Opinion
J-A29041-16 No. 532 WDA 2016
02-13-2017
A.L.-S., Appellant v. B.S., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered March 10, 2016 in the Court of Common Pleas of Lawrence County, Family Court Division, No(s): Case No. 10487 of 2014, C.A. BEFORE: DUBOW, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
A.L.-S. ("Mother") appeals from the Order (hereinafter "the Custody Order") that awarded B.S. ("Father") sole legal custody of the parties' two minor sons, W.S. ("W.") and C.S. ("C.") (collectively "the Children"), awarded Father primary physical custody of C., and granted the parties shared physical custody of W. We affirm.
The trial court thoroughly set forth, in its Memorandum accompanying the Custody Order (hereinafter "Custody Order Memorandum"), the factual and procedural history underlying this appeal, which we adopt as though fully set forth herein. See Custody Order Memorandum, 3/23/16, at 1-14.
We additionally note that prior to the custody trial in this matter, on July 14, 2015, Mother filed a Motion to compel Father to undergo a psychological examination (hereinafter "Motion for Psychological Exam"), asserting Mother's belief that Father has an undiagnosed mental health condition. After hearing oral argument from the parties, the trial court denied the Motion.
Following the protracted custody trial, and upon consideration of the parties' respective Petitions for modification of custody, the trial court entered the Custody Order on March 10, 2016. Mother timely filed a Notice of Appeal, along with a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal. Subsequently, Father filed with this Court a Motion to Dismiss the appeal, asserting that Mother had committed several violations of the Rules of Appellate Procedure.
Mother presents the following issues for our review:
I. Whether the trial court abused its discretion and committed reversible error by awarding [Father] primary physical custody of ...C.[], as the evidence demonstrates the best interest and permanent welfare of ... C.[] would be served by awarding [Mother] primary physical custody[,] subject to the partial custody rights of [Father]?
II. Whether the trial court abused its discretion and committed reversible error by awarding [Father] sole legal custody of ... [the Children], as the evidence demonstrates the best interest and permanent welfare of the [] [C]hildren would be served by awarding [Mother] sole legal custody of the [C]hildren, or at least shared legal custody?
III. [Whether the] trial court [committed] reversible error by issuing an [O]rder that divides the [C]hildren and causes substantial time apart[,] as there was no evidence of record supporting that such an arrangement was in the best interest and permanent welfare of the [C]hildren?
IV. Whether the trial court abused its discretion and committed reversible error by denying [Mother's] Motion for Psychological [Exam,] while authorizing [Father] to present testimony from Dr. Jennifer Rosenberg ["Dr. Rosenberg"] regarding a mental health evaluation she performed on [Mother] several years prior to the trial?
V. Whether the trial court committed reversible error by refusing to access the Our Family Wizard website, a court[-]
ordered communication medium, and perform a complete review of the communications between the parties?Brief for Appellant at 5-6 (issues renumbered for ease of disposition).
VI. Whether the trial court committed reversible error by improperly relied [sic] on hearsay information contained within medical reports?
VII. Whether the trial court abused its discretion and committed reversible error by relying on inadmissible evidence when it declared [that Mother] has a proclivity for making regular unfounded referrals to Children and Youth Services ["CYS,"] when it had already ruled that the disclosure of the reporting party was prohibited by statute[?]
VIII. Whether the trial court committed reversible error by relying upon the Report and Recommendations of the Guardian Ad Litem[,] as the Guardian Ad Litem failed to conduct a full and thorough investigation to fully and adequately address the needs and best interest of the [C]hildren[,] and the Report and Recommendations contains recommendations from the Guardian Ad Litem on subjects which he is unqualified and inexperienced to make and, further, he failed to employ or secure the services of a qualified expert to address the issues at hand?
As a prefatory matter, we must address Father's Motion to Dismiss. Father asks us to quash Mother's appeal, urging that "the sheer volume and combined nature of Mother's violations [of the Rules of Appellate Procedure] make effective appellate review impossible." Motion to Dismiss, 7/5/16, at ¶ 8. Specifically, Father complains that Mother has not filed a designation of contents of the reproduced record, in violation of Pa.R.A.P. 2154(c)(1). Father contends that the lack of a designation of reproduced record prejudiced him by denying him the opportunity to designate additional parts of the record not designated by Mother. Motion to Dismiss, 7/5/16, at ¶ 14. Father also complains that Mother's reproduced record omits numerous relevant record documents/information, including docket entries, portions of the trial transcript, and pertinent trial exhibits that Mother references in her brief. Id. at ¶¶ 20-36. Finally, Father points out that Mother's reproduced record lacks pagination and a table of contents. Id. at ¶¶ 37-41; see also Pa.R.A.P. 2173, 2174.
