J-S40029-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

N.L.P., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

S.M.K., :

:

Appellant : No. 292 WDA 2015

Appeal from the Order entered February 4, 2015,

Court of Common Pleas, Blair County,

Civil Division at No. 2011 GN 134

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED JUNE 26, 2015

Appellant, S.M.K. (“Father”), appeals from the order entered on 

February 4, 2015 by the Court of Common Pleas of Blair County awarding 

joint physical and legal custody of S.N.G.-K. (“Child”) to Father and 

Appellee, N.L.P. (“Mother”). For the reasons that follow, we affirm.

The relevant facts and procedural history of this case are as follows. 

Mother and Father are the biological parents of Child, who was born in 

September 2009. Mother and Father met while employed at Cresson State 

Correctional Institute. Mother is a registered nurse and Father was a 

corrections officer. Both Mother and Father are currently retired from 

employment with the Commonwealth. Mother and Father never married, 

but lived together for a brief period, and separated when Child was 

approximately fifteen months old. Mother is currently engaged to J.B., with 
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whom she has had an intimate relationship since approximately October 

2013. 

Prior to the events surrounding this appeal, Mother and Father equally 

shared custody of Child pursuant to an order entered by the trial court on 

December 23, 2011. On October 2, 2013, Father filed a petition to modify 

the custody order seeking primary custody of Child because he wanted her 

to attend pre-kindergarten in Ebensburg, Pennsylvania, where he currently 

resides.

Father claims that in November 2013, Child disclosed to Father’s 

mother and sister that J.B. had inappropriately touched and kissed Child. 

Upon learning this information, Father took Child to the Logan Township 

Police to file a report. At that time, Sergeant David Hoover (“Sergeant 

Hoover”), a child abuse investigation specialist, attempted to interview Child, 

but she refused to talk to him. Father then went to the Blair County 

Courthouse to request an emergency protection from abuse order (“PFA”) 

against J.B. Father later withdrew his request for a PFA because Mother 

agreed that there would be no contact between Child and J.B. pending the 

outcome of a forensic interview by Logan Township Police and Blair County 

Children, Youth, and Family Services (“CYF”). Because there was no 

evidence that any inappropriate touching or kissing occurred, both Logan 

Township Police and CYF determined that the allegations of abuse against 

J.B. were unfounded.
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On December 31, 2013, Mother filed a petition for a custody 

evaluation based upon her concern that Father was influencing Child to 

make these abuse allegations against J.B. In early 2014, Douglas Ramm, 

Ph.D (“Dr. Ramm”), a forensic psychologist, performed the custody 

evaluation. In his report, Dr. Ramm stated that he was unable to determine 

whether J.B. had sexually abused Child or whether Father had improperly 

encouraged Child to lie about the allegations. Custody Evaluation, 5/6/14, 

at 21-22. Dr. Ramm concluded, however, that J.B. had a number of 

negative personality traits, including narcissistic and paranoid tendencies 

and that J.B. was a significant source of stress for Child. Id. at 11, 21. Dr. 

Ramm further concluded that if Child was to have further contact with J.B., 

she should develop a therapeutic relationship with a therapist and that her 

first contact with J.B. should occur in the presence of the therapist. Id. at 

22.

Mother engaged Shirley Knapp (“Knapp”) in response to Dr. Ramm’s 

recommendation that Child receive counseling prior to having contact with 

J.B. Father objected to Knapp’s counseling as Mother did not inform him of 

her counseling prior to its commencement and he believed it did not follow 

Dr. Ramm’s recommendations because J.B. was involved in the counseling 

sessions. Knapp conducted four separate one-hour sessions with Child that 

included Mother and J.B. and found Child’s interaction with J.B. was 

appropriate. N.T., 7/18/14, at 5-6.
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The trial court held a half-day custody hearing on July 18, 2014. Both 

Mother and Father requested additional time to present more witnesses and 

the trial court held another hearing on December 10, 2014. Prior to the 

December 10, 2014 hearing, another incident occurred prompting another 

investigation by the Logan Township Police and CYF. According to Mother, 

Child accidentally injured herself in her vaginal area by cutting herself with a 

clothes shaver. N.T., 12/10/14, at 40-41. Father claimed, however, that 

Child told Father’s mother that J.B. did this to her. Father and Father’s 

mother took Child to the hospital. Child reported at the hospital that J.B. 

had caused her injury. Id. at 85. Only Father’s mother was with Child when 

she made this report as Father had opted to stay in the waiting room. Id. at 

86. Based on these allegations, CYF arranged for a second forensic 

interview and decided to place Child in foster care in order to prevent either 

Mother or Father from influencing Child before the forensic interview. CYF 

placed Child in the custody of Dorrie Raihl (“Raihl”).

