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M.G. v. L.D.

Superior Court of Pennsylvania

February 8, 2017

M.G.,
v.
L.D., APPEAL OF: C.B.D., INTERVENOR M.G.,
v.
L.D., APPEAL OF: L.D.,

         Appeal from the Order August 19, 2015 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 11-31295

         Appeal from the Order August 19, 2015 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 11-31295

          BEFORE: BOWES, OLSON AND STRASSBURGER, [*] JJ.

          OPINION

          BOWES, J.

         L.D. ("Mother") and C.B.D. ("Grandfather") appeal pro se from the trial court's August 19, 2015 order that denied Grandfather's request for partial custody and Mother's request for weekly telephone calls with her now twelve-year-old biological daughter, M.G.D.[1] After careful review, we reverse and remand.

         Mother and Appellee, M.G., are former lovers who adopted one another's biological children, i.e., M.G. adopted M.G.D. and Mother adopted M.G's now-teenage biological son, E.G.D. The family remained intact for approximately thirteen years, until April of 2011. On November 14, 2011, M.G. filed a complaint for custody wherein she requested sole legal and physical custody of her son and primary physical custody of M.G.D. Mother's counterclaim requested primary physical custody of both children and asked that M.G. receive periods of supervised physical custody.

         Following a custody conciliation conference, Mother and M.G. entered a series of interim consent agreements which culminated in the August 2, 2012 custody order wherein each parent maintained primary physical custody of her biological child with varying degrees of partial custody of the other child. Subsequent to the August 2012 order, Mother expressed concerns that E.G.D. was aggressive toward her and M.G.D. and that he had serious mental health issues. M.G. disputed the allegations against their son. Nevertheless, the then-appointed parent coordinator recommended that E.G.D. get treatment from Adele Cox, M.D. and Bradford Norford, PhD., and that Mother and E.G.D. participate in parent/child counseling in lieu of the custodial periods outlined in the consent order.[2] Additionally, the parent coordinator recommended that both parents and children participate in a custody evaluation administered by Stephen Miksic, Ph.D.

         During a subsequent custody exchange on May 27, 2013, Mother shot M.G., who was in her car, several times in the presence of both children. M.G. escaped grievous injury but spent two to three days in the hospital. E.G.D., who was in the front passenger seat of the car, was not injured. Mother was arrested, tried, and convicted of, inter alia, attempted homicide and endangering the welfare of children. She was sentenced to twenty-two and one-half to fifty-two years imprisonment.[3] During the criminal proceedings, Mother was prohibited from communicating with E.G.D. While the criminal court did not level a similar prohibition relating to M.G.D, it proscribed her from talking to her daughter about the shooting incident. Mother continues to maintain that she acted in self-defense and shot at M.G. only to avoid being run down by the automobile M.G. was driving.

          Following the shooting, M.G. filed protection from abuse petitions against Mother and an emergency petition to modify custody. Grandfather, who is Mother's father, countered with an emergency petition to intervene wherein he requested custody of M.G.D. Grandfather attached a hand written certification outlining his concern that M.G.D. was being physically abused by then-eleven-year-old E.G.D. while in M.G.'s physical custody and that M.G. did not curtail the behavior. Grandfather stated that he observed welts and bruises on his granddaughter following visits with M.G. and that M.G.D. advised him that she feared E.G.D., who had injured her. M.G. filed preliminary objections to Grandfather's petition to intervene. In addition to challenging Grandfather's standing to seek primary custody under § 5324 of the Child Custody Law, 23 Pa.C.S. §§ 5321-5340, M.G. contested Grandfather's claims of physical aggression by her son against M.G.D.[4]

