J-A29007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 J.D.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : M.D. : : Appellant : No. 462 WDA 2019 Appeal from the Order Entered March 12, 2019 In the Court of Common Pleas of Butler County Civil Division at No(s): F.C. No. 12-90161-C

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.* MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 10, 2020 M.D. (Mother) appeals from the custody order dated March 12, 2019, that set out the custody arrangements for A.O.D. (Child), born in September of 2010, between Mother and J.D.D. (Father), after its reconsideration of its prior November 9, 2018 order as requested by Father. The March 12, 2019 order provided that Father was to continue primary custody of Child, with Mother being awarded partial custody of Child every other weekend and one or two evenings during the week with no overnights. Mother’s custody time was to be held in a public location and without any contact with her four adult children. After an extensive review, we affirm.

The relevant scope and standard of review in custody matters are as follows: ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-A29007-19

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

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard. Baker, 775 A.2d 835, 838 (Pa. Super. 2001)).

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

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

R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court’s conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

Mother raises the following five issues for our review: 1. Did the trial court commit an abuse of discretion and/or error of law when, after entering an initial order granting Mother partial physical custody, the trial court then entered a reconsidered order that reduced Mother’s partial physical custody, when no new evidence and no new testimony was provided?

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2. Did the trial court commit an abuse of discretion and/or an error of law by offering no new findings of fact and opinions, or any kind of explanation, for reversing its initial decision and issuing the reconsidered one?

3. Did the trial court commit an abuse of discretion and/or an error of law when it simply signed Father’s proposed reconsideration order without making any changes, even including the same clerical errors and Father’s certificate of service, and not attaching the general custody policies?

4. Was it contrary to the best interest of … [C]hild for the trial court to reverse itself and reduce and limit Mother’s partial physical custody, after the trial court had allowed … [C]hild to have additional partial physical custody with Mother for four months, and where there was no new evidence suggesting any harm had come to … [C]hild from the additional partial physical custody time with Mother?

5. Did the trial court commit an abuse of discretion and/or error of law by reducing and limiting Mother’s partial physical custody where the following [23 Pa.C.S.] § 5328(a) factors were neutral or in Mother’s favor: (1), (3), (4), (5), (7), (8), (9), (10), (11), (12), (13), (14), and (15)?

Mother’s brief at 4.

In its opinion, the trial court set forth a factual and procedural history of this case and included information relating to the testimony of various witnesses. In addition, the trial court discussed and applied the custody factors contained in 23 Pa.C.S. § 5328. The court also explained its reasons for issuing the March 12, 2019 order now on appeal. Most notably, the court

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mentioned the high conflict and contentiousness of this custody case that does not appear to have lessened over the years.1 We have reviewed the certified record, the parties’ briefs, the applicable law, and the thorough, well-reasoned opinion authored by the Honorable Kelley T.D. Streib of the Court of Common Pleas of Butler County, dated May 24, 2019. We conclude that Judge Streib’s opinion properly disposes of the issues presented by Mother in this appeal. Accordingly, we adopt the trial court’s opinion as our own and affirm the custody order on that basis.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/10/2020

____________________________________________

1 We point out that the present appeal is the second one that Mother filed with this Court that has considered the custody of Child. See J.D.D. v. M.D., 151 A.3d 1131 (Pa. Super. 2016) (unpublished memorandum).

-4- Circulated 12/31/2019 03:30 PIV1.

OF BUTLER COUNTY, PENNSYLVANIA IN THE COURT OF COMMON PLEAS

.7: D, D.

Immerimes ) ) Plaintiff ) F.C. No. 12-90161-C v. ) ) M (=i fla11181/1011A m frt 1-1 0 ) g 9, Defendant ) ,; tid o ) 04 ;Qs i ipt; ttg o La N.

19251a) MEMORANDUM OPINION

111111MINIMilt ("Mother") and1 T.p, D. ("Father") are the pents to A.O.D.

19, 10, 2010, and Child was born on September ("Child"). Mother and Father married on June 20, 2017. Child Is 30, 2013, and divorced on November 2010. The parties separated on August (age 20), of issue to the marriage. Mother also has four other children, Edward the only child (age 17), from her previous relationship with..

Henry (age 19), H.G. (age 17), and A.G.

custody litigation.

Since the separation the parties have engaged in lengthy high conflict Court following The present appeal involves an appeal from a custody Order issued by the Trial by Father. For the clarity of the issues presented, the factual a Motion for Reconsideration filed will presented in this Court's discussion of Mother's fifth and procedural history of this matter (and final) matter raised on appeal.

N.G. and A.G. are now 18 years old.

is case, procedurally and factually, what is not complex While this case is highly complex an error when it issued its first Order granting This Court committed the basic issue at hand.

Court's Findings of Fact, physical custody as this Order was not supported by the mother partial Father filed a Motion for were filed with the Order. nor its 16 Factor Analysis, that review of the record, specifically requesting this court correct that error. Upon Reconsideration in fact Factor Analysis, this Court recognized that it had this Court's Findings of Fact and issued a new Order, which addressed the error and was erred. Consequently, this Court Findings and Analysis consistent with its previously issued not asserted in her Concise noted that Mother has From the outset, it must be this Court's Matter Complained of on Appeal that the record does not support Statement of Findings or the 16 asserted that the previous Order was supported by the Order, nor has she by relying on a basic position that the Factor Analysis. Mother attempts to side-step this fact courts should put form over substance. cases is: The Superior Court's scope and standard of review In custody is of the broadest type and our standard is order, our scope In reviewing a custody by We must accept findings of the trial court that are supported abuse of discretion. making independent factual evidence of record, as our role does not include competent and weight of the regard to issues of credibility determinations. In addition, with and assessed the we must defer to the presiding trial judge who viewed evidence, court's deductions or first-hand. However, we are not bound by the trial witnesses the trial court's Ultimately, the test is whether inferences from its factual findings. reject the as shown by the evidence of record. We may conclusions are unreasonable in the trial court only if they involve an error of law, or are unreasonable conclusions of trial court. light of the sustainable findings of the 45 A.3d 441, 201, 207-208 (Pa.Super. 2015), (citing C.R.F., Ill v. S.E.F., R.L.P. v.R.F.M. , 110 A.3d 443 (Pa.Super. 2012) (citation omitted)).

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

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) ILL, at 208 (citing as they raise Mother's first two Concise Statements together The Trial Court will address

the similar issues. Mother asserts: and abuse of discretion and/or error of law 1. Did the trial court commit Mother additional physical order granting when, after entering the initial entered a reconsidered order that reduced custody, the trial court then and no new when no new evidence Mother's partial physical custody, testimony was provided?

of by commit and abuse of discretion and/or error 2. Did the trial court explanation, and opinion, or any kind of offering no new findings of facts issuing the reconsidered order? for reversing its initial decision and of Fact and Oder at issue needed no additional evidence or Findings Simply stated, the as an error. The purpose of a motion for reconsideration, Opinion as it was simply correcting See, its prior decision for error. was filed in this case, is to allow the trial court to review that purpose of a motion v. Pennsy Supply, 595 A.2d 1211 (1991) (reasoning Gemini Equipment In fact, the basis of Father's was to have trial court review its decision). for reconsideration granting partial physical was that this Court erred in issuing the Order Motion to Reconsider

1:7 qc---; Analysis of the 16 Factors to Mother on the basis that this Court's Findings of Fact and custody did not support its Order.2 Upon review, this Court Agreed. necessary to of whether additional testimony, briefs or argument are The determination lies within the trial court's a prior order pursuant to a motion for reconsideration reassesses motion (Pa. 1993) (explaining, "Since a sound discretion. Moore v. Moore, 634 A.2d 163, 167 of the trial court, the trial court is for reconsideration is addressed to the sound discretion briefs or argument are obviously in the best position to decide if additional testimony, its original order.") Father's Motion to Reconsider necessary to the court in reassessing that the original then -existing record. Father asserted required only the consideration of the of the 16 Factors.