Contrary to Father's assertion, we determine that Mother's infractions of the Rules of Appellate Procedure are comparatively minor, and do not unduly prejudice Father or impede our review of the issues presented on appeal. Our Pennsylvania Supreme Court has stated that the "extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the moving party has suffered no prejudice." Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980). Accordingly, we decline to dismiss the appeal, and deny Father's Motion to Dismiss. See , e.g., Hagel v. United Lawn Mower Sales & Serv., 653 A.2d 17, 19 (Pa. Super. 1995) (declining to quash the appeal, or impose other sanctions, where the appellant failed to designate or file a reproduced record, but the violations of the Rules of Appellate Procedure were not so serious as to preclude the Court's ability to properly evaluate and address the substantive arguments advanced by the parties); Downey v. Downey , 582 A.2d 674, 678 (Pa. Super. 1990) (declining to dismiss the appeal because of appellant's failure to serve the appellees with a copy of the designated reproduced record, and noting that "Pa.R.A.P. 2156 expressly permits an appellee to file his own supplemental reproduced record with the court when the parties are unable to cooperate on the preparation of the reproduced record.").
This Court's standard and scope of review of custody orders is as follows:
The 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.A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation, ellipses and brackets omitted). Additionally, we have explained that
[o]n 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. The test is whether the evidence of record supports the trial court's conclusions.Id. (citations, paragraph breaks and brackets omitted); see also Ketterer v. Seifert , 902 A.2d 533, 540 (Pa. Super. 2006) (stating that "[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.") (citation omitted).
When a trial court orders a form of custody, the paramount consideration is the best interest of the child. W.C.F. v. M.G., 115 A.3d 323, 326 (Pa. Super. 2015). In assessing the child's best interest, the trial court must consider the seventeen custody factors set forth in 23 Pa.C.S.A. § 5328(a) (hereinafter "the best interest factors"). W.C.F., 115 A.3d at 326; see also J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (stating that all of the best interest factors must be considered by the trial court when entering a custody order).
We will address Mother's first two issues simultaneously, as they are related. In her first issue, Mother argues that the trial court abused its discretion by awarding Father primary physical custody of C. See Brief for Appellant at 17-33. Essentially, Mother challenges the trial court's findings and weighing of the evidence in several regards, and asserts that the court, in its Custody Order Memorandum, mischaracterized the evidence and disregarded relevant evidence favorable to Mother. See id. Mother places heavy emphasis on the trial court's having purportedly ignored Father's inadequate and infrequent communication with Mother on important matters (concerning the Children's education, doctors' appointments, and extracurricular activities), which, she claims, interfered with her custodial rights. Id. at 23-25.
As Mother's Argument in support of this issue spans 17 pages, we will not set forth herein each of her myriad contentions.
In her second issue, Mother argues that the trial court abused its discretion by awarding Father sole legal custody of the Children, where the evidence indicates that she is the party more likely to act in the Children's best interests. See id. at 33-40. According to Mother, the trial court improperly overlooked (1) Father's failure to obtain important medical treatment for the Children; (2) Father's lack of adequate supervision/care for W., which resulted in injuries to W.; and (3) Mother's superior efforts to ensure that W. is receiving proper education/therapy. See id. at 33-38.
In the Custody Order Memorandum, the trial court thoroughly addressed the best interests of the Children, including a comprehensive analysis of the best interest factors, and determined that it was appropriate to award Father sole legal custody of the Children, and primary physical custody of C. See Custody Order Memorandum, 3/23/16, at 15-27. Our review reveals ample support in the record for the trial court's cogent analysis, and the court's consideration of the Children's best interests was careful and thorough. See A.V., supra (stating that "[a]ppellate 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."). Mother essentially asks this Court to disturb the trial court's findings and weighing of the evidence, in favor of the findings and inferences that Mother proposes. This we cannot do. See id.; see also M.J.M. v. M.L.G., 63 A.3d 331, 337 (Pa. Super. 2013) (rejecting appellant/mother's argument asking this Court to reconsider the trial court's findings and credibility determinations with regard to the best interest factors). Accordingly, as we discern no abuse of discretion, we affirm with regard to Mother's first two issues based on the trial court's rationale. See Custody Order Memorandum, 3/23/16, at 15-27.