The second forensic interview did not reveal whether J.B. was abusing 

Child or whether Father was improperly influencing Child to lie about the 

sexual abuse allegations. Sergeant Hoover, who was present for the second 

forensic interview, concluded that the alleged child abuse did not occur and 

the allegations arose from Father’s influence. Id. at 12, 17. Furthermore, 

Raihl testified that she overheard several telephone conversations between 

Child and each of her parents while Child was in her care. Id. at 126-27. 
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Raihl stated that Mother’s conversations with Child were appropriate, but 

that Father attempted to improperly influence Child. Id.

On February 4, 2015, the trial court entered an order granting Mother 

and Father joint physical and legal custody of Child. The order stated that 

Child’s primary residence during the school year was to be with Mother, that 

Child was to attend school in the Altoona Area School District, and that 

Mother and Father would equally share custody over the summer. On 

February 19, 2015, Father filed a timely notice of appeal and 

contemporaneously with his notice of appeal, Father filed his concise 

statement of the errors complained of on appeal pursuant to Rule 

1925(a)(2)(i) of the Pennsylvania Rules of Appellate Procedure.

On appeal, Father raises the following issue for our review and 

determination:

Whether the [c]ourt erred in determining in looking 

through the custody factors that [factors one, four, 

eight, nine, ten, and thirteen] all significantly favored 

[Mother] and was the main reason why custody was 

granted toward [Mother]?

Father’s Brief at 4.

We begin by acknowledging our scope and standard of review for 

custody cases:

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 
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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.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (quoting Durning v. 

Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011)).

“With any child custody case, the paramount concern is the best 

interests of the child.” Id. The legislature enacted section 5328(a) of the 

Child Custody Act in order to delineate the “factors the trial court must 

consider when awarding any form of custody.” Id. at 651 (citation omitted). 

Section 5328(a) sets forth a list of factors that trial courts must consider “in 

a best interests of the child analysis in making any custody determination.” 

E.D. v. M.P., 33 A.3d 73, 79-80 (Pa. Super. 2011) (citing 23 Pa.C.S.A. 

§ 5328(a)) (footnote omitted). The factors listed in section 5328(a) that 

trial courts must consider when determining a child’s best interest include:

(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 
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adequate physical safeguards and supervision of the 

child.

(2.1) The information set forth in section 5329.1(a) 

(relating to consideration of child abuse and 

involvement with protective services).

(3) The parental duties performed by each party on 

behalf of the child. 

(4) The need for stability and continuity in the child’s 

education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based 

on the child’s maturity and judgment.

(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 
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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.

42 Pa.C.S.A. § 5328(a).

In this case, the trial court based its custody decision on its 

determination that Father improperly influenced Child to make false 

allegations of abuse by J.B. Trial Court Opinion, 2/4/15, at 9. The trial 

court’s findings regarding Father’s behavior are as follows:

There is nothing in the record that supports Father’s 

beliefs or accusations against [J.B.] This [c]ourt 

states here that it does not believe that [J.B.] has 

had any inappropriate contact whatsoever with 

[Child] and any prohibitions of contact of [J.B. with 

Child] are no longer necessary[.]

* * *

The [court,] relying on Sgt. Hoover, [CYF], the 

counseling report of [Knapp], and finally the report 

of conduct [by Raihl], comes to the inescapable 

conclusion that Father’s efforts to improperly 

influence [Child were] done without any 

consideration of the consequences which they inflict 

upon her.

Trial Court Opinion, 2/4/15, at 15-16.

Based on these findings, the trial court concluded that factors one 

(which party is more likely to encourage and permit frequent and continuing 
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contact between the child and another party), four (the need for stability 

and continuity in the child’s education, family life and community life), eight 

(the attempts of a parent to turn the child against the other parent), nine 

(which party is more likely to maintain a loving, stable, consistent and 

nurturing relationship with the child), ten (which party is more likely to 

attend to the daily physical, emotional, developmental, educational and

special needs of the child), and thirteen (the level of conflict between the 

parties and the willingness and ability of the parties to cooperate with one 

another) of section 5328(a) each strongly favored Mother.1

Father argues that the trial court’s finding that he improperly 

influenced Child to make false claims of sexual and physical abuse against 

J.B. is not supported by the record. Father’s Brief at 11. Father contends 

that there is evidence in the record supporting Child’s claims of abuse and 

neither Dr. Ramm’s custody evaluation nor either of the two forensic 

interviews were conclusive as to whether Father improperly influenced child. 

