Opinion
690 MDA 2024 J-S33018-24
12-19-2024
PATRICK K. SHEIBLEY v. REBECA LAZAR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered April 18, 2024 In the Court of Common Pleas of Lebanon County Civil Division at No(s): 2015-2-0026
BEFORE: OLSON, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
KUNSELMAN, J.
Rebeca Lazar (Mother) appeals from the order issued by the Lebanon County Court of Common Pleas, which awarded Patrick Sheibley (Father) sole legal and primary physical custody of the parties' 9-year-old son, J.L. (the Child). After review, we conclude Mother's claims lack merit. Although we agree that the trial court allowed improper hearsay testimony, we ultimately hold that the error was harmless. After careful consideration, we affirm.
The trial court issued a comprehensive 77-page opinion with its custody order. See Trial Court Opinion (T.C.O.), 4/17/24, at 1-77. Therein, the court discussed the parties' extensive history. For our purposes, we set forth the relevant background as follows.
Custody litigation has been ongoing since 2018. In June 2018, the parties agreed to a consent order, whereby Mother received primary physical custody, subject to Father's partial custody on weekends and Wednesdays. The parties shared legal custody. They operated under this agreement until April 2020.
In April 2020, there was "an ugly incident" which "ended with police involvement." See T.C.O. at 4. The incident stemmed from an argument between the parents, which resulted in loud and vulgar language, but evidently no physicality. The Child became so overwhelmed during the incident that he fell to his knees and begged his parents to "stop it." The trial court postulated, via a "comparative fault" analogy, that Father was 65% responsible for the incident.
However, the court also determined that after the incident, Mother began a campaign to estrange the Child from Father. Mother prevented Father from having any contact with the Child for several months. In June 2020, Father sought to modify custody. Mother agreed to Father having partial custody, so long as it was under the supervision of a representative from the Lebanon County Children & Youth Services (CYS). This arrangement lasted for several more months. According to the trial court, Mother attempted to shift responsibility for the estrangement onto CYS, but the caseworker later testified that CYS had no concerns and played no part in limiting the contact between Father and the Child. Around this time that the court appointed the Child a guardian ad litem (GAL).
In October 2020, the trial court held a custody hearing and issued an opinion detailing its findings. However, the trial court refused to issue a final custody determination until the summer of 2021. The court held another custody hearing in July 2021; thereafter, in August 2021, the court issued a final order. Although the trial court took a very dim view of her conduct in the months prior, the court kept primary physical custody with Mother. The court increased Father's partial custody and made him the primary caregiver during the summer months. Moreover, the court awarded Father sole legal custody. Legal custody had become a source of contention. Father disagreed with Mother's opposition to the Child being vaccinated or wearing a mask.
We disprove of the trial court's decision to continue the proceedings for nine months instead of issuing a final custody order in October 2020. We acknowledge, however, that part of the trial court's rationale was the ongoing Covid-19 pandemic, and its effect on school closures and childcare arrangements.
In May 2022, Mother filed a petition under the Protection From Abuse Act. According to the trial court, Mother had contacted the GAL to report that the Child was "out of control" at the prospect of going to Father's home. See T.C.O. at 12. Mother also reported that Father had grabbed the Child's arm, and that the Child had been "grabbed…in his private area" by one of Father's girlfriend's children. Id. Mother contacted the local police, who reported the matter to CYS. Mother alleged that the Child had made these disclosures to her, but the GAL said that the Child did not say anything to him. The Child did acknowledge, however, that he fell from a four-wheel all-terrain vehicle (ATV). The GAL believed that the Child's bruises were consistent with the ATV accident.
The trial court denied Mother's petition for protection. So "disturbed" by Mother's lack of credibility, the court issued findings of fact with its denial. The court said it did not believe Father abused the Child, and that Mother "either completely fabricated everything we heard today or she caused [the Child] via emotional transference to feel so fearful about separating from her, that he would make up or exaggerate information solely to please his Mother, or she took advantage of an incident where [the Child] was hurt on an ATV and attempted by hyperbole to transform that into physical abuse." See T.C.O. at 14. The court suspected Mother's motivation was to prevent Father from exercising his impending summer custody, when he would care for the Child most of the time.
The instant litigation resumed in May 2023. Citing the Child's severe behavioral issues, Father filed for modification to seek primary physical custody. The Child had been expelled recently from the local school district, which recommended he attend an alternative education center for children with behavioral problems. In September 2023, the parties agreed to share custody equally pending the final hearing.
The trial court held proceedings over the course of three dates: January 17, February 9, and March 27, 2024. The Child continued to decline. The GAL opined that the Child was in crisis, and that his behavior remained "profoundly disturbing." Id. at 19-20. An evaluation indicated that the Child scored above desirable levels on topics pertaining to aggression, conduct, or hyperactivity. Id. at 19. The court concluded that the status quo was unsustainable, that the current situation was "broken" and that a "dramatic fix" was necessary for there to be a "modest chance of success." Id. at 20.
