . . . has changed about [Mother] that would give anybody any comfort that [Father] is not going to be abused again like this and the [C]hildren aren't going to be abused." Id. at 102. Dr. Fischbein answered:
Absolutely. There are a lot of [] things that changed. We had an independent evaluation by CCES. Dr. Naomi Lennox states that she believes that issue is behind [Mother]. She's independent. I believe it's behind. Other people that evaluated her, . . . who knew her before and after [the allegations], believe[ that the issue is behind Mother, as well as Mother's] therapist now who is seeing her.Id. at 102-103.
And then the fact that I saw - I spoke to her by phone just last week and then saw her for an hour yesterday, she's a different person. She's learned from it. She realizes she overreacted. It is sad what happened, but the fact of the matter is no one who evaluated her and, most importantly, Dr. Lennox[,] fears that she is a danger to the [C]hildren or to herself, and a lot of professional people in this field are saying that she doesn't present a danger to her children.
The remaining witnesses at the hearing - Mother's brother (D.S.), Mother's sister (M.M.), and Mother's friend (K.A.K.) - all testified that they considered Mother a good mother and that Mother should have custody of the Children. Id. at 128, 143, 145, and 170.
At the conclusion of the hearing, the trial court reviewed its prior factual findings and declared that Mother's accusations against Father were "calculated," "dastardly," and "wholly untrue." Id. at 198 and 199. Moreover, the trial court declared that Mother's actions have caused the Children to be "prodded and probed and touched and examined by multiple doctors" and that Mother has severely traumatized the Children - perhaps permanently. Id. at 198 and 200.
Yet, despite Mother's actions, the trial court concluded that - for the best interests of the Children - Mother must be granted supervised visitation with the Children. Id. at 203. The court then issued an "interim order," in accordance with the plan contained in the CCES report, granting Mother visitation with the Children for a four-hour period once each week under the direction and supervision of KidsFirst Visitation. Id. at 203. Mother was also permitted to speak with the Children by telephone two times per week for 10 minutes. Id. at 204.
The court also directed that Dr. Fischbein reevaluate Mother within six months and that Dr. Fischbein author an addendum report to the trial court. Id. at 205. The trial court informed Mother that the hearing on her petition to modify custody was continued and that Mother could petition to reschedule the hearing either before or after Dr. Fischbein issued his report. Id. at 206; see also Civil Court Sheet, 4/18/12, at 1 (remarking "Interim Order entered" and that the matter was "[c]ontinued for further hearing").
On May 24, 2012, Mother filed a petition to schedule a second day of testimony on her petition to modify custody. Mother's Petition for a Full Day Protracted Hearing, 5/24/12, at 1-2. The trial court then entered an order, declaring that the second day of the hearing would occur on July 3, 2012.
On July 3, 2012, the trial court heard testimony from Mother, certain friends of Mother, and Melissa Davis (the owner of KidsFirst).
During the July 3, 2012 hearing, Mother testified that - since the time the trial court entered its interim order - Mother had never missed her weekly, scheduled visitation with the Children, but that Father had made it difficult for her to contact the Children by telephone. N.T. Hearing II, 7/3/12, at 6-7. Mother also complained that Father put the telephone on speaker during her calls. Id. at 8. According to Mother, she could hear Father in the background telling the Children to say that they did not want to talk with her and creating diversions so that they would not speak with her. Id. at 9.
Mother testified that she is regularly employed as a dental assistant and supplements her income by working as a licensed massage therapist. Id. at 15-17. Mother also testified that she lives in a place of her own. Id. at 36. Mother offered photographs of her current residence, and showed the trial court some of the arts and crafts that she and the Children worked on during the supervised visitations. Id. at 28-31.
Mother testified that she has continued with her Lexapro medication, as well as with her counseling therapy. Id. at 37-38. Mother further testified that, compared with her life and mental state in 2011, she now has a better insight into her mind, is well-positioned to deal with life stressors, and is more emotionally, physically, and financially stable. Id. at 51-56. Mother testified that she is willing and able to give the Children a home and to take on parental custodial responsibilities. Id. at 51-53.