In her third issue, Mother contends that the custody Order "divides the [C]hildren and causes substantial time apart[, and] there was no evidence of record supporting that such an arrangement was in the best interest ... of the [C]hildren." Brief for Appellant at 45; see also id. at 46 (explaining that, under the custody schedule, the Children will spend approximately ten days per month apart). Mother points to this Court's decision in Johns v. Cioci , 865 A.2d 931 (Pa. Super. 2004), wherein we observed that "the policy in Pennsylvania is to permit siblings to be raised together, whenever possible .... Absent compelling reasons to separate siblings, they should be reared in the same household to permit the continuity and stability necessary for a young child's development." Id. at 942 (citations and quotation marks omitted); see also 23 Pa.C.S.A. § 5328(a)(6) (requiring a court to consider the child's sibling relationships when ordering a form of custody); Brief for Appellant at 46.
Here, the trial court addressed Mother's claim in its Custody Order Memorandum, stating that it had, in fact, considered the policy articulated in Johns , but determined that the award of physical custody entered was in the respective, and different, best interests of the Children. See Custody Order Memorandum, 3/23/16, at 25-26. The trial court was free to form this conclusion in evaluating the Children's best interests, and we discern no abuse of discretion. Therefore, we affirm on this basis in rejecting Mother's third issue, see id., with the following addendum. The Johns Court explained that the policy against separation of siblings is only one factor - and not a controlling factor - in the ultimate custody decision, wherein the best interests of each individual child is paramount. Johns , 865 A.2d at 942; see also M.J.M., 63 A.3d at 339 (stating that "[i]t is within the trial court's purview as the finder of fact to determine which factors are most salient and critical in each particular case.") (citation omitted).
Moreover, in the prior custody proceedings in Ohio, presided over by the Honorable Diane M. Palos ("Judge Palos") in the Cuyahoga County Court of Common Pleas (hereinafter "the Ohio proceedings"), Judge Palos stated as follows concerning the policy articulated in Johns :
The [c]ourt finds that although[,] traditionally[,] siblings learn from each other and have a positive impact by being together, in this matter there would be a greater positive impact on C.[] should he have more alone time with each parent[,] so that his or her attention could be focused on him and not on W.[,] when he is present. In addition, while [C.] should have some time with W.[] so that they continue to bond as brothers and learn from each other, C.[] should not have to live under the shadow of the extensive and significant restrictions and care involved in W.[]'s life.Plaintiff's Exhibit 14 (Judge Palos's November 1, 2013 Findings of Fact/Order), at 7.
In her fourth issue, Mother asserts that
the trial court committed reversible error by (a) denying [Mother's Motion for Psychological Exam] of [Father;] (b) after denying [Mother's Motion] ..., allowing [Father] to present testimony [at the custody trial concerning Mother's mental health diagnosis] from Dr. [] Rosenberg; and (c) relying on the testimony of Dr. Rosenberg when evaluating [Mother's] mental health status.Brief for Appellant at 16-17. Mother points out that the trial court permitted Dr. Rosenberg to testify, over Mother's objection, that, approximately four years earlier (in connection with the Ohio proceedings), she had diagnosed Mother with Narcissistic Personality Disorder. Id. at 15; see also id. (asserting that Dr. Rosenberg's diagnosis of Mother was "stale" for being four years old). According to Mother, "the trial court deemed Dr. Rosenberg credible and used that information in [the court's] determination concerning the [best interest] factor [at] 23 Pa.C.S.A. 5328(a)(15)[,]" i.e., "the mental and physical condition of a party or member of a party's household." Id. Mother asserts that
not only did [the trial court's] ruling place [Father] in a superior position and allow him to present testimony on this issue[,] while effectively barring [Mother] from having the opportunity to present similar testimony, it also prevented the trial court from completing a full best interest analysis. Given the special needs of W.[,] and the great deal of care that must be constantly provided to this non-verbal child ..., the mental health of the parties is crucial to the best interest analysis.Id. at 16.