The trial court's resulting custody order, dated April 17, 2024, represented the court's attempt to effectuate that change. The court kept in place Father's prior award of sole legal custody; however, the trial court modified the parties' physical custody. Under the new order, the court awarded Father primary physical custody, subject to Mother's partial custody. Mother's partial custody was limited to alternating weekends, certain holidays, and two nonconsecutive weeks during the summer.
Mother timely filed this appeal. She presents ten issues for our review:
1. Whether the trial court erred, abused its discretion, and/or undermined the child's best interest by awarding Father sole legal custody and primary physical custody.
2. Whether the trial court erred and/or abused its discretion in finding that custody factors 1, 2, 3, 8, 10, 13, 14, and 15 weigh in favor of Father in light of the evidence of record.
3. Whether the trial court erred and abused its discretion when the substantial evidence of record, and record as a whole, does not support the trial court's findings, opinions, and weight given to each of the custody factors set forth in 23 Pa.C.S.A. § 5328.
4. Whether the trial court erred and/or abused its discretion by rendering speculative opinions, findings, and conclusions regarding the following when the foregoing opinions, findings, and conclusions were not supported by the evidence of record, but which ultimately formed a substantial part of the trial court's April 17, 2024 opinion: (i) J.L.'s behavior being solely Mother's fault; (ii) counseling/therapy for J.L.; (iii) Mother's alleged parental alienation; (iv) abuse and Children and Youth reports; (v) Mother's parental discipline/permissive parenting style; (vi) Mother's "emotional volatility" (vi) Mother's health; (vii) J.L. being "night and day better than he had been the preceding school year;" and (viii) J.L. exaggerating events to "help" Mother.
5. Whether the trial court erred and abused its discretion by faulting Mother's discipline efforts of J.L. when the evidence of record demonstrated that the discipline efforts Mother employed were what professionals recommended for her to follow.
6. Whether the trial court erred, abused its discretion, and/or committed procedural error by failing to hear testimony from J.L and/or permit J.L. to testify, especially when there had been allegations of abuse.
7. Whether the trial court erred and/or abused its discretion by overruling Mother's objection to the inadmissible hearsay statements of [D.S. (the mother of Father's girlfriend)] and thereafter utilizing said hearsay statements to support its decision/opinions.
8. Whether the trial court erred, abused its discretion, and/or undermined the child's best interest by failing to mandate continued individualized therapy for J.L. and family therapy for the parties as part of its April 17, 2024 Order.
9. Whether the trial court erred and/or abused its discretion by providing "significant weight" to the opinions of the guardian ad litem ("GAL").
10. Alternatively, whether the trial court erred and/or abused its discretion by failing to incorporate the
GAL's recommendations in its Custody Order, despite providing the GAL's opinions with "significant weight."
Mother and the trial court complied with Pa.R.A.P. 1925. We note, however, that our review was partially hampered by the trial court's decision not to issue a supplemental opinion to address Mother's alleged errors, specifically her seventh and eighth issue. The trial court complied with the technical requirements of Rule 1925(a) but missed an opportunity to defend its decision or clarify any ambiguity.
Mother presents ten claims, some of which are duplicative, as evidenced by the fact that she chose to collapse her first five issues into a singular argument. We remind Mother that a concise statement of matters complained of on appeal, which is too vague or voluminous, could lead to waiver. See Raymond v. Raymond, 279 A.3d 620, n6 (Pa. Super. 2022) (citing Commonwealth v. Vurimindi, 200 A.3d 1031 (Pa. Super. 2018)); see also Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002) ("Even if the trial court correctly guesses the issues [an] appellant raises on appeal and writes an opinion pursuant to that supposition, the issues [may] be waived."); and see Pa.R.A.P. 2119(a) (relating to the argument section of the appellate brief).
We begin our analysis by observing our scope and standard of review for custody matters:
In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court's deductions or inferences from its factual findings. Ultimately, the test is whether the trial court's conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.Wilson v. Smyers, 284 A.3d 509, 515 (Pa. Super. 2022) (quoting S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018)) (further citation omitted).
Mother's presents her first five issues as a single argument, which pertains to the trial court's substantive custody decision. We therefore address these claims contemporaneously. The Child Custody Act provides, "[i]n ordering any form of custody, the court shall determine the best interests of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child[.]" 23 Pa.C.S.A. § 5328(a) (prior version). Notably, the Child Custody Act sets forth a second set of factors the trial court must consider, when the action includes a request for relocation. § 5337(h). The Act defines "relocation" as "a change in residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights." § 5322(a). We have clarified that when neither parent seeks to relocate, and only the child stands to move a significant distance, the trial court must consider both sets of factors - enumerated in Section 5328(a) and Section 5337(h) - even though certain factors are repetitive or duplicative. See, e.g., White v. Malecki, 296 A.3d 1210, 1213-14 (Pa. Super. 2023) (citing D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014)).
