J-S35010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.W., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
S.F.,
Appellant No. 331 MDA 2018
Appeal from the Order Entered January 23, 2018
In the Court of Common Pleas of York County
Civil Division at No(s): 2009-FC-001342-12A
BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 03, 2018
S.F. (Mother) appeals from the January 23, 2018 order that granted
S.W.’s (Child) petition seeking a final protection from abuse (PFA) order.1
After review, we affirm.
In her brief, Mother lists the following issues for our review:
I. Whether the trial court abused its discretion and made an error
of law under 23 P[a].C.S.[]. [§] 6107 when it did not allow [Child]
to testify at the [PFA] [h]earing[?]
A. Whether the [t]rial [c]ourt denied [Mother’s] due process
rights by not permitting [Child] to testify at the PFA
hearing and denying [Mother] the opportunity to cross
examine her accuser?
B. Whether the trial [c]ourt abused its discretion and made
an error of law in relying upon testimony taken during an
____________________________________________
1 Child’s father, S.W. (Father), filed the PFA petition on Child’s behalf.
J-S35010-18
ex-parte hearing that was not of record during the PFA
hearing[?]
C. Whether the trial court abused its discretion and made
an error of law in determining that sufficient evidence
was presented at the PFA hearing to make a finding of
abuse[?]
II. Whether [Mother] waived her rights to object to due process
violations and sufficiency of evidence arguments on appeal, for
not objecting with specificity on the record[?]
Mother’s brief at 7.
“In reviewing the validity of a PFA order, we must determine whether
the evidence, in the light most favorable to petitioner and granting her the
benefit of all reasonable inferences, was sufficient to sustain the trial court’s
determination that abuse was shown by the preponderance of the evidence.”
R.G. v. T.D., 672 A.2d 341, 342 (Pa. Super. 1996). “Moreover, we must defer
to the lower court’s determination of the credibility of witnesses at the
hearing.” Id.
We have reviewed the certified record, Mother’s brief,2 the applicable
law, and the thorough opinion authored by the Honorable N. Christopher
Menges of the York County Court of Common Pleas, dated March 13, 2018.
We conclude that Judge Menges’ opinion accurately disposes of the issues
presented by Mother on appeal and we discern no abuse of discretion or error
of law. Accordingly, we adopt Judge Menges’ opinion as our own and affirm
the order appealed from on that basis.
____________________________________________
2 No brief was filed in support of Child’s position as Appellee.
-2-
J-S35010-18
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/03/2018
-3-
:5350
Circulated / � PM
J 0- 01:17
07/26/2018
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
S.W. (A MINOR), No. 2009-FC-001342-12A
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OPINION IN SUPPORT OF ORDER Fl
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PURSUANT TO Pa.R.A.P. 1925(a) w :;;o
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Appellant I f I £I J I appeals to the Superior Court of Pennsylvania from the
Final Protection from Abuse ("PFA',) Order entered in this matter on January 23, 2018. On
fflorlter
February 22, 2018, I g J 51 ft filed a Concise Statement of Errors Complained of Pursuant to
Rule of Appellate Procedure l 925(a) (2) (i), The trial court now issues this 1925(a) (2) (ii)
Opinion.
FACTUAL AND PROCEDURAL HISTORY
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The minor child Appellee, S.W., is the natural born child of the • 17 6 I t
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l?l1£lfil••1, and . The custody of S. \\1. has been the subject ofrepeated
litigation dating to 2009. The latest and current Order directs the parents to exercise shared
month-to-month custody of the child. The current custody action was brought by Father's
Petition for Contempt and Petition to Modify Custody on August 3, 2017. A custody hearing is
scheduled before this Court on March 22, 2018 .
. ..ft1.- H\ e.r-"'
On January 16, 2018,•••••••filed a petition seeking a Protection From
Abuse (PFA) order for his child S.W., the protected party and plaintiff. The petition named
Mo4-her-
S.W.'s•••••••••lll Appellant, as Defendant.
,-1
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The PFA order on Appeal was prompted by events that occurred on January 9, 2018.
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According to the Petition for Protection From Abusem ][ alle I tfvJ,9+her
I at
(!f.1 Id J11ofA er:
approximately 7:30 PM. A disagreement ensued, during which states that'*• 11 P
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threatened to beat her. Apparently finding the threat to be credible,••• became upset and
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.....••
. thus filed the Petition on his behalf.
