Judges Opinions Public Notices, — May 13, 2020 10:32 — 0 Comments

Public Notices April 22, 2020

Volume 57, No. 38

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

ORPHANS’ COURT DIVISION NOTICES

 

TABLE OF CONTENTS

Rebecca A. Moyer v. Dale Nafzinger

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF SUSAN E. ALLWEIN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Co-Administrators.

 

Mark T. Allwein, Co-Administrator

Christoper A. Allwein, Co-Administrator

Douglas M. Allwein, Co-Administrator

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF MYRA G. HOSTETLER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Donna Long Brightbill, Executrix

Frederick S. Long, Attorney

315 South 8th Street

Lebanon, PA 17042

 

 

THIRD PUBLICATION

 

ESTATE OF FLORENCE I. BOLD, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Megan B. Webb

402 Black Walnut Drive

Phoenixville, PA 19460

 

Keirstan G. Edris

14 W. Market Street

Myerstown, PA 17067

 

Timothy T. Engler

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

 

ORPHANS’ COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

Orphans’ Court

Division Notices

Notice is hereby given that the following accounts in decedents estates, guardianships and trusts have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon County, and that the same will be presented of the Court of Common Pleas-Orphans’ Court Division of said County for confirmation NISI on

MONDAY, May 4, 2020

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION FILED BY EXECUTORS OR ADMINISTRATORS

  1. Riegert, Mildred K., dec’d., Linda L. Rohland, Exrx., John E. Feather, Jr., Atty.
  2. Bender, Cerlita E., dec’d., Jason M. Bender, Exr., Bret M. Wiest, Atty.

FIRST AND PARTIAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION FILED BY EXECUTORS OR ADMINISTRATORS

  1. Himmelberger, Bryon R., dec’d., David A. Himmelberger and Dale B. Himmelberger, Exrs., Kenneth C. Sandoe, Atty.

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are filed within twenty (20) days after the same are confirmed NISI.

BRIAN CRAIG

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

Rebecca A. Moyer v. Dale Nafzinger

 

Civil Action-Family Law-Custody-Best Interests of the Child-Weighing of Statutory Factors-Exclusive Legal and Physical Custody-Drug Use-Untreated Mental Health Issues-Pending Criminal Charges-Founded Abuse and Neglect Allegations-Suitability of Residence

 

The parties are the parents of three (3) minor children, two (2) of whom resided with Dale Nafzinger (“Father”) since December of 2017 and one (1) of whom resided with Rebecca A. Moyer (“Mother”) until mid-2019 when that child relocated with Father.  Father filed a Petition for Modification of Custody and an Emergency Motion seeking to suspend Mother’s physical custody rights.  At a hearing on the Emergency Motion, evidence was adduced that the children were not doing well, allegations of abuse and neglect against Mother were deemed to be founded by Children and Youth Services and the child who had lived with Mother testified that Mother used drugs every day and used him to purchase methamphetamine for her.  Additionally, Mother appeared under the influence of methamphetamine at the time of the hearing, which was confirmed by drug testing.  Following the hearing on the Emergency Motion, Father was awarded full custody of the three (3) children, and the Court prevented Mother from having contact with the children.  Father’s Petition for Modification of Custody filed with the Emergency Motion remained before the Court for disposition.

 

  1. The key in any custody trial is what is in the best interests of the child.

 

  1. Title 23 Pa.C.S. § 5328 requires the Court to consider specific statutory factors in determining what constitutes the best interests of the children.

 

  1. Trial judges retain considerable discretion in weighing all of the statutory factors to determine the best interests of the child.

 

  1. The ultimate goal of the Court is to encourage ongoing, nurturing, healthy and stable parent and child relationships.

 

  1. For any parent to enjoy custodial rights, there is a pre-condition that the parent establish by credible proof that he or she resides in a suitable environment.

 

  1. Individuals are not able to parent effectively from behind prison walls.

 

  1. Where the record reveals that the children in Father’s custody currently are doing remarkably well, allegations of abuse and neglect by Mother were deemed to be founded by Children and Youth Services, Mother is an active drug user with a pending charge for possession of methamphetamine and has mental health issues for which she has not sought appropriate treatment, Mother has no stable residence, limited income and a history of residing with men of questionable character, Mother is manipulative and has violated Orders of Court with regard to custody and both a Children and Youth Services caseworker and the Guardian Ad Litem who met privately with the children recommended that Mother have no contact with the children until or unless she gets help, weighing of the statutory custody factors supports a determination that it is in the best interests of the children for Father to be awarded exclusive physical and legal custody of the children with Mother retaining no custody rights with regard to the children or right to have any contact with the children until or unless things change dramatically in her life.

 

L.C.C.C.P. No. 2009-20473, Opinion by Bradford H. Charles, Judge, March 6, 2020.

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

REBECCA MOYER                          :

Plaintiff                                               :  NO. 2009-20473

:

  1. :

:

DALE NAFZINGER                         :  IN CUSTODY

Defendant                                           :

 

 

 

ORDER OF COURT

 

AND NOW, this 6th day of March, 2020, after hearing, and in consideration of the testimony presented, and in accordance with the attached Opinion, the Order of this Court is as follows:

 

  1. Exclusive legal custody of the parties’ children G.N., D.N.and F.N. is awarded to Dale Nafzinger (hereafter FATHER).
  2. Exclusive physical custody of the parties’ children is also awarded to FATHER.
  3. Absent a Court Order based upon a change in circumstances, Rebecca Moyer (hereafter MOTHER) shall not enjoy any legal or physical custody rights with respect to the children.
  4. Until or unless another Court Order is entered based upon a change of circumstances, MOTHER shall not be permitted to have any contact with the children, including physical contact, telephone contact, email contact, text message contact, social media contact, or contact through any other  direct or indirect means other than as authorized in the next paragraph.
  5. If she so chooses, MOTHER may write a letter of five (5) pages or less to each of her children once every two (2) weeks. This letter is to be provided to Guardian Ad Litem Scott Grenoble.  Attorney Grenoble shall read the letter to approve its appropriateness before delivering the letter to the children.    The children shall be permitted to respond by writing a letter to their mother.  Once again, the children’s letters to their mother must be delivered via the services of Guardian Ad Litem Scott Grenoble.
  6. Attorney Scott Grenoble is re-appointed as Guardian Ad Litem. In addition to facilitating the communications by letter outlined in the preceding paragraph, Attorney Grenoble shall also be available to address any issues of concern that may be communicated by the children or the parties.  In the event that Attorney Grenoble learns that MOTHER has violated the no contact provisions of this Court Order, leave is granted for Attorney Grenoble to file a Motion seeking a Court hearing to evaluate MOTHER’s conduct.  FATHER shall pay $25.00 per hour toward the compensation of Attorney Grenoble in serving as Guardian Ad Litem.  All remaining compensation of Attorney Grenoble is to be paid by the County of Lebanon.
  7. A copy of this Court Order and the accompanying Opinion is to be provided to Lebanon County Children & Youth Services, to the Pennsylvania State Police, and to the Eastern Lebanon County School District (A separate copy is to be provided to the Principal of each school attended by one of the Nafzinger children). In addition, a copy of this Opinion and  Order is to be provided to the children’s older sister, Destiny Nafzinger.
  8. FATHER shall not provide a copy of this Order or Opinion to the children who are subject to this Order. Moreover, FATHER shall not communicate the contents of this Opinion and Order to the children.  However, FATHER shall arrange for a meeting that includes all of his children and GAL Scott Grenoble.  At this meeting, Attorney Grenoble shall communicate the essence of this Court’s decision to the children.  Attorney Grenoble shall emphasize to the children that reunification between the children and MOTHER can occur if or when MOTHER embarks upon a program of treatment designed to remediate her substance abuse addiction and mental health issues.  Attorney Grenoble shall also advise the children that they are not to initiate any contact with MOTHER independent of the letter-writing process established by this Order.  To the extent that the children have questions about the contents of the Court Order, those questions are to be answered by Attorney Grenoble and not by FATHER.
  9. FATHER is advised that in the event that he wishes to relocate, a motion must be filed with this Court seeking permission to relocate. The requirements of a request to relocate are identified in 23 Pa.C.S.A. 5337(h)(1)-(9), a copy of which is attached.