The Child Custody Act has since been amended; the amendments became effective on August 13, 2024.
Here, the trial court considered both sets of factors after concluding that the modification would result in the Child changing school districts. See T.C.O. at 23. Mother does not challenge the trial court's application of Section 5337(h); she only claims the Section 5328(a) factors should have favored her position, not Father's.
The custody order stated that it was the court's "understanding" the Child would remain enrolled in the alternative education center. The center serves multiple school districts. The parties live approximately 30-45 minutes apart.
Because Mother did not appeal the trial court's application of Section 5337(h), we do not address whether the court was correct to consider it. Mother's failure to appeal that issue does not result in waiver of her custody claim. The trial court only considered those Section 5337(h) factors that have a counterpart in Section 5328(a), which Mother does challenge. See T.C.O. at 24.
Mother's consolidated argument is comprised of two main claims. First, she claims the trial court erred when it left in place Father's award of sole legal custody. Second, she claims the trial court erred when it transferred primary physical custody of the Child from Mother to Father. We address each claim in turn.
Legal custody is defined as: "the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions." 23 Pa.C.S.A. § 5322(a). The parties shared legal custody until 2021, at which point the court awarded Father sole legal custody. The impetus for the change in legal custody was the parties' disagreement about whether the Child should be vaccinated; Mother had argued that vaccination (and masking) was against her religious beliefs.
Following the instant custody hearing, the trial court decided to keep its award of sole custody the same. The order provided: "Father shall have the exclusive authority to render all decisions of importance relating to [the Child], including but not limited to decisions regarding medical care, the taking of vaccines, the wearing of masks, counseling, extracurricular activities and non- routine medical treatment." Order of Court, dated 4/17/24, at ¶1. Among the reasons for its decision, the court noted the high level of conflict between the parties, and Mother's history of using the Child to antagonize Father.
Paragraph 1 requires Father to solicit and consider the opinion of Mother before he renders a legal custody decision, but that he will have sole authority to make the ultimate decision.
On appeal, Mother argues the court abused its discretion. Because Father had the Child vaccinated following the court's 2021 decision, Mother maintains that any disagreements about masking and vaccinations are moot. In her view, a continued award of sole legal custody does little but "penalize" her for exercising her constitutional religious/personal beliefs regarding vaccines. See Mother's Brief at 20. Mother argues further that the trial court abused its discretion by awarding Father the ability to make legal custody decisions beyond the Child's health. She concludes that the record does not support the court's decision.
We disagree. Perhaps under different facts, we might be persuaded that a blanket award of legal custody to resolve a narrow issue is overly broad. Here, however, the Child's issues extended well beyond the "resolved" vaccination matter. Unresolved legal custody issues - i.e., "major decisions" relating to the Child's education, mental health and behavioral issues - persist. Meanwhile, the conflict between the parents inhibits them from making decisions together. In the court's view, the necessity for a sole decisionmaker persists as well. The court explained:
As we received all of the compelling evidence that described J.L.'s downward behavioral spiral, it became increasingly obvious that Mother and Father at times disagreed simply for the sake of being disagreeable. We could not help but conclude that both parties mistrusted each other to such an extreme degree that any proposal by one party would be met with instinctual suspicion by the other. Ultimately, therapeutic intervention became a battleground in the parties' war over custody.
Nowhere is the difference in parenting philosophies more profound than as it relates to discipline of children. As Mother puts it, "We are just not on the same page regarding discipline." As will be outlined in more detail in the section pertaining to Parental Duties below, Father is far more willing to employ tough love as a parenting strategy. Mother prefers the softer, more empathetic, approach.
The difference in parenting philosophies outlined above is not new. […] Unfortunately, the prediction and fear expressed above has come to fruition, and J.L. has become a casualty of the philosophic differences between his parents.
It is also obvious that Mother and Father have different beliefs and parenting philosophies. Mother is a devout Christian who prefers to take J.L. to church at least twice every week. Father is not anti-Christian, but neither does he practice a faith regularly. J.L. does not attend church when he is with his dad. Mother does not believe in any vaccines; she trusts that God will protect everyone's health. Father is more trusting of modern medical science. Mother does not consume alcohol. Father does. Mother does not use profane language. Father does[.]
If the above were not enough, yet another dynamic has poisoned the parties' interactions with one another. Father has been reported for abuse or neglect at least nine times.[Footnote 6]
Footnote 6: We say "at least" because we received multiple reports from multiple sources about CYS reports, PFAs and reports to several police departments. As best as we can determine, a minimum of nine abuse neglect allegations were proffered against Father. [N]one resulted in any findings of abuse or criminal charges.