The Petition alleges several incidents of abuse, dating to 2014. The incidents include
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details of Fi F drinking and driving with• Jiii $1n the car, pushing • 1 JI 7 to the floor,
punching her repeatedly in the ribs, throwing household objects at her, and hitting her in the head
M//}1:5
with a hairbrush, resulting in bruising which led to flit ii L teacher contacting a Children &
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Youth agency. The Petition requested an Ex Parte Hearing, claiming that the , a nunor
child, was in imminent danger. In accordance with 23 Pa. C.S. §6107 (b) (1 ), "If a plaintiff
petitions for temporary order for protection from abuse and alleges immediate and present
danger of abuse to the plaintiff or minor children, the court shall conduct an ex parte
with., 'j
proceeding," this Court conducted an ex parte proceeding in the form of an in
camera interview.
Finding the
a,td to be credible and compelling, and that she was in immediate and
present danger of abuse this Court entered a temporary PFA Order pursuant to the statute. "The
court may enter such a temporary order as it deems necessary to protect the plaintiff or minor
children when it finds they are in immediate and present danger of abuse. The order shall remain
in effect until modified or terminated by the court after notice and hearing." 23 Pa.C.S. §6107 (b)
(2). That Order was a contact order which explicitly permitted contact between the Parties in
accordance with the controlling custody order. The Order stated that all contact was to be non-
abusive in nature.
2
An evidentiary hearing to determine whether a final PFA order should be entered was
held January 23, 2018, as required by 23 Pa. C.S. §6107 (a). During the hearing the Court heard
(!,,hi/d's a u» mo+�
testimony from l p 7 Father and Stepmother, t 7 J , as well as the • Ii
rt:"5. - :r.
and her mother, •••••••· Both parties were given ample opportunity to be heard and
to cross-examine the other party's witnesses. A full and accurate record was produced.
Following that hearing, the Honorable N. Christopher Menges ("Trial Court") granted
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the petition for a PFA Order against J j St, extending the terms of the Temporary Order to a
frlof-f\e.r
term of three years and assigning court costs to J J Ct. (Final Order at 2.)
fr)cther
On February 20, 2018, filed a Notice of Appeal and a § 1925 ( a) (2) (i)
statement. The Court hereby reaffirms the Final Order.
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ISSUES FOR APPEAL
In her statement, �. a eges fiive (5) issues
. t o b e consi. d ere d on Appea 1 :
1) The Trial Court abused its discretion and made an error of law when it conducted an
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exparte [sic] hearing with�. and made a determination of credibility without
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providing k? 0 an opportunity to cross-examine the witness.
2) The Trial Court abused its discretion and made an error of law by deciding the merits
of the case prior to the hearing while having only conducted an exparte [sic] interview
Child
with the I &.
3) The Trial Court abused its discretion and made an error of law in relying solely on the
exparte [sic] interview of the witness in determining sufficient evidence was
only heard the hearsay testimony of Father and the 572 IJ • Stepmother, yet ruled
the evidence was sufficient to survive a motion to dismiss. Trial Court cited
C!,h/{d
exceptions for excusing the•••• from being required to testify, that are not
supported by statute or case law.
4) The Trial Court abused its discretion and made an error of law in allowing the entire
hearing and ultimate findings of the Court to be based upon inadmissible hearsay
iofiti(;on cross-examination of Stepmother. Id. 14. :Dge;-would
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develop details of the incident on direct examination of Father. Id. 19. -further
discussed the incident by way of her own testimony. Id 49-50. Apparently, there was an incident
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in the Spring of 2016 during which -hit with a hairbrush, following so�ne
(!.hi id� Q..h dd�
to
difficulty relating removing braids from the I 2 hair. That day at school, ••••
teacher became aware that she was in considerable discomfort and contacted CYF. Following an
investigation, the agency adjudicated the referral unfounded.
However, this Court is cognizant that the definition of "abuse" used by the PF A Act is
broader than the definition used by Child Protective Services. 23 Pa. C.S.A. § 6102 (a) et seq,§
6303 (a). Although the PFA Act may incorporate those definitions, it does not require that abuse
rise to the level of criminality or for removing a child from the home. Viruet ex rel. Velasquez v.