Mother also testified that she does not believe that Father poses a danger to the Children, but that Father is generally very angry and should receive counseling. Id. at 55-56 and 60. She testified that she is sorry for her behavior in the summer of 2011, and recognizes that she has caused irreparable damage. Id. at 62. As Mother testified:
I am sorry [for my] . . . behavior last summer. . . . I believe it destroyed a part of [Father] that I never intended in my wildest dreams to allow to happen. I apologized to [Father] on the phone explaining to him I did not want anyId. at 61-62.
of this to happen to anybody in any way. And I apologized. I don't know if he believes me.
I never wanted anything like this to happen. I never wanted anything like this to happen to my children. Like you had said in the last court hearing, it is damage that cannot be repaired. And since you have said that, I have never forgotten those words, but I will try my hardest to make them know that I love them no matter what your decision is. And I have been trying my hardest to communicate with [Father] the most respectable and the most appropriate way.
Mother testified that she takes responsibility for her actions in the summer of 2011 and blames herself for "not being strong enough to stop." Id. at 62.
Mother's friend, M.M., also testified at the July 3, 2012 hearing. M.M. testified that she has known Mother since 1979 and believes that Mother is a loving person, who wants the Children to have a good relationship with Father. N.T. Hearing I, 7/3/12, at 8. M.M. testified that she spoke with Mother in the summer of 2011 - when Mother was voicing concerns about the alleged sexual abuse of the Children - and advised Mother that small children speak the truth and do not know how to lie. Id. at 10. As M.M. testified, when she spoke with Mother after the August 31, 2011 hearing, Mother did not understand why the trial court denied her any contact with the Children. M.M. shared Mother's sentiment. Id. at 21. When asked whether Mother had, to her knowledge, ever retracted her allegations or apologized about her role in the sexual abuse charges, M.M. stated that Mother had only felt that her previous lawyers did not perform due diligence and the lawyers did not advise her properly. Id. at 21-22. M.M. testified that, when speaking to Mother three months prior to the instant hearing, Mother declared that "she really [did not] know whether [Father] did or didn't . . . abuse[] the [C]hildren. . . . The only thing she [did] know is that the doctor said - or whoever examined the child said no, but she [had] no way of knowing that for sure and neither do you." Id. at 22-23.
Another friend of Mother, A.L., testified that - after the August 31, 2011 hearing - Mother indicated that she "was still convinced" that Father had molested the Children, and that Mother believed her attorneys had improperly guided her into making complaints against Father. Id. at 50-51 and 54.
Melissa Davis, the owner of KidsFirst (the company that supervised Mother's visitation with the Children) was the intermediary between Father and Mother and arranged Mother's visitation. Ms. Davis explained that a monitor was present at Mother's apartment when the Children visited. Id. at 75. According to Ms. Davis, Mother's visits with the Children went very well, with appropriate activities and parenting. Id. at 77.
At the end of the day on July 3, 2012, the trial court declared that the interim order would continue in effect and that "[t]he issue of modification is yet to be determined." Id. at 130; see also Civil Court Sheet, 7/3/12, at 1 (remarking that the matter was "[c]ontinued for further hearing"). The trial court thus continued the hearing to August 28, 2012, when Father and Cynthia Patton (the new owner of KidsFirst) testified. Moreover, by that time, the trial court had received Dr. Fischbein's court-ordered addendum psychological report on Mother.
During the August 28, 2012 hearing - which constituted the third day of the hearing on Mother's December 1, 2011 Petition to Modify Custody - the trial court admitted Dr. Fischbein's addendum psychological report on Mother. N.T. Hearing, 8/28/12, at 6. Within this report, Dr. Fischbein concluded:
In answer to your question as to whether or not [Mother] suffers from a psychiatric diagnosis[,] it continues to be my medical opinion within a reasonable degree of medical certainty that she has a history of major depression recurrent which is presently being treated appropriately with Lexapro 10 mg and her depressive symptoms are clearly in remission at this time.Fischbein Addendum Report, 8/23/12, at 5.
It also appears her anxiety disorder has been treated quite appropriately with the Lexapro. I see less ruminations and obsessive compulsive thought process.