With some justification, Father blames Mother for these reports. In addition, Mother has filed two PFAs against Father accusing him of abusive conduct toward J.L. These reports of abuse have engendered significant animosity on the part of Father. He does not trust Mother. He fears that anything he says or does will be used to generate another report of abuse or neglect. The type of respect and trust that is needed in any co-parenting relationship simply does not exist in this case.
T.C.O. at 28-30 (footnote omitted) (style adjusted).
Although the trial court held both parties responsible for their inability to co-parent, the court primarily faulted Mother for contributing to the high degree of conflict. More specifically, the court determined that Mother purposefully and repeatedly attempted to turn the Child against Father. See generally T.C.O. at 30-34. The trial court explained:
In 2020-2021, we wrote that Mother would do or say just about anything in order to retain autonomous control over custody. That dynamic has now manifested itself with the tactic of parental alienation. Mother has undertaken a campaign to sabotage the relationship between J.L. and his father. The fact that Mother loudly, repeatedly and vociferously implored this court to meet with J.L. and hear him, clearly communicated that she discussed custody issues with her 9-year-old son and she knew what he would say. This further corroborates our conclusion about her efforts at parental alienation.Id. at 34 (style adjusted).
The trial court determined that the parties' high level of conflict and Mother's efforts to "sabotage" the Father-Child relationship have caused the Child demonstrable harm. The court concluded Father should continue as the sole decisionmaker. But the court's legal custody award was only part of its broader effort to disrupt the status quo, which in its view, had been failing the Child. By granting Father primary physical custody, in conjunction with legal custody, the court understood that the Child would spend significantly more time in Father's care, under his rules, with his guidance. Given the level of distrust between the parents, we cannot conclude that the sole legal custody award to Father was manifestly unreasonable. Thus, we discern no abuse of discretion and find that Mother's contention regarding sole legal custody merits no relief.
The other claim contained in Mother's consolidated argument pertains to the trial court's decision to transfer primary physical custody from Mother to Father. See generally Mother's Brief at 20-37. In her brief, Mother provides a detailed recitation of the court's findings. She attacks these findings by arguing why each of the Section 5328(a) factors should have favored her instead of Father. She provides citations to the record to support her arguments.
Mother's argument is robust, but it fails to appreciate the standard of review we must employ in our role as an error correcting court. See Wilson, supra. Mother must understand that "[t]he evidentiary record of a custody appeal will often support a conclusion different than the one reached by the lower court." White v. Malecki, 296 A.3d 1210, 1215 (Pa. Super. 2023). We do not utilize a de novo review in a custody appeal, unless that appeal concerns a question of law. Thus, "[i]t is not this Court's function to determine whether the trial court reached the 'right' decision; rather, we must consider whether, based on the evidence presented, given due deference to the trial court's weight and credibility determinations, the trial court erred or abused its discretion in awarding custody to the prevailing party." E.B. v. D.B., 209 A.3d 451, 468 (Pa. Super. 2019) (cleaned-up) (citation omitted). "Deference must be given to the trial court, who viewed the parties, the witnesses, and the evidence firsthand." White, 296 A.3d at 1215. "It is not the role of this Court to "re-find facts, re-weigh evidence, and re-assess credibility." Wilson, 284 A.3d at 520 (citation omitted). That the trial court could have found for Mother is not a sufficient basis to reverse the trial court's decision. See White, 296 A.3d at 1215.
With these principles in mind, the question we resolve is not whether the evidence supports Mother, but whether the evidence supports the trial court's decision. Ostensibly, Mother argues that the evidence was lacking, but her argument prevails only if we supplant the trial court's findings, and "re-find facts, re-weigh evidence, and re-assess credibility." This we cannot do. Upon review of the record, we cannot conclude that the court's decision was manifestly unreasonable. Mother's claim relating to the substantive physical custody decision is without merit.
Our discussion thus far has disposed of Mother's first five issues. We now turn to her sixth. Here, she claims the trial court erred when it declined to conduct an in camera interview of the Child, over her objection. See Mother's Brief at 38. For support, she relies heavily on this Court's decision in E.C.S. v. M.C.S., 256 A.3d 449, 457 (Pa. Super. 2021).
In E.C.S., the father requested that the mother make the parties' seven-year-old son available for an in camera interview with the trial court, in order for the trial court to obtain the child's preference, pursuant to 23 Pa.C.S.A. §§ 5328(a)(7) (prior version); 5337(h)(4). The mother objected, the trial court agreed, and it declined the interview. The trial court reasoned: 1) the child's testimony would have been irrelevant; 2) given the young age, the child's preference would not have impacted its decision; 3) the child would not have been able to articulate a preference; and 4) the child would experience stress and confusion if he were to be interviewed. E.C.S., 256 A.3d at 458.