Pursuant to Pa.R.C.P. 1915.8(a), the court in a custody case "may order the child(ren) and/or any party to submit to and fully participate in an evaluation by an appropriate expert or experts." Id. (emphasis added); see also Jordan v. Jackson , 876 A.2d 443, 455 (Pa. Super. 2005) (interpreting Rule 1915.8(a) and stating that "[i]t is clearly within the court's discretion whether to order an evaluation.").
Concerning Mother's challenge to the trial court's admission of Dr. Rosenberg's testimony, we are mindful that "the admission or exclusion of evidence is within the sound discretion of the trial court. In reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law." R.K.J. v. S.P.K., 77 A.3d 33, 41 (Pa. Super. 2013) (citations and quotations omitted).
Here, in its Pa.R.A.P. 1925(a) Opinion, the trial court opined that
insufficient reason was presented to justify a mandate that the parties undergo new psychological evaluations[,] with the accompanying expense, especially in view of the relatively recent completion of the comprehensive and extensive custody proceedings held in Ohio that resulted in the entry of the November 1, 2013 Order by Judge ... Palos ....Trial Court Opinion, 5/9/16, at 1-2 (unnumbered). We are persuaded by the trial court's reasoning, and determine that the court properly exercised its broad discretion in denying Mother's Motion for Psychological Exam. See , e.g., Jordan , 876 A.2d at 455 (holding that the trial court properly exercised its discretion in refusing a party's request for the court to order the mother to undergo a psychological examination prior to the custody hearing). Merely because Mother had previously been diagnosed with a mental health disorder, in connection with the Ohio proceedings, does not, therefore, mean that the trial court in the instant case was required to compel Father to undergo a psychological examination.
Judge Palos presided over a five-day custody trial, after which she issued exhaustive findings of fact in support of her custody Order. See Plaintiff's Exhibit 14 (Judge Palos's November 1, 2013 Findings of Fact/Order), at 1-13. Therein, Judge Palos addressed, inter alia, the mental health of Father and Mother, and determined that "while [] [M]other has alleged that [Father] has taken some mental health medications, his mental health has not been called into question in this matter." Id. at 8.
Concerning Mother's challenge to the trial court's admission of Dr. Rosenberg's testimony regarding Mother's diagnosis of Narcissistic Personality Disorder, we discern no abuse of discretion. See R.K.J., supra. At the custody trial, the trial court considered extensive argument from the parties' respective counsel regarding the admissibility of this evidence, and determined that it was admissible. See N.T., 1/5/16, at 4-23. Moreover, the trial court did not preclude Mother from cross-examining Dr. Rosenberg or presenting Mother's own evidence concerning her mental health. Additionally, in the Custody Order Memorandum, the trial court did not expressly state that Mother's diagnosis (or Dr. Rosenberg's testimony in general) weighed against Mother under the best interest factor at section 5328(a)(15); rather, the court merely noted the diagnosis. Custody Order Memorandum, 3/23/16, at 23. Finally, even if, arguendo, we agreed with Mother's characterization of Dr. Rosenberg's diagnosis as being "stale," this goes to the weight to be accorded that Dr. Rosenberg's testimony, which is within the sole purview of the fact-finder. See A.V., supra. Accordingly, Mother's fourth issue does not entitle her to relief.
We further observe that Father introduced Dr. Rosenberg's testimony, in part, to rebut Mother's trial testimony that she had never been diagnosed with a mental health disorder. See N.T., 12/14/15, at 132-35; see also N.T., 1/5/16, at 23 (wherein the trial court ruled that Dr. Rosenberg's testimony would be admissible, in part, to impeach Mother's credibility).
In her fifth issue, Mother contends that the trial court improperly refused to review all of the parties' email communications and schedule entries made via the "Our Family Wizard" website ("OFW"), a court-ordered communications and scheduling platform to which the trial court was granted access. See Brief for Appellant at 40-42. According to Mother, "[t]he entirety of the information contained within [OFW] ... is vital[,] as it demonstrates [that Father] completely failed to properly utilize [OFW] to post the [C]hildren's scheduled medical and dental appointments[,] along with the schedule of their extracurricular activities." Id. at 40-41; see also id. (urging that "[Father's] failure to provide the aforementioned critical information to [Mother] on [OFW] was a primary focus of the custody trial in this matter.").