Court's Findings of Fact and Analysis Order was not supported by the had chosen to this Court took no additional evidence. in fact, if the Trial Court Consequently, as Mother now asserts, this Court would have take additional evidence or testimony, in doing so as it would exceed the scope of Father's Motion committed an abuse of discretion to Reconsider. its Findings of no authority exists requiring the court to re -file or reissue Furthermore, based upon these filings. The Fact or 16 Factor Analysis when correcting an erroneous order was the previously filed Findings of Fact and Analysis of the only support for the Order at issue Findings of Fact and Analysis of the 16 the trial court to issue "new" Factors. To require initial Order granting that Mother has not asserted that the record supported this Court's I1 is interesting to note in its Findings of Fact and in its 16 custody. As in fact, it did not. This Court specifically found her partial physical committed by the Child had occurred and was Analysis, pursuant to the second factor, that past abuse of better Factor is a continued risk of harm to the Child, and that Father could that there member of Mother's household, Pursuant to Mother's 5th Matter Complained of physical safeguards and supervision of the Child. provide adequate this factor weighs against her. on Appeal, Mother admits that than put to those previously filed, would do nothing more Factors, which would be identical Trial Court over-taxed court system. Consequently, the form over substance in an already at issue. of discretion in issuing the Order committed no error of law or abuse Statement: Mother next asserts in her Concise abuse of discretion and/or error of law when 3. Did the trial court commit and order without making it simply signed Father's proposed reconsideration of even including the same clerical errors and Father's certificate changes, custody policies? service, and not attaching the general Complained of on Appeal is wholly without merit Mother's 3rd Statement of Matters Again, Mother does not claim that the put form over substance. and continues to attempt Rather, of Fact or Analysis of the 16 Factors. not supported by this Court's Findings Order is own order, but the Order on the basis that the Trial Court did not draft its Mother chalinges Findings and Analysis of proposed order after an examination of the Court's adopted Father's the 16 Factors.

if the court agrees with the a party's proposed order Courts are permitted to adopt exists for a This has been a common practice for centuries. No requirement terms of the order. only to signing. To require so, would proposed order prior court to "make changes" to a

over-worked court system. increase the burden on an already provide no allegations of clerical errors and failure to attach policies Mother's vague harm Again, Mother has alleged no basis to establish an abuse of discretion or error of law. fact, /other has not or failure to attach the policies.

In resulting from any specific clerical error the inadvertently attached copy what the alleged clerical errors are, other than even identified

CCE basis to reverse of Service. Nonetheless, the claims of error provide no of Father's Certificate are clear on the Trial courts are permitted to correct clerical errors which this Court's Order.

Consequently, these errors and do not require an exercise of discretion. face of the record erroneous order to as a basis to vacate the Order at issue and reinstate the cannot serve is seeking.3 Stockton v. Stockton, 698 A.2d custodial time as she provide Mother increased This outcome would only serve to elevate form over 1334, 1337 n. 3 (Pa.Super. 1997).

in the best interest of the Child. substance, which is certainly not Mother next issue presented provides: child to reverse itself and reduce 4. Was it contrary to the best interests of the the custody, after the court had allowed and limit Mother's partial physical custody with Mother for four Child to have additional partial physical had new evidence suggesting any harm months, and where there was no partial physical custody time with come to the Child from the additional Mother. physical flawed premise that the additional partial Mother's position is based upon the supported by the time erroneously awarded to her in the initial order was proper and custodial The fact that she the Analysis of the 16 factors. in fact, it was not.

Findings of Fact and not supported by the partial physical custody time based upon an Order that was experienced record does not give rise to a basis to continue this time.

the it would prefer to wait until has the authority to correct the clerical errors at this moment, While the Court in this already convoluted case. so as not further muddy the waters Superior Court address this appeal

r- r" r physical custody should continue simply Moreover, Mother's contention that the partial to the new evidence [has been admitted in Court] suggesting any harm had come because "no standard. First and foremost, the this Court did not achild" while in Mother's care, is not the was based on the old evidence of harm that base its Order on any new evidence, rather by the second factor of the statutorily required occurred while in Mother's care, as mandated Again, Mother concedes in her 5th issue that this factor weighs.against her.

16 Factor Analysis.

that the Courts are required to place a child in It has never been the law of this Commonwealth to emerge that a child has been victimized harm's way and sit back and wait for new evidence history of harm. To do so would fly in the face of the best interest again when there has been a

standard.

of on Appeal requires a Mother's fifth and final Statement of Matters Complained of this case. In her final claim, Mother consideration of the procedural and factual history asserts: Did the trial court commit an abuse of discretion and/or an error of law by 5.

custody where the following reducing and limiting Mother's partial physical §5328(a) factors were neutral or in Mother's favor: (1), (3), (4), (5), (7), (8), (9), (10), (11), (12), (13), (14) and (15).

On September 13, 2013, Father filed a Complaint for Custody averring, inter alia, Child from sexual abuse perpetrated by her concerns of Mother's parental capacity to protect sexually abused by her brother, Edward. half-sister, H.G., who had previously been

D CC- regarding custody, numerous petitions and motions Additionally, both parties have filed pursuant to 23 Pa.C.S.A. §6101-6122. including petitions for protection from abuse in 2014, the Court was forced to continue the Prior to the initially scheduled trial dates to investigate and Youth Services Agency ("Agency") trial to permit the Butler County Children Child. As a result of these allegations, the Court claims of sexual abuse between H.G. and 15, 2014.

Lozzi, Esq. as the guardian ad litem for Child ("GAL")4 on October appointed Rebecca indicated finding of abuse, H.G. subsequently Although the Agency did not make an sexual conduct towards Child. acknowledged that she engaged in inappropriate 28, 2014, October 29, 2014, Following a five-day trial on October 27, 2014, October 2014, the Court entered an Orders granting Father November 24, 2014, and November 25, partial physical custody. primary physical custody, subject to Mother's and 26, 2014. After the presentation of a A custody trial was scheduled for August ("CYS") to County Children and Youth Services Motion to Continue the case to allow Butler said was issued on August 25, 2014 granting conduct their investigation, an Order of Court times Mother's custody time to take place two Motion. The same Order of Court also directed permitted any or in a public setting. Mother was not per week for two hours, either supervised from with Child. Lastly, the same Order prohibited Mother's oldest son, Edward, overnights The five day custody trial was held on October being around Child at any time, for any reason.

2014.

27, 28, and 29, 2014, and November 24,

4 23 Pa.C.S.A. §5334 on January 2, 2015. A Motion for Reconsideration was expressly granted.