In E.C.S., the parties also had a six-year-old daughter, but the father primarily wanted the trial court to interview only the seven-year-old son.
On appeal, this Court had to decide whether, and under what circumstances, would a trial court abuse its discretion if it declines to interview a child. First, we noted that the Pennsylvania Rules of Procedure instruct that a child "may" be interviewed, but that the child's presence is not always necessary or desirable, given the traumatic and disruptive experience. Id. at 454-55 (citing Pa.R.C.P. 1915.11(b)-(c)). We then observed several cases where the court declined to interview a child, and we concluded that those cases were properly decided given the narrow scope of the issue before the court. Id. at 455-57. Critically, however, we held that "when a party explicitly requests the interview, in a case involving a substantive custody award or material change from the custody arrangement, the court runs the risk of abusing its discretion when it declines to interview the child." Id. at 457.
We ruled the trial court in E.C.S. abused its discretion for failing to interview the child, because none of the court's four justifications was reasonable. First, the court was wrong to conclude that the child's preference would be irrelevant - the language in Sections 5328(a) and 5337(h) makes clear that the child's preference is per se relevant. Second, by concluding the child's preference would not impact its decision, the court prejudged the weight of the evidence. Third, the court also prejudged the competency of the child, by presuming that the seven-year-old was too young to testify. Fourth, the court's finding that an interview would cause the child undue stress and trauma was speculative and without evidentiary support. Id. at 458-60.
Importantly, the heart of the error was the court's failure to obtain and consider the child's well-reasoned preference, based on the child's maturity and judgment, pursuant to the Child Custody Act. We explained that there were other ways to obtain a child's preference, as well as mechanisms to alleviate the traumatic nature of an in camera interview, both formal and informal. See id. at 460.
The other critical aspect of E.C.S. was our remand instruction. We did not explicitly direct the trial court to interview the child. We left open the possibility that the court might still be disinclined to interview the child, and should the court reach the same conclusion (after due consideration of our holding), we instructed the court to ensure its findings were made part of the record. Id. at 460-61.
Returning to the case before us, Mother argues that the trial court made a similar error when it failed to interview the Child. We disagree. Our decision in E.C.S. is factually distinguishable from the case before us. Unlike E.C.S., the trial court here actually obtained the Child's preference, considered the preference in conjunction with the Child's maturity and judgment, before ultimately assigning the preference little weight in the broader Section 5328(a) analysis. See T.C.O. at 55-57.
The court noted that the Child expressed to both his GAL and to his therapist that his preference was to live with Mother. Id. at 55-56. Additionally, the court considered the Child's maturity, judgment, and truthfulness when it declined to interview the Child. The court determined that the nine-year-old Child was particularly immature, given that he sometimes reacts violently when he does not get his way. Id. at 56.
Moreover, the court determined it could not trust the veracity of the Child's testimony, after finding that Mother had attempted to turn the Child against Father, and that she had discussed the custody litigation with the Child. Id. at 34. The court stated: "Multiple people, including [the GAL], described [the Child] as a poor reporter of information. Whether because of emotional transference, poor attention to his surroundings or an outright habit of telling lies, the information provided by [the Child] cannot always be relied upon." Id. at 56. Thus, the court provided reasonable justifications for not interviewing the Child. These reasons were supported by the record.
We note our disagreement with one of the trial court's reasons for declining the interview. The court said it did not want to convey to the child that he had the power to decide his own custody arrangement: "If [the court] would have met with [the Child] and listened to his preference, and if [the court] then would have ruled in Mother's favor, [the Child] would have been emboldened to believe that Mother was awarded custody because he wanted it to be so." See T.C.O. at 56. We appreciate the court's sensitivity to the Child, but we are not persuaded by this basis to decline an interview. Our view is that trial judges possess the necessary skills to explain to a child, during an in camera interview, in terms the child can understand, that the custody decision is solely up to the judge, but that the child's preference can help with that decision. That said, the court's finding on this point does not exist in a vacuum. The court clearly believed that the child lacked the requisite maturity and judgment to understand the role his preference would have in the court's custody analysis. This determination was supported by the evidence.
In E.C.S., by contrast, the court failed to even obtain the child's preference, let alone consider it in conjunction with the child's maturity and judgment. The error in E.C.S. was not simply that the trial court failed to interview the Child. Rather, the mistake was the unreasonableness of the court's rationale for declining the interview. Our remand instruction in E.C.S. explicitly recognized the possibility that a trial court could act within its discretion by declining to interview a child, even in a case involving a substantive custody decision, even over a parent's objection. Here, the trial court obtained the Child's preference and maturity by other means; the court then set forth reasons for declining the interview, and those reasons were supported by the record. The court properly exercised its discretion. Mother's sixth issue merits no relief.