Cancel, 727 A.2d 591 (Pa. Super. 1999). Thus, this Court is not bound to accept the agency's
findings as proof that abuse has not or is not reasonably likely to occur.
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-'. added further that CYF had only been contacted because S.W.'s teacher is
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step-mother's friend, yet-offered nothing to support this.
In short, in weighing the evidence and the credibility of the witnesses, this court found
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the scale had been tipped in favor of --
8
3) Regarding the Trial Court's alleged abuse of discretion and error oflaw in relying solely on
the ex parte interview of the witness in determining sufficient evidence was presented by the
(!A;td thi Id
•••· "On demurrer, after• I R had rested, Trial Court had only heard the hearsay
tttad
1,
testimony of Father and the Stepmother, yet ruled the evidence was sufficient to
C,hi IJ
survive a motion to dismiss. Trial Court cited exceptions for excusing the ... from being
required to testify, that are not supported by statute or case law."
fl1e1 Hte.r
As discussed above, 5 mischaracterizes this Court's use of the ex parte interview.
The discussion of the ex parte interview given in response to alleged Error 1, and the discussion
of testimonial evidence given in response to alleged Error 2 are hereby incorporated into this
Court's response to alleged Error 3.
In addition, the Court will specifically deny that any decision was based on hearsay evidence
given by either Stepmother or Father. However, the Court gave great weight to Stepmother's
�i'ld
testimony of her personal observations of at the time of the January 9th phone call. The
+her
clear that called Father to testify. Thus, we can only assume that the alleged hearsay
occurs in response to cross-examination, "It is axiomatic that in order to preserve a
trial objection for review, trial counsel is required to make a timely, specific objection during
trial." Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 117 (Pa. 1974) quoted in Takes v.
�
Metro. Edison Co., 695 A.2d 3 97, 400 (Pa. 1997). The record reveals that-"' objected on
the grounds of hearsay during Father's testimony one time. The Court overruled the objection
because, as before, the testimony was not offered for the truth of the matter asserted.
Q. And there was brief discussion of you sending
[ih I> Ht er-J
a message to ••••• on January 8th?
A. Yes.
Q. And that message.was about what?
A. A mother/daughter trip to New York.
Q. And how did you hear about information
regarding that?
A. She had originally told me.
Q. Who is she?
Cm o tti. �r:l__
A. -· For a mother/daughter birthday
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trip.
-?
Q. And did you hear anything different from
AITORNEY HOBBS: I am going to obviously
(thilil
object to hearsay.- is --
THE COURT: It is not for the truth of
the matter asserted so I will allow it. You may answer
the question.
BY ATTORNEY SMITH:
Q. What did you -- why did you contact her since
you said you had already heard about the trip.
C4rtildl_
A. Because- told me they went with another
guy. She said that they drove to his house, stayed with
him, and all drove up there together.
Hr'g Tr. 24. January 23, 2018. Obviously, the statement was not offered for the truth of the
matter asserted, in which case it would answer whether or not the New York trip was really a
mother/daughter birthday trip. In fact, the statement speaks to why Father sent a message to
Jn�
-· The statement was properly admitted.
�
._.. Concise Statement speaks of demurrer and a motion to dismiss. "A demurrer
tests the sufficiency of challenged pleadings." Composition Roofers Local 30/308 v. Katz, 581
A.2d 607, 609 (Pa. Super 1990). Quoted in Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa.
Super. 2002). A demurrer is to be granted only where it is clear and free from doubt that the
plaintiff is not entitled to relief Id. A demurrer is properly entered at the close of pleadings, and
11
"[w]here any doubt exists as to whether demurrer should be sustained, it should be resolved in
favor of overruling the demurrer." Somers v. Somers, 613 A.2d 1211 (Pa. Super 1992).
"To the extent that the question presented involves interpretation of rules of civil
procedure, our standard of review is de novo. Touloumes v. E.S.C. Inc., 899 A.2d 343, 346 n. 4
(Pa. 2006). To the extent that this question involves an exercise of the trial court's discretion in
granting
[mo+htr1
�1 "motion to dismiss", our standard of review is abuse of discretion." Sigall
··
v. Serrano, 17 A.3d 946, 949 (Pa. Super.2011) ..
In the instant case, the purported demurrer and motion to dismiss are one and the same.
fnt>trie-Y
••••does not properly demur or move for dismissal at any point in these proceedings.