The initial custody order was issued on July 6, 2015. The Pennsylvania s 2015. Mother filed a tiemly appeal The final custody order was dated June 29, Superior Court affirmed this court's decision.

n cc The court made the following findings of fact.6 investigations into the allegations of There have been two referrals to CYS to conduct abuse of sexual abuse against Child. In September of 2013, CYS received a call reporting sexual This report was numbered. After an investigation Child, naming Father as the perpetrator. ensued, CYS concluded that the report was unfounded.

and continuously "rocking." In However, Child was masturbating excessively in public conducted after a report was received alleging August of 2014, another CYS investigation was as the perpetrator.? However, due to sexual abuse of Child this time naming Child's sister, aphr the ability of Mother and Father to keep the age of the alleged sexual abuser, CYS investigated of the allegations. CYS intake investigator, Child safe in the home rather than the criminal nature children, Child, Father and Father's paramour, Sue Counts, interviewed all of the filarallne G- interviewed Child two times. During CYS' Mother, 11111111111111, and his paramour. Ms. Counts interview with Mother, Mother acknowledged that Child "rocks" and Mother began to discuss 14- *di that Ms. Counts believed to be inappropriate for Child to hear. Ms. matters in front of MO to Ms. Counts that after consulting with Counts stopped the discussions. Also, Mother explained the Child's pediatrician, Mother chose to ignore Child's rocking and masturbation believing Child would out-grow the behaviors.

lila. AIM was "extremely emotional" during the Ms. Counts also interviewed ht. G. to the situation. AM expressed to Ms. interviews and expressed her fear of Mother's reaction said anything about the incident with Edward.

Counts that Mother told her she should not have

6 For context, the findings of fact from the first custody trial are set forth.

This report was not numbered.

CCO k.6-. ff.& However, when Ms. Counts sat down in a meeting with Mother and 111111111111111111%, AM denied that Mother ever told her that she should not have said anything.

their observation that During the interviews with Mother's other children, they expressed 6-, Furthermore, 111111, Henry Child had been masturbating for "as long as they could remember." take sides with Edward. Mother and AM. reported bullying by Edward, and that Mother would failed to redirect Edward when he acted out. Furthermore, when Edward was interviewed he N. C.. el/1Lp MIME that he should not expressed knowledge of the allegations of sexual abuse by 1010, to providing him information. have been privy to. Ms. Counts concluded that Mother was stated that he stayed mostly Ms. Counts further testified that when interviewed, Edward at Mother's home or at friends' homes. However, Edward testified before the Court that he stayed at his father's home fifty percent of the time. This Court found Edward's testimony not about the hostility, secrecy, and denial credible on that issue. Ms. Counts expressed concerns in 2013, and denied that there were within the family. Mother was hostile during her interviews 114. any issues with Edward. Furthermore, MOIR expressed that she should never have talked about After CYS' observations of the home, it "the incident" which raised concerns with Ms. Counts. was concluded that there were no safety issues at Mother's or Father's respective homes. CYS sexual programs at Allegheny General recommended follow up services at Clover for Edwards, //, a. counseling for walk and that the children Hospital for Child, play therapy for Child, individual were not to be left alone. Furthermore, it was recommended that Child, Mother and Father should have separate psychological evaluations.

that Edward seek treatment at Clover. It was later During the Armstrong CYS investigation, it was recommended that Edward never completed his treatment. It was also learned, during the Butler County CYS investigation compliance and completion of Edward's treatment. reported that Mother was not cooperative in assuring

ccr the custody indicated that the parties are trying to address the issues through Ms. Counts parent wants therefore the safety threat is being addressed. CYS concluded that no system and, ensure hurt, but they are having difficulties in reaching an agreement on how to any child to be will help the safety of the other children, and that their hope is that the Court Child's safety and by an The investigation by CYS was concluded to set up guidelines for them to follow. were taking the steps between the parties that Child begin services. Mother and Father agreement for Child. necessary to implement appropriate services was made on November 4, 2014 alleging Child had been sexually A new allegation made by Child's AGH therapist after Child revealed had MP abused by WO. This report was a new act or the Child's "private parts". There is no evidence as to whether this was contact with with the family that CYS currently has an open case report of a prior act. Ms. Counts testified continue with Ms. Counts recommended that Child and, is developing a Family Service Plan. evaluation. and all the children have a psychosexual therapy at AGH and Mother, Father, this was she recommended that Child and NM have no further contact until Furthermore, "worked out".

involved in director of Totin Family Services, was Christina Totin, licensed therapist and Services for and Child were referred to Totin Family home visits with the parties. Mother with house "two to three" times. She discussed supervised visits. Ms. Totin visited Mother's the issues should the children with adult issues, and that Mother the importance of not involving she thought was very upset during her visits because remain between Mother and Father. Mother

11.

Co CC' but didn't think [she] was getting much help." the services were put in place to help her family, Ms. Totin felt unsafe and had to leave the home.9 She became threatening to the point where fYi. of Child. She observed Child's 1.1111..... is the Paternal Grandmother redirect Child. She reported that the behavior masturbation on several occasions and attempted to Grandmother has observed Child and of Child has lessened over the last several weeks. Paternal is "very good" with Child and has no Father's paramour, MO together and indicated that'll" concerns for Child's safety or well-being with 4.* in 2013. Father introduced to Father met his current girlfriend, limanimm, has two children, ages 15 and 11. On the weekend Child in December of 2013 as a "friend." She 4.11 1.5 2014, JO, Father, Child and alINI two children went on vacation to Washington of July 4, the game of "love and touch" where "love and D.C.. During that trip, Child talked a lot about the lower section of your body."I° This touch live in your underwear and they scurry around 441% concern. During the same vacation, also observed Child masturbating; however, caused at that time, it was not excessive.

4.14. trip at the end of July 2014, to Orlando, 410, Father and the children went on another in where IND has a time share. During that trip, Child's masturbation became excessive Florida or public. MN that she was masturbating all of the time regardless of whether it was in private upset, her children were becoming "very confused, addressed the situation at that time because that to redirect Child, Child got angry and responded and looking for guidance." When imp tried Upon behavior continued throughout the vacation. "my mommy likes it when I do this." Her threatening manner" and face" and "throwing her arms in the air in a Ms. Totin testified that Mother was "in her that she no longer felt "welcomed" in the home.A. idisiiimip I-I How Child described the game as reported by Father and

CC-, Father's counsel to discuss the situation. returning from their vacation, Father and ilon met with in indicated that, if Father were to need it, she would be able to assist him with the day-to-day childcare.

allmump is the father of Mother's other children, not at issue in the instant matter. together. They share custody with the He and Mother never married and have four children children on a week on, week off basis. Edward and NM were in his care when the sexual abuse was residing in Mississippi. She between the two children occurred. At that time, Mother that Edward began his treatment returned to Pennsylvania in December of 2009. Father indicated but he did not finish. " The other at Clover and was subsequently released from the program, three children were required to go to victim counseling.

Mother and 11.18111111111, Currently, through an Order of Court in Armstrong County, share custody of their children on a week on, week off basis; however, Edward does not follow that schedule. Contempt actions were filed in Armstrong County regarding the custody schedule alleges that Mother allows Edward in her house on IIMIMINEINSII of Edward, where from Mother, she would insist that he lie to weeks. Father testified that before his separation has concerns that Mother is allowing police about the whereabouts of Edward. The Court Edward in her home around Child.

be a During his testimony, I L 1 1 informed the Court that, at times, Edward "can

- on the major issues in the children's lives. bully" and that Mother does not keep him informed Henry was hit by a car while riding his bicycle.