In her seventh issue, Mother argues the court erred when it admitted impermissible hearsay. See Mother's Brief at 46. During the hearing, D.S. (who is the mother of Father's girlfriend) testified about a conversation where the Child explained why he told CYS that Father had choked him.
Counsel: Are you concerned for [the Child]?
D.S: I worry about his mental wellbeing.
Counsel: And can you explain any - well can you explain that, please.
D.S.: When the incident with the chokehold, I said to [the Child,] I said can you show me what you told the [CYS] people, and he said no. And I said, do you know that if you go like that, that's choking, and he said I know. I said did Daddy do that to you, and he said no. And I said well then why did you say it, and he said because Mommy told me to.
N.T. (1/18/24) at 86-87 (emphasis added). Mother made a timely objection, which the trial court overruled. In its opinion, the court explicitly cited this testimony as part of its determination that Mother attempted to alienate the Child from Father. The court found Mother's efforts to be reprehensible. See T.C.O. at 31-32. However, the court did not address the hearsay claim in its opinion.
To resolve the hearsay issue, we observe the following principles. The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Id. (citation omitted).
"Under the Pennsylvania Rules of evidence, hearsay evidence is incompetent and inadmissible unless it meets an exception set forth in the Rules or one prescribed by this Court or statute." In re A.J.R.-H., 188 A.3d 1157, 1167 (Pa. 2018) (quoting Pa.R.E. 801(c)). "'Hearsay' is 'a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.'" Id.
Hearsay within hearsay - or "double hearsay" as it is sometimes referred - is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. See Pa.R.E. 805. Technically, the Child's statement about what Mother told him to say is double hearsay, but Mother's component of the statement would have been admissible in the form of the "party opponent" exception. See Pa.R.E. 803(25)(A).
Father concedes that the Child's statement is hearsay, but he maintains that the statement fits within a proper hearsay exception - namely, Pennsylvania Rule of Evidence 803(3), which provides:
(3) Then-Existing Mental, Emotional, or Physical Condition. A Statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove a factor remembered or believed unless it relates to the validity or terms of the declarant's will.
Pa.R.E. 803(3)
The Comment to Pa.R.E. 803(3) cites Commonwealth v. Fitzpatrick, 255 A.3d 452, 479-80 (Pa. 2021) for "the general inquiry that courts should undertake when contemplating application of this rule[.]" Our Supreme Court explained that there are two ways, oft-conflated, that a declarant's state of mind can be invoked as a basis for admitting a declarant's out-of-court statement. The critical inquiry is the purpose for which the statement is being offered. Fitzpatrick, 255 A.3d at 471. By way of demonstration, the Court explained that if the statement "I can fly to the moon" was offered to prove the declarant's delusional state of mind, the statement would not be hearsay at all, because the statement was not offered for the truth of the matter asserted - i.e., whether the individual could literally fly to the moon. In such a situation, the truth of the statement is irrelevant.
The other situation is when the out-of-court statement is offered to prove the truth of the matter asserted, and thus is hearsay. Id. at 472. Even though the statement is being offered for its truth, the Rules of Evidence permit such a statement, because it is generally more reliable. "[T]hen-existing state of mind statements long have been excepted from the [prohibition of hearsay] because they possess the 'special assurance of reliability' due to 'their spontaneity and resulting probable sincerity.'" Id. (citing 2 McCormick on Evidence § 274 (8th ed.). "'The guarantee of reliability is assured principally by the requirement that the statements must relate to a condition of mind or emotion existing at the time of the statement.'" Id.
The Supreme Court held, "[p]ursuant to the state of mind hearsay exception [Pa.R.E. 803(3)], where a declarant's out-of-court statements demonstrate her state of mind, are made in a natural manner, and are material and relevant, they are admissible pursuant to the exception." Id. (citation omitted). However, the Court clarified that "the exception renders admissible only those statements that reflect the 'declarant's then-existing state of mind…or condition,' Pa.R.E. 803(3), not someone else's state of mind or condition." Id. "Nothing would allow a party to introduce an out-of-court statement of one person to prove the intent, motive, feelings, pain, or health of another person." Id. (cleaned up). The bounds of the exception are limited to the then-existing state of mind of the declarant only. Id.
Returning to the case at bar, we must first establish the purpose for which the statement was offered. The offending statement came in response to a question, posed by D.S., as to why she was concerned for the Child's wellbeing. Theoretically, the Child's statement might have been offered for a reason other than the truth of the matter asserted - i.e., not whether Mother actually told the Child to lie - but rather to explain the basis of D.S.'s concern for the Child. But no one makes this argument, and that was not the purpose for which the trial court used the hearsay. In its opinion, the trial court specifically cited the Child's statement and relied on it for the truth of the matter asserted, i.e. that Mother told the Child to lie to CYS about Father choking him. The court used this as an example of Mother's attempt to "brainwash" the Child.
