H.L.J. v. R.G.J., Jr. ( 2020 )

J-A16009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
H.L.J. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
R.G.J., JR. :
:
Appellant : No. 2014 MDA 2019
Appeal from the Order Entered November 27, 2019
In the Court of Common Pleas of Berks County
Civil Division at No(s): 16-16933
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED JULY 28, 2020
R.G.J., Jr. (“Father”) appeals from the order, entered in the Court of
Common Pleas of Berks County, granting H.L.J.’s (“Mother”) petition to modify
the existing order governing the custody of their daughter (“Child”). The trial
court found that Child was suffering from moderate to severe alienation from
Mother. As a result, the court modified the existing custody order to provide
Mother with 90 days of sole physical custody of Child, with no contact with
Father, who previously had primary physical custody of Child. After careful
review, we affirm.
Mother and Father divorced in 2013. Since then, the parties have been
involved in numerous custody hearings concerning physical custody of Child.
J-A16009-20
Following a custody hearing in 2017, the trial court granted shared legal
custody of Child and awarded primary physical custody of Child to Father and
partial physical custody to Mother. The court also ordered Mother to attend
reunification therapy with Child to address some serious and outstanding
issues between them.
Mother and Child participated in reunification therapy. However, after a
period of time, Dr. Adrian Quinn, a licensed clinical psychologist, concluded
that traditional reunification therapy was ineffective. According to Dr. Quinn,
as sessions progressed, Child experienced anxiety to the point where she
would no longer want to meet with Mother. Dr. Quinn opined that Child’s
rejection of Mother was influenced by Father. For that reason, he
recommended that Mother and Child seek a higher level of care, where they
can restart their relationship without interference from Father. Dr. Quinn
referred Mother and Child to Linda Gottlieb, a therapist in New York.
Mother petitioned the trial court to modify the 2017 custody order so
she could attend “intensive reunification therapy” with Gottlieb. The trial court
held an evidentiary hearing on the petition. At the hearing, Gottlieb explained
that her treatment program, known as “Turning Points for Families,” is a 4
-2-
J-A16009-20
day therapeutic intervention designed to restore the damaged relationship
between a child and the rejected parent.
Although the ultimate goal is for the child to have a meaningful
relationship with both parents, Gottlieb requires the rejected parent to have
temporary sole custody of the child. Then, upon completion of the 4 day
program, the child is not permitted to contact the favored parent for at least
90 days. However, if the favored parent attends therapy on their own and
supports reunification with the rejected parent, the no-contact period may be
lifted sooner than 90 days.
Following Gottlieb’s testimony, Mother sought to have Gottlieb qualified
as an expert in reunification therapy, specializing in parental alienation. Father
objected, arguing that the therapist’s methodology was not widely accepted,
and in fact, might be actively opposed by a majority of her peers.
The court overruled Father’s objection and ultimately entered an order
requiring Child to participate in the therapist’s intensive reunification therapy
in New York, to be followed by 90 days of no contact with Father. The court
order also provides that physical custody of the child will not be returned to
Father unless Father supports Mother’s relationship with daughter.
-3-
J-A16009-20
Father filed a notice of appeal and a concise statement of errors
complained of on appeal. He also filed a stay of the court’s order, which the
court denied. Father then filed an emergency application in this Court seeking
the same relief. This Court granted a temporary stay, pending the disposition
of Father’s appeal.
Thereafter, the trial court requested this Court remand the matter for
an additional hearing without specifying any reasons for its request. Father
opposed the trial court’s request, alleging irregularities following the entry of
the order under appeal. Specifically, he noted the court’s attempt to enforce
the order prior to this Court’s order staying proceedings. Upon review, we
denied the trial court’s request to remand. This appeal is now properly before
us.
On appeal, Father raises the following issues:
1. [Whether] a trial court [may] base conclusions and directives
for children in a custody matter solely on novel scientific evidence
without a factual basis that the principles and methodology the
scientist employed or employs has gained general acceptance in
the relevant medical community?
2. [Whether] a trial court [may] certify an expert in a custody
matter without a factual basis that the principles and methodology
the scientist employed or employs has gained general acceptance
in the relevant medical community?
3. [Whether] a trial court [may] issue an order deferring decisions
of physical custody to the sole discretion of an expert?
-4-
J-A16009-20
4. [Whether] a trial court [may] make indefinite changes to a
custody order without an analysis of the best interests of the child
standards?
