K.D. v. E.D.

267 A.3d 1215

K.D., Appellant

v.E.D.

No. 1883 EDA 2020

Superior Court of Pennsylvania.

Argued July 20, 2021

Filed November 16, 2021

Reargument Dismissed December 2, 2021

Richard L. Ducote, Covington, for appellant.

Victoria E. McIntyre, Covington, for appellant.

Nina M. DeCosmo, Wilkes Barre, for appellee.

Shannon Muir, Milford, for Guardian Ad Litem, participating party.

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

OPINION BY BOWES, J.:

K.D. ("Mother") appeals from October 5, 2020 order that modified the custody arrangement with E.D. ("Father") to provide him supervised therapeutic visitation¹ with their three youngest children. We affirm.

The relevant facts and procedural history as follows:

The instant custody case has a lengthy and complicated history. [K.D] and [E.D.] are the natural parents of four (4) children, [Jo].D., age 18, J.D., age 14, [Sh].D., age 11, and S.D., age 7. The only children applicable to the instant matter are the three minor children[.] The parties have been separated since April of 2015, and Father has not seen the three minor children since that time. [Pursuant to an order entered on July 2015, Mother exercises sole legal and primary physical custody of the children.] ... Mother has made many allegations of physical, mental, and sexual abuse by Father with regards to the children. The eldest child, [Jo].D., ... has resided primarily with Father since January of 2020 and has recanted all of his allegations regarding sexual abuse by Father.

Trial Court Opinion, 12/4/20, at 1.

Two of the foregoing points require further discussion. First, the allegations of physical and emotional abuse relate to Father's use of corporal punishment as a means of disciplining the children in accordance with the practices of No Greater Ministries, also referred to as the Pearl Family Ministries, which Mother and Father followed as active members. Second, while Father initially informed Mother that he viewed child pornography on the Internet, he subsequently learned that the website disclosure statement indicated that the actors were at least eighteen years old. In this vein, we note that the police ultimately closed their child pornography investigation, which included the confiscation of the family's computer, without filing any pornography-related charges against Father.

On April 5, 2016, Father filed a petition to modify the July 2015 custody order so that he could exercise supervised partial physical custody with the three youngest children. A custody master was appointed, and during the ensuing evidentiary hearings, the parties presented, inter alia , the testimony of one mental health professional, Robert Gordon, Ph.D., two social workers, Heather Evans and Chris Charleton, and Leatrice Anderson, Esquire, the guardian ad litem ("GAL"). By stipulation, the master also considered a prior evaluation prepared by then-court-appointed custody evaluator Judith Munoz.

Dr. Gordon recommended supervised visitation, but the remaining professionals did not believe that supervised visitation was appropriate at that time. Except for one social worker, Ms. Evans, who viewed supervised visitation as the re-victimization of the children, none of the remaining professionals opined that supervised visitation should be precluded outright. As the Honorable Raymond Hamill subsequently summarized in granting Mother's exceptions to the master's recommendation for supervised physical custody, the qualified objections to Father's supervised visitation with the three youngest children were as follows: (1) Ms. Munoz was "open to reunification counseling" but recommended that Father participate so that the children do not feel that their concerns were unheeded; (2) Mr. Charleton "estimated that it would take one and one-half to two years before supervised visitation might be helpful;" and (3) noting the "unity and solidarity" among the children, the GAL pronounced "I cannot conclude that separating the two or three youngest children to implement visitation is in any of their best interests at this time." Trial Court Opinion, 1/11/18, at 5-6 (cleaned up).

Following the evidentiary hearings and the submission of briefs by Mother and Father, the master filed a report and recommendation granting partial relief. Specifically, the custody master recommended that Father participate in clinically-supervised visitation with the two youngest children.