Having established the statement was relied upon for the truth asserted, we must next determine whether the statement was admissible under the state of mind hearsay exception Pa.R.E. 803(3). There are several reasons why the Child's statement does not meet the exception. For one, we doubt the Child's statement meets the plain language of Pa.R.E. 803(3), which requires the statement to be about the declarant's then-existing state of mind. The exception does not permit a "statement of memory" to "prove the fact remembered" (unless it concerns the validity of a will). Perhaps the Child's statement - "Mommy told me to [lie]" - conveys the Child's state of mind - that is, his "motive, intent, or plan" to mislead CYS. However, the Child's statement conveyed his prior state of mind, at the time he fibbed to CYS. The statement did not concern the Child then-existing "motive, intent, or plan" at the time of his conversation with D.S.
Moreover, the Child's statement was impermissible because it was not made in a "natural manner," a precondition to the state of mind exception under Pa.R.E. 803(3), according to our Supreme Court. The Pa.R.E. 803(3) exception exists in the first place because "then-existing state of mind statements" have "the special assurance of reliability" due to "their spontaneity and resulting probable sincerity." Id. at 472 (citation omitted). Here, the Child made the statement in response to several questions from D.S., who prodded the Child about whether he knew what a chokehold was, whether Father actually choked him, and then why he lied about it to CYS. The Child's statement was not made in a spontaneous or natural manner, and thus lacked the "special assurance of reliability."
Finally, the trial court misapplied Pa.R.E. 803(3), because it relied on the statement for the wrong reason. The state of mind exception pertains to the declarant only; the exception cannot be used to prove anyone else's state of mind: "Nothing would allow a party to introduce an out-of-court statement of one person to prove the intent, motive, feelings, pain, or health of another person." Fitzpatrick, supra. Here, the trial court cited the Child's statement as proof of Mother's state-of-mind - i.e., her "motive, intent, or plan" to alienate the Child from Father. This was a misapplication of Pa.R.E. 803(3), and thus an abuse of the court's discretion. For all these reasons, the trial court erred when it overruled Mother's hearsay objection.
Having established the trial court erred, we consider whether the error was harmless. An erroneous ruling by a trial court on an evidentiary issue does not require us to grant relief where the error was harmless. Fitzpatrick, 255 A.3d at 483 (citation omitted). The harmless error doctrine is designed to advance judicial economy by obviating the necessity for a retrial. Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012). As applied here, the question is whether the party claiming error suffered prejudice from the mistake. J.C. v. K.C., 179 A.3d 1124, 1129-30 (Pa. Super. 2018) (citing Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000). Harmless error exists when, inter alia, the erroneously admitted evidence was merely cumulative of other untainted evidence, which was substantially similar to the erroneously admitted evidence. See Commonwealth v. Lehman, 275 A.3d 513, 525 (Pa. Super. 2022) (citing Commonwealth v. Reese, 31 A.3d 708, 719 (Pa. Super. 2011) (en banc)).
Here, the trial court relied on the Child's statement that Mother told him to lie to CYS as substantive evidence of Mother's overt efforts to turn the Child against Father. This finding was critical to the trial court's substantive decision to maintain Father's sole legal custody and transfer primary physical custody to him. However, the trial court was very clear that this was not the only evidence to support its finding. After discussing the hearsay evidence, the trial court explained:
In terms of less overt alienation, the record is replete with information about Mother's efforts to sabotage the relationship between Father and [the Child]. We will list some of the evidence of manipulative parental alienation that we found to be troubling:
• The 2020 campaign by Mother to use allegations of abuse to estrange J.L. from his Father cannot be dismissed as ancient history. Mother's efforts to portray Father as a child abuser were emphatically and directly contradicted by a CYS caseworker. Until the information from the
caseworker could be presented in Court, Mother prevented Father from having contact. When contact was reinitiated, it was under the watchful eye of a supervisor. J.L. was certainly aware of Mother's efforts to "protect" him from Father. The false premise that such protection was needed is a not-so-subtle effort by Mother to convince J.L. that only she can serve as a protective parental figure.
• Mother created a secret "code word" for J.L. to use whenever he felt unsafe or uncomfortable with his father. Mother specifically instructed J.L. to use this code word during communications if he felt the need for Mother to intervene. Providing such a code word to a child is about as subtle as a sledgehammer; it clearly communicated to J.L. that his father could pose a danger.
• In our 2021 Opinion, we chronicled how J.L. stated: "Dad is taking Mom to Court to try to take me away from her." Mother quibbled with words, but she did not deny that she was "honest" with her son about what was happening in Custody Court. GAL Wingert found this to be a subtle form of Parental Alienation. We agree.