The trial court addressed this claim in its Pa.R.A.P. 1925(a) Opinion as follows:
Although [Mother] claims that the trial court refused to access the [OFW] website and review all of the communications between the parties ..., it is counsel's and the parties' responsibility to present evidence that they consider relevant, and to refer the court to those communications deemed important, with opportunity for opposing counsel to object to any communications believed to be objectionable and inadmissible. It is not the court's obligation to review the parties' communications to ferret out those parts of the exchanges that might be relevant and material.Trial Court Opinion, 5/9/16, at 2 (unnumbered; footnote and emphasis added). We are persuaded by the trial court's rationale and, discerning no abuse of discretion, affirm on this basis in rejecting Mother's fifth issue. See id.
It is undisputed that the parties had exchanged a large number of emails via OFW. See Brief for Appellant at 41 (wherein Mother concedes that "the communications between the parties are so numerous that it would have been incredibly burdensome to present all of the relevant communications during the trial"); see also Brief for Appellee at 24 (asserting that there were 3,000 OFW emails). Additionally, the record reveals that at trial, the trial court, in fact, admitted into evidence 42 OFW exhibits, which included numerous email exchanges between the parties.
In her sixth issue, Mother argues that the trial court committed reversible error by relying on inadmissible hearsay evidence contained within the Children's medical records. See Brief for Appellant at 42-43. Specifically, Mother avers that,
[a]t trial, neither party presented the testimony of the [C]hildren's physicians or pediatricians ... concerning the [c]hildren's medical records. However, the trial court clearly relied upon the information contained within those medical records for the truth of the matter asserted[,] as the trial court stated, in its [Custody Order] Memorandum ..., that [Mother] urged the emergency room physician to make a referral to the Children's Advocacy Center ....Id. at 43.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801(c); In re K.A.T., 69 A.3d 691, 702 (Pa. Super. 2013). "Hearsay is not admissible except as provided by these rules [the Rules of Evidence], other rules prescribed by the Pennsylvania Supreme Court, or by statute." Pa.R.E. 802.
Initially, as the trial court correctly observes in its Pa.R.A.P. 1925(a) Opinion, "[Mother] alleges that the [trial c]ourt relied on inadmissible hearsay in medical reports ..., but does not identify the medical reports or objectionable hearsay." Trial Court Opinion, 5/9/16, at 2 (unnumbered); see also id. (stating that "[a]fter review of the [trial c]ourt's [Custody Order] Memorandum, it is assumed that [Mother] is referring to page 12 of the Memorandum[,] where the [c]ourt made reference to the comment in the Akron Children's Hospital record[,] identified at trial as Exhibit 'H.'"). Even if, arguendo, we determined that the trial court erroneously referred to certain hearsay statements, this would not warrant a reversal of the Custody Order, for, as the trial court correctly determined, any such error was harmless and did not contribute to the trial court's decision. See id.; see also Harman ex rel. Harman v. Borah , 756 A.2d 1116, 1122 (Pa. 2000) (recognizing that not all trial errors constitute reversible error; rather, the complaining party must demonstrate that an error was harmful before a new trial may be awarded); In re M.T., 607 A.2d 271, 281 (Pa. Super. 1992) (holding that admission of hearsay statements of children was harmless error where the statements could not have contributed to the trial court's decision). Accordingly, Mother is not entitled to relief on this issue.
The trial court explained that "[t]he reference was intended only as illustrative of the uncertainty as to the number of fractures [in W.'s foot], and in no manner was a factor in the [c]ourt's decision and establishment of the custody arrangement contained in [the Custody] Order." Trial Court Opinion, 5/9/16, at 2 (unnumbered).
In her seventh issue, Mother contends that the trial court erred by "relying on inadmissible evidence when it declared [that Mother] has a proclivity for making regular unfounded referrals to [CYS.]" Brief for Appellant at 43. Mother asserts that "[e]ven though the trial court properly determined that disclosing the identity of the reporting individuals and/or agencies was prohibited by statute, the trial court committed reversible error by repeatedly attributing those reports to [Mother,] and utilizing those reports in its analysis for entering its [Custody O]rder ...." Id. at 45.