[Mother] does not give any signs or symptoms consistent with a major depression at this point or of a generalized anxiety disorder at this time.
In answer to your question if in fact [Mother] suffers from a psychiatric diagnosis what treatment recommendations and follow-up would I recommend at this time to maximize her chances of continuing to be a good parent it is my medical opinion within a reasonable degree of medical certainty she should be maintained on the Lexapro indefinitely since she has had [two] distinct episodes of depression in the past. The odds of a third episode would be quite high approaching 80% if she were to stop the medication. The Lexapro also helps her with her generalized anxiety disorder and
obsessive compulsive personality traits which seem to be well controlled at this time. [Mother] plans on continuing therapy with Alisa Levin presently which I believe is a wise decision.
Based on my examination of [Mother] and also my telephone conversation with Cynthia Patton [of KidsFirst] it is my medical opinion within a reasonable degree of medical certainty that there is no contraindication to permit [Mother] to have unsupervised visitation with her children. I also did not see any contraindication to the [trial court] increasing her time spent with her daughters unsupervised. It appears [Mother] can adjust her schedule accordingly and looks forward to having increased contact with her daughters. She feels she could easily accommodate, in her mind, joint custody of the [C]hildren and joint 50/50 living arrangements if in fact the [trial court] felt it appropriate.
Father testified at the August 28, 2012 hearing and denied that he had intentionally frustrated Mother's attempts to call the Children. N.T. Hearing, 8/28/12, at 8-10. Father testified that he often traveled in connection with his business, but was generally amenable to taking calls at 7:00 p.m. on Sunday, Monday, Tuesday, Friday, or Saturday. Id. at 8. Father testified that many of the difficulties in arranging telephone calls were due to the fact that Mother would say that she was calling at a certain time but would then fail to call at the agreed upon time. Id. at 10, 13, and 15.
Father further testified that Mother continued to believe that his mother posed a danger to the Children and that he feared that Mother would try to turn the Children against her if granted unsupervised custody. Id. at 22. Father testified that he did not believe that Mother had truly taken responsibility for making false accusations against him because, throughout their entire relationship, Mother had never let go of the past in order to move forward. Id.
At the close of the modification hearing, the trial court concluded that Mother: is "nurturing, caring, open with the [C]hildren and . . . warm in [her] feelings towards those two little girls;" was "capable of feeding the [C]hildren and nurturing them and caring for them;" is "a great parent;" is "talented" and "motivated;" is "on the path to recovery;" and, has "made some strides" in her life. Id. at 72-80. However, the trial court concluded that it was in the best interests of the Children to continue the supervised custody arrangement, as originally defined in the April 18, 2012 "interim order." The trial court based its decision on the fact that Mother continued to blame her attorneys and continued to express doubts as to whether Father abused the Children - even though, the trial court concluded, Mother "made up" the allegations of sexual abuse just to harm Father. Id. at 69-70, 72, and 76-77. Moreover, although Mother apologized for her actions, the trial court concluded that Mother was "say[ing] what [she] believe[s] are the right things to convince [the trial court]" to award her greater custody rights. Id. at 78.
Further, the trial court explained that it was erring on the side of caution:
What do I see? Have you made some strides? Yes. Ideally, sometime in the future, you should have greater periods ofId. at 80-81.
custody unsupervised with your children. I hope that is the end result. Just not the end result today. The time is not right. It's not right for the [C]hildren.
As I said before, if I'm going to err on the side of caution it will always be for [J.] and [R.]. I can't roll the dice and subject [the Children] to your delusions or your mental illness and to your depression. You do not appreciate the harm you've caused, and you don't appreciate the consequences of what you wrought, and I am concerned that without some strictures upon you, some other fantasy will be created.
. . .
Yes, I'd like to have you move on. Not for your benefit, but for the sake of the [C]hildren. I'm not afraid to make a decision to expand custody. I believe that in some time, hopefully soon, I will do that. But there is no compelling reason that I see today, based upon all of the evidence I've heard since we've entered the [interim o]rder, to expand that custody.