 

 

BY THE COURT:

 

__________________________

BRADFORD H. CHARLES, J.

 

 

Cc:       Rebecca Moyer// PO Box 554 Richland PA 17087

Dale Nafzinger// 11 N Goodwill St, Myerstown PA 17067-1014

Rebecca Smith, Esquire// 1118 Penn Avenue, Wyomissing PA  19610

Scott Grenoble, Esquire// 525 S 8th Street, Lebanon PA  17042

Patrick M. Reb, Esquire// 547 S. 10th Street, Lebanon PA 17042

Lebanon County CYS

Lebanon County Sheriff’s Office

Pennsylvania State Police-Jonestown

ELCO School District Principal, High School

ELCO School District Principal, Middle School

Lebanon County Career & Technology Center Principal

Destiny Nafzinger//  c/o Atty. Matthew Kopecki

Court Administration

23 Pa.C.S.A. § 5337

  • 5337. Relocation

Currentness

(a) Applicability.–This section applies to any proposed relocation.

(b) General rule.–No relocation shall occur unless:

(1) every individual who has custody rights to the child consents to the proposed relocation; or

(2) the court approves the proposed relocation.

(c) Notice.–

(1) The party proposing the relocation shall notify every other individual who has custody rights to the child.

(2) Notice, sent by certified mail, return receipt requested, shall be given no later than:

(i) the 60th day before the date of the proposed relocation; or

(ii) the tenth day after the date that the individual knows of the relocation, if:

(A) the individual did not know and could not reasonably have known of the relocation in sufficient time to comply with the 60-day notice; and

(B) it is not reasonably possible to delay the date of relocation so as to comply with the 60-day notice.

(3) Except as provided by section 5336 (relating to access to records and information), the following information, if available, must be included with the notice of the proposed relocation:

(i) The address of the intended new residence.

(ii) The mailing address, if not the same as the address of the intended new residence.

(iii) Names and ages of the individuals in the new residence, including individuals who intend to live in the new residence.

(iv) The home telephone number of the intended new residence, if available.

(v) The name of the new school district and school.

(vi) The date of the proposed relocation.

(vii) The reasons for the proposed relocation.

(viii) A proposal for a revised custody schedule.

(ix) Any other information which the party proposing the relocation deems appropriate.

(x) A counter-affidavit as provided under subsection (d)(1) which can be used to object to the proposed relocation and the modification of a custody order.

(xi) A warning to the nonrelocating party that if the nonrelocating party does not file with the court an objection to the proposed relocation within 30 days after receipt of the notice, that party shall be foreclosed from objecting to the relocation.

(4) If any of the information set forth in paragraph (3) is not known when the notice is sent but is later made known to the party proposing the relocation, then that party shall promptly inform every individual who received notice under this subsection.

(d) Objection to proposed relocation.–

(1) A party entitled to receive notice may file with the court an objection to the proposed relocation and seek a temporary or permanent order to prevent the relocation. The nonrelocating party shall have the opportunity to indicate whether he objects to relocation or not and whether he objects to modification of the custody order or not. If the party objects to either relocation or modification of the custody order, a hearing shall be held as provided in subsection (g)(1). The objection shall be made by completing and returning to the court a counter-affidavit, which shall be verified subject to penalties under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities), in substantially the following form:

COUNTER-AFFIDAVIT REGARDING RELOCATION

This proposal of relocation involves the following child/children:

Child’s Name  Age     Currently residing at:

………………..    ……….  ………………..

Child’s Name  Age     Currently residing at:

………………..    ……….  ………………..

Child’s Name  Age     Currently residing at:

………………..    ……….  ………………..

I have received a notice of proposed relocation and

  1. … I do not object to the relocation and I do not object to the modification of the custody order consistent with the proposal for revised custody schedule as attached to the notice.
  2. … I do not object to the relocation, but I do object to modification of the custody order, and I request that a hearing be scheduled:
  3. … Prior to allowing (name of child/children) to relocate.
  4. … After the child/children relocate.
  5. … I do object to the relocation and I do object to the modification of the custody order, and I further request that a hearing be held on both matters prior to the relocation taking place.

 

I understand that in addition to checking (2) or (3) above, I must also file this notice with the court in writing and serve it on the other party by certified mail, return receipt requested. If I fail to do so within 30 days of my receipt of the proposed relocation notice, I shall be foreclosed from objecting to the relocation.

 

I verify that the statements made in this counter-affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).

Date:

 

(2) An objection made under this subsection shall be filed with the court within 30 days of receipt of the proposed relocation notice and served on the other party by certified mail, return receipt requested.

(3) If notice of the proposed relocation has been properly given and no objection to the proposed relocation has been filed in court, then it shall be presumed that the nonrelocating party has consented to the proposed relocation.

(4) If a party who has been given proper notice does not file with the court an objection to the relocation within 30 days after receipt of the notice but later petitions the court for review of the custodial arrangements, the court shall not accept testimony challenging the relocation.

(e) Confirmation of relocation.–If no objection to the proposed relocation is filed under subsection (d), the party proposing the relocation shall file the following with the court prior to the relocation:

(1) an affidavit stating that the party provided notice to every individual entitled to notice, the time to file an objection to the proposed relocation has passed and no individual entitled to receive notice has filed an objection to the proposed relocation;

(2) Proof that proper notice was given in the form of a return receipt with the signature of the addressee and the full notice that was sent to the addressee.

(3) a petition to confirm the relocation and modify any existing custody order; and

(4) a proposed order containing the information set forth in subsection (c)(3).

(f) Modification of custody order.–If a counter-affidavit regarding relocation is filed with the court which indicates the nonrelocating party both has no objection to the proposed relocation and no objection to the modification of the custody order consistent with the proposal for revised custody schedule, the court may modify the existing custody order by approving the proposal for revised custody schedule submitted under subsection (c)(3)(viii), and shall specify the method by which its future modification can be made if desired by either party. If a counter-affidavit regarding relocation is filed with the court which indicates the nonrelocating party objects either to the proposed relocation or to the modification of the custody order consistent with the proposal for revised custody schedule, the court shall modify the existing custody order only after holding a hearing to establish the terms and conditions of the order pursuant to the relocation indicating the rights, if any, of the nonrelocating parties.

