K.B. v. J.J.W., Jr. ( 2020 )

J-A05014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
J.J.W., JR. : No. 1340 WDA 2019
Appeal from the Order Entered August 2, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD16-7135-002
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 13, 2020
K.B. (“Mother”) appeals from the August 2, 2019 order, which awarded
J.J.W., Jr. (“Father”) primary physical and sole legal custody of Ad.B.-W. (born
in June of 2013) and K.B.-W. (born in June of 2013) (the “Twins”), and
awarded Mother supervised custody in accordance with a schedule delineated
in the order. The order also denied Father’s petition for relocation and dictated
that Mother is solely responsible for any supervision fees. After careful review,
we affirm.
In conjunction with its August 2, 2019 order, the trial court issued
findings of fact (“Findings”), in which it summarized the factual background
and procedural history of this case as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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The parties are the divorced parents of three minor children:
[Ai.B.-W. (born in July of 2008) and the Twins1]…. Mother is a
Pittsburgh native[,] and Father was raised in Haddonfield, New
Jersey. The parties were residing in California at the time of their
marriage in 2006, and all three children were born in that state.
The parties separated in May [of] 2014, and shortly thereafter[,]
became enmeshed in extensive custody litigation.
Ultimately, pursuant to a June 22, 2015 California
[c]onciliated [c]ourt [a]greement and [s]tipulated [o]rder (“C[A]
Order”), the parties agreed that the children could relocate to
Pittsburgh with Mother. That order also provided that if Father
moved to Pittsburgh[,] he would exercise equally shared custody
of the children[,] following a step-up schedule. Mother moved to
Pittsburgh in August of 2015, Father followed in November of
2015, and custody proceedings commenced in this [c]ourt soon
thereafter.
Currently, Mother has sole physical and legal custody of
[Ai.B.-W.], and he is not the subject of either the [r]elocation
[p]etition or the [c]ustody [p]etition. Rather, the Twins are at
issue in both petitions, the former being Father’s request to
relocate with them to the [s]tate of New Jersey, with Mother being
granted supervised custody, and the latter constituting Mother’s
request to remain within the jurisdiction of this [c]ourt, with
Father exercising supervised custody.
To adjudicate the parties’ petitions, the [c]ourt held 10 days
of trial and heard from a multitude of witnesses.
Findings, 8/2/19, at 1-2.
On August 2, 2019, the court denied Father’s relocation petition and
granted Father primary physical and sole legal custody of the Twins, with
supervised custody of the Twins granted to Mother on Wednesday evenings
and every other weekend. The order also requires Mother to bear the cost of
any supervision fees. On August 30, 2019, Mother filed a timely appeal, along
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1 Ai.B.-W. and the Twins are referred to collectively herein as “the children.”
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with a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Mother now presents the following issues for our review:
I. Whether the [t]rial [c]ourt committed an abuse of discretion
and error of law by finding that there were no credible
allegations of abuse[, where s]uch a finding [was] against
the weight of the evidence produced at trial[,] and by
granting Mother only supervised visits, granting the siblings
only supervised visits[,] and taxing the costs of the
supervised visits solely to Mother[?]
II. Whether the [t]rial [c]ourt committed an abuse of discretion
in finding that it … was in the [Twins’] best interest for
Father to be awarded sole legal and sole physical custody
when the evidence at trial and the court’s own analysis of
the custody factors under 23 Pa.C.S. § 5328 [did] not
support such a finding[?]
III. Whether the [t]rial [c]ourt committed an abuse of discretion
and an error of law, and found against the weight of the
evidence [adduced] at trial … that A[i].B.-W. was negatively
influencing or coaching the [Twins] and separating the
siblings was in the [Twins’] best interest[?]
IV. [Whether i]t was an error of law for the [t]rial [c]ourt to
penalize or take a negative inference against Mother for
discussing the case with others in her family, law
enforcement, state agencies[,] and advocacy groups[?]
Mother’s Brief at 5.
The relevant scope and standard of review are as follows:
[T]he appellate court is not bound by the deductions or inferences
made by the trial court from its findings of fact, nor must the
reviewing court accept a finding that has no competent evidence
to support it…. However, this broad scope of review does not vest
in the reviewing court the duty or the privilege of making its own
independent determination…. Thus, an appellate court is
empowered to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may not
interfere with those conclusions unless they are unreasonable in
view of the trial court’s factual findings; and thus, represent a
gross abuse of discretion.