For example, Mother did not inform Father I2that to poor attendance.

Edward was discharged from the program due

" Father here is

qg' K.& in their schedules. X1110 Mother does not inform him of school activities or of changes have inquired why that the children bring up adult issues with him, in that they further indicated topics for Mother. He concluded that Mother discusses inappropriate he is being a "problem" around the children.

and is currently resides approximately 25 miles from Father's residence Mother currently she School District. She currently resides in the home where Father and employed at the Freeport resided while they were an intact couple. to when Father and Mother were still an intact couple, Mother wanted During a time h 4 G-. was only agreeable to pursuing custody of pursue custody of wand 11111110 however, Father 1-1 4 4- hand, did not want to split up the twins.

MO not Mil% Mother, on the other Child stopped All five children were residing with Mother until August of 2014, when are required indicated that she is willing to make whatever accommodations living there. Mother visits with more time with Child. When Mother was having overnight by the Court to have 0.1,1 bottom bunk Viand with Child would sleep in the other bunk Child, she would sleep in the she knew if own room, and Mother placed a door alarm on the door so that bed. Edward had his the day. left Edward alone with the children during Edward ever left his room. She never Father would Mother typically took Child to her medical appointments, but sometimes for Child May of 2014, Mother received an email confirming a doctor's appointment take her. In and Father Father did not inform Mother. Mother went to the doctor appointment, of which should not be in the upset that Mother was there and advised the doctor that Mother became the exam room with Mother was able to attend the appointment and stayed in room with Child.

CC, 16, 2014. had another doctor's appointment on October Child through the appointment. Child Our Family Wizard. Mother was in the Father informed Mother of the appointment through was waiting room when Father and Child arrived, and Child sat with Mother until her name into and doctor that Mother was not allowed to go called. Father announced to the waiting room the exam room with Child.

30, 2013 where Father pushed Mother An incident occurred sometime prior to August sustained bruises on the back of her legs from the and she fell into the bunk bed. Mother belongings incident. On August 30th of 2013, Mother locked Father out of the house and put his Cross- him that she had locked him out of the home. in the garage. She e -mailed Father to inform third -party Custody exchanges were occurring at a PFAs were filed by both Mother and Father. exchanges being held at her home because she felt location. Mother was not agreeable to custody Father was a safety threat.

she was tired until she would fall asleep.

Mother testified that Child would "rock" when she would redirect Child. In September of not fall asleep, Mother indicated that If Child did was Child's "rocking" at daycare. Child's behavior 2013, Mother spoke to Kids Sprout about hear about the kids and teachers at Kids Sprout. Mother stated that she was surprised to upsetting and began behavior. Mother testified that she never had trouble with redirecting Child Child's rocking. on Child rather than dresses. Mother never noticed anything other than the putting pants "rocking." Mother recited where Child would not stop There was one time in July of 2014 that behaved in that this was the first time Child behaved as such and Child has never She indicated is not credible when discussing Child's behaviors. such a way since. The Court finds that Mother is acting out. in denial about the degree to which Child The Court further finds that Mother is

0 CCC until with Child every Tuesday and Thursday from 5:00 p.m.

Currently, Mother visits in Butler. Mother wishes to return to the custody schedule prior 7:00 p.m. at the Clearview Mall is willing to custody. She desires to maximize her time with Child and to Father getting primary loves Child orders to make that happen. The Court recognizes that Mother abide by any court the to put Child in danger, but Mother has a difficult time appreciating and does not wish to protect Child. boundaries that need to be in place moved to Mississippi in September of 2009, they were When Father and Mother program. so that Father could pursue his education in the creative writing engaged. They moved in to Pennsylvania around Christmas of 2009. Mother remained Father and Mother returned and against to her other four kids due to the abuse perpetrated by Edward Pittsburgh to stay close He on September 9, 2010. At that time, Father was living in Mississippi.

1.1111. Child was born in January of 2012, for some time to be close to Child and Mother. came back to Pennsylvania was born until Father to Mississippi to finish his schooling. From the time Child Father returned at primary care provider since he was not working, but staying left for Mississippi, he was the to Father provided for Child at that time. if Father was not able home to study. Both Mother and would the times when Father was studying for finals, Child care for Child during the day, such as with was living in Mississippi, Child remained in Pennsylvania attend Kids Sprout. While Father Father when Mother was working. During the summer of 2012, Mother and attended Kids Sprout At the end of summer of 2012, Mother and Child abroad program. was in Costa Rica for a study of All three of them returned to Pennsylvania together in July went to Costa Rica to visit Father.

2014.

D CC4 that Child would not be around Edward When Child was born, Mother and Father agreed with During Mother's weeks of custodial time and that Edward would cease living with Mother. house. A custody complaint was filed by 1116 Edward, he would stay at Maternal Grandmother's Mother to have in Armstrong County and "all of a sudden it became very import to 111111111111,

back in her home." Mother's and Father's relationship began to deteriorate when Mother Edward not want Edward around Child and therefore, wanted Edward to live with them. Father did Mother threatened to throw Father out.

Father scheduled Child for surgery Child required surgery for her ear infections.

Mother did not attend the surgery and told following the recommendation by Child's doctor. and that Father "stupidly scheduled Father that, "if [he] needs help, [he] better ask [his] mother" high deductibles. Father concluded that Mother the surgery" because they were going to have does not like medicine.I3 in Butler, Pennsylvania with Child.

Father currently resides in a two bedroom home College as a professor. Father has a Father is currently employed with Butler Community Bachelor's Degree in writing from the University of Pittsburgh as well as a Masters in fine arts.

Father He also holds a PhD in creative writing from the University of Southern Mississippi.

concerns as to the content of Father's books, writes and publishes his material. Mother expressed three Father indicated that only approximately stating that they were sexual in nature; however, percent of his work is sexual in nature.

13 Taken from Father's testimony on August 23, 2014, a grandchild love Child unconditionally and are very excited to have Father's parents when he has been very helpful in assisting Father with daycare close. Paternal Grandmother Child at Paternal full-time. Father and dip spent two nights together with began having Child fear that Mother would "act out" and come to on advice of counsel out of Grandparents' home physical custody.

Father's home once he received sole willing individual counseling for himself as well as for Child. Father is Father sought out and to participate in individual counseling for himself. to participate in counseling with Mother parts" and working with Child on teaching her the difference between "private He has been has touch" and "inappropriate touch." Child, in Father's opinion, "public parts" and "appropriate decreased her behaviors "drastically." over time, other than her behavioral issues which seem to have decreased Currently, out her She has a routine at Father's house every day of the week. She picks Child is doing well. indicated that, but Father does not allow her to wear dresses any longer. Father own clothes, Child is has ceased wearing dresses, the masturbation has been at a minimum. since Child her behaviors when by family and friends who help support her and help redirect surrounded is doing well there.

Child attends daycare at BC3 where Father works, and she necessary.