5. [Whether] a trial court [may] issue a warrant pursuant to 23
P.A. C.S.[A.] § 5451 without a threat of imminent physical harm
to a child or the threat that a child will be removed from the
Commonwealth, without allowance, in the immediate future?
6. [Whether] a warrant pursuant to 23 P.A. C.S.[A.] § 5451 is
wrongfully issued, must a court award counsel fees to the victim?
Appellant’s Brief, at 7-8.
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility and
weight of the evidence, we must defer to the presiding trial judge
who viewed and assessed the witnesses first-hand. However, we
are not bound by the trial court’s deductions or inferences from
its factual findings. Ultimately, the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of record.
We may reject the conclusions of the trial court only if they involve
an error of law, or are unreasonable in light of the sustainable
findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
We have stated:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
-5-
J-A16009-20
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated
the following regarding an abuse of discretion standard.
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An abuse
of discretion is also made out where it appears from a review of
the record that there is no evidence to support the court’s findings
or that there is a capricious disbelief of evidence.
Id. at 18-19 (quotation and citations omitted).
In his first two issues, Father alleges the trial court erred in qualifying
Gottlieb as an expert witness in reunification therapy. See id., at 18. He
argues that the novel scientific method she employs in reunification therapy
is neither contained in the scientific literature nor generally accepted in the
scientific community and, therefore, fails the Frye test.1 See id., at 15-18. As
such, Father contends Gottlieb’s entire testimony should be disregarded. See
id., at 18.
1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under Frye, novel
scientific evidence must be generally accepted in the relevant scientific
community before it will be admitted. See Betz v. Pneumo Abex, LLC, 44
A.3d 27, 30 (Pa. 2012). Pennsylvania Courts utilize the Frye test. See id.-6-
J-A16009-20
When reviewing evidentiary rulings by the trial court, our standard of
review is narrow. See Potochnick v. Perry, 861 A.2d 277, 282 (Pa. Super.
2004). The admission of expert testimony is within the discretion of the trial
court and should not be disturbed on appeal unless the trial court abuses its
discretion. See Buttaccio v. American Premier Underwriters, Inc., 175
A.3d 311, 315 (Pa. Super. 2017).
Father’s argument, while focused on Frye, necessarily impugns
Gottlieb’s status as an expert. We therefore first review the court’s
determination that Gottlieb was qualified to testify as an expert witness.
The admissibility of expert testimony is governed by Rule 702 of the
Pennsylvania Rules of Evidence. Under Rule 702, an expert may testify if she
has scientific, technical or other specialized knowledge, beyond that of a
layperson, which will assist the trier of fact to understand the evidence or to
determine a fact in issue. See Pa.R.E. 702.
It is well established in Pennsylvania that the standard for qualification
of an expert witness is a liberal one. See Miller v. Brass Rail Tavern, 664
A.2d 525, 528 (Pa. 1995). The test to be applied when qualifying a witness “is
whether the witness has any reasonable pretension to specialized knowledge
on the subject under investigation.” Id. The witness normally need only
-7-
J-A16009-20
possess more expertise than is otherwise within the ordinary range of training,
knowledge, intelligence or experience. See id. If she does, she may testify
and the weight of such testimony is for the trier of fact to determine in view
of the expert’s credentials. See id.Regarding her credentials, Gottlieb testified that she earned a master’s
degree in clinical social work and a license in marriage and family therapy.
See N.T., Hearing, 09/30/19, at 5-6. She has worked as a family therapist for
nearly 25 years and has treated severe cases of parental alienation for most
of it. See id., at 7-8. Gottlieb also testified to her years of experience as a
continuing education instructor in parental alienation. See id., at 10-12. As
such, we conclude the trial court did not abuse its discretion in qualifying
Gottlieb as an expert witness since her education and experience gave her
reasonable pretension to specialized knowledge in this area.
Next, we must determine whether the scientific evidence proffered by
Gottlieb fails the Frye test, as Father contends. Under the Frye test, the
proponent of expert scientific evidence bears the burden of proving that the
expert’s methodology is generally accepted in the relevant scientific
community. See Walsh v. BASF Corp., ___ A.3d ___, ___, 2020 WL
4135151, *7 (Pa. 2020). This does not mean, however, that the proponent of
-8-
J-A16009-20
such evidence must prove that the scientific community has also generally
accepted the expert’s conclusion. See id.Mother, as the proponent of expert scientific evidence, has the burden
of proving Gottlieb’s methodology comports with the Frye test. See id.The methodology Gottlieb employed in reaching her conclusion that
Child suffers from parental alienation rests, in part, on her own expertise and
analysis and research that is reasonably relied upon by experts specializing in
parental alienation.