The trial court then announced its decision: "[w]e enter a new [t]emporary order mirroring the prior[, interim] order. Mother shall have, until further order of this [c]ourt[,] supervised visitation with [J.] and [R.]." Id. at 81-82. While the trial court characterized this August 28, 2012 order as a "temporary order," the order did not contemplate that any further proceedings would occur on Mother's December 1, 2011 Petition to Modify Custody and, indeed, the order resolved all of the pending custody claims between the parties. ,
As stated above, Father filed a motion to quash the appeal and contended that the August 28, 2012 order was interlocutory and unappealable. Father's Motion to Quash Appeal, 1/31/13, at 1-2. Father's contention is, however, incorrect. As we have explained:
a custody order will be considered final and appealable only if it is both: (1) entered after the court has completed its hearing on the merits; and (2) intended by the court to constitute a complete resolution of the custody claims pending between the parties. If a custody [o]rder anticipates further proceedings but only upon application of a party, the [o]rder is final and appealable.
Further, although the trial court declared that its order was a "temporary order," we note that "[c]hild custody orders are temporary in nature and always subject to change if new circumstances affect the welfare of a child." Holler v. Smith, 928 A.2d 330, 331 (Pa. Super. 2007) (internal quotations and citations omitted).
Mother filed a timely notice of appeal and statement of errors complained of on appeal and now presents the following questions for our review:
Within Mother's concise statement of errors complained of on appeal, Mother listed and preserved the four issues she currently raises on appeal.
1. Did trial court abuse its discretion in not awarding Mother unsupervised custody of her daughters, where the uncontroverted evidence presented at trial, including expertMother's Brief at 4.
reports and testimony, definitively showed that it was in the best interest of the [C]hildren for Mother to have unsupervised custody time with them?
2. Was the trial court's decision the result of its preconceived notions or bias against Mother, and not on the evidence actually presented at trial?
3. Was the trial court's decision based on speculation and conjecture that Mother might pursue false allegations of child sexual abuse in the future?
4. Did the trial court abuse its discretion by not analyzing and weighing the appropriate factors pertinent to custody and the best interest of the [C]hildren that are set forth in 23 Pa.C.S.A. § 5328(a)?
We conclude that Mother's fourth claim entitles her to the relief she seeks. Therefore, we will limit our analysis to the single claim of whether "the trial court abuse[d] its discretion by not analyzing and weighing the appropriate factors pertinent to custody and the best interest of the [C]hildren that are set forth in 23 Pa.C.S.A. § 5328(a)." Mother's Brief at 4.
Indeed, since the trial court did not explicitly consider the 16 factors listed in 23 Pa.C.S.A. § 5328(a), this Court is simply unable to analyze Mother's remaining claims. Thus, we have no ability to consider whether the trial court: "abuse[d] its discretion in not awarding Mother unsupervised custody of her daughters;" was "biased" against Mother; or based its decision on "speculation and conjecture." Mother's Brief at 4.
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 byC.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012).
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.
We have stated,
the 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) (internal quotations and citations omitted).
Initially, we note that, as the three-day modification hearing occurred in 2012, the Child Custody Act, 23 Pa.C.S.A. § 5321 et seq. ("the Act") is applicable to the case at bar. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (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).
Section 5338 of the Act provides that, upon petition, the trial court may modify a custody order if it serves the best interests of the child. 23 Pa.C.S.A. § 5338(a). "The best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child's physical, intellectual, moral, and spiritual wellbeing." Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006). Section 5328(a) of the Act, however, "sets forth a list of [16] factors that must be considered in a best interests of the child analysis in making any custody determination." E.D. v. M.P., 33 A.3d 73, 79-80 (Pa. Super. 2011) (internal footnote omitted). Section 5328(a) provides:
§ 5328. Factors to consider when awarding custody23 Pa.C.S.A. § 5328(a); see also E.D., 33 A.3d at 80 n.2.
(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.
(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.
(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.