2013. was appointed to conduct custody evaluations on November 18, Dr. Eric Bernstein and Father's need lack of funds to pay for the evaluations, Some delays occurred due to Mother's Court that Dr. the appointments. It is noted by the for advance notice to be able to attend prior to the CYS interviewed the parties and conducted his custody evaluations Bernstein the parties, Father's into the sexual abuse allegations. Dr. Bernstein met with Mg: investigation other children-Henry, imp, Edward andallik. girlfriend, 11101111111111.11111., and Mother's

CCC After the psychological testing of Father, Dr. Bernstein concluded that he is a well -functioning adult with a strong attachment to Child. Dr. Bernstein concluded that Mother was overly guarded in the information she wanted to share, but there were no concerns with Mother's mental health. Mother is well bonded with Child. According to Dr. Bernstein's observation of the issue of sexual abuse between Mother's oldest child and MI it seemed as though the issue has been discussed and is no longer an issue. Mother stated that she closely supervises all of the interactions between the children, especially Child. Dr. Bernstein, however, doubted the statement that Mother closely monitored the children because "even the best parent cannot be in the presence of the child at all times." Dr. Bernstein opined that it is not realistic for a parent to gg. constantly monitor a child or children at all times, and considered that Mb acted in a babysitting role to Child as reported by Mother's other children. Furthermore, Father and S. simin had concerns on how closely Child is monitored in Mother's home. Dr. Bernstein received information about "the incident" through Mother, Father, and 111011111111t. Edward also admitted to one incident between he and gm.

4. 6,1, With regards to Mother's other children, Dr. Bernstein recommended that UM receive in -home family counseling due to the concern for risk of harm towards Child and/or any other child in the home; that Edward attend psychological therapy sessions with someone who deals with sexual abuse offenders; and that the parties attend counseling to help deal with their issues.

The Court appointed Guardian Ad Litem, Rebecca Lozi ("GAL"), to represent Child's best interests. She visited both Mother's and Father's home and spoke to both parties on multiple occasions. The GAL spoke with Mother about the alleged sexual abuse and indicated that

D CCC1 Circulated 12/31/2019 03:30 PM

for Edward and blame towards Father.

Mother exhibited minimal concern for Child, sympathy Mother did not express any sympathy for lank or Child.

to keep Child safe. Specifically that The GAL expressed concerns about Mother's ability it comes to protecting Child versus getting Mother is not a physical harm to Child but that, when the GAL does not believe that Mother in trouble if a violation of a Court Order were to occur, allowing Child to be around would protect Child. The GAL is not comfortable, at this time, 11. (4.... and/or supervised Edward and/ors unless it is cleared by both of their respective counselors by a mutual third party. However, the GAL indicated that Mother should have some custody an ongoing fear that, once Edward time in her home if the other children are not present. There is not he is present when Child is in turns eighteen, Mother will have no control over whether or the home.

was pending. On The parties continued to litigate matters while the 2015 appeal as well as a Petition to February 2, 2016, Mother filed a Petition for Contempt and Special Relief no appeal was filed. On Oppose Relocation. The petitions were denied on April 21, 2016, and May 12, 2016, Father filed a Petition for Special Relief and a Petition for Contempt which was scheduled for a hearing. However, more pleadings continued to be filed. Mother filed a Petition Contempt and Special for Special Relief-Custody and Father filed a Petition for Enforcement, 7, 2016. No appeal was Relief. All petitions were consolidated for a hearing held on November filed from this court's order of December 22, 2016.

the modification was Pursuant to Butler County Local Rules of Civil Procedure custody conciliator's scheduled for a custody conciliation on October 17, 2016. At the

D Di( recommendation , the conciliation was continued until November 22, 2016, to effectuate proper service of the petition on Father and the GAL.

Following status conferences on March 9,2017 and June 8 , 2017, the parties agreed to updated custody evaluations and a pre-trial conference was set for December 4, 2017)4 The custody evaluation was not completed, so the conference was continued to March 26, 2018, and trial dates set.

On November 8, 2018, the Court's findings of fact and memorandum were filed. On December 6, 2018, Father filed a Motion for Reconsideration which was expressly granted. No additional testimony or evidence was placed on the record. On March 12, 2019, the Court entered its final custody order. Mother timely filed the instant appeal.

The Court's findings of fact as filed on December 8, 2018, are as follows:15

Child is seven years old and attends first grade at Moraine Elementary School in the Slippery Rock School District. Child is aware of the constant conflict and custody litigation between her parents, in part, because Mother continues to inappropriately discuss custody issues with Child specifically relating to Child's relationships with her half-siblings.

Child has been diagnosed with Adjustment Disorder and has been attending individual therapy with Dr. Annie Preis, a licensed psychologist, since June 15, 2015. Child appears to benefit from therapy particularly as it relates to the trauma associated with her sibling relationships. Child continues, however, to exhibit rocking or masturbatory behavior and other The scheduling order refers to a "status conference" however the conference met the requirements of a pre- trial conference pursuant to the Pennsylvania Rules of Civil Procedure.

Is The substance of the findings remains unchanged. Minor grammatical and clerical errors have been corrected.

120 g'71 inappropriate sexualized behaviors as she did prior to the last trial in 2014. Mother denies that Child masturbates or "rocks" during her custodial time. However, both Child's kindergarten and

- first grade teachers observed her masturbate at school. Child was easily redirected by the teachers. Father's paramour testified that Child frequently masturbates and inappropriately kisses and touches her. This information was shared with Child's therapist.

Father lives in a five -bedroom home in Prospect, Pennsylvania with his paramour, Nal , and two children. Father and fir!

44. have dated for approximately six years, and have lived together for approximately four years. Since the last trial, Father has participated in therapy with Robert Miller of PBS Mental Health Associates. At the beginning of his therapy in February 2015, Father was attending therapy bi-weekly, but now attends on a monthly basis. Father reports that he has benefited from the therapy as it relates to parenting skills and co -parenting techniques.

Father works as an adjunct professor at the University of Pittsburgh and the Butler County Community College. Father's work schedule is flexible; however, is able to provide childcare during evenings when he is teaching. Father's parents, a" and 411M11.ni).

OMNI, live in Windber, Pennsylvania and also provide Father with childcare on occasions, and are actively involved in Child's life. timinlemla observes Child masturbate frequently following Mother's custodial period. Child will inappropriately kiss neck and touch her breasts. She states that she and Father encourage Child's relationship with Mother.

The Court finds her testimony credible.

Father was in therapy as directed by the Court. However, he did stop attending for a period of time and resumed following a status conference.

r- Father does not communicate well with Mother. Father did not invite Mother to Child's kindergarten teacher's meeting. Father admitted to taking pictures through Mother's living room window, and failed to respond to Mother's Our Family Wizard email regarding same.

Father has no objection to Mother's religious training of Child. However, he was evasive in answering whether he would agree to Child participating in first communion. Father is not entirely credible as to his willingness to communicate with Mother and support her religious training of Child.

Father testified that he has no mental health diagnosis.

Father admitted to writing a "role play by adults" story approximately twelve years ago.

The story is sexually explicit regarding child/parent sexual acts. He also wrote a published story regarding a husband cheating on his wife that he described as "magic realism".

Mother lives in a three -bedroom home in Sarver, Pennsylvania, approximately forty-five minutes away from Father. Mother works as an administrative assistant for the Freeport Area School District on a full-time basis and also works part-time cleaning offices.