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A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (quoting R.M.G., Jr. v.
F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)). Moreover,
on issues of credibility and weight of the evidence, we defer to the
findings of the trial [court] who has had the opportunity to observe
the proceedings and demeanor of the witnesses.
The parties cannot dictate the amount of weight the trial court
places on evidence. Rather, the paramount concern of the trial
court is the best interest of the child. Appellate interference is
unwarranted if the trial court’s consideration of the best interest
of the child was careful and thorough, and we are unable to find
any abuse of discretion.
Id. (quoting R.M.G., Jr., 986 A.2d at 1237 (internal citations omitted)).
When making a decision that involves custody, the trial court must
consider the following sixteen custody factors set forth in Section 5328 of the
Child Custody Act (23 Pa.C.S. §§ 5321-5340):
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party
can better provide adequate physical safeguards and
supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating
to consideration of child abuse and involvement with protective
services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
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(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member
of a party’s household.
(15) The mental and physical condition of a party or member
of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a). See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super.
2013). The trial court “shall delineate the reasons for its decision on the
record in open court or in a written opinion or order.” 23 Pa.C.S. § 5323(d).
See also A.V., 87 A.3d at 823 (noting that Section 5323(d) applies to cases
involving custody and relocation). “In expressing the reasons for its decision,
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there is no required amount of detail for the trial court’s explanation; all that
is required is that the enumerated factors are considered and that the custody
decision is based on those considerations.” Id. (internal citation omitted). “A
court’s explanation of reasons for its decision, which adequately addresses the
relevant factors, complies with [s]ection 5323(d).” Id.2
Herein, the trial court issued Findings consisting, in part, of a thorough,
twenty-page analysis of the foregoing custody factors, in support of its
decision to grant Father primary physical and sole legal custody of the Twins.
Of the sixteen factors, the trial court determined that ten of the factors were
either neutral or not applicable, i.e., (a)(3)-(5), (7), (9)-(12), (14), and (15),
and that six factors favored Father, i.e., (a)(1), (2), (6), (8), (13), and (16).
The trial court did not find any of the factors to favor Mother over Father.
Based on our review, the evidence of record supports the trial court’s decision
to grant Father primary physical custody and sole legal custody.
Mother argues, however, that the trial court erred and abused its
discretion in finding that there were no credible allegations of abuse against
Father. Mother’s Brief at 10. In fact, she insists that the “most significant
issue in this case [is the] ongoing allegations by all three children of sexual
maltreatment by Father[,]” and argues that the trial court erred in finding
____________________________________________
2 We acknowledge that Section 5337(h) of the Child Custody Act prescribes
the factors which a court must consider when determining whether to grant a
proposed relocation. We do not deem it necessary, however, to list the factors
herein, as Mother does not contest the trial court’s findings regarding Father’s
petition for relocation.
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these allegations incredible based on its credibility determination of numerous
expert witnesses. Id. at 12. After careful consideration, we deem Mother’s
claim to be meritless.
The trial court provided the following detailed explanation of its finding
in favor of Father as to its analysis under section 5328(a)(2.1), relating to
consideration of child abuse and involvement of protective services:
The [c]ourt does not find the evidence that Father abused
the children credible or persuasive. Almost every alleged
disclosure has been made by [Ai.B.-W.], or made by the [Twins]
or Mother. The disclosures started with digital vaginal penetration
by Father of K.B.-W. and escalated to Father’s rape of all three
children. The allegations also expanded to include third parties:
Father was alleged to have orchestrated and filmed the [T]wins
and a neighbor boy, Danny, engaging in deviate sexual acts;
paternal grandmother [(“PGM”)] was accused of sexual and
physical abuse; paternal grandfather [(“PGF”)] was accused of
physical abuse.
Mother testified that the children have disclosed, among
other things, the following:
1. [Ai.B.-W.]: [T]hat Father began sexually abusing him
at the age of three; that the abuse continued until visitation
was stopped in 2018; that [Ai.B.-W.] witnessed Father
digitally penetrating the Twins’ vaginas and anuses in CA,
NJ, and PA; that the Twins told [Ai.B.-W.] of this abuse; that
PGM has hit him repeatedly, and physically abused him; that
PGM has threatened to harm him and his sisters if he
reported the physical abuse.