          Thereafter, Grandfather filed an amended petition to intervene outlining additional incidents of M.G.D.'s abuse at the hands of E.G.D. and noted his grandson's behavioral issues, including alleged incidents where he threatened to kill an elementary school teacher and was suspended from school for posting a racially-charged diatribe on his school's computer network. Grandfather invoked an additional right to seek partial custody under 23 Pa.C.S. § 5325(2), which applies where parents have been separated for at least six months.[5] See L.A.L. v. V.D., 72 A.3d 690 (Pa.Super. 2013) ("Under Child Custody Act, grandparents of a child whose parents never married have standing to seek partial custody of grandchild."). On June 4, 2013, the trial court entered a temporary order granting Grandfather primary physical custody of M.G.D. and prohibiting anyone except the child advocate, Lisa Kane Brown, Esquire, from discussing Mother's pending criminal case with M.G.D. Attorney Kane Brown was previously appointed through the Montgomery Child Advocacy Project ("MCAP") as the child advocate in relation to the PFA action M.G. filed against Mother.[6]

         During the ensuing two-day custody trial, the trial court focused on evidence as to whether E.G.D. presented a significant risk of harm to M.G.D. Pointedly, as it relates to Grandfather's petition, the focus of the court's inquiry was whether M.G.D. "is substantially at risk due to parental abuse, [or] neglect" pursuant to § 5324. If Grandfather could not demonstrate a substantial risk of harm based upon M.G.'s lax response to E.G.D.'s behaviors, he would lack standing to seek physical or legal custody under § 5324. In order to understand each child's perspective of the sibling dynamic, the court heard testimony from, inter alia, E.G.D.'s therapist, Dr. Norford, and M.G.D.'s psychologist, Robert Schwarz, Ph.D.[7]

         At the close of the evidentiary hearings, the trial court determined that, despite evidence of physicality, Grandfather's concerns for M.G.D.'s safety were unwarranted and that M.G.'s reactions to E.G.D.'s behaviors were not tantamount to parental neglect. Hence, it ruled that Grandfather lacked standing to seek primary physical custody. The trial court sustained M.G.'s preliminary objection, dismissed Grandfather's petition to intervene pursuant to § 5324, and, as a default positon, it awarded M.G. primary custody without addressing any of the best-interest factors that courts are statutorily mandated to consider "in ordering any form of custody[.]" See 23 Pa.C.S. § 5328(a).

         While the trial court denied Grandfather's petition to intervene pursuant to § 5324 relating to physical and legal custody, it granted Grandfather's petition insofar as he sought to exercise partial physical custody under § 5325. Id. at 280. However, the court neglected to fashion a custody schedule for Grandfather. Instead, it decided to "leave it to the attorneys to try and work something out." Id. The trial court specifically sought input from the child advocate whom it had previously entreated to take a "proactive" role in the custody case by drafting a list of "dos and don'ts, " for the court's approval, regarding conduct in both households and the conditions of custody. Id. at 272-273, 275.[8] Neither party appealed.

         Between June and July 2013, Grandfather was able to exercise partial custody on two occasions for a total of thirty-six hours before the child advocate unilaterally terminated his custodial rights after she determined that Grandfather contravened her directives regarding appropriate communications with M.G.D. Specifically, the child advocate believed that Grandfather permitted unauthorized telephone contact between Mother and M.G.D. and that he indicated an intention to pump the child for information. Grandfather attempted to explain that the pertinent telephone calls occurred prior to the custody court's prohibition, but his efforts were futile. Similarly, while Grandfather declared that the reference of pumping M.G.D. for information related to information concerning E.G.D.'s physical abuse, the child advocate believed that it related to Mother's pending criminal case. Accordingly, exercising authority delegated by the trial court, the child advocate terminated all contact between Grandfather and M.G.D.