See id. at 13-18. Father also points to other evidence in his favor, such as 

Dr. Ramm’s report revealing that Child told Dr. Ramm that J.B. abused her 

and Dr. Ramm’s conclusion that J.B. was a significant source of stress for 

Child. See id. at 15-16.

 

1

 The trial court found that the remaining factors of section 5328(a) either 

did not apply or minimally influenced its decision. See Trial Court Opinion, 

2/4/15, at 9-14. 
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Father’s argument asks to reweigh the evidence in his favor and 

disregard the evidence of record relied upon by the trial court. This we 

cannot do. See J.R.M., 33 A.3d at 650. The certified record on appeal 

supports the trial court’s determination. Raihl, Child’s foster parent, testified 

that she overheard Father attempting to improperly influence Child to lie 

about J.B. N.T., 12/10/14, at 126-27. Specifically, Raihl testified:

Q. Okay, and Ms. Raihl, there’s been conflicting 

testimony that one or the other parent made efforts 

to contact [Child] prior to when she went to that 

evaluation. Would you have known of any contact 

that was made to [Child] while she was under your 

care, ma’am?

A. She had regular phone calls with both parents 

usually on a daily basis.

Q. Okay. And would you have as part of what you 

do, do you listen to those phone calls, Ms. Raihl?

A. She --- [Child] sat rather close to me a few 

times and I could overhear some of the phone calls.

Q. Okay. And Ms. Raihl, from the conversations 

that you directly heard, did either parent make any 

efforts at all to influence or to persuade [Child] to 

say one thing or another?

A. I never heard her mother say anything other 

than she missed her and loved her[,] normal 

conversations. There [were] a few conversations 

with her father that [Child] got extremely upset 

about and my husband and I both were listening to 

the one phone call because it didn’t sound right and 

he was talking about something about taking her 

away and asked her if she liked airplanes and trains 

and something else, it’s only forty some dollars to 

take her to Disney and as soon as he gets her and if 
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she does what he tells her to do he’s going to buy 

her all this stuff and take her on a trip. So that kind 

of sounded odd so I wrote that all down and turned 

that in the day of that [sic] she went to State 

College.

* * *

A. There [were] a few times that, you know, they 

were talking about something called the truth or like 

daddy’s truth and another truth and I wasn’t really 

sure what they were talking about. When I 

questioned [Child,] she just said that her daddy gets 

mad that she doesn’t lie. I didn’t know what she 

was talking about so I asked her and she just said 

that she’s supposed to lie about this guy named 

[J.B.] and I said who’s [J.B.] She said that’s 

mommy’s boyfriend and that she liked him and she 

liked her mommy but she was afraid of her daddy 

because he would get angry whenever she wouldn’t 

lie and that was the only thing that [Child] ever told 

me.

Id. Sergeant Hoover likewise testified that based on his experience and 

time spent with Child, he believed that Father was influencing Child to lie 

about the allegations of abuse pertaining to J.B. Id. at 17.

Moreover, there is ample evidence of record supporting the trial court’s 

conclusion that J.B. had not been abusing Child. Sergeant Hoover testified 

that there has never been sufficient evidence to charge J.B. with any crime. 

Id. at 16-17. Kirin McCaulley testified on behalf of CYF that the outcomes of 

both of CYF’s investigations into the claims of abuse against J.B. were 

unfounded and that there was not enough evidence to support any of the 

allegations. Id. at 122-23. Furthermore, Knapp testified that during her 
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counseling sessions with Mother, J.B., and Child, she observed Child and J.B. 

exhibit a healthy interaction during which Child appeared “very carefree, no 

anxiety noted, no stress.” N.T., 7/18/14, at 6.

Therefore, based upon our review of the certified record, the evidence 

supports the trial court’s determination that Father improperly influenced 

Child to make false allegations of sexual abuse against J.B. and that factors 

one, four, eight, nine, ten, and thirteen of section 5328(a) favored Mother. 

Accordingly, Father is not entitled to any relief.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2015