(g) Hearing.–

(1) Except as set forth in paragraph (3), the court shall hold an expedited full hearing on the proposed relocation after a timely objection has been filed and before the relocation occurs.

(2) Except as set forth in paragraph (3), the court may, on its own motion, hold an expedited full hearing on the proposed relocation before the relocation occurs.

(3) Notwithstanding paragraphs (1) and (2), if the court finds that exigent circumstances exist, the court may approve the relocation pending an expedited full hearing.

(4) If the court approves the proposed relocation, it shall:

(i) modify any existing custody order; or

(ii) establish the terms and conditions of a custody order.

(h) Relocation factors.–In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child:

(1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.

(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.

(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

(4) The child’s preference, taking into consideration the age and maturity of the child.

(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

(8) The reasons and motivation of each party for seeking or opposing the relocation.

(9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.

(10) Any other factor affecting the best interest of the child.

(i) Burden of proof.–

(1) The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child as shown under the factors set forth in subsection (h).

(2) Each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.

(j) Failure to provide reasonable notice.–The court may consider a failure to provide reasonable notice of a proposed relocation as:

(1) a factor in making a determination regarding the relocation;

(2) a factor in determining whether custody rights should be modified;

(3) a basis for ordering the return of the child to the nonrelocating party if the relocation has occurred without reasonable notice;

(4) sufficient cause to order the party proposing the relocation to pay reasonable expenses and counsel fees incurred by the party objecting to the relocation; and

(5) a ground for contempt and the imposition of sanctions against the party proposing the relocation.

(k) Mitigation.–Any consideration of a failure to provide reasonable notice under subsection (i) shall be subject to mitigation if the court determines that such failure was caused in whole, or in part, by abuse.

(l) Effect of relocation prior to hearing.–If a party relocates with the child prior to a full expedited hearing, the court shall not confer any presumption in favor of the relocation.

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

REBECCA MOYER                          :

Plaintiff                                               :  NO. 2009-20473

:

  1. :

:

DALE NAFZINGER                         :  IN CUSTODY

Defendant                                           :

 

 

 

APPEARANCES:

 

Rebecca Moyer                                                                       Self-Represented

 

Rebecca Smith, Esquire                                              For Defendant

 

Scott Grenoble, Esquire                                              GAL for children

 

 

 

 

OPINION BY CHARLES, J., March 6, 2020

 

Preventing a parent from exercising any custody rights with his/her children is an extreme remedy.  However, the situation involving Rebecca Moyer (hereafter MOTHER) is extreme.  Never in twenty years on the bench has this jurist encountered a more dysfunctional parent, and we hope that we never will again.  Sadly – and we use that word intentionally – we have reached the conclusion that it is best to separate MOTHER from her children.  Because this decision is admittedly extreme, we will be preparing this written Opinion to explain our decision.

  1. FACTS AND PROCEDURAL HISTORY

MOTHER and Dale Nafzinger (hereafter FATHER) are the parents of four (4) children.  The parties’ oldest daughter Destiny is now an adult.  G.N. is seventeen (17).  D.N. is fifteen (15).  F.N. is thirteen (13).  All four children have been the subjects of contentious custody, Protection From Abuse (PFA) and dependency litigation.

In 2017, this Court heard four (4) days of custody testimony.  On December 11, 2017, this jurist issued a sixty-six (66) page Opinion to adjudicate the issue of custody.  This Opinion is incorporated by reference because it provides vital background information.

Since December of 2017, primary custody of Destiny, F.N. and D.N. was with FATHER.  At least for a time, MOTHER enjoyed primary custody of G.N..  However, G.N. came to realize that the environment provided to him by MOTHER was not “normal” or “functioning”.  He moved in with his father in 2019 and remained with FATHER until the time of the Court proceeding.

Following the Court Order in December of 2017, MOTHER continued to spend time with her children.  In August of 2019, FATHER filed an Emergency Motion seeking to suspend MOTHER’s periods of physical custody.  We conducted a hearing on the Emergency Motion on September 9, 2019.

As a result of testimony presented at the hearing, this Court concluded: “These kids are messed up.”  (Emergency Hearing N.T. 71).  F.N. basically blamed herself for all of the dysfunction that surrounded her.  As a result, she started cutting herself to the point where the Court expressed concern about the possibility of suicide. (Emergency Hearing N.T. 72).  Even D.N. was drawing pictures depicting a gun being held to his head.  Things were so bad that this Court asked CYS to monitor the situation on an on-going basis.  (Emergency Hearing N.T. 71).

Marge Ulrich of Lebanon County Children and Youth Services (CYS) testified at the Emergency Hearing that MOTHER proffered numerous allegations of abuse against FATHER during 2018 and 2019.  All of these allegations against FATHER were deemed unfounded.  However, Ms. Ulrich also testified that allegations of abuse and neglect were founded against MOTHER.  CYS received information that MOTHER lived in a condemned house without electricity and that she regularly used methamphetamine.  The agency also received reports that MOTHER had provided methamphetamine to G.N. and other children as well.  A text message was presented at the September 9 hearing in which MOTHER advised G.N. to purchase methamphetamine.

G.N. testified at the September 9 hearing.  He stated that MOTHER used drugs “every day”.  G.N. testified that MOTHER used him to purchase methamphetamine for herself.  G.N. also testified that MOTHER punched him in the face and urinated on him.  By mid-2019, the relationship between G.N. and MOTHER soured to the point where G.N. went to Crisis Intervention and eventually to FATHER’s house.

As of the hearing on September 9, 2019, MOTHER resided at the Mountain Trail Inn located in southern Lebanon County.   The Mountain Trail Inn is an old motel that has fallen into disrepair and is known as a place where drug users congregate.

At or about the September 9, 2019 Court hearing, MOTHER was tested for drugs.  Five-hundred (500) mg/ML is the cutoff for a positive result for methamphetamine.  MOTHER’s test result was twenty-thousand four-hundred (20,400) mg/ML.  In addition, MOTHER presented at the September 9 hearing shaking uncontrollably and with a severe case of acne, which are symptoms of frequent methamphetamine use.  MOTHER was forty-five (45) minutes late for the hearing.  She was not always coherent.  She sometimes took thirty (30) seconds before she would even attempt to answer a question.  She suffered what appeared to be an emotional meltdown in Court and a recess had to be called in order to enable MOTHER to compose herself.

This Court concluded with little hesitation that MOTHER was actively using methamphetamine as of September 9, 2019.  Based upon the totality of information presented, we granted FATHER’s Emergency Request for Relief.  We awarded full custody of all three children to FATHER and we prevented MOTHER from having any contact with her children.

On September 18, 2019, FATHER attempted to withdraw the Petition for Modification of Custody that he had filed.  The net effect of such a withdrawal would have been to keep our September 9, 2019 Court Order – which precluded contact between MOTHER and her children – in place indefinitely.  We were not comfortable with such a result, and we denied FATHER’s Petition to Withdraw.  We indicated in an Order dated September 20, 2019 that the Complaint for Custody should move forward to be heard its merits.

A Pre-Trial Conference was scheduled for November 25, 2019.  FATHER and his lawyer appeared.  MOTHER did not.  At the Pre-Trial Conference, we reiterated our decision that MOTHER should not have any contact with the children until a final hearing could be conducted.  We scheduled a final hearing for February 24, 2020.  We directed that our Pre-Trial Order be served upon MOTHER by Constable, and it was.