         On August 14, 2013, M.G. filed a petition to modify the June 2013 custody order. She requested sole legal and physical custody of both children. Following a hearing, on October 28, 2014, the trial court entered a final order granting M.G. sole physical custody of M.G.D. and her brother. Grandfather was denied partial physical custody. M.G. and Mother shared legal custody of the children in name only. M.G. was empowered to make all daily and emergency decisions as well as all educational and therapeutic choices without Mother's consent. If Mother objected to any of the decisions, she was required to petition the court for relief. The custody order limited Mother's contact with M.G.D. to written communication and directed that the child advocate review Mother's correspondence with M.G.D., and, if appropriate, forward it directly to the child.[9] Conversely, "if inappropriate, [the child advocate] may strike the inappropriate portions, and forward [it] to [M.G.D.]" or return it to Mother with an explanation. Trial Court Order, 10/28/14, at 2.

         Neither party appealed the October order; however, approximately two weeks later, Grandfather filed a motion to modify the custody order. He again asserted that M.G. and the child advocate had previously precluded him from exercising his custodial rights or contacting his granddaughter on the telephone. He again requested partial custody of M.G.D. consisting of two non-consecutive weekend days per month and one week during summer vacation and sought permission to take the child on his visits with Mother. During the ensuing hearing, the parties agreed to also address Mother's motions for visitation and contact by telephone and written correspondence.[10] N.T., 4/27/15, at 19-20, 44. As to the increased contact, Mother sought permission to make one telephone call and mail one letter to M.G.D. per week.

         The focus of the evidentiary hearing was Grandfather's interaction with M.G.D., his ongoing concern about M.G.D.'s welfare around E.G.D., and his remark that he intended to gain information from his granddaughter. Grandfather presented his and Mother's testimony, M.G. testified on her own behalf, and the child advocate presented her concerns that Grandfather's preoccupation with M.G.D.'s safety and his steadfast support of Mother's criminal defense interfered with the children's best interest. Following the evidentiary hearing and review of the parties' post-hearing memoranda, on August 18, 2015, the trial court entered an order denying Grandfather's request for partial physical custody and Mother's requests for weekly telephone contact. It granted Mother permission to mail her daughter one letter per week, subject to the child advocate's approval.[11]

         These timely, pro se appeals followed.[12] Mother and Grandfather filed identical Rule 1925(b) statements that asserted four issues:

a) the Court committed an error of law when it denied appellant's requests for visitation and phone contact with her daughter as it deprives appellant ([L.D.]) of her Constitutional rights under the 1st and 14th Amendments.
b) the Court committed an error of law when it denied grandparent visitation to appellant . . . with his granddaughter, as it applied a "fact" not in evidence when it considered the legal standards in making this decision.
c) the Court committed an error of law when it used the "contentious nature" of the relationships between Plaintiffs and Defendant as the basis of denying Plaintiffs['] requests for contact with the minor child, rather than applying the appropriate legal standards. Also, the Court did not consider the fact that the source of the "contention" is due to the Defendant, not the Plaintiffs, and the Plaintiffs should not be penalized for this.
d) the Court, in its award of weekly letters from Plaintiff [L. D.] to her daughter, ignored the fact that this does not effect MEANINGFUL communication with her daughter since the Defendant admitted in court that the child is not consistently being given the letters.

Concise Statement of Matters Complained of on Appeal, 9/17/15, at 1.

         We review the trial court's custody order for an abuse of discretion. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial court's factual findings that are supported by the record and its credibility determinations. Id. However, we are not bound by the trial court's deductions or inferences, nor are we constrained to adopt a finding that cannot be sustained with competent evidence. A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014). In sum, this Court will accept the trial court's conclusion unless it is tantamount to legal error or unreasonable in light of the factual findings. S.W.D., supra at 400.

         The primary concern in any custody case is the best interests of the child. "The best-interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well-being." Saintz v. Rinker, 902 A.2d 509, 512 (Pa.Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super. 2004)).