2. [K.B.-W.]: [F]irst disclosed in September of 2016
that Father put his fingers in her vagina; that Father has
digitally penetrated her vagina and anus; that Father
penetrated her anus with his penis; that Father put a toy in
her vagina; that Father put his penis in her mouth; that the
abuse is ongoing and presently continuing; that PGM
touches her vagina and pinches her nipples; that PGF has
hit her; that Father punched her in the stomach and hits
her; that Father forces the [T]wins to bath[e] with a
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neighbor boy named Danny, and that the children are forced
to touch each other’s private parts and kiss each other while
Father films them.
3. [Ad.B.-W.]: [F]irst disclosed in October [of] 2016
that Father put his fingers in her vagina; that Father has
digitally penetrated her vagina and anus; that Father
penetrated her anus with his penis; that the abuse is
ongoing and presently continuing; that PGM touches her
vagina and pinches her nipples; that Father forces the
[T]wins to bath[e] with a neighbor boy named Danny, and
that the children are forced to touch each other’s private
parts and kiss each other while Father films them.
The above allegations have resulted in over 100 unfounded
[ChildLine reports,3] spanning three states. [Ai.B.-W.] and [K.B.-
W.] have had three forensic examinations, and [Ad.B.-W.] has had
two. All three children have been interviewed extensively, by
forensic examiners, [Children Youth and Families (CYF)] case
workers, doctors, and Mother. [The Twins] did make disclosures
at the 2/7/18 forensic interview, but Jennifer Ginsburg, Children’s
Hospital Child Advocacy Center [f]orensic [i]nterviewer, testified
that no details were provided, and the responses to all follow-up
questions were “I don’t know” or “I don’t remember[,”] which she
opined was very atypical.
The children have had multiple physical examinations, but
the precise number is unclear. (CYF caseworker[,] Cathleen
Ruble[,] testified that she was aware of 3-4 physical exams of one
or both girls, including an ultrasound; Dr. Wolford testified that
each girl had at least one physical exam, and [K.B.-W.] had an
evidence or rape kit exam). No evidence of abuse was found.
Criminal investigations have been initiated in Pennsylvania
and California. Mother flew the children to CA in October of 2016,
and [Ai.B.-W.] had a forensic examination in that state. Detective
Orchowski, a 17-year veteran with the Allegheny County Police
Department, with 13 years in the child abuse and sex assault unit,
testified that she was the investigating officer on the subject case.
She noted that Father cooperated with the investigation and took
____________________________________________
3 ChildLine, a unit within the Department of Public Welfare, operates a
statewide system for receiving indicated and actual reports of child abuse;
refers the reports for investigation; and maintains the reports for reference.
55 Pa.C.S. § 3490.4 (definition of “ChildLine”).
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a polygraph. She testified that following her investigation, she did
not recommend that charges be filed against Father. She further
testified that she had never been involved in a case with over 100
[C]hild[L]ines. Moreover, she stated that it was highly unusual
and odd for the allegations of abuse to change as they did in the
present case, and for the perpetrators of the abuse to change as
they did in the present case. The detective also testified that she,
her partner, and the assistant district attorney met with the
Allegheny County District Attorney, to review the facts of the case.
She testified that in her 17 years on the job[,] she had never
before been summoned by the district attorney to review a case.
She testified that the review was prompted by complaints received
regarding the investigation, and that the district attorney agreed
that no charges should be filed against Father.
Detective Orchowski also reviewed [a] video of Mother
interviewing [Ad.B.-W.] [4] The detective noted that Mother was
asking the child leading questions and that [Ai.B.-W.] was
coaching her. Detective Orchowski was the investigating officer
in the [C]hild[L]ine filed against Mother. She testified that she
recommended that charges be filed against Mother, and that in
her opinion, Mother is abusing the children by subjecting them to
repeated forensic and physical examinations.
Dr. Wettstein, an expert in forensic psychiatry and sexual
deviance, conducted a psychiatric evaluation of Father, which
included an Abel assessment, and opined that there was no
indication that he suffers from a sexual disorder, including
pedophilic disorder. The doctor explained that if Father had
engaged in any of the [C]hild[L]ined acts, he would have a
pedophilic disorder, as that term includes arousal, interest, and
behavior. The doctor also testified that it is unlikely that an
individual with pedophilic disorder would sexually abuse both
female and male children.