In addition to the parties’ custody dispute, both MOTHER and FATHER filed petitions seeking to find each other in Contempt of Court.  MOTHER’s Petition for Contempt was predicated upon a stale Court Order entered in 2013 which afforded her with primary custody.  Because all of the issues raised in MOTHER’s Motion had been adjudicated previously, we denied MOTHER’s Petition for Contempt without a hearing.  FATHER’s Petition for Contempt alleged that MOTHER continued to have contact with her children in contravention of the Order dated September 9, 2019.  We combined FATHER’s Petition for Contempt with the Custody Trial scheduled for February 24.

A Custody Trial was conducted on February 24, 2020.  Both parties were present.  We heard testimony from FATHER, MOTHER, a CYS caseworker, G.N., D.N. and Court-appointed Guardian Ad Litem (GAL) Scott Grenoble, Esquire.  Immediately following this testimony we entered an Order finding MOTHER in contempt.  We allowed MOTHER to purge herself of contempt by refraining from having further contact with her children.  We took the issue of custody under advisement because we wanted to document all of the reasons why we will be undertaking the extraordinary measure of preventing a parent from having contact with her children.  We issue this Order and Opinion today to accomplish that decision.

 

  1. CONTEXTUAL BACKGROUND

In our December 2017 Opinion, we noted that the Nafzinger-Moyer family had become the subject of more CYS investigations than any other family in Lebanon County’s history.  We devoted no fewer than fourteen (14) pages to describe what we characterized as “parental dysfunction”.  To be sure, some of the dysfunction we described in our Opinion related to FATHER.  But the majority had to do with MOTHER’s life situation, behavior and attitude.  In no particular order of importance, this is what we noted about MOTHER:

  • MOTHER was taking a variety of prescribed psychotropic medications, including Klonopin and Xanax. She was also taking prescription-strength opioid pain medication.  To supplement these medications, MOTHER abused unlawful drugs such as marijuana, methamphetamine, ecstasy and heroin.  On more than one occasion, MOTHER overdosed as a result of these drugs and medications.  The children were required to provide care for MOTHER while she was comatose due to drug abuse.
  • MOTHER asked her oldest daughter Destiny to help her shoot up with heroin. MOTHER then collapsed and Destiny was required to lift her on to a bed.  In a text message, MOTHER communicated to a friend about how Destiny was crying while helping her shoot up with drugs.  MOTHER stated in the text message that she “felt nothing” while this was occurring.
  • MOTHER sold pills that were prescribed for her and her children in order to generate money to purchase unlawful drugs. On more than one occasion, MOTHER enlisted the assistance of her oldest daughter Destiny in facilitating these unlawful sales.
  • In 2016, the parties’ daughter Destiny had a romantic connection with a twenty-one (21) year old male “friend of the family”.  At the time, Destiny was fifteen (15).  MOTHER permitted the man to live at her residence.  Even worse, the sleeping arrangements determined by MOTHER required Destiny to share a bed with this man at night.  While Destiny denied that sexual intercourse occurred, she did acknowledge that she and the 21-year old man participated in “sexual contact”.  The Court-appointed GAL characterized MOTHER’s facilitation of this relationship as “highly inappropriate and possible criminal.”
  • MOTHER removed all of her children from public schools and enrolled them in cyber-school. Predictably, all four children failed miserably.  However, MOTHER did not return the children to a public school until the Court intervened to order a return in March of 2017.  Sadly, MOTHER’s decision to remove the children from the Lebanon School District prevented Destiny from receiving a scholarship through a program between the Lebanon City School District and Lebanon Valley College.
  • MOTHER facilitated experimentation by ten (10) year old F.N. with alcohol and marijuana.
  • MOTHER had relationships with several men who were physically abusive and who were co-dependent drug users. One of the gentlemen threatened MOTHER with a gun.
  • MOTHER also developed a romantic relationship with a woman through an on-line friendship. This woman moved to Lebanon, but left shortly thereafter.  This paramour described MOTHER’s home as “squalor” and “the worst house I have ever seen”.  She stated “Everything about Rebecca’s household was disturbing.”  She also indicated that MOTHER had no filter as it related to sexual behavior.  MOTHER described oral sex to her children.  When MOTHER had a sexual encounter with a man, she bragged about it in the presence of her children.  MOTHER even showed nude photographs of herself to the children.  Eventually, this former paramour reported MOTHER to CYS: “I reported her for vileness.”
  • Numerous animals resided within MOTHER’s home. The Court-appointed GAL stated that the odor of pet feces and urine permeated MOTHER’s residence.  Other witnesses in 2017 described vermin inside MOTHER’s residence.
  • Multiple witnesses described MOTHER hitting the children with kitchen utensils and frying pans. MOTHER purchased a TASER.  On one occasion, MOTHER instructed Destiny to tase her younger siblings as a form of punishment.
  • MOTHER was described as using racist language. She vociferously complained that her neighborhood was inhabited by people she described by using the N-word.  In a text message, MOTHER described Hispanics as “fucking lazy bastards.”
  • When the Court limited MOTHER’s contact to supervised visits in March of 2017, those visits occurred for a time at public restaurants. They did not go well.  MOTHER brought other children to these visits and all of the children misbehaved.  Food fights in public restaurants ensued.  The adult who was charged with supervision responsibility quickly refused to conduct additional supervision because the visits were “too embarrassing”.
  • In her own testimony, MOTHER claimed that the husband of one of her friends pulled down her 15-year old daughter’s pants and spanked her bare bottom. When asked how she knew that this occurred, MOTHER stated that she was present and witnessed it.  In response, the Court somewhat incredulously asked MOTHER why she would sit back and do nothing while she observed a grown man pulling down her teenaged daughter’s pants.  MOTHER responded: “I did not want to get myself in trouble by saying anything.”
  • The text messages that were admitted in the 2017 custody proceeding were disturbing in many respects. These messages included what we described as a “veritable cornucopia of profanity ranging from the relatively benign to vile.”  In addition, MOTHER wrote concerning messages about her own children.  At one point she stated “I just beat D.K.…I am done with these fuckers.”  At another point, she explained: “I am killing all of these cocksuckers.”  On yet another occasion, she wrote: “I went home and snapped…fuck the kids.”

 

We described the above as “the worst example of parental dysfunction this jurist has ever seen.”  We stated that “We have profound concerns about MOTHER’s judgment and parenting instincts.”  In particular, we perceived little hope for the parties’ son G.N..  He was sullen and depressed.  He had no goals or purpose.  In fact, during the custody trial itself, additional Sheriffs had to be summoned because G.N. was creating a disturbance in the Law Library located adjacent to Courtroom #3.

Even amongst the negativity summarized above, we did perceive some reasons for hope.  By the time of the hearing in December of 2017, the parties’ oldest daughter Destiny had rebelled against her mother… by adopting a so-called “normal” lifestyle.  Destiny removed the twenty-seven (27) piercings that had adorned her face and body.  She returned to school.  She studied and by late 2017, she had achieved Superior Honor Roll status at Lebanon High School.  She became involved in positive activities such as cheerleading and the Tri-Hi-Y service club “so I could meet new kids who can help me develop a positive path for my life.”  We stated this about Destiny in our December 11, 2017 Opinion:

”While she is unquestionably scarred by the trauma of her childhood and early adolescence, we are convinced that [Destiny] has the intelligence, maturity and drive to achieve her goal [of attending college].  From all accounts, both F.N. and D.N. have qualities similar to Destiny.  If Destiny can escape the quicksand of dysfunction articulated earlier in this Opinion, then so can F.N. and D.N..” (12-11-17 Opinion at page 31).