         Mother raises the following questions for review:

1. Did the lower court's decision to deny visitation and phone contact between [L.D.] and her biological daughter [M.G.D.] violate [L.D.'s] Constitutional Rights under the First and Fourteenth Amendments?
2. Did the lower court ignore a grave issue of child welfare by not immediately modifying custody of [M.G.D.] or allowing her biological family any contact with her to ensure her ongoing safety once new information became available (and was brought to the attention of the court) after the hearing of 4/27/15 which spoke to abuse and /or neglect of the child [M.G.D.] while under the care of appellee [M.G.]?
3. Did the lower court commit an error of law when it utilized "facts" either not in evidence and /or not relevant to applicable law when making its decisions to deny requests of appellants . . . for visitation /phone contact and partial custody /grandparent visitation with the child [M.G.D.]?
4.Are the lower court's decisions in this case in accordance with statutory and case law, and do they provide means for meaningful communication between [Mother] and [M.G.D.]?

Mother's brief at 10.[13]

         At the outset, we reject Mother's third argument summarily because the crux of her contention challenges only the trial court's decision vis-à-vis Grandfather and not any aspect of the custody order relating to her custodial rights. Although Mother referenced her custodial rights in phrasing this issue, her argument simply invokes the now-repealed Custody and Grandparent Visitation Act, and asserts that the court erred in failing to grant Grandfather's request for partial custody. As Mother does not present a basis to disturb the custody order in relation to her rights, this claim does not warrant relief.

         Similarly, we note that Mother's second issue, regarding the court's failure to consider new information about the alleged abuse that E.G.D. inflicted upon M.G.D., is waived because Mother ignored this contention in her Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").

         Moreover, even if the second issue had been preserved, it is meritless. Concisely, Mother asserts that, in rendering its best interest determination, the trial court neglected to consider significant injuries that M.G.D. received to her head and clavicle during July 2014. Mother surmised that the injuries were the result of E.G.D.'s continued physical abuse and that M.G.'s explanation for the injury, i.e. that M.G.D. fell from a warped wall at a parkour gym, [14] was a dubious attempt to cover up the abuse. Accordingly, she opined that her direct contact with M.G.D. is necessary to verify her daughter's continued safety and welfare. She also complains that she was not informed about the incident or the substantial injuries that her daughter suffered. The record belies both of these arguments.

         First, the trial court considered testimony regarding the injury, but unlike Mother, it accepted M.G.D.'s explanation that the injury was accidental. Our standard of review precludes us from reweighing the testimony from Mother's perspective and making a contrary determination in her favor. Furthermore, the certified record refutes Mother's insinuation that she was not informed of the injury. In fact, Mother had been advised of M.G.D.'s hospitalization during her criminal sentencing and her present assertion sought only to confirm that this was the same injury that was previously disclosed. Thus, although we believe that the trial court, and more precisely the child advocate, discounted the legitimate concerns of Mother and Grandfather about M.G.D.'s safety around E.G.D., nothing in the record supports Mother's specific assertion concerning the trauma that M.G.D. sustained to her head and upper body during July 2014.

         Mother's first preserved argument is that the trial court's custody determination violates her constitutional rights.[15] Although her precise argument is difficult to follow, the crux of this contention is that, even though she is incarcerated, her right to visit with M.G.D. is a fundamental right guaranteed by the First and Fourteenth Amendments to the Constitution of the United States of America. She continues that the trial court can only deny her right to visitation to prevent "a severe adverse impact on [M.G.D.'s] welfare." Mother's brief at 15. Other than one citation to our Supreme Court's decision in D.R.C. v. J.A.Z., 31 A.3d 677 (Pa. 2011), Mother supports her cryptic claim with references to the former child custody law, various non-precedential cases, and three cases with questionable relevance to the visitation rights of an incarcerated parent. While Mother's argument is artless, it highlights a significant flaw in the trial court's decision to deny her request for visitation, i.e., by focusing upon Mother's insistence upon her innocence and the effect that Mother's increased contact with M.G.D. would have upon the child's relationship with M.G. and E.G.D., the trial court neglected to consider the factors relevant to determine whether visitation with Mother, or, at least, weekly telephone contact is in M.G.D's best interest. Upon review, we find that the trial court based its denial of Mother's request for expanded contact with M.G.D. on improper considerations.