Parental alienation is a recognized specialty within the field of family
therapy. See N.T., Hearing, 09/30/19, at 14. Alienation is the family dynamic
through which one parent actively discredits the other parent to a child they
share. See id., at 36. Symptoms of alienation manifest themselves in a
number of ways. For instance, the child does not evince guilt or remorse about
mistreating the rejected parent; the favored parent is perceived as good, while
the rejected one is perceived as purely bad; and the child desires to cease all
contact with the rejected parent. See id., at 45-46.
As a family therapist specializing in parental alienation, Gottlieb opined
that Child suffers from a severe case of alienation as the result of Father’s
influence. See id., at 61. But, as Gottlieb found, there is no protective reason
-9-
J-A16009-20
for Child to reject Mother. See id., at 48. In fact, Gottlieb relied on the trial
court’s finding that Child is safe in the care and custody of Mother. See id.,
at 43-44. Yet, Child remains opposed to having a relationship with Mother.
See id., at 47-48.
In cases of severe alienation, Gottlieb opined that traditional
reunification therapy is an inadequate form of treatment. See id., at 16 and
23. In fact, Gottlieb referred to the growing body of literature that has found
there is almost no benefit to treating severe cases of alienation with traditional
reunification therapy. See id., at 15-16. Furthermore, Dr. Quinn also
confirmed that a higher level of care is needed in cases of severe alienation
like in the present case. See id., at
In the alternative, Gottlieb presented her program as the most
appropriate form of treatment. See id., at 57. She testified that six
professional organizations have authorized her to teach about diagnosis and
treatment of alienated children. See id., at 11. She has authored a book on
alienation and its treatment that has been praised by psychologists. See id.
Gottlieb testified that programs similar to hers exist and have been
peer-reviewed. See id. As result, Gottlieb opined that there is a “scientific
consensus” that supports her conclusions. See id., at 23.
- 10 -
J-A16009-20
Gottlieb believes Child will sustain serious psychological damage if
intensive reunification therapy is not conducted in this case. See id., at 57.
Alienation, as Gottlieb explained, is analogous to being in a cult. See id., at
41. A book published by the American Bar Association found that children
suffering from alienation mimic the feelings and wishes of the alienating
parent; ultimately, they are incapable of having their own thoughts and
feelings on the subject of the rejected parent. See id. Without an alienating
influence, Gottlieb stated that it is very unlikely any child would reject a parent
because the literature shows that children do not reject parents on their own.
See id., at 61-62.
In sum, Gottlieb concluded, based on her own assessment of the case
and the consensus among experts in the community, that Child must
participate in intensive reunification therapy with Mother to repair the
damaged relationship between them. See id., at 59 and 61.
Based on the foregoing, we are satisfied that Gottlieb utilized a scientific
methodology to develop her treatment plan. That scientific methodology is
generally accepted in the community of specialists who diagnose and treat
parental alienation. Any challenge to the propriety of her conclusions were
appropriate matters for the trial court, sitting as fact-finder, to weigh.
- 11 -
J-A16009-20
Accordingly, we conclude, on this record, Gottlieb’s methodology passes the
Frye test, and that the trial court did not abuse its discretion in permitting her
to provide expert testimony.
In his third issue, Father challenges the deference the trial court gave
to Gottlieb on the issue of physical custody. See Appellant’s Brief, at 19.
Specifically, he argues that it was error for the trial court to issue a custody
order where Gottlieb is to determine when Mother’s temporary physical
custody of Child should terminate. See id.
Trial courts have broad powers in custody matters to fashion remedies
to meet the best interests of the child involved. See In re M.L., 757 A.2d
849, 851 n.3 (Pa. 2000).