 

We ended our 2017 Opinion by stating:

“Most – but not all – of the dysfunction set forth in Section II above is related to the environment created by MOTHER.  Most – but not all – of the hope we articulated in Section III above has been created since custody has been transferred to FATHER.  Given the above, this Court will not return to the custody paradigm that existed one year ago.  For hope to become reality, additional change is necessary.” (12-11-17 Opinion at page 62)

 

We therefore awarded legal and primary physical custody of Destiny, F.N. and D.N. to FATHER.  We prevented MOTHER from having any contact with Destiny until or unless Destiny sought out that contact.  With respect to F.N. and D.N., we afforded MOTHER with non-overnight periods of physical custody on Wednesdays and Sundays.  With respect to G.N., we struggled.  We expressed profound concern about G.N.’s anger, drug use and poisonous attitude.  We expressed fear that if G.N. were to be placed with FATHER, it would be impossible for FATHER to productively raise his other children.  We therefore awarded custody of G.N. to MOTHER in hopes that “one-on-one parenting” would help G.N. to develop a productive forward trajectory.  We also stated:

“On the other hand, G.N. is still a fifteen-year old kid and we are reluctant to give up on him.  Placing him in the custody of MOTHER feels like we are doing just that.” (12-11-17 Opinion at page 64)

 

 

III.     ANALYSIS

The situation today has improved over what it was in 2017.  Destiny has achieved adulthood and is now living independently with her boyfriend.  The younger three children all live with FATHER at his new home in Myerstown in eastern Lebanon County.  All of the children are progressing academically in bricks and mortar schools.  Destiny, G.N. and D.N. are all working and earning money.  F.N. has turned herself into an Honor Roll student.

The most dramatic positive change has been displayed by G.N..  In 2017, there was almost nothing of a positive nature that we could say about G.N. other than that he was still fifteen and had time to turn his life around.  Today, G.N. is studying in the Lebanon Career and Technology Center to become a machinist.  He works at McDonald’s to earn his own spending money.  Instead of the sullen, depressed and angry boy that we encountered in 2017, the G.N. that we met on February 24, 2020, was polite, respectful and contrite about his own past.  We commended G.N. in open Court for undertaking the “heavy lifting” needed to effectuate a life transformation and we reiterate that commendation today.

The fact that all of the Nafzinger children are doing as well as they are today, is a testament to the fortitude of human spirit.  It is also a poignant tribute to the love and support that FATHER has showered upon his children.  We certainly will not underestimate the importance of the time, effort and money that FATHER has expended for his children.

Make no mistake about it, the Nafzinger children are still scarred.  G.N., D.N. and F.N. are all actively involved in counseling.  F.N. has continued to cut herself on occasion.  During his testimony, D.N. shivered like he was shirtless in a meat locker.  The wounds suffered by these children may never be completely healed, but neither do they have to be disabling.  The children have proven to this Court that the lessons of hope and redemption are the most powerful ones that can be gleaned from the sadness that pervades this case.

So what about MOTHER?  What role should she now play?  Should she even play any role at all?  Is this a one in one-hundred thousand situation where forced estrangement from a parent will actually serve a child’s interests?  These are the profoundly troubling questions with which this Court must now struggle.

Without question, MOTHER was the primary architect of the dysfunction that plagued the children’s existence up until 2017.  No child should experience the drama and trauma that was described to us in the 2017 custody trial.  Yet even in the midst of the darkness of dysfunction that surrounded MOTHER, we never doubted the fact that MOTHER loves her kids.  On multiple occasions and in multiple contexts, we have marveled at how love is capable of conquering even the most depressing of life’s circumstances.  Redemption driven by love is possible.  FATHER and the Nafzinger children are proof positive of this axiom.

The problem is that MOTHER is not self-reflective enough to perceive her own dysfunction.  She is unapologetic about her choices in life, and she has a propensity to blame others for a multitude of problems that she herself created.  At the risk of using a sledgehammer to kill an ant – some would call this “overkill” – we will endeavor to list the cornucopia of MOTHER’s problems revealed to us during late 2019 and early 2020:

(1)                   MOTHER suffers from obvious and debilitating mental illness.  She has a history of self-mutilation, suicide attempts and commitments to mental health facilities.  At the Court proceeding that occurred on February 24, MOTHER appeared untethered to reality.  She claimed that she returned from death twice and retains the ability to watch dead people walking around.  She showed this Court a photograph of an empty room and pointed to an area where she could see the face of a dead person.  She delusionally described the owner of a hotel where she briefly stayed as an FBI agent who was out to get her.  She also accused numerous people of stalking her.

Throughout the morning of the February 24 hearing, MOTHER’s affect and demeanor were inconsistent.  During a recess from the Custody Trial, MOTHER left the Courtroom and promptly curled up in the fetal position and cried in the middle of a hallway.  After this Court found her in contempt of the September 9, 2019 Court Order, MOTHER angrily lashed out verbally at this jurist.  As she was leaving the Courthouse, MOTHER was heard to say: “The judge needs to feel what it is like to have his children taken away.  I will make sure that he knows how that feels.”

The above being said, MOTHER retained enough rationality to proffer excuses for her own behavior.  MOTHER attempted to excuse her own conduct by stating “I can’t think straight” and “My brain doesn’t work as it is supposed to.”  She also attempted to excuse her methamphetamine use by equating methamphetamine with prescription medications such as Adderall.

MOTHER desperately needs professional help.  When this jurist attempted to encourage her to solicit help, MOTHER responded by blaming this Court for all of her problems.  Throughout MOTHER’s unhinged and somewhat bizarre testimony, we heard nothing about any sort of plan designed to help MOTHER to cope with her obvious mental illness.  Moreover, she resisted the concept of taking medications.  So long as MOTHER continues her intransigent resistance to professional help, this Court concludes that the children could be endangered by her presence with them.

(2)                    MOTHER has exacerbated her own paranoia and delusions by abusing illegal substances.  For a large percentage of her life, MOTHER has been addicted to various drugs.  On four (4) separate occasions she overdosed and became incapacitated.  Despite her protestations to the contrary, ample evidence of continued drug abuse abounds.

At both the hearing in September of 2019 and the hearing in February of 2020, G.N. provided direct eyewitness testimony that MOTHER continued to use methamphetamine.  G.N. stated that his mom used drugs “almost every day” and that she saw nothing wrong with that lifestyle.  In fact, G.N. stated that his mother provided and encouraged G.N. to also use methamphetamine.

In September of 2019, MOTHER tested positive for methamphetamine.  The level of meth in her system exceeded the threshold for a positive result by an alarming percentage.  On top of this, MOTHER presented at the September 9, 2019 Court hearing with all of the classic symptoms of methamphetamine abuse.  She had severe acne.  She was shaking uncontrollably.  Her behavior was unhinged.  Her ability to reason logically was severely impaired.  Even had it not been for the positive blood test result, this Court would have viscerally concluded that MOTHER was high on methamphetamine or some other substance.