         Section 5328 of the Child Custody Law, which we reproduce infra, provides that, "In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child[.]" 23 Pa.C.S. § 5328(a). However, where, as here, one parent is incarcerated and will remain imprisoned for an extended period, the applicability of several of the enumerated statutory factors is questionable. Traditionally, when determining the best interest of a child in reference to an incarcerated parent's request for visitation, this Court has considered the factors set forth in Etter v. Rose, 684 A.2d 1082 (Pa.Super. 1996). See D.R.C., supra.

         In D.R.C., our Supreme Court addressed the counseling provision under § 5303(c) of the prior custody statutes and reviewed the trial court's consideration of an incarcerated parent's criminal conviction under § 5303(b). The relevant provisions, which were repealed and reenacted in substantial part at 23 Pa.C.S. §§ 5329(a) and (d), required that, prior to making an order of physical custody or visitation, the court must determine whether a parent who committed one of the offenses enumerated in that section posed a threat of harm to his or her child.[16] Subsection (c) of the former statute required that the trial court appoint a counselor to the offending parent. The precise question before the High Court in D.R.C.

         concerned who was required to pay for the incarcerated parent's counseling in the state facility. As it relates to the case at bar, in disposing of the issue before it, the High Court found that § 5303(b) and (c) did not apply to incarcerated parents who were only seeking visitation with their children within the prison. The court concluded, "[W]e find that it was not the

         General Assembly's intent for subsections (b) and (c) to be applied to requests for prison visitation." Id. at 687. Instead, the section applied only to custody considerations following a parent's release from prison. Id. at 686. The Supreme Court reasoned,

[D]ue to the strictures of their confinement and the rules of the penal institution, incarcerated parents are unable to engage in the type of physical interaction feared by the drafters of this legislation. Thus, it would serve no significant ameliorative purpose to mandate counseling for every incarcerated offending parent for the limited and closely scrutinized contacts associated with prison visits. A visitation request by an incarcerated parent necessarily stands on different footing than a traditional custody petition.

Id.

         While the Supreme Court concluded that a mechanical application of § 5303 was ill-fitting in the visitation scenario, it astutely observed that the nature of the incarcerated parent's criminal conduct was a component of the determination. Thus, referring to Etter, supra, a prison visitation case decided by this Court, our High Court outlined the various factors relevant to prison visitation. The Court explained,

In prison visit cases, the court in fashioning an appropriate order, where it determines visits would be in the child's best interests, is limited to a determination of the number of visits and perhaps some contacts through telephone calls and written correspondence. . . . [P]rison visit requests involve additional factors unique to that scenario that courts must consider in evaluating the overarching best interests of the child. For example, in Etter v. Rose, 454 Pa.Super. 138, 684 A.2d 1092, 1093 (1996), the Superior Court recognized some of the factors to be considered in deciding a question of visitation where the parent is incarcerated: (1) age of the child; (2) distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit; (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past. Of course, although not mentioned in Etter, another relevant consideration is the nature of the criminal conduct that culminated in the parent's incarceration, regardless of whether that incarceration is the result of a crime enumerated in section 5303(b).

Id. The D.R.C. Court reversed the order denying relief and remanded the matter for a hearing to address the parent's request for prison visitation pursuant to the relevant factors. We recognize that D.R.C. concerns the statutory interpretation of a provision that has been repealed and reenacted as § 5329 of the current child custody law. However, since § 5329 is materially indistinguishable from its predecessor, we follow the guidance that our High Court provided in addressing prison visitations in D.R.C.

         Herein, the trial court did not consider how visitation would affect M.G.D. physically and emotionally in light of her age, travel logistics, and supervision during the visit. Likewise, it neglected to determine whether Mother's interest in expanding her contact with M.G.D. is genuine. Moreover, the trial court failed to consider the nature of Mother's criminal conduct or its effect upon her daughter.

