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Catherine Kimock v. Thomas Jones

June 19, 2012

CATHERINE KIMOCK
APPELLEE
v.
THOMAS JONES APPELLANT



Appeal from the Order Entered of May 17, 2011 In the Court of Common Pleas of Northampton County Domestic Relations at No(s): DR-150004 & CID 226106695

The opinion of the court was delivered by: Gantman, J.:

J-A06006-12

BEFORE: GANTMAN, J., SHOGAN, J., and WECHT, J.

OPINION BY GANTMAN, J.:

Appellant, Thomas Jones ("Father"), appeals from the order entered in the Northampton County Court of Common Pleas, which denied Father's petition to terminate child support for his daughter, C.T.J. ("Child"). Father asks us to determine whether the court's most recent custody order (granting Appellee, Catherine Kimock ("Mother"), sole physical and legal custody of Child and limiting Father's contact with Child as permitted and under conditions deemed appropriate by Mother) was tantamount to termination of Father's parental rights such that he should no longer have to pay child support. On this record, we hold that the court's restrictive custody order did not "effectively terminate" Father's parental rights, as alleged; and Father failed to demonstrate a "material and substantial change" in circumstances to permit complete relief from his child support obligation. Accordingly, we affirm.

The relevant facts and procedural history of this case are as follows. Mother and Father were married on February 20, 1993, and Child was born the following year.*fn1 Throughout the marriage, Father verbally and physically abused both Mother and Child. Mother and Father separated in 2004, and on April 15, 2004, Mother filed a divorce complaint. Child lived with Mother after the parties separated, and Father had no contact with Child for the next year. On April 8, 2005, Father filed a custody complaint. Pursuant to stipulation, the court entered an order on August 12, 2005, awarding primary physical custody to Mother and shared legal custody to both parties. The court's order also required Father and Child to participate in reunification counseling therapy, with the goal of establishing regular visitation and partial physical custody for Father. During the counseling sessions, Child ignored Father and on at least one occasion, she attended the session with a blanket over her head to avoid contact with Father. Father admitted during therapy that he had "anger issues." The reunification counseling proved unsuccessful and ceased in 2005, after only five sessions.

On July 13, 2006, Father filed a praecipe to have the case scheduled for a conference before a custody master. Following the conference, the parties entered into an agreement, adopted as a court order on August 11, 2006, requiring Father to undergo a diagnostic evaluation with a psychologist. Dr. Ronald J. Esteve evaluated Father and concluded he suffered from bipolar disorder. Dr. Esteve recommended that Father complete extensive psychotherapy before attempting further reunification with Child. Despite Dr. Esteve's recommendation, Father insisted he did not have bipolar disorder and refused to undergo additional psychotherapy.*fn2

Father had no contact with Child between the last reunification attempt in 2005 until September 2009. On September 24, 2009, Father filed a petition to modify custody and to compel reunification therapy. The court subsequently ordered Father to participate in individual reunification therapy with Terrence P. Brennan, M.A.; Child would continue individual therapy with Theresa Applegarth, L.P.C. Pursuant to court order, Mr. Brennan and Ms. Applegarth would confer after six weeks of conducting individual therapy with Father and Child, respectively, to determine whether continued reunification therapy was in Child's best interests. If not, Mr. Brennan was directed to issue a report to the court indicating reasons why reunification therapy was not in Child's best interests. On October 16, 2010, Mr. Brennan issued a report stating Child strongly opposed reunification therapy and threatened to harm herself if required to participate. Nevertheless, Mr. Brennan declined to say whether continued reunification therapy was in Child's best interests because Mr. Brennan was unable to confer with Ms. Applegarth.

On January 24-25, 2011, the court held a hearing on Father's petition to modify custody. At the hearing, Mother testified that the ongoing litigation has caused Child to hurt herself. Child testified she saw Father only one time since ending reunification therapy in 2005; on that occasion, Child threw up after seeing Father and became extremely irate later that evening. Child testified she would "run" or harm herself if ordered to participate in reunification therapy. Ms. Applegarth testified that Child has been diagnosed with and treated for attention deficit disorder, obsessive compulsive disorder, post-traumatic stress disorder, and an eating disorder, since 1999. Ms. Applegarth opined that the risks of reunifying Father and Child outweighed any potential benefits. In fact, Ms. Applegarth was unable to identify any benefit to Child in pursuing reunification therapy at that time and suggested Child should work individually through her issues about Father. Ms. Applegarth expressed concerns that Child would run away or harm herself if the court ordered reunification. Father explained he wanted to attempt reunification therapy, despite his non-compliance with Dr. Esteve's recommendation to undergo extensive individual psychotherapy beforehand. Father indicated he had tried to correspond with Child via e- mail, cards, and letters; but Child consistently refused to acknowledge Father's efforts.

On February 8, 2011, the court denied Father's petition to modify custody. Additionally, the court determined shared legal custody was no longer in Child's best interests. Consequently, the court entered the following order:

AND NOW, this 8th day of February, 2011, [Father's]

Petition for Modification of Custody is hereby DENIED. [Mother] is hereby granted sole physical and legal custody of [Child]. [Father] may only have contact with Child as permitted by [Mother] and under such conditions deemed appropriate by [Mother].

Pursuant to 23 Pa.C.S.A. § 5309(b) [now 23 Pa.C.S.A. § 5336(c)], [Father] shall not have direct access to Child's medical, dental, religious, or school records. Rather, [Mother] shall provide to [Father] copies of Child's school records, including, but not limited to, grade reports and scholastic achievements. [Mother] shall notify [Father] of any extraordinary medical or dental treatment as soon as practical.

[Mother] shall not make, or permit anyone else to make, derogatory or negative comments about [Father] or his family ...


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