Following the September 9, 2019 Court hearing, MOTHER was arrested because she was found with methamphetamine and a syringe inside her bra.  Criminal charges for possession of methamphetamine and drug paraphernalia are now pending before this Court.

As with MOTHER’s mental illness, we heard absolutely no testimony that MOTHER had embarked upon a plan of treatment and rehabilitation.  Even more alarming, MOTHER did her best to minimize and excuse her drug abuse.  At multiple times during her testimony, MOTHER attempted to equate methamphetamine with therapeutic prescription drugs such as Adderall; it was clear to this Court that MOTHER did not perceive anything wrong with ingesting methamphetamine.

By itself, MOTHER’s history of drug abuse creates a huge red flag for this Court.  Drug addicts historically prioritize their own acquisition and use of drugs over everything else, including the well-being of their children.   To make matters even worse, MOTHER sees nothing wrong with a drug-fueled lifestyle, and she has attempted over the years to encourage her children to also experiment with illegal substances.   It is self-evident to this Court that until or unless MOTHER gets help for her own drug habits, she will be incapable of effectively parenting any children.

(3)                    MOTHER has no stable residence.  Over the past year, we heard that MOTHER was evicted from an apartment that had been condemned and had no electricity.  She then went to live at the Mountain Trail Inn, which is an aging unkempt facility that could best be described as “seedy”.  We also heard testimony that MOTHER went to live at another motel in Wernersville which was owned by a woman who MOTHER described as a maniacal FBI agent.  None of these environments would be suitable for children.

MOTHER was asked multiple times during the February 2020 hearing where she lived and with whom.  At one point, she stated that she was living in a car parked outside a house owned by “Frank”.  At another point, she stated that she was homeless.  Ultimately, she refused to provide the location of her residence, ostensibly because she did want anyone “stalking” her.

Given MOTHER’s history of living in unsuitable and even dangerous conditions, we are unwilling to simply accept her assurance that she is now living in an “appropriate” environment.  For any parent to enjoy custodial rights, there is a pre-condition that the parent establish by credible proof that he/she resides in a suitable environment.  Here, MOTHER has been utterly unwilling or unable to provide such proof.

(4)                    MOTHER has a history of living with men of questionable character.  We have seen in the past how MOTHER extols the virtues of men with whom she associates, only to turn on them and ultimately call them “abusive”, “crazy” and “dangerous”.  Currently, MOTHER has a boyfriend by the name of Richard.  He appeared with her in Court, but he declined to testify.  Following the conclusion of the Custody proceeding, Richard attempted to enG.N. off the record with this jurist.   He asked during this effort: “How can we get her help?”  From this limited exchange, it appears that Richard at least possesses an awareness of MOTHER’s problems.  Still, we know very little about him and we are reluctant to sign off on any custody plan for children to live with a man chosen by MOTHER about whom we have only limited information.

(5)                   MOTHER’s only income is the $700 she receives in Social Security Disability as a result of various maladies, both physical and psychological.  MOTHER has not worked for three (3) years and she has no income producing assets about which we are aware.

It is obvious that MOTHER does not possess the financial resources to support herself, much less three (3) additional children.  Until or unless MOTHER develops a more viable income stream, we question whether she would be able to provide the food, shelter and clothing needed by the children even during visits of limited duration.

(6)                    MOTHER has no respect for Court Orders.  In September of 2019, we ordered that MOTHER not have contact with her children.  She blatantly and almost proudly disregarded that order, stating that “any mother” would have done what she did.  During the February 2020 hearing, we received copies of multiple text messages sent by MOTHER to the children.  We heard that MOTHER went and stood silently inside the McDonald’s where G.N. was working.  We also heard that MOTHER approached F.N.’s school and demanded to be given custody of her.  All of this activity was in direct violation of the September 9, 2019 Court Order.  Because of these violations, we found MOTHER in contempt of Court via an order entered on February 24, 2020.

(7)                   MOTHER is manipulative.  Within the past month, MOTHER took a 2013 Court Order to the police, to Children and Youth Services and to the children’s school in an effort to enforce its terms.  MOTHER knew full well that subsequent Court Orders were entered that reversed the terms of the 2013 order , yet she never disclosed the terms of any subsequent orders.  Fortunately, the officials to whom MOTHER presented her old Court Order were savvy enough to conduct their own investigation and learn that MOTHER was attempting to improperly rely upon an order that had been invalidated by superseding decisions.

(8)                   MOTHER apparently has no driver’s license.  We use the word “apparently” because MOTHER was deliberately obtuse in answering questions about her own transportation abilities.  MOTHER did testify that she possesses a vehicle, but she stubbornly refused to answer questions about whether she is able to operate that vehicle lawfully.  Needless to say, lack of ability to drive is a problem for any parent.

(9)                   MOTHER has criminal charges that are currently pending against her.  These criminal charges stem from her possession of methamphetamine and a syringe inside her bra.  MOTHER indicates that she is fighting these charges and expects to be cleared.  The court case is scheduled for April.

We do not know what the outcome of MOTHER’s charges will be.  However, we accept as an axiom that individuals are not able to effectively parent from behind a prison wall.  Even if MOTHER ultimately receives a probationary sentence, we have little hope that she will avoid violating the terms of that probation.  Therefore, unless MOTHER is totally exonerated, it is likely that she will face some period of incarceration as a result of the pending criminal charges.

(10)      MOTHER was found to be abusive by CYS.  In late 2019, CYS determined that MOTHER abused her son G.N. by providing him with drugs.  A CYS caseworker testified at the Custody Trial that his agency recommends that MOTHER have no contact whatsoever with the children until or unless MOTHER gets help for her drug addiction and mental health issues.

(11)      MOTHER has worked to manipulate the children.  D.N. and F.N. love their mom.  F.N., in particular, has a bonded relationship with her mother.  Moreover, she is still young enough and naive enough that she cannot fully comprehend the depth of MOTHER’s dysfunction.

As noted above, MOTHER has continually had contact with her younger children.  We received some of the electronic communication that MOTHER sent.  In that electronic communication, MOTHER portrayed herself as a victim.  She also attempted to convince the children that she had obtained legal papers that afforded her with custody.  At one point, MOTHER attempted to convince F.N. to leave her house so that MOTHER could drive her away at 10pm.

Based upon all of the above and more, CYS caseworker Thomas Smith recommended that MOTHER have no contact with the children until or unless she gets help for her plethora of problems.  Court-appointed Guardian Ad Litem Scott Grenoble proffered an identical recommendation.  Attorney Grenoble stated “I don’t see it as a positive for MOTHER to have any contact with the children.”  Given everything that we witnessed and heard, this Court cannot disagree with either Caseworker Smith or Attorney Grenoble.

 

  1. CUSTODY FACTORS

The key to any custody trial has been, is, and always will be: What is in the best interest of the children?  For most of the history of Pennsylvania jurisprudence, the so-called “best interest” test was relatively amorphous and left to the discretion of the Trial Judge.  In 2010, Pennsylvania’s General Assembly passed a comprehensive custody act that specified factors that a Court must consider in determining what is best for children.  In pertinent part, that custody act states:

  • 5328. Factors to consider when awarding custody

 

(a)        Factors. – 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 facts which affect the safety of the child, including the following:

(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 adequate physical safeguards and supervision of the child.