         Rather than confronting the relevant factors, the trial court first noted that incarceration necessarily curtailed Mother's freedom of association and it then considered Mother's past statements and behaviors, which it characterized as arrogant and short-tempered. In addition, the court implicated Mother in Grandfather's statement to her that he would pump M.G.D. for information, which the court interpreted as an attempt to influence the child's testimony in the criminal proceedings. In sum, the trial court reasoned that "permitting visitation and/or telephone contact with the child(ren) would be detrimental to the child(ren) given that [Mother] and Grandfather continue to maintain that [Mother] is innocent in the shooting of M.G." Trial Court Opinion, 10/19/15, at 6 (parentheses in original) (citation to record omitted). As the trial court failed to consider the visitation factors that we outlined in Etter, supra, and that our Supreme Court endorsed in D.R.C., supra, we vacate the order denying Mother's request for visitation and remand for the trial court to render a determination in light of the appropriate considerations.

         Although we remand for further proceedings, our resolution of Mother's remaining complaint, which is a tangent of her request for visitation, will assist the trial court's visitation determination. We therefore address that argument as well.[17] Essentially, Mother contends that the court's denial of her request for greater contact with M.G.D. denied her the right to meaningful communication with her daughter. In asserting this complaint, Mother highlights the extent of the child advocate's interference, albeit on authority delegated by the trial court, with her already- compromised ability to communicate with her daughter. The following facts are relevant to our review.

         As noted supra, in fashioning the June 2013 custody order, the trial court enlisted the child advocate to oversee the custody arrangement. During October 2014, the trial court extended its reliance upon the child advocate and directed her to review Mother's correspondence with M.G.D. and censor, redact, or strike any portions that she deemed inappropriate. The certified record demonstrates that the child advocate wielded her delegated authority industriously. She regularly micromanaged Mother's contacts with M.G.D. in the name of the child's best interest. Beyond merely reviewing Mother's missives for inappropriate content, the child advocate first objected to Mother numbering her correspondence, and then instructed Mother to reduce the frequency of her weekly correspondence with M.G.D. to one letter per month. Neither of these edicts involved any specified inappropriate statements on Mother's part. The child advocate disapproved of the enumeration because she had not seen the prior letters and could not confirm that they had been sent. N.T., 4/27/14, at 83. Likewise, she limited the communications to "small talk" and ordered that Mother reduce the frequency of the communiqués because she was told that their frequency upset the child. Id. at 80, 83.

         As to the latter requirement, even when Mother complied with the child advocate's mandate and waited longer than normal before mailing M.G.D. her next letter, the child advocate was still dissatisfied. The child advocate rejected that correspondence because Mother had written to M.G.D. to expect fewer letters from her and attempted to reassure her that the reduction did not mean that Mother loved her any less. The child advocate characterized this letter as "about three paragraphs" that she believed were patently inappropriate to forward to her adolescent client. In reality, she objected to the following passage,

[M]y dearest [M.G.D.], hello sweetheart. I'm sending you a big hug through the page of this letter. I hope you can feel it sending you my warmth and love. You may have noticed that it was a little longer than usual between my last letter and this one. The reason for that is because [the child advocate] told me that sometimes it upsets you when you read my letters, so she [M.G.] and Dr. Norford [18]would like me to send you less letters. Now, [M.G.D.], the last thing I want is for you to be upset. I realize you are in a tough situation, and I certainly don't want to make it worse. Now I understand that reading my letters means you think of me and us and that makes you miss me more, and that is very hard. So I will send you less letters for now as long as you understand that it does not mean I am thinking about you less because my love now is stronger than anything on this [E]arth and that I feel it each minute of every single day just as I know how much you love me . . . too.

Id. at 83-84.