Mother has been attending bi-weekly, individual therapy with Susan C. Thompson, L.C.S.W. of Allegheny Associates in Psychiatry since December, 2014. Thompson reports Mother's general progress and treatment goals relating to Mother's own self-esteem. However, Thompson acknowledges Mother's therapy does not address any issue relating to the abuse that occurred to Mother's children. When asked why Mother's therapy did not include a treatment goal or treatment plan relating to the abuse issues, Thompson indicated that she was not provided all of the information from Mother regarding the abuse. Mother has failed to provide credible evidence that she has addressed her attitude and insight in the sexual abuse between Edward, H.G. and Child. Consequently, Mother also failed to provide credible evidence that she has the

D insight and willingness to put protective boundaries in place for the safety and well-being of made a founded report of Child. Mother testified that the reason Children and Youth Services was babysitting H.G. abuse regarding Edward and H. G. was because Edward acknowledged he K She went on to say that Edward's Father, was responsible for Edward's treatment his treatment following the abuse, and that, "it was MEM fault" that Edward did not complete plan. her brother and Mother enjoys the added supports from her extended family, particularly events approximately sister-in-law. Maternal Uncle testified that the family comes together for to 20 times per year. However, he stated that his interaction with Mother's children has he is not aware of the decreased. Similar to his testimony at the first trial, he admitted that not aware of any alleged details regarding the sexual abuse between Edward and H. G., and was th other* abuse between H.G. and Child. He explained that 11111110111 private and I didn't ask a lot of to be unaware of the questions." Despite the results of the last custody trial, he continued even for the well- allegations and did not appear to be interested in gaining more information, being of his own children. He simply states that, "our kids are never alone." Conversely, between Edward and Mother's sister-in-law did testify that she was aware of the sexual abuse is very supportive of H.G. Maternal Grandmother did not testify. Although Mother's family unwilling to accept or have not her and involved in Child's life, it is clear that they are either been provided all of the details regarding the sexual abuse between Mother's children.

participated in individual therapy to Child has four half siblings. Since 2015, H.G. has Her therapist was made aware of the address her prior sexual abuse at the hands of her brother. time, H.G. has resolved issues as to allegations of sexual behavior by H.G. toward Child. At this she is dealing with the grief and loss her own abuse and does not identify as a victim. However,

o C for the current custody associated with her separation from Child, and feels responsible Giant Eagle located directly provision. H.G. is a junior in high school and works part-time at the across the street from Mother's home. She is involved with extra-curricular activities and, She presented as a well- specifically, plays soccer for the Freeport Area Soccer Association. tone. She did not appear spoken, polite young lady who spoke in a methodic, thoughtftil nervous, but rather prepared for the situation. but rather had a H.G. described that she never had an intent of hurting her sister, She denied that she ever "curiosity about breast feeding" when she attempted the act on Child. touched her private "touched her sister inappropriately," despite Child's disclosure that H.G.

Mother's attorney parts in November of 2014. She further explained that prior to speaking with activity with Child. on this most recent litigation, she was "not sure of the allegations" of sexual to discuss and H.G. described her three-year counseling sessions as being primarily with her father. She resolve stressors H.G. may be experiencing such as school or issues describes the relationship with her father as tense, but improving. She believes that her father 6.

She testified that she has and 1010.11111111.0turned against her after the 2014 custody trial. and explained, "and now we briefly discussed the prior sexual abuse from her brother, Edward, are happy and we don't think about it anymore... [it is] not our concern anymore...like my family and 1, we don't worry about it anymore." H.G. did not testify as to resolving or discussing any issues related to Child not having contact with her.

Henry is 19 years old and resides with Mother except during her custodial periods with father. However, according to OM child when according to Mother he usually stays with his J5.

MIMI he often leaves his father's home and secretly returns to Mother's home or otherwise ..17C meets Mother and Child. eigitit/010 was credible in her testimony. A.G. is H.G.'s twin to He is exhibiting brother and is 17 years old. A.G. is obsessed with Child according 11111111111111P.

and has drawn explicitly sexual "beasts" behavior issues at school, leading to assault charges, performing sexual acts. He is currently on probation.

1111111111.1. as physically 1111101111. described the relationship between H.G. and and that H.G. shut down until aggressive by H.G., constantly running away from custody dramatically changed in attitude, and she approximately five months prior to trial where she K.G. 11101011/111111 testified that would leave notes for 1111.11.11111 to call the custody evaluator.

I.5'4 testimony was very credible. there is now conflict between H. G. and her father. 111.11111.1111111 However, they do not Mother and Father communicate via Our Family Wizard. however communicate well. Mother and Father had difficulty agreeing to Child's therapist, exhibits show that Father reads ultimately they agreed to Dr. Pries. The Our Family Wizard requests for information which Mother's emails, but does not respond to them despite several exchanges, doctor's appointments, should be shared between the parties such as school folder was taking pictures through the living and daycare information. In November of 2015, Father after Mother's request. room window in Mother's home. Father provided no explanation investigation in July, 2017, Butler County Children and Youth Services conducted an which was deemed unfounded. in her custody. She Mother denies observing any regressive behaviors by Child while Child by a different name than she did denies discussing custody issues with Child. Mother calls in 2014, and different from what Father calls her. Mother attends most medical appointments with Father and Child. Mother describes Child as willful.

D C1C Mother's testimony 'was often unresponsive to the questions asked. Mother's testimony was very negative regarding Father, and she did not reveal any admirable qualities of Father or his parenting. Mother refers to Child's clothes as "mommy clothes" and "daddy clothes".

Additionally, according to the principal at Child's school, Mother is rude and constantly communicates with the school secretaries wanting information from the school even though she has been directed by the principal and the school superintendent to stop communicating with the secretaries. Father appropriately communicates with the school.

Mother's Our Family Wizard exchanges also demonstrate that Mother will continuously ask Father the same questions over and over. However, it appears that Father does not always respond to her. Mother requested that Father inform her on Our Family Wizard of when Child last ate prior to custody exchanges. Father has not met her request.

Extra-curricular activities continue to be an issue between Mother and Father. Mother is secretive, and does not discuss with Father enrolling Child in activities prior to doing so. Child can Currently, Mother enrolled Child in soccer without discussing it with Father, however, not attend the practices and only attends games when in Mother's custody. Mother did provide Father with the game and practice schedule. Father does not take Child to either during his custodial period.

Mother's unwillingness, or in the alternative, inability to understand and appreciate the and has serious nature and safety concerns as it relates to Child's interactions with her siblings is, Mother always been, the principle point of conflict between the parties. Father alleges that or the routinely permits her other children to be around Child without Father's knowledge Court's permission.

D C77 I* '5 -4 art ed,) 411111111111111111.1.

T'S ONINIMMIllit, has lived with K 4, ONO for six years. Over the last two K.G. During that time years, MOM. and Mother have exercised shared custody over their children. sTs.

MEM whom the Court found to be credible, recalled several occasions where one or period, K. more of 11110111111 children were unaccounted for, and, on at least two of those occasions were found to be with Mother while she was exercising custody over Child - in direct violation of this Court's Order. Conversely, Mother denies permitting her children to be around Child without in this regard.