(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 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.

 

(b)        Gender neutral. – In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.

23 Pa.C.S.A. § 5328(a)-(b).

The General Assembly did not prioritize between the above factors. Therefore, Trial Judges retain considerable discretion in weighing all of the above factors in order to determine what is in the best interest of the child.  The ultimate goal of a custody court is to encourage on-going, nurturing, healthy, and stable parent-child relationships. Etter v. Rose, 684 A.2d 1092 (Pa.Super. 1996).

We will briefly comment upon all of the Custody Factors outlined above.  Of necessity, our comments will focus primarily upon MOTHER and how her situation implicates each of the Custody Factors.  To the extent that we have a pertinent observation about FATHER, we will also include that as needed.  With this in mind, we will briefly discuss each of the factors seriatim:

(1)        Which party is more likely to encourage frequent and continuing contact between the child and the other party?

We cannot weigh this factor in factor of either party.  Both MOTHER and FATHER despise one another.  Each desires to parent the children without interference from the other.

The difference is that FATHER has made many good decisions regarding the children and has been a generally effective parent.  In contrast, we are hard pressed to identify any positive parenting decisions that MOTHER has made and, for reasons articulated above, we must classify her parenting skills as abysmal.  To the extent necessary, we conclude that FATHER’s desire to keep the children from MOTHER is reasonable, while MOTHER’s desire to primarily parent the children is not.

(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 adequate physical safeguards and supervision of the child.

Multiple allegations of child abuse have been hurled at FATHER by MOTHER.  According to CYS Caseworker Thomas Smith, none of these allegations were founded by his agency.  Moreover, from speaking with the children and their GAL, we cannot identify any conduct on the part of FATHER that we would classify as abusive or neglectful.

In contrast, MOTHER is the subject of a founded allegation of abuse for providing drugs to children.  Moreover, as highlighted above, there are a multitude of examples of conduct by MOTHER that we would characterize as psychological abuse of children and/or neglect.   Accordingly, we conclude that MOTHER is abusive toward children.  We will therefore weigh Custody Factor (2) heavily against MOTHER and in favor of FATHER.

(3)        The parental duties performed by each party on behalf of the child.

 

We have heard very little of a negative nature about FATHER’s performance of parental duties.  The children are now doing remarkably well given the trauma of their past.  In fact, G.N. paid FATHER perhaps the ultimate compliment when he stated that he now enjoys living in environment that is “normal” and “functioning”.

The reason G.N. appreciates normalcy is that his time with MOTHER was anything but.  She lived in a condemned house that had no electricity.  G.N. described this in the September hearing as “camping out every night inside a house.”  MOTHER does not have financial resources to dramatically upgrade her living situation, nor does she possess the self-awareness or insight to distinguish the difference between environments that are positive and those that are destructive.

We weigh the Custody Factor pertaining to Parental Duties heavily in favor of FATHER.

 

(4)        The need for stability and continuity in the child’s education, family life and community life.

 

In 2017, we expressed concerns about the stability of both parents.  In the two-plus years that have elapsed since the 2017 Custody Trial, FATHER has put down roots in eastern Lebanon County.  He has maintained steady employment.  He has maintained an appropriate household for himself and the children.  He has avoided relapse into substance abuse addiction.  In the words of G.N., FATHER has developed a lifestyle that is “normal and functioning”.

MOTHER’s lifestyle is the antithesis of stable.  She has no income other than a disability payment of $700.00 per month.  She has no job or marketable job skills, nor has she demonstrated a proclivity to work.  She is facing criminal charges for drug abuse that could land her in jail.  From what we know, she has lived at “seedy” motels and in cars parked in front of a friend’s house; she would not even disclose at the Custody Trial where she is now residing.  Moreover, she has done next to nothing to treat her drug addiction and mental illness.

FATHER has proven over the past two years that he can provide a normal and stable life for his children.  Unfortunately, MOTHER’s life is so unstable that we cannot even declare her current situation – bad as it is – to be rock-bottom.  Placing children in a position of watching a parent spiral almost proudly down into an abyss of dysfunction is not in their best interest.

(5)        The availability of extended family.

 

We heard very little about extended family.  Both MOTHER and FATHER have paramours.  Neither of those paramours testified at the Custody Trial.  We simply do not have enough information to weigh this factor heavily in favor of either party.

(6)        The child’s sibling relationships.

 

Perhaps because of the trauma they experienced together while younger, the Nafzinger children have grown relatively close to one another.  While under FATHER’s care, the children interact with one another frequently and in a healthy manner.   While Destiny is now living independently away from her siblings, she remains on good terms with FATHER and her siblings.  As we noted in 2017, Destiny can serve as a positive model for the younger children.

Neither Destiny nor G.N. want anything to do with MOTHER.   Moreover, G.N. testified that he does not want his younger brother and sister to have contact with MOTHER less they experience what he did.

To the extent that the Nafzinger children should continue to enjoy a relationship with one another, and we think at this point that they should, that relationship can best be facilitated by FATHER.  Therefore, the factor relating to sibling relationships will be weighed in FATHER’s favor.

(7)        The well-reasoned preference of the child, based on the child’s maturity and judgment.

 

G.N. has expressed a clear preference not to have any contact with his MOTHER.  Given all of the things G.N. described about his life in MOTHER’s household, we find his preference to be mature and well-reasoned.  We will therefore weigh it heavily.

We did meet with D.N..  Because MOTHER was self-represented, this meeting occurred in her presence.  It was obviously traumatic for D.N..  He shook and he struggled to answer even basic questions.  D.N. did say that he loved his mother and wanted to see her.  However, we could not discern whether this was well-reasoned or whether it was the result of having to express his preference in MOTHER’s presence.

The Court-appointed GAL indicated that F.N. appeared to be traumatized by the prospect of having to testify in open Court.  Because of her age, and because we were quite frankly convinced by the end of the trial of what the outcome should be, we declined to put F.N. through the trauma of having to testify in a courtroom setting.

With the above being said, we have no doubt that F.N. and D.N. love their mother.  We are as confident as we could be that both F.N. and D.N. want to reunite with a mother who is sober, healthy and capable of making good decisions.  However, we are also confident that both D.N. and F.N. realize that their mother is not well.  At this point, we are sure that both F.N. and D.N. know that their mother is simply not equipped to provide any sort of meaningful care.  In fact, when MOTHER attempted to lure F.N. away from FATHER’s home, F.N. declined the offer and she even warned MOTHER to “Stop, or you will be put in jail.”

We will weigh the factor of Child Preference as it relates to G.N..  However, we will not weigh it as it relates to either D.N. or F.N..

 

 

(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.

 

As we watched MOTHER and FATHER testify in Court, we were struck by the difference between the attitude displayed by each.  While FATHER was firm in his belief that MOTHER should not have contact with the children, his attitude was one of sadness and empathy.  In contrast, MOTHER became unglued when she spoke about FATHER.  Perhaps referring to events that occurred in the distant past, or perhaps referring to events that were a figment of her imagination, MOTHER verbally lambasted FATHER in a manner that was vicious and pitiless.