[Sharon Profeta, the guardian ad litem (“GAL”)] testified
that after her extensive investigation, including [the review of]
records … and multiple interviews, she could not find one reason
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4 A video recorded by Mother was played at the custody hearing on July 10,
2019, transcribed by the court reporter, and marked as “Joint Exhibit 1”
(hereinafter referred to as “the video”). See N.T. Custody, 7/10/19, 162-165.
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to be concerned for the children’s safety while in Father’s care. [5]
She reported that she found no credible evidence that Father has
sexually abused any of the children. She further opined that it
was difficult to know “where [Ai.B.-W.] ended and [Mother]
began.” She believes that [Ai.B.-W.] is an advocate for Mother,
as evidenced by his request for an emergency meeting at his
school, where he produced his notebook and began enumerating
his concerns regarding Father’s vacation with the [Twins]. The
GAL testified that he articulated precise, concrete, calculated
concerns, without any spontaneity, and she described the meeting
as unnaturally “businesslike.” As Ms. Ginsberg noted with the
[T]wins, the GAL commented that [Ai.B.-W.] repeats the same
sexual allegations, using the exact same words, as if by rote, and
is unable to provide any details, which she found very unusual.
This [c]ourt also viewed Mother’s video of [Ad.B.-W.] The
child did not appear to be sobbing in pain, as Mother alleged, but
rather wailing without tears. [Ai.B.-W.] was blatantly coaching
the child, and in fact, spoke for her. Finally, Mother was
extraordinarily calm and business-like in her interrogation of
[Ad.B.-W.] Her speech sounded contrived and affected.
Findings at 8-12 (emphasis added).
Moreover, as the trial court noted in its Pa.R.A.P. 1925(a) opinion,
[its] responsibility is to make credibility determinations and weigh
the evidence, among other things. See A.D.[ v. M.A.B.], 989
A.2d [32,] at 35-36[ (Pa. Super. 2010)]. The [c]ourt did so after
hearing and observing each witness testify and considering all of
the evidence. Ultimately, the [c]ourt found the allegations of
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5When asked about her observations regarding the sexual abuse allegations
against Father, the GAL replied:
I looked as closely as I could. This is a very serious matter. And
these children’s lives are at stake. I tried as hard as I could to
find any information … I possibly could. And I was not convinced
at all that Father did anything to hurt the children.
N.T. Custody, 2/19/19, at 39.
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abuse to be incredible. Such a finding is supported by the record,
and, indeed, even Mother’s counsel noted:
I would like to say that at the end of the day this [case] is
not about proving whether or not [F]ather abused his
children. This is a custody case and a relocation case. There
are three people that know if [the abuse] occurred [-] the
[Twins] and [Father]. And to date, there has been no
independent evidence to conclusively prove whether
or not abuse has occurred other than the children’s
statements. We recognize that.
Simply put, the allegations that Father sexually abused the
parties’ children were not believable. It is this [c]ourt’s
responsibility and prerogative to make that assessment, and this
[c]ourt did.
Trial Court Opinion (“TCO”), 9/30/19, at 4 (citations to record omitted;
emphasis and brackets added by trial court). We deem the trial court’s
determination to be reasonable in light of its Findings, which are supported by
the record. Thus, we discern no abuse of discretion or error of law by the trial
court.
Next, Mother claims that the trial court erred in finding that it was in the
Twins’ best interest for Father to be awarded primary physical and sole legal
custody. She argues that there was no clear and convincing evidence to
support this custody determination. Mother’s Brief at 17. In support of her
argument, Mother asserts that the trial court ignored the testimony of Dr. Eric
Bernstein. Id. at 18.6 Dr. Bernstein recommended that Mother maintain
primary physical custody of the Twins and that Father be granted partial
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6 Dr. Bernstein testified as an expert witness at the custody hearing on behalf
of Mother. See N.T. Custody, 5/2/19, at 8-9. He was tasked with evaluating
the Twins’ best interest regarding custody and relocation. Id. at 9.