         In justifying her decision to the trial court, the child advocate explained, "[R]ather then redact almost the entire first page of [Mother's] Letter, which would have looked rather strange, I sent it back to [Mother] with a letter . . . stating [that 'the entire first paragraph is inappropriate'] and [informing her] that if she wanted to rewrite it and leave those portions out . . . [she] would be happy to forward it to [M.G.D.]" Id. at 80-81 (quoting Child Advocate's Letter dated 2/10/15).

         Neither of the child advocate's explanations identifies which aspect of the letter was inappropriate, and the record does not reveal the specific reason for the child advocate's unilateral decision to reject it. As outlined, supra, Mother's letter did not insult or belittle M.G. or E.G.D., discuss Mother's pending criminal matters, or even present a false hope of their immediate reunification. Indeed, we are uncertain whether the child advocate protested the letter's reference to M.G. and Dr. Norford, Mother's loving reassurances, or the statement that implicated the child advocate in the decision to reduce the contacts. While we will not presume to know the child advocate's logic, it is evident that the result of the child advocate's excessive control was that Mother was required to reduce her weekly contacts with M.G.D. and then was forbidden to explain to her daughter why she was sending the correspondence less frequently.

         Although Mother declined to revise the pertinent letter and simply acquiesced to the child advocate's directive to communicate with her daughter less frequently, this episode, which stems entirely from the child advocate's overreach of her court-ordered mandate to ensure that the correspondence was appropriate, uncovered yet another problem with this case-the trial court's improper delegation of its authority to child advocate Attorney Kane Brown.

         The trial court did not define Attorney Kane Brown's precise role in this child custody case. Indeed, the court's Rule 1925(a) opinion refers to

         Attorney Kane Brown interchangeably as both a child advocate and guardian ad litem. See Trial Court Opinion, 10/19/15, at 2, 7, 8. Unlike the roles of guardian ad litem and counsel for child, which are clearly delineated in the child custody law, the statute does not recognize the role of "child advocate" or define the scope of a child advocate's authority in custody cases. See 23 Pa.C.S. §§ 5334-5335. Recall that Attorney Kane Brown was initially appointed through MCAP as M.G.D.'s child advocate in the PFA action against Mother, and ostensibly retained pursuant to 42 Pa.C.S. § 5983, which provides for the appointment of advocates for children who are victims or material witnesses in criminal proceeding.[19]

         Moreover, stark differences exist among the appropriate responsibilities of an MCAP attorney appointed as a child advocate for a victim of abuse, neglect, or a crime; a guardian ad litem appointed under § 5334; and legal counsel appointed pursuant to § 5335. Basically, the MCAP child advocate utilizes a holistic approach to representation that is not specifically authorized by the child custody law and transcends both that of guardian ad litem and legal counsel.[20]

         Furthermore, the two types of representatives that are authorized under the child custody law serve different functions, and the trial court's intention in appointing Attorney Kane Brown is not obvious from the authority that it delegated to her throughout these proceedings. For example, Attorney Kane Brown has performed tasks consistent with legal counsel appointed under § 5335(a), i.e., she invoked the privilege of communication during one hearing, and the trial court routinely invited her to present evidence and cross-examine witnesses. However, during the identical period, Attorney Kane Brown maintained monthly telephone contact with M.G.D., presented her concerns and general recommendations to the court consistent with the guardian ad litem's powers and duties under § 5334(b)(6) and (8), and the trial court not only examined her on the record, presumably under oath, and elicited opinion testimony interpreting one of Grandfather's statements, but it also subjected her to cross-examination by Mother and Grandfather. The latter considerations are particularly relevant in light of the fact that, effective September 3, 2013, the Supreme Court clarified, inter alia, that the guardian ad litem can no longer represent both the best interest and legal interest of the child, or present evidence or cross-examine witnesses; however, the guardian ad litem may testify and be subject to cross-examination.[21] While the changes became effective three months after the trial court first endowed Attorney Kane Brown with her court-ordered authority during June 2013, the alterations were operative when the trial court extended this power in its October 2014 custody order. Moreover, Attorney Kane Brown's role ...


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