Here, the trial court fashioned a temporary custody order based on the
testimony given by Gottlieb at the evidentiary hearing. There, she testified at
length that, in order to repair a damaged relationship, such as the one
between Mother and Child, the rejected parent must have temporary sole
custody of the child. See N.T., Hearing, 09/30/19, at 37. Gottlieb also stated
that there must be a no-contact period between the child and the favored
parent for 90 days. See id. This is done to prevent the favored parent from
- 12 -
J-A16009-20
sabotaging the reunification between the child and the rejected parent. See
id.The trial court, as noted above, transferred physical custody of Child
from Father to Mother and required that there be a no-contact period between
Father and Child for 90 days. See Trial Court Order, 11/27/19, at 2. The order
provided Gottlieb with the authority to implement her program to facilitate a
reconciliation between Mother and Child. See id., at 3. The order also set forth
that the no contact period would be extended indefinitely if Father failed to
support Mother’s relationship with Child. See id.
Although Father argues that the trial court erred in allowing Gottlieb to
decide when temporary physical custody of Child should end, our review of
the record shows that the court did no such thing. Rather, the court provided
Gottlieb with the authority to shorten the sequestration period from 90 to 30
days under specific circumstances; namely, that Father attends therapy and
genuinely supports Child’s relationship with Mother. See N.T., Hearing,
09/30/19, at 31. In doing so, the court acted within the scope of its powers
to advance the child’s best interests. See In re M.L., 757 A.2d at 851 n.3. As
such, we find no abuse of discretion.
- 13 -
J-A16009-20
However, to the extent that Father argues that the trial court did not
have authority, under this proceeding, to permanently modify the custody
order, we agree. The trial court treated Mother’s petition as one seeking
special relief under Pa.R.Civ.P. 1915.13. Under Rule 1915.13, the court’s
authority is limited to temporary or interim awards of physical custody.
Therefore, paragraph nine of the order under appeal, which provided for an
indefinite extension of the no-contact order should Father fail to support
Child’s reunification with Mother, constitutes an abuse of the court’s
discretion.
Even so, we need not reverse or remand this matter. We merely strike
paragraph nine, and limit the duration of the order to no more than 90 days
after the no-contact period begins, though it may be earlier or even
unnecessary if the parties agree that Father is supporting Child’s reunification
with Mother. 2 If Mother believes that Father has not supported reunification,
she may file for a modification of physical custody.
2 The 90 day no-contact period begins at the conclusion of Gottlieb’s 4 day
therapeutic intervention. See N.T., Hearing, 09/30/19, at 31.
- 14 -
J-A16009-20
Father alleges next that the trial court, prior to modifying the custody
order, failed to conduct an analysis of the best interests of the child pursuant
to 23 Pa.C.S.A. § 5328 (a). See Appellant’s Brief, at 20.
As a preliminary matter, we note that the trial court stated in its 1925
(a) opinion that a best interests analysis pursuant to section 5328 (a) is not
necessary here because Mother sought special relief to modify the existing
custody order. See Trial Court Opinion, 2/6/20, at 5-6. We agree.
The Pennsylvania Rules of Civil Procedure provide trial courts with the
authority to enter orders on an interim basis. Under Rule 1915.13, the court
may on application or its own motion grant special relief where appropriate.
See Pa.R.C.P. 1915.13. “The relief may include, but is not limited to, the
award of temporary legal or physical custody[.]” Id. Any interim custody order
issued pursuant to Rule 1915.13 does not necessitate a best interests analysis
under section 5328 (a). See C.H.L. v. W.D.L., 214 A.3d 1272, 1283 (Pa.
Super.2019).
The certified record demonstrates that the trial court’s temporary
modification of the existing custody order constitutes special relief under
Pa.R.C.P. 1915.13. Thus, the court was not required to conduct a best
interests analysis prior to granting Mother’s request for temporary physical
- 15 -
J-A16009-20
custody of Child. See C.H.L., 214 A.3d at 1283. As such, Father’s fourth issue
merits no relief.
Father’s remaining two issues on appeal challenge the legality of the
warrants issued pursuant to 23 Pa.C.S.A. §5451. See Appellant’s Brief, at 21-
22. He argues that the trial court erred in issuing the warrants because the
warrants failed to set forth that Child was likely to suffer imminent physical
harm or be forcefully removed from the Commonwealth. See id., at 21.
After examining Father’s 1925 (b) statement, we need not address his
remaining two issues as he failed to preserve these claims for appellate
review. Our Supreme Court has stated that “[a]ny issues not raised in a
1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998). Therefore, since Father failed to include his
remaining claims in his 1925 (b) statement, we find them waived.
Order affirmed as modified by this memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/28/2020
- 16 -