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custody, with a neutral party periodically checking in during Father’s custodial
time to assess that the Twins are comfortable. N.T. Custody, 5/2/19, at 76-
77. He explained that check-ins by a neutral party were to serve as an extra
layer of protection for Father from any further abuse allegations, as much as
they were to protect the Twins. Id. Dr. Bernstein also made it clear that in
his court-ordered evaluation, he made no determination as to the truth or
falsity of the abuse allegations against Father. N.T. Custody, 5/16/19, at 5.
Contrary to Mother’s assertion, it is clear that the trial court did not
“ignore” Dr. Bernstein’s testimony in reaching its custody decision. Numerous
aspects of Dr. Bernstein’s testimony were cited by the trial court multiple
times within its analysis of the Section 5328(a) custodial factors. See Findings
at 12-13, 17, 21. The court also took into consideration, however, the
testimony of other expert witnesses. See id. at 9-12, 16-17, 19-21. With
respect to the amount of weight a court is to place upon expert testimony in
custody matters, this Court has stated the following:
[W]hen [an] expert evaluation is uncontradicted or unqualified, a
child custody court abuses its fact finding discretion if it totally
discounts expert evaluation. To say a court cannot discount
uncontradicted evidence, however, is merely to rephrase the
requirement that a child custody court’s conclusion have
“competent evidence to support it.” So long as the trial court’s
conclusions are founded in the record, the lower court [is] not
obligated to accept the conclusions of the experts.
Nomland v. Nomland, 813 A.2d 850, 854 (Pa. Super. 2002) (emphasis
added). As we have already determined that the trial court’s conclusions
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regarding custody are supported by the record, the court was not obligated to
accept Dr. Bernstein’s recommendation regarding custody.
To the extent that Mother suggests the trial court’s decision to grant her
supervised visitation of the Twins is “troubling” and “defies logic[,]” as she
currently has sole physical and legal custody of Ai.B.-W., and is considered
“an acceptable parent for [him],” Mother’s Brief at 19, we note that Ai.B.-W.
is not subject to this custody dispute. Mother has sole custody of Ai.B.-W.,
because Father decided to cease his efforts to repair his relationship with him
in 2017, as Father believed those efforts were too detrimental to his son. See
TCO at 5; Findings at 2, 6. The custody decision outlined in the August 2,
2019 order pertains to the Twins only, and is fully supported by the record.
Mother further avers that even if the record supported the granting of
supervised custody to her, “requiring visits … be at her sole expense places
an impermissible limitation on [her] custodial periods.” Mother’s Brief at 19.
Mother claims that she currently spends in excess of $3,000 per month to see
the Twins. Id. It is within the trial court’s discretion to impose the cost of
supervision on Mother. We discern no abuse of discretion. Thus, Mother is
not entitled to relief on this claim.7
Additionally, Mother asserts that Dr. Bernstein “did not support
separating the siblings[,]” and argues that the trial court ignored his testimony
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7 We uphold the trial court’s decision that Mother shall bear the costs
pertaining to her periods of supervised custody, without prejudice to Mother’s
right to seek modification of the custody order with the trial court in the future.
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regarding the same. Mother’s Brief at 18. Again, we note that the trial court
is not obligated to accept the conclusion of an expert witness, so long as its
determinations are supported by competent evidence in the record. See
Nomland, supra. In its analysis under Section 5328(a)(6), regarding the
Twins’ sibling relationships, the trial court acknowledged that the Twins are
bonded with their brother, Ai.B.-W., and that they have a close and loving
relationship with him. See Findings at 13 (relying on Dr. Bernstein’s
testimony). While the trial court recognized the importance of promoting
and protecting sibling bonds, it further stated that it was “concerned with
[Ai.B.-W.’s] influence over the [Twins.] [Ai.B.-W.] clearly coached [Ad.B.-W.]
on the video Mother made, and [the court] is concerned that [Ai.B.-W.] will
attempt to influence [their] opinions of Father.” Id. We deem the court’s
concern to be duly supported by the record and, thus, we discern no abuse of
discretion.8
As to Mother’s assertion that the trial court failed to address the impact
of removing the Twins from Mother’s custody, and separating them from their
brother, school, friends and extended family on Mother’s side, we deem her
claim to be meritless. In its analysis under Section 5328(a)(4) regarding the
need for stability and continuity in the child’s education, family life and
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8 See N.T. Custody, 2/25/19, at 27 (where Detective Orchowski testified that
it was clear to her that Ai.B.-W. was coaching K.B.-W. in the video); N.T.