• During the 2022 PFA proceeding, GAL Wingert attempted to speak privately with J.L. GAL Wingert testified that Mother "disrupted" his efforts to question J.L. and that she answered questions on his behalf in an extremely emotional state.
• On multiple occasions, Mother has taken J.L. to a doctor or hospital to have him examined because of events that allegedly occurred during Father's time of custody. Relatively minor bruising that could have been caused by fighting at school or an ATV fall resulted in a medical visit. On another occasion, Father and J.L. participated in a gender reveal ceremony that involved smashing an egg against J.L.'s forehead. Mother claimed that this gave J.L. a concussion. Responding in these ways to relatively mild and typical childhood injuries again communicates to J.L, that his father is not capable or willing to provide robust protection.
• Numerous allegations of abuse against Father were proffered. None have been substantiated. By necessity, each of these allegations of abuse required caseworkers
to interview J.L. about his interactions with Father. GAL Wingert stated: "Something is happening here with the repeated allegations...I believe [ J.L.] is influenced by his mother." We agree with this assessment. Mother's effort to convince this Court that "where there is smoke, there is fire" as it relates to abuse by Father has not been successful. Her effort to not-so-subtly communicate the exact same message to J.L. has sadly gained more traction.
T.C.O. at 32-34 (style adjusted) (footnote omitted).
Based on the foregoing, we conclude that the erroneous admission of the Child's hearsay statement was merely cumulative of other untainted testimony, which sufficiently enabled the trial court to reach the same conclusion - that Mother had persistently tried to turn the Child against Father. Therefore, the error was harmless, and Mother's seventh issue merits no relief.
In her eighth claim, Mother alleges the trial court abused its discretion by failing to mandate: 1) that Child continue to receive individualized therapy; and 2) that the parties engage in family therapy. See Mother's Brief at 50. This claim implicates Father's award of sole legal custody. In its custody order, the trial court stated that Father shall have sole decision-making authority on all decisions of importance concerning the Child, but specifically on decisions concerning counseling and non-routine medical matters. See Order of Court, 4/17/24, at ¶1.
Father says he intends to continue with the Child's individualized therapy, but that he is resistant to the notion of family therapy, at least until such time as Mother "is capable of painting Father in a more positive light." See Father's Brief at 46. Unless and until the trial court orders otherwise, Father has the authority to decide these issues. As we have already addressed the propriety of Father's legal custody award, we need not discuss the matter any further. Mother's eight issue merits no relief.
Mother's final two issues can be disposed of readily. In her ninth issue, Mother argues the trial court abused its discretion when it afforded "significant weight" to the opinions of the GAL. Mother acknowledges her argument is somewhat repetitive. See Mother's Brief at 53 ("…Mother incorporates her arguments from the other sections of her Brief herein."). For instance, Mother challenges the weight that the trial court placed on the GAL's report. We explained supra that we will not re-weigh the evidence. This claim is meritless.
In her tenth issue - somewhat paradoxically - Mother claims that the trial court erred because it should have adopted the recommendations of the GAL. As we understand it, Mother's argument seems to be that because the trial court afforded so much weight to the GAL's opinions, the court should have adopted the GAL's recommendations - namely, that the parties attend family therapy, among other recommendations. See Mother's Brief at 56-57.
We disagree. Indeed, as part of her in camera interview claim, supra, Mother noted, correctly, that the trial court may not delegate its judicial authority to the GAL. See Mother's Brief at 43 (citing C.W. v. K.A.W., 774 A.2d 745, 748 (Pa. Super. 2001) (holding the same)). If we were to conclude that the trial court erred because it did not adopt the GAL's recommendations, we would essentially be requiring the court to delegate its authority to the GAL. Clearly, the court had the authority to accept the GAL's recommendations to the extent it found them appropriate, but under no uncertain terms was the trial court required to do so. As an alternative argument, Mother maintains the trial court erred by failing to provide a comprehensive explanation for its ruling. We held supra that the court's opinion satisfied Pa.R.A.P. 1925(a). Mother's final issue is meritless.
To conclude, we discern no abuse of discretion as to the trial court's substantive custody award. The court's decision to award Father sole legal custody and primary physical custody was not manifestly unreasonable. Moreover, the trial court's decision to not interview the Child was within the court's discretion; the court's basis for declining the interview was supported by the record, and the court obtained the Child's preference in conjunction with the Child's maturity and judgment, and it articulated the weight afforded to the preference. We agree with Mother's position that the trial court erred when it admitted hearsay testimony, but we conclude that the error was harmless as the offending testimony was cumulative of other untainted evidence. The court did not abuse its discretion by failing to order therapy; the court has authorized Father to resolve those issues by virtue of its sole legal custody award. Finally, we conclude the trial court did not abuse its discretion when it relied on some of the GAL's report, but did not adopt all the GAL's recommendations.
Order affirmed.
Judgment Entered.