Father's knowledge; however, the Court does not find Mother to be credible fact, Mother Mother continues to minimize the sexual abuse suffered by her children. In is not a victim of testified that H.G. "complied" with Edward's abuse, thus implying that H.G. by highlighting the rape. Mother continues to minimize the impact of the trauma caused to Child because of fact that Children and Youth Services could not classify H.G.'s actions as "abuse" H.G. exited the H.G.'s age at that time. To that end, when prompted by the Court to wait until with H.G. still in courtroom before testifying about the sexual abuse that H.G. endured, Mother, between her the courtroom, indicated that she felt comfortable testifying about what happened children in front of H.G. times since the Child's Guardian Ad Litem testified that she met with Child at least eight 2014 trial. She previous trial. She explained that Child experienced grief and loss following the testified that Father was not sensitive enough to Child's grief and loss and Mother feeds it. She explained that Child understands and acknowledges that conflict between Mother and Father which creates a stressor for Child. She is aware of adult issues including Mother's views on the custody matters. Child expresses guilt for the outcome of the 2014 trial and Mother's reduction Child of parenting time. Due to Mother's emotions and the conflict between Mother and Father, Ad Litem expressed that she no longer feels comfortable confiding in Father. The Guardian

C -7C opines that Child benefits from her therapy with Dr. Pries and should continue to participate.

She also opines that Father needs insight into Child's need for more of a relationship with Mother.

The parties participated in a custody evaluation with Dr. Eric Bernstein, Psy. D. As a result of the evaluation, Dr. Bernstein rendered his opinion to a reasonable degree of psychological certainty making the following recommendations to the Court: 1. [Father] should retain primary custody. [Mother] should receive custody every other weekend from Friday through Sunday. In addition, [Mother] should receive two evenings per week. The evenings allow for opportunities to give more input into [Child's] everyday activities and education. I am mindful of the distance between the parents['] homes as well as [Mother's] custodial time with her older children. By having evenings rather than overnights, [Child] will be less burdened with transition between homes.

Ido not support [Mother] receiving supervised visits. While there are allegations of her photographing her daughter in the nude and inappropriate parent/child boundaries, the allegations are not substantiated.

2. The parents should continue usage of OFW as a resource and communicate on a weekly basis.

3. Each non -custodial parent should receive daily phone contact with [Child].

4. Both parents should attend individual counseling as per the Court's Order.

5. [Child] should continue attending counseling as per the Court's Order.

6. All adults should refrain from pressuring [Child] with adult related information and pertaining to the separation from her siblings. The therapist is in a more appropriate position to discuss [Child's] feelings and thoughts about the custody matter, should such issues arise.

7. Upon receiving information from Dr. Ann Preiss, I will issue an addendum, should the new information affect the recommendations.

8. I defer to the Court to determine about sibling contact.

9. Reconsideration should be an ongoing process, assessed with input from the child's therapist, GAL, and of course, the parties as well.

P S7Q Father's Exhibit 1, at 19-20.

Dr. Bernstein completed a full custody evaluation with the family and issued a report on March 1, 2018. The Court requested, and all parties consented, and addendum to the report on considering collateral information from Dr. Pries, Child's therapist. An addendum was issued March 7, 2018.

Dr. Bernstein testified that Child attended the evaluation with a pre-planned agenda having appeared to be influenced. He described her as purposeful in making her position known and that Child's point of view is an "exact match" to Mother's. He opines that Child feels pressured and thus places pressure on herself. Mother and Father's constant conflict also places stressors on Child.

He can make no definite conclusion as to whether or not Child was the victim of sexual abuse. However, he testified that Child's acting out is consistent with sexual abuse. He is concerned if the facts show Child is masturbating.

Dr. Bernstein did not change his opinion or recommendation based upon Dr. Priess' information. Dr. Bernstein does observe that Child "is subjected to felt conflict, pressure, and even confusion about the basis of her parent's discord." Child is unable "to fully appreciate the significance of her situation." He concludes that Mother pressures Child. He notes that Father and 711818/Innii "provide support, supervision and exposure to opportunities" which provides Child a "stable, secure and safe home environment." While Mother is loving, he opines that she is "singularly focused" and this impacts her parenting decisions which in turn pressures and burdens Child.

171 rot.

As to Mother and Father, he opines that neither have shown significant improvement in co -parenting. Their communication level is adequate, at best.

Of note in Dr_ Bernstein's report is the following: mci-he 4.19- wataffiimaii, view the Court, Nimaalisaview, and Ms. Lozzi as biased, unjust, and unfair in their respective views. She does not appear to appreciate the impact of her decisions. For example, she discounts [Child's] initial allegation of misconduct against [H.G.] and instead, adopts [Child's] weak attempt to explain the allegations as a jo attempt to fool the therapist and OCYF. She disregards and other's reports about [Child's] sexual acting out behaviors as well.

Consequently, [Child] is encouraged to independently resolve feelings related to the alleged mistreatment. iiiiimegigit filo/4er encourages [Child] to desire reunification with [H.G.], the very person who may have offended her.

The facts presented at this trial support Dr. Bernstein's perspective. In fact, based upon the facts presented, the Court concurs with Dr. Bernstein's observation that it is curious how Child feels such loss of separation from siblings with whom she has been separated for four years with very little memory of time spent together. The evidence and testimony presented at trial supports that it is Mother's pressure to reunify her family that keeps Child's grief and loss alive. Dr. Bernstein testified that the majority of the felt loss is by Mother not the children.

In rendering his opinion, Dr. Bernstein noted: [a]s much as [Mother] should receive additional custody, Iv she will adjust and accommodate is uncertain. She shares custody with and needs to restrict her other children from access to [Child], until at which point, the Court orders otherwise.

Id. To that end, Dr. Bernstein testified that his recommendation to grant Mother additional custody time would be impacted if it were true that Mother permitted her other children to be around Child in direct violation of this Court's Order.

D DQ1 To reiterate given the protracted discussion of the facts, child custody actions are governed by the Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340. The primary concern in any custody case is the best interests of the child. E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015). "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) (citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)). The factors to be considered by a court when awarding custody are set forth at 23 Pa.C.S.A. § 5328(a).

(a) Factors.-In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following: (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child's education, family life and community life.

(5) The availability of extended family.

(6) The child's sibling relationships.

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

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

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

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

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

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

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

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

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

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

In deciding the best interests for the children, the Court applies the factors as follows: (1) Which party is more likely to encourage and permit frequent and continuing contact between the children and another party?

Neither party encourages a relationship between Child and the other parent. Father is not trustful of Mother. Mother blames Father for her loss of full-time parenting. However, Mother demonstrates secretive behavior which fuels Father's lack of trust. Father does follow the custody orders, and there is no evidence that Father prohibits Mother's relationship with Child.

However, Father needs to appreciate that Child desires a relationship with her Mother and that Child is experiencing loss due to the custodial arrangement.

(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 children or an abused party and which party can better provide adequate physical safeguards and supervision of the children.

This issue underscores the conflict between Mother and Father. The record clearly established at the 2014 trial sexual abuse between Child's older siblings, Edward and H. G. The record clearly established at the 2014 trial sexual contact by H.G. on Child. There has now been over four years since the last allegation. However, Mother, Child and H.G. continue to minimize the events and while Mother and H.G. claim to have resolved the issues in therapy, the testimony does not support that. Additionally, the perverse violent pictures drawn by A.G. are at the very least concerning. The Court draws a negative inference that Mother was not concerned about A.G.'s drawings and not seeking any counseling for the motivation behind the drawings.