Custody, 7/1/19, at 32 (where Dr. Wolford recalled viewing the video and
testified that she believed Ai.B.-W. was suggesting answers to K.B.-W. in
response to Mother’s questions).
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community life, the trial court recognized that the Twins have completed
kindergarten and have lived primarily with Mother from the parties’ separation
until the shared custody schedule commenced in Pittsburgh. See Findings at
12. The trial court noted Dr. Bernstein’s testimony that “Mother serves as the
[Twins’] primary attachment, and Father their secondary attachment.” Id. at
13. The court added, however, that Dr. Bernstein also opined that “a child’s
primary attachment does not equate to a superior or more important
attachment.” Id.9
Additionally, with respect to Section 5328(a)(5), regarding the
availability of extended family, the trial court found that the Twins are bonded
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9 Dr. Bernstein further explained the distinction between a primary verses
secondary bond as follows:
It’s really within the perspective of attachment theory…. So[,] the
primary vs. secondary bond is going to signify the immediate
connection … between the parent who assumes the majority of
responsibility and time spent with the child, who is most attentive
to and responsible for their needs, consistent in responsivity and
also overall care.
It doesn’t necessarily equate to a healthy bond. It just signifies
that it is the first and most significant connection with another
human being at the time of the immediate birth and early
development. Somebody with a secondary bond or tertiary bond
can have a significant role in a child’s life. It’s not … mutually
exclusive.
N.T. Custody, 5/2/19, at 74-75. Dr. Bernstein further acknowledged that a
secondary bond can be more important or healthier than a primary bond,
especially where the primary attachment is with a person with an unhealthy
influence over the child and the secondary person is “more stable and
consistent in their role[,] albeit limited in so far as frequency of interaction is
concerned.” Id. at 81.
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with Mother’s extended family in the area, but that Father’s relatives live in
New Jersey and the Twins also see them regularly. Id. Moreover, in its
analysis under Section 5328(a)(8), the trial court found:
Mother and her family members refuse to interact with Father and
his family members. This behavior occurs in front of the [Twins].
Mother and her family members will not even acknowledge or
return a simple greeting. As would be expected, the [Twins]
follow Mother’s lead when in her company. Father testified that
the [Twins] will not acknowledge his presence or even look at him
when Mother is present. While Mother denied this behavior, her
testimony was not credible.
Father testified that he ensures that the [Twins] greet and
converse with Mother while in his custody during any activities or
events when Mother is present. Mother did not refute this
testimony. Father also testified that he has kept a photo of Mother
and the three children in the [Twins’] bedroom since his move to
Pittsburgh.
Id. at 14. Based on the foregoing, it is clear that the trial court carefully
considered the impact of removing the Twins from Mother’s custody and
separating them from their school and Mother’s extended family. We discern
no abuse of discretion by the trial court.
Next, Mother claims that the trial court erred in finding that Ai.B.-W.
was negatively influencing or coaching the Twins. She insists that “all the
testimony at trial” indicated that “the children had a very close and loving
relationship[,]” Mother’s Brief at 21, and she asserts that the trial court made
“absolutely no inquiry or analysis as to the possible harm to the [T]wins or to
[Ai.B.-W.]” from the act of separating the siblings. Id. at 22. The record
clearly belies Mother’s claim.
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The trial court provided the following analysis under Section 5328(a)(6),
regarding the Twins’ sibling relationships:
The [T]wins have a brother, [Ai.B.-W.], who resides with
Mother and has no contact with Father. The [T]wins are bonded
to [Ai.B.-W.] and have a close and loving relationship with him.
Mother testified that [Ai.B.-W.] is extremely stressed and anxious
when the girls are in Father’s custody. She testified that he feels
guilty for not disclosing Father’s abuse earlier, and feels
responsible for the [Twins’] continuing abuse. [Ai.B.-W.] told Dr.
Bernstein that the [Twins] need to “keep fighting and be strong.”
While it is important to promote and protect sibling bonds,
this [c]ourt is concerned with [Ai.B.-W.’s] influence of the [Twins.]
[He] clearly coached [Ad.B.-W.] on the video Mother made, and
this [c]ourt is concerned that [he] will attempt to influence the
[Twins’] opinions of Father.