Further, pursuant to the plain terms of Act, the trial court has an obligation to "delineate the reasons for its [child custody] decision on the record in open court or in a written opinion or order." 23 Pa.C.S.A. § 5323(d). Because of this statutory language, we have held that - under the Act - a "best interests of the child" analysis requires the trial court to expressly consider all of the 16 factors listed in section 5328(a). J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011); see also E.D., 33 A.3d at 79-80 ("when a party files a petition for modification of a custody order, the trial court must perform a 'best interests of the child' analysis considering all of the section 5328(a) factors"). Indeed, this Court has held that, if the trial court fails to expressly consider all 16 factors listed in section 5328(a), the trial court has erred as a matter of law. J.R.M., 33 A.3d at 652. The remedy for such an error, we have held, is for this Court to "vacate the trial court's order and remand the case for further findings of fact." Id.
We have explained:
The [Act] requires . . . that the trial court articulate the reasons for its custody decision in open court or in a written opinion or order taking into consideration the enumerated factors. 23 Pa.C.S.A. §§ 5353(d), 5328(a). . . . [T]here 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.
According to Mother, the trial court erred when it entered its modification order - and granted her only supervised visitation of the Children - because it failed to explicitly consider all 16 factors listed in section 5328(a). We agree.
As explained above, at the conclusion of the three-day modification hearing, the trial court explained that it was granting Mother only supervised visitation because, it concluded, Mother: "made up" the allegations of sexual abuse in the summer of 2011 to "put [Father] in prison and deny him from seeing his children;" is "still [] skeptical as to whether or not Father sexually abused both daughters" - which demonstrates that Mother is unapologetic about accusing Father of sexual abuse; has greatly harmed Father; "lack[s] appreciable insight [into] what [she has] done;" has a history of major depression; and might, unless some restrictions are placed upon her, create "some other fantasy." N.T. Hearing, 8/28/12, at 69-70, 72, 73, 76-77, 81.
Viewing the trial court's explanation in the context of section 5328(a), it is apparent that the trial court based its custody determination upon only two of section 5328(a)'s 16 factors. Specifically, the trial court limited its consideration to factors number two and 15, as the trial court was concerned only with: "[t]he present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child" and "[t]he mental and physical condition of a party or member of a party's household." 23 Pa.C.S.A. § 5328(a)(2) and (15). Further, within the trial court's Rule 1925(a) opinion, the trial court limited its discussion to the factors listed in section 5328(a)(2) and (15). See Trial Court Opinion, 10/19/12, at 35-39.
In accordance with our binding precedent, we hold that the trial court's failure to expressly consider all 16 factors listed in section 5328(a) constitutes error. We are thus required to vacate the August 28, 2012 modification order and remand for further findings of fact. J.R.M., 33 A.3d at 652.
We note that, while the current appeal was pending, a panel of this Court decided C.B. v. J.B., ___ A.3d ___, 2013 PA Super 92 (Pa. Super. 2013). In C.B., this Court held: "the [Child Custody] Act requires a trial court to address each of the[ 16 factors listed in section 5328(a)] prior to the deadline by which a litigant must file a notice of appeal, and preferably at the time the custody order is issued or shortly thereafter." C.B. , ___ A.3d at ___, 2013 PA Super 92 at *1. The C.B. Court declared that its "rule" was to be applied prospectively. Therefore, although the rule announced in C.B. did not apply to the present case, it would presumably apply to any future child custody determination.
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Motion to quash denied. Order vacated. Case remanded. Jurisdiction relinquished.
Strassburger, J., files a Concurring Statement. Judgment Entered. ________________________
Prothonotary
In re F.B., 927 A.2d 268, 271 (Pa. Super. 2007) (internal quotations and citations omitted); see also Pa.R.A.P. 341(b)(1) ("[a] final order is any order that . . . disposes of all claims and of all parties"). In this case, the August 28, 2012 order: 1) was entered after the trial court completed its three-day hearing on Mother's December 1, 2011 Petition to Modify Custody, and 2) completely resolved all pending custody claims between the parties. See In re F.B., 927 A.2d at 271. Further, the August 28, 2012 order did not schedule any future proceedings on Mother's modification petition and did not contemplate that any future proceedings would occur in the matter unless one of the parties filed a separate - and completely independent - modification petition. The order is, therefore, final and appealable. Id. We deny Father's motion to quash.
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013).