The trial court addressed this claim in its Pa.R.A.P. 1925(a) Opinion as follows:
The basis for the trial court's comment on [Mother's] proclivity for making unfounded referrals ... was the evidence of [Mother's] urging of a report to children's services when she took W[.] to the emergency room at Children's Hospital for examination in October[] 2014; [Mother's] transport of C[.] to the Pennsylvania State Police on June 6, 2015, and then [a] subsequent visit to the Children's Advocacy Center; and [Mother's] transport of C[.] to Jameson Hospital and referral to the Children's Advocacy Center on or about December 17, 2015. The trial court is not aware of the identity of referral sources that might be recorded in [CYS] records and reports.Trial Court Opinion, 5/9/16, at 2-3 (unnumbered). Upon review, we discern no reversible error by the trial court in this regard. At no point did the trial court state a belief that Mother was the source of the reports. Rather, the court merely commented upon the admissible evidence, and the reasonable inferences to be drawn therefrom, which it was entitled to consider in addressing the best interests of the Children. Moreover, as Mother concedes, the trial court ruled that the evidence of the source reporter in CYS records was inadmissible. Accordingly, this issue does not entitle Mother to relief.
In her eighth and final issue, Mother argues that the trial court erred by relying on the Report and Recommendations ("GAL Report") issued by the court-appointed Guardian ad litem, Ryan C. Long, Esquire (hereinafter "the Guardian"). See Brief for Appellant at 47-52. According to Mother, the Guardian, a layperson, was permitted to issue unqualified opinions and recommendations that "require specialized knowledge, education and skill in the area of psychology or child development[.]" Id. at 50. Additionally, Mother complains that "the vast majority of [the GAL Report] focused on an analysis of the [best interest] factors[,] and [the Guardian] provided his opinion as to the ultimate issues concerning the custody arrangement he believed was proper, which was solely within the purview of the [trial c]ourt ...." Id. at 51; see also id. at 52 (wherein Mother asserts that the "recommendations" section of the GAL Report "should have been stricken by the trial [court,] as it contained opinions of a lay witness on the ultimate issue before the [c]ourt and is based upon hearsay statements of individuals who did not testify at trial.").
We observe that Mother was the party who initially sought the appointment of a Guardian ad litem.
The statute concerning the appointment of guardians ad litem in custody matters, 23 Pa.C.S.A. § 5334, provides that a trial court may, on its own motion or the motion of a party, appoint a guardian ad litem to represent the child in the action. Id. § 5334(a). Section 5334 requires and authorizes a guardian ad litem to, inter alia, meet with the child, conduct further investigation, interview potential witnesses, and make recommendations to the court. Id. § 5334(b); see also L.M.P. v. E.C., 2016 PA Super 232, *5 (Pa. Super. 2016). However, this Court has observed that a guardian ad litem is not a judicial or quasi-judicial officer, and a trial court may not delegate its judicial power to a guardian ad litem. C .W. v. K.A.W., 774 A.2d 745, 749-50 (Pa. Super. 2001).
The trial court addressed Mother's claim in its Pa.R.A.P. 1925(a) Opinion as follows:
The Guardian's [GAL] Report and testimony documented his extensive and thorough investigation[, which] exceeded that which routinely is performed in custody cases. The Guardian related his experience in custody litigation, his knowledge of the applicable principles and factors to be applied in custody litigation, and familiarity with the factual issues. The Guardian performed his mission professionally, based his findings and opinions on the results of his efforts, and expressed his recommendations in accordance with his duty to present the result that, in his opinion, would be most likely to serve the [C]hildren's best interests. The trial court does not perceive error in its consideration of his recommendations.Trial Court Opinion, 5/9/16, at 3 (unnumbered). The record supports the trial court's determination. Contrary to Mother's assertion, the trial court did not merely substitute the Guardian's judgment for its own, as the court issued thorough, independent reasoning concerning the best interest factors. See , e.g., Yates v. Yates , 963 A.2d 535, 541 (Pa. Super. 2008) (rejecting the father's claim that the trial court improperly delegated its judicial decision-making authority to a court-appointed parenting coordinator); cf. C.W., 774 A.2d at 749-50 (holding that the trial court erred in delegating its judicial powers to the guardian ad litem, stating that "[t]hroughout the custody proceedings, the trial court repeatedly asked the guardian ad litem his opinion on evidentiary rulings and followed his opinions," and the court's custody order "closely followed the recommendations of the guardian ad litem[.]"). Finally, to the extent Mother complains that the GAL Report contained inadmissible hearsay information, we discern no support for this claim.
Mother fails to identify the purported hearsay statements.
Order affirmed. Motion to Dismiss denied. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/13/2017
Image materials not available for display.