Findings at 13. Additionally, the court noted:
Mother testified repeatedly that she believes the children’s
reports of sexual abuse. However, as Dr. Wettstein testified,
people convince themselves that untrue things are true all the
time. He opined that Mother may have convinced herself, as well
as others, of the validity of the sexual abuse allegations. He
further testified that Mother may have unconsciously helped
create the abuse allegations. He explained that “…people without
awareness act out all sorts of emotions and convictions and
feelings and conflicts and beliefs.” He explained that anxiety is
contagious. A parent’s anxiety may be shared with children, and
over time may become intensified, amplified, and take on new
forms.
Drs. Wettstein, Wolford, and Bernstein all testified that
children are susceptible to suggestion and easily manipulated. Dr.
Wettstein explained that “even asking a question can create an
idea in someone’s head that an event has occurred when it
hasn’t.” Coaching can also be non-verbal, such as “showing or
demonstrating or revealing one’s anxiety about a situation….”
Thus, if the children come home from a visit with Father and
Mother anxiously checks and examines them, she is, whether
consciously or unconsciously, conveying the message that
something bad happened to them or that they should be afraid of
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Father. Likewise, repeated forensic and physical examinations
can create a belief that abuse has occurred.
[Ai.B.-W.] may be exacerbating this phenomenon. Dr. Katz
testified that [Ai.B.-W.] had an anxious attachment to Mother and
mirrored [her] distrust of Father. Dr. Wettstein acknowledged
that the [Twins] may be influenced by [Ai.B.-W.’s] anxiety or by
conversations with him. They may also be indirectly influenced
by the fact that he does not have visitation with Father.
Findings at 20-21 (citations to record omitted).
While we agree with Mother that the law favors keeping siblings
together, absent a compelling reason to the contrary, this is but one factor to
be considered in determining the best interest of the child. See Nomland,
813 A.2d at 856. After careful review, it is clear that the trial court carefully
weighed Ai.B.-W.’s influence over the Twins verses the impact of separating
the siblings. We deem the court’s finding in favor of Father with respect to its
analysis regarding the sibling relationships to be supported by the record.
Finally, Mother argues that the trial court penalized her for discussing
the custody case with others in her family, law enforcement, state agencies,
and advocacy groups. Mother’s Brief at 23. Mother claims that she had not
shared information regarding the case to the general public to vilify Father
but, rather, “to obtain assistance in helping her children regarding the
allegations of ongoing abuse because she felt the system had failed them.”
Id. at 24. Mother states that it is reasonable to conclude, based on the fact
that she lost primary custody of the Twins, that the trial court took a negative
inference from her words and actions. She concludes that it was impermissible
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for the trial court to find her protected speech as a negative factor against her
when analyzing the custody factors. Id. at 25.
To the contrary, the trial court opined:
The court’s order was not punitive in nature. That the order
caused a change in Mother’s custodial relationship with the Twins
may be—and likely is—difficult for her, but it is a reality she must
face, not a punishment. The order was required to be and was
made in the children’s best interest, not according to Mother’s
desires or preferences.1
1The order was also not made in accordance with Father’s
desires or preferences. If it were, then Father’s relocation
petition would have been granted.
Moreover, the court took no inappropriate negative
inference against Mother for distributing information about these
proceedings. Instead, the court—as set forth at length in its
Findings, see Findings at 15-16—merely noted the facts of
Mother’s conduct, that the same has exposed the parties’ children
to the world in a way that cannot be controlled or reversed, and
that said actions were relevant to the court’s analysis of the
factors set forth in 23 Pa.C.S. § 5328(a).
TCO at 8 (unnecessary capitalization omitted).
The trial court did not seek to deny Mother of her right to free speech.
Rather, it is clear from the record that the trial court was concerned with
Mother’s judgment and the effect that her words and actions may have on the
Twins, as reflected in its analysis under Section 5328(a)(9):
The court believes that both parties have and will maintain
loving, stable, consistent, and nurturing relationships with the
[Twins.] The court is concerned, however, with Mother’s
judgment. Mother continues to assert that the [Twins] are being
abused, and she has pursued every conceivable avenue available
to expose Father, with no regard for the consequences to the
[Twins.] The evidence disclosed that there have been more than
100 unfounded [C]hild[L]ine [reports], multiple forensic and
physical examinations, and multiple unsuccessful criminal
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investigations. Mother testified that a [ChildLine report] was
made just one week before her July 2019 trial testimony. Mother
testified that she believes that Father’s sexual abuse of the
[Twins] is ongoing and that she will do anything in her power to
stop it. The GAL testified that Mother stated she would fight until
her last breath to keep the [Twins] from Father.