Mothev
Rather, after presenting her first witness, states that the standards have not been met,
(!..hilJ
and asks the Court for permission to interview the ,._ in essence, in preparation for the
upcoming custody trial. Hr'g Tr. 28-9. January 23, 2018. This Court is aware of no statute or
case law which requires that the defendant in a PF A proceeding be permitted to interview the
petitioner, a minor, exclusive of the filing parent, and with an eye to another proceeding. We
reaffirm.
!Ylo+hu-16
•••• Concise Statement states, "Trial Court cited exceptions for excusing the
�rom
being required to testify, that are not supported by statute or case law." It is
,not-her
entirely unclear what "exceptions" p jj is referring to. With regards to the unavailability of
the..r
was not available for testimony, counsel for g $ responded "That is fine, your honor."
15
Hr'g Tr. 4. January 23, 2018. The Court briefly explained that it had concerns about subjecting
the child to further questioning. 1
The Court is aware that PF A proceedings, though civil in nature, may have criminal
mother
ramifications, and resultantly carry due process concerns. However, . l I did not raise an
objection on that theory or those grounds at the hearing.
Both the theory as well as the grounds must be raised below if an issue is to be
preserved for appellate review; one may not merely preserve the "grounds" at trial
level and, for the first time on appeal, raise "theories" to support them. Com. v.
Polof, 362 A.2d 427, (Pa.Super. 1976).
ffloft.e_r-
Although 9 P asked on separate occasions to interview the child, she did not at any time
f'/\other-
object. The first such request was detailed above. The second occurred after••••
1
Pa. R.E. 611 gives the trial court considerable control over the presentation of witnesses: Pa. R.E. 611 :(a) Control
by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining
witnesses and presenting evidence so as to: ... (3) protect witnesses from harassment or undue embarrassment.
Further, in cases involving children who are the victim of or witness to crime or abuse, including assault, The
Tender Years Hearsay Act provides additional protections to prevent unnecessary harm to the child: (a} General
rule.-An out-of-court statement made by a child victim or witness, who at the time the statement was made was
12 years of age or younger, describing physical abuse, indecent contact or any of the offenses enumerated in 18
Pa.C.S. Ch. 31 (relating to sexual offenses} performed with or on the child by another, not otherwise admissible by
statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an
in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement
provide sufficient indicia of reliability; and (2} the child either: (i) testifies at the proceeding; or (ii) is unavailable as
a witness. 42 Pa. C.S.A. § 5985.1. The statute also gives the trial court the power to determine that a child is
unavailable to testify in order to avoid undue emotional distress. "{a.1} Emotional distress.-Before the court
makes a finding under subsection (a)(2)(ii}, the court must determine, based on evidence presented to it, that
testimony by the child as a witness will result in the child suffering serious emotional distress such that the child
cannot reasonably communicate. In making this determination, the court may do all of the following; (1} Observe
and question the child victim or child material witness, either inside or outside the courtroom. (2) Hear testimony
of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material
witness in a medical or therapeutic setting. This Court conducted an ex parte interview, as detailed, and as result
had valid concerns that forcing the ten year old child to testify against her mother, the Appellant, would cause
serious emotional distress. The child was genuinely fearful of Mother. She was quite credible, and her testimony
was compelling, and remarkably consistent. The Court thus found the requisite indicia of reliability.
16
fnfJ+hcr'Q
questioned Father. At that point, J g iJ f concern was with the effect of the PFA proceeding
'rioiil!Y
on the upcoming custody trial. Counsel for tiilllllwas clear in this, and asked for the
[?]
opportunity to interview the fhild outside of the courtroom and without Father present. The
request was made as follows:
Keep in mind, Your Honor, from our perspective, the child is in the custody of her
Father for a month and then at the end of that custody period, with a trial looming,
and with instructions from Judge Adams, this PFA occurs. We would like the
opportunity to at least have the opportunity to explore that. And, generally, Your
(lhifd·�J
Honor, no malice intended, but the opportunity to explore- veracity
without the influence of Dad or Stepmom.
Mc#.e.r
Hr'g Tr. 28-9. January 23, 2018. The request was appropriately denied, and whil�
could have objected, she chose not to.
CONCLUSION
···-�a
�;Id
In conclusion, the trial court respectfully requests that this Court affirm the order granting
PFA order against•••
�P�e'..V
17