The Court would have concerns about Father's writings, however, they are twelve years old and there is not current evidence to support Mother's argument that Father is sexually perverse. In the custody order dated June 29, 2015, the Court relied upon Child's therapist to recommend when Child could and should have contact with H.G. There is no evidence of record from which this Court could conclude whether reunification with Child's siblings is in her best interest. The Court must rely on Child's therapist to drive that issue. The question before the Court is limited to the parenting time which is in Child's best interest. Of important note is that this Court did not restrict contact between Child and her brothers, Henry and A.G. Rather, the Court left that to the agreement of the parties in conjunction with Child's therapist. However, after viewing A.G.'s drawings and the totality of the circumstances of this case, including but not limited to,

0 COI the sexual abuse history, the Court finds that Child does not have the insight or protective capacities to address future possibilities of sexual victimization and should, therefore, not have unsupervised contact with A. G. to provide safety for Child. Mother continues to be secretive and minimizes the need for safety of Child. Father can better provide adequate physical safeguards for Child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

This factor weighs in favor of Father. All current investigations and reports by Children and Youth Services are unfounded.

(3) The parental duties performed by each party on behalf of the children.

Each parent performs their parental duties, in that Mother and Father both adhere to the needs of the child during their respective parenting time. Accordingly, this factor does not weigh in favor of either party.

(4) The need for stability and continuity in the children's education, family life and community life.

Father provides the more stable life for Child. Mother demonstrates hostility toward Child's teachers and school personnel. Mother's lack of insight and poor parenting decisions impact Child's stability.

(5) The availability of extended family.

Both parents have available extended family. Even though Child could attend Mother's extended family functions, there was no evidence that she does so on a regular basis. There was no testimony that Child interacts with Mother's extended family. Father's parents are active in Child's life.

As such, this factor weighs in favor of Father.

(6) The children's sibling relationships.

See Factor 2 for additional analysis. Child has minimal to no relationship with any of her siblings. She has not spent substantial time with them for over four years.

There is a large age difference between Child and her siblings. Child's therapist has made no recommendation for reunifying Child and siblings.

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

The Court considered Child's preference and accorded it little weight in light of Child's age and maturity.

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

Here, there is no evidence to suggest that either parent attempts to turn the child against the other parent.

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

Father is better equipped to provide a stable environment free from potential safety threats. Mother and Father are both capable to maintain a nurturing relationship with Child. However, Mother continues to lack insight into the emotional harm done by H.G.

toward Child, and its unfortunate long-lasting consequences. Mother pressures Child and contributes to Child's feelings of guilt.

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

D COL This factor is not an issue, in that both parents are willing and able to attend to the daily physical, emotional, developmental, educational, and special needs of the child. Accordingly, this factor does not weigh in favor of either party.

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

Mother and Father live approximately forty-five minutes away from each other.

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

This factor is not an issue, in that both parties enjoy the added support from extended family to provide childcare or use appropriate child care providers.

(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.

Here, there is a high level of conflict between Mother and Father. They are unable to communicate in a reasonable or effective manner when it comes to making decisions on behalf of Child. However, some of Father's unwillingness can be attributed to the abuse issues and continued secrecy displayed by Mother. Accordingly, this factor does not weigh in favor of either party.

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

The parties agree, and the Court finds, that neither party exhibits any history of drug or alcohol abuse.

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

R cgr7 This factor is not an issue, in that the parties do not exhibit any mental or physical limitations to care or provide for their child, and thus, this factor does not weigh in favor of either party.

(16) Any other relevant factor, This Court was hopeful that since the first trial that Mother would come to fully appreciate Child's needs, and specifically appreciate the effects of Child's past sexual abuse.

Rather, the Court finds that Mother is hyper-focused on the goal of reunification of her children and family as a whole rather than the specific issues which caused the current custody plan to be mandated.

The Court relied heavily on Dr. Bernstein's testimony and report. He wrote: rapisother' presents as a loving mother who works hard to consider her daughter's best interests: At times, however she tends to be singularly focused upon the limits of her custody and separation of [Child] from her siblings. Her distraction appears to interfere with her parenting decisions and in turn, pressures [Child] to feel burdened with responsibility and unnecessary distress. [Child] separated from her siblings at age four years old. How much she appreciated and values the absence of a relationship with [H.G. and A.G.], who are approximately seven years her senior, is curious and in question. I susgethat [Child] is reminded of the separations by and therefore, pressured to seek reunification. rnoti-tr As loving as iiiiiiiiiiiimiRlipresents and even considering the strong bond shared with [Child], I am struggling to overlook her *dentification as a ictim and in particular, view of the Court, the-r and Ms. Lozzi as collectively biased against her. By adopting such a view, she avoids accepting responsibility and therefore, continues in her quest to reunify the family without consideration for the potential impact toward [Child]. Are sibling relationships important? Of course, but not at the expense of a child's need for safety and welfare.

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Mother's actions and attitudes are negatively impacting Child. Dr. Bernstein opined that Mother "further pressures her." Of major concern to this Court in the first trial was Mother's protective capacity to keep Child safe. Secrets and outright denial of abuse by Mother and extended family were red flags for whether Mother had a good faith desire to take the action necessary to protect Child.

Unfortunately, no evidence was presented at this trial to show positive change. In fact, Mother's extended family testified that they really know little about the underlying issues. The Court does not expect Mother to share every detail of the prior documented abuses with her family, but there should be a basic understanding of what is needed for appropriate supervision. Even more concerning is that Child's siblings aren't acutely aware of the family dynamic of sexual abuse.

Dr. Bernstein wrote "H. G. and A.G. expressed uncertainty and confusion as to why Child is separated from her siblings". One of the primary reasons for this Court's order preventing contact between Child and some of her siblings was so that H.G. and Child could productively receive therapy as to the prior sexual abuse in addition to Child's physical safety. The June 29, 2015, Custody Order, paragraph 2, prohibits contact between Child and H. G. until such time as Child's therapist recommends _otherwise. [emphasis added] Paragraph 4 of that order states, "Once Child's therapist recommends that it would be in Child's best interest to have contact with H.G. and /or Edward, either party may petition the Court to begin the appropriate, therapeutic, supervised or monitored visits." Of note, there was never a no contact provision in the June 25, 2015, Custody Order between Child and Henry or A.G.

The approximate three years between the two custody trials has not proven to be a time of growth for either party or Child. The Court's hope in 2015, was that through individual therapy and co -parenting counseling, the Child and her siblings would heal from the tragic sexual

D COO encounters between them, that Mother would gain insight and learn and demonstrate protective capacities for Child, and that both parents would learn to co-parent effectively. Unfortunately, none of those goals were met. This case is not about finding fault as to any of the prior sexual encounters between Edward and H.G. or H.G. and Child, but rather it is about Mother's unwillingness or inability to gain a protective capacity of one child over the others. Mother continues to focus on a make-believe world rather than deal with the realities her children experienced. It is this Court's continued hope that through counseling she will gain the necessary insight to provide a safe environment for Child, and the transparency needed to gain a modicum of trust by Father. Finally, the Court encourages Father to work in counseling on recognizing Child's need to have a relationship with her Mother and ways he can help Child with her own grief and loss.

The competent evidence of record supports this Court's Order at issue. Mother's final issue is simply an attack of the credibility and weight of the evidence afforded by the Trial Court to which deference is given. Because the Trial Court's conclusions are reasonable as shown by the evidence of record, this Court did not commit an abuse of discretion and/or an error of law by reducing and limiting Mother's partial physical custody.

BY THE COURT

Kelley T. D. Streib, Judge

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