At this point, we believe that FATHER would have the ability to co-parent with a mother who was stable, healthy and rational.  Based upon what we observed in Court, MOTHER utterly lacks the willingness to co-parent with FATHER no matter how he would present himself.  It is because of the differing attitudes that we will weigh Custody Factor (8) in favor of FATHER.

(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.

 

All three of the Nafzinger children are involved in counseling.  GAL Grenoble characterized this counseling as “essential” for the children.  By all accounts, the children get along well with their counselors and they have found the counseling sessions to be helpful.  It did not escape our attention that all of this counseling occurred since FATHER undertook primary custody.   Without question, the Nafzinger children have been scarred as a result of everything they have experienced.  Even today, F.N. continues to cut herself in periods of stress and D.N. remains a self-withdrawn loner in search of a future purpose.  Even though G.N. has made a remarkable turnaround, vestiges of what he has experienced will no doubt haunt him going forward.

To say that the Nafzinger children have “special needs” would be an understatement.  At this point, FATHER recognizes this and has undertaken steps to ensure that the children have professional assistance to move forward in their lives.  MOTHER completely lacks the insight, inclination or resources to do likewise.  Accordingly, Custody Factor (9) will be weighed in favor of FATHER.

(10)      Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

This factor implicates a wide variety of developmental factors.  One we would like to highlight is the developmental factor of education.  For most children, getting an education is the primary “job”, and the Nafzinger children are no exception.

In 2017, G.N. was well on his way to becoming a high school drop-out.  Although he attended school, he spent most of his day listening to music with headphones.  Predictably, he was failing.  Today, G.N. attends the Eastern Lebanon County High School in the morning and the Lebanon County Career and Technology Center in the afternoon.  He is studying to be a machinist and is on track to graduate in June of 2021.  G.N. enjoys what he is studying and he has a positive plan and purpose for his future.  The day versus night difference between the G.N. of 2017 and the G.N. of 2020 must be attributed in no small part to the fact that custody was transferred from MOTHER to FATHER.

As of 2017, D.N. and F.N. had been pulled from a public school and placed in cyber-school by MOTHER.  Predictably, MOTHER did not invest herself in the children’s education.  By the time of the 2017 Custody Trial, F.N. and D.N. were failing in school.

Today, both F.N. and D.N. attend schools within the Eastern Lebanon County School District.  Both are thriving.  While D.N. does have problems with some classes, he is doing well in others and is on track to progress to the next grade level.  F.N. is a Superior Honor Roll student.

Based upon everything articulated within this Opinion, and especially upon the difference in the educational priorities of the parents, we will weigh Custody Factor (10) in favor of FATHER.

 

(11)      The proximity of the residences of the parties.

 

FATHER resides in Myerstown, which is a relatively small town in eastern Lebanon County.  We have absolutely no idea where MOTHER resides because she would not tell us.  Therefore, it is impossible to weigh this Custody Factor.

(12)      Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

 

FATHER has done a commendable job providing daily care for the children.  On multiple occasions, CYS has investigated FATHER.  Never once has the agency found that FATHER was unwilling or unable to provide proper food, shelter, clothing and other necessities for the children.  As noted above, neither G.N. nor D.N. shared with us or the GAL that they feel endangered or neglected at their FATHER’s house.

We have absolutely no idea how MOTHER would provide care for these children.  She would  not tell us where she was living or with whom.  We do not know where the children would sleep or with whom.

We will always prefer a known, adequate standard of care provided by a rational and sane parent to bald, uncorroborated promises by a drug-addled and delusional parent.  For this reason, we will weigh Custody Factor (12) in favor of FATHER.

 

(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 unwillingness or inability to cooperate with that party.

 

The level of conflict is this case is extreme.  Moreover, we have little hope for healing, at least until MOTHER gets professional help for her many problems.  At this point, we understand FATHER’s wariness and antipathy and we will not chastise FATHER for it.  MOTHER’s vindictiveness is predicated more on hate and self-delusion than anything else.  Because of this, we will weigh Custody Factor (13) in favor of FATHER but not heavily.

(14)      The history of drug or alcohol abuse of a party or member of a party’s household.

In 2017, we discussed the drug and alcohol additions of both MOTHER and FATHER.  Since 2017, FATHER has maintained a sober and stable lifestyle.  As outline above, MOTHER has not.  We will therefore weigh this factor in favor of FATHER and against MOTHER.

(15)      The mental and physical condition of a party or member of a party’s household.

 

At this point, we have no qualms about the physical and mental health of FATHER.  We have grave concerns about MOTHER’s mental health.  We have lesser but nonetheless still considerable concerns about MOTHER’s self-described physical problems.  We will therefore weigh Custody Factor (15) in favor of FATHER.

(16)      Any other relevant factor.

We view the testimony of CYS Caseworker Thomas Smith and GAL Scott Grenoble as a factor falling in the “miscellaneous” category.  Both Mr. Smith and Attorney Grenoble met privately with the children in their home environment.  This gave both gentlemen insight that this jurist could not share.  Based upon everything known to Attorney Grenoble and Caseworker Smith, each professional recommended that MOTHER not have contact with the children until or unless she gets help for herself.  These are recommendations that we can and must weigh heavily.

 

  1. CONCLUSION

As is obvious from the above, this Court has grave concerns about MOTHER.  She is a drug addict.  She has significant mental health issues.  She is delusional.  She is vindictive to the point of being unhinged.  She has next to nothing in terms of resources that she could use to raise children.  She is angry at practically everyone else who does not tell her what she wants to hear.   She completely and utterly lacks self-awareness and the ability to be self-critical.

All of the above creates a cocktail of dysfunction that is poisonous and even potentially dangerous.  Even though MOTHER has not to this point used violence as a tool, we cannot discount that as a possibility given what we heard and saw in Court on February 24, 2020.  At this point, we would fear for the safety of the children if MOTHER were to be afforded any rights of physical custody.

MOTHER is in desperate need of professional help.  If we had the authority to order it via a Custody Decision, we would direct MOTHER into a long-term inpatient dual diagnosis facility.  Unfortunately, our role today is to render the best possible decision for G.N., D.N. and F.N.; it is not to force a reluctant woman to receive the treatment she desperately needs.

Based upon everything outlined above, we will be awarding sole legal and physical custody of the children to FATHER.  At the same time, we will enter an Order preventing MOTHER from having any contact whatsoever with the children until or unless things dramatically change in her life.

If or when MOTHER makes a concerted effort to transform her life in a positive direction, we remain willing and even eager to re-visit the decision we will be rendering today.  We recognize that the children need to have a relationship with a stable, rational and healthy mother.  We also recognize that having a relationship with children can facilitate stability, rationality and mental wellness on the part of MOTHER.  Therefore, our long-term goal is reunification between MOTHER and her children.

With the above being said, we warn MOTHER that reunification will not magically occur simply because time passes.  MOTHER will have to undertake the heavy lifting necessary to transform her life in a positive direction.  MOTHER will not have to be perfect in order for reunification to begin, but she will have to display dramatic improvement…and she will have to convince us through a contrite attitude that she is willing and able to do what is necessary to turn her life around.

For today, and based upon current circumstances, we will enter a Court Order that effectively grants one-hundred percent (100%) control over custody to FATHER.

 

 

 

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