As noted supra , Mother filed exceptions to the master's recommendation, which Judge Hamill granted. Essentially, Judge Hamill concluded that, "[w]hile the allegations of sexual abuse were deemed unfounded," in light of Father's failure to address his severe mental and moral deficiencies and lack of insight into how those deficiencies affected his children, it was not appropriate for Father to engage in clinically supervised visits with the two younger children at that juncture. Trial Court Opinion, 1/11/18, at 13. He reasoned,

The professionals who have been involved since the onset of this matter in 2015, Heather Evans, Chris Charleton, and Attorney Leatrice Anderson, all concluded that supervised visitation would not be in the children's best interest at this time . Ms. Munoz testified that to do this reunification counseling sought, Father must take responsibility or we are putting the children in a situation where they will feel like what they have said does not matter. Additionally, evidence from trial established that now, after years of therapy, the older two children are getting to the point where they are starting to recover from the trauma. The fact that Father would even propose that the children be taken out of the care of these professionals who have been treating them for years demonstrates his moral deficiency and his lack of concern for the children's best interests.

It is the opinion of this Court that, after taking into consideration all of the evidence – the allegations of physical, sexual, and emotional abuse, Father's confirmed use of corporal punishment, and threats to endanger himself and family members to keep such punishment secret — the record rises to a showing that Father is severely mentally or morally deficient as to constitute a grave threat to the welfare of the children. Further, Father has shown no insight into how his conduct has affected and harmed his children. While the allegations of sexual abuse were deemed unfounded, and therefore makes the case at bar fall somewhere between the factual analyses employed in In re C.B. [861 A.2d 287 (Pa.Super. 2004)] and Rosenberg , [350 Pa.Super. 268, 504 A.2d 350 (1986)], this fact alone is not dispositive that it is an appropriate time for Father to engage in clinically supervised visits with the two younger children.

Id . (emphases added). We affirmed. K.D. v. E.D. , 195 A.3d 1020 (Pa.Super. 2018) (unpublished memorandum).

More than three years after filing his first modification petition, on July 26, 2019, Father filed a second petition for the modification of the existing custody order pursuant to 23 Pa.C.S. § 5338(a). Referencing his completion of psychological and psychiatric evaluations and ongoing psychological counseling, Father asserted that he addressed the deficiencies that formed the basis of Judge Hamill's decision to deny the first petition. Thus, noting these accomplishments, Father sought to modify the custody arrangement to permit periods of supervised partial physical custody with the minor children. Subsequent to Father's filing his modification petition, then seventeen-year-old Jo.D. recanted the allegation of sexual abuse against Father, re-kindled the parent-child relationship, and moved into Father's residence.²

The custody matter was specially assigned to the Honorable Kelly A. Gaughan of Pike County (hereinafter referred to as the "trial court") because of the "Full Bench Recusal" by the Wayne County judges. See Trial Court Order, 1/30/20, at 1. Judge Gaughan ordered a fresh custody evaluation by Ronald Esteve, Ph.D. and appointed a new GAL, Shannon Muir, Esquire, to represent the best interests of the three youngest children. Dr. Esteve completed a comprehensive custody evaluation that ultimately recommended periods of supervised therapeutic custody, and Attorney Muir issued a forty-eight page report, including eleven pages of analysis and recommendations, which the trial court ordered sealed with the exception of counsel.

During the ensuing five-day evidentiary hearing, the trial court considered, inter alia , Dr. Esteve's custody evaluation and supporting testimony, and the in camera interview with the two older children at issue, J.D. and Sh.D. In addition, the court heard testimony from Steven M. Timchack, Psy.D, Father's current therapist, the parties’ respective experts, and the GAL.

On October 2, 2020, upon consideration of the sixteen custody factors delineated in Pa.C.S. § 5328(a), which we discuss infra , the trial court entered the above-referenced order that, inter alia , awarded Father therapeutic supervised partial physical custody of J.D., Sh.D., and S.D. under the directions of Honesdale Behavioral Health. Emphasizing the urgency of the situation, the trial court also outlined the expectations of cooperation between the respective parties, and the continued reporting requirements among the GAL and the mental health professionals in anticipation of a review hearing on February 22, 2021.

This timely appeal followed. Mother asserted thirty-one issues in the concise statement of errors complained of on appeal that she filed contemporaneously with the notice of appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court addressed Mother's litany of issues in its Rule 1925(a) opinion and the matter is ready for our review.

Mother presents three questions for our review:

1) Did the trial court err as a matter of law or abuse its discretion in wholly disregarding and altering the 2018 fully adjudicated factual findings of Judge Hamill in this case, upheld by this Court on appeal, in violation of

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