Mother has distributed the [protection from abuse (PFA)
hearing] transcript and various documents pertaining to the
subject case to a wide variety of people. She testified that she
couldn’t remember the number of people to whom she and her
family had distributed that transcript, as she did not have a list.
Mother gave Paul Van Osdol and WTAE news[] copies of the PFA
transcript, [ChildLine reports], medical records, and the [c]ourt’s
opinion related to the PFA. She did not redact any of the
documents and acknowledged that she had no control over what
was aired. She gave a television interview and allowed the Twins
to be filmed. While her face and the Twins’ faces were blurred,
the interior of her home, and the [last] name … on the transcript
were not. Mother testified that she has reported the abuse to “so
many people” across the U.S. and Pennsylvania, that she couldn’t
recall them all without a list. She did remember speaking to the
attorney general, auditor general, [the] Department of Homeland
Security, [S]tate [R]epresentative Costa, the Center for Judicial
Excellence, various women’s shelters, the Center for Victims,
[Pennsylvania] state police, and North Fayette police. Mother was
opposed to sealing the court docket when it was open to the
general public and contained extensive detailed allegations of
sexual abuse committed against all three children, who were
named.
Various members of the faculty and staff at the children’s
elementary school and religious school are aware of the abuse
allegations. Mother testified that [Ai.B.-W.] has made disclosures
to the principal, assistant superintendent, guidance counselor,
and numerous teachers at the school [which] he and the Twins
attend. He has also made disclosures to the priest at the family’s
church. Mother acknowledged that she advised the education
director of the children’s religious school of the abuse.
Mother is seemingly unaware of the likely ill-effects of her
actions on the children. In her crusade to expose Father, Mother
has also exposed the children. Countless unredacted records and
documents have been disseminated to a wide range of people and
organizations. Mother has no control over these documents and
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there is no way to predict in what medium they will appear or in
whose hands they will land.
Dr. Wolford, a physician at UPMC Children’s Hospital, and an
expert in pediatrics and child abuse pediatrics, opined that the
Twins are the “…victims of abuse by Mother in the form of medical
child abuse (Munchasusen by Proxy Syndrome), physical abuse
(repeated unnecessary evaluations) and emotional abuse
(continued harm and developmental disruption by these repeated
allegations of sexual abuse by [Father].)” Dr. Wolford testified to
the various future ill-effects of this abuse, including but not limited
to, a mistrust of the medical system, the impairment of basic child
development, maladaptive coping mechanisms, poor resiliency,
increased stress levels, depression and anxiety.
Dr. Bernstein, of Allegheny Forensics Association, also
testified to the ill-effects of subjecting the children to continued
interviews and examinations, which he described as tragic.
Among other things, the doctor testified that the children’s idea of
familial safety, and their opinion of Father, will become polluted,
they may develop difficulties with boundaries, the development of
their sexuality and identity could be compromised, and their self-
esteem, confidence, and self-assurance may be affected.
Dr. Wolford testified that in her medical assessment[,] the
children were being coached by Mother and that they were
“parroting” Mother. She testified that children are extremely
impressionable, eager to please, and can be convinced something
is true by simple repetition. Dr. Bernstein, on the other hand,
testified that he did not believe the children were being coached
by Mother. However, Dr. Bernstein was unable to view Mother’s
video interview of [Ad.B.-W.]. He also testified that proof of the
existence or non-existence of [the alleged neighbor,] Danny[,]
would lend a great deal of credibility to either Mother’s or Father’s
position. Mother attempted to deflect the questions posed
regarding whether a private investigator had been hired to locate
Danny. She finally admitted that her sister had hired an
investigator for this purpose. It appears that the results were
negative since no testimony in this regard was offered, Father
testified that no such child exists, and that CYF’s attempts to
locate the child were unsuccessful.
Findings at 14-18 (unnecessary capitalization omitted). We discern no abuse
of discretion by the trial court.
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For the reasons stated above, we affirm the court’s August 2, 2019 order
denying Father’s petition for relocation and granting primary physical and sole
legal custody of the Twins to Father and supervised custody to Mother.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2020
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