J-S54003-20, J-S54004-20 & J-S54005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
L.S. :
:
Appellant : No. 717 MDA 2020
Appeal from the Order Entered April 28, 2020
In the Court of Common Pleas of York County Civil Division at No(s):
2020-FC-000655-12A
A.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.P. :
:
Appellant : No. 718 MDA 2020
Appeal from the Order Entered April 28, 2020
In the Court of Common Pleas of York County Civil Division at No(s):
2020-FC-000653-12A
A.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.C. :
:
Appellant : No. 719 MDA 2020
Appeal from the Order Entered April 28, 2020
In the Court of Common Pleas of York County Civil Division at No(s):
2020-FC-000654-12A
J-S54003-20, J-S54004-20 & J-S54005-20
BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 26, 2021
Appellants L.S. (maternal grandmother), M.C. (maternal grandfather),
and M.P. (paternal grandmother) (collectively, Appellants) appeal from the
orders granting Appellee A.W.’s petition for a final protection order pursuant
to the Protection From Abuse (PFA) Act, 23 Pa.C.S. §§ 6101-6122.1 Appellants
challenge the sufficiency of the evidence supporting the trial court’s finding of
abuse. We affirm.
The trial court summarized the underlying facts of this matter as follows:
[Appellee] is the teenage young woman at the center of this case.
In March of 2018, [Appellee] was sexually abused by her
grandfather, E.P., Jr., who is not a party to this action. M.P. and
E.P., Jr. are [Appellee]’s paternal grandparents. E.P., Jr., the
former or soon-to-be-former spouse of M.P., resided with M.P. at
a house which [Appellee] would often visit during the time
[Appellee] was abused, and which had a bedroom specifically for
her. E.P., Jr.’s sexual abuse of [Appellee] occurred in the bedroom
set aside for [Appellee]. When M.P. learned of E.P., Jr.’s abuse of
[Appellee], she terminated her relationship with him, and began
work to dissolve the marriage. A criminal investigation into the
abuse was initiated, but [Appellee] was not able to continue with
criminal charges at that time due to the trauma of the event.
[Appellee] testified that whenever she returns to the place of her
abuse, she gets flashbacks and becomes sick.
Generally, [Appellee]’s life continued as normally as can be
expected to under the circumstances after the time of her abuse.
However, [Appellee]’s mother, S.W., who is not a party to this
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1 The appeals filed by L.S., M.P. and M.C. were docketed at 717 MDA 2020,
718 MDA 2020, and 719 MDA 2020, respectively. Because all three matters
involve related issues and parties, we consolidate them for appeal. See
Pa.R.A.P. 513. We also note that because the parties’ briefs are nearly
identical, we refer to the issues raised in the Appellants’ respective briefs as
“Appellants’ Brief.”
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appeal, was on lockdown in a halfway house, for reasons not at
issue in this appeal. In February, while in the halfway house, S.W.
remained in contact with her children, including [Appellee].
During this time, [Appellee] was placed in the physical custody of
S.W.’s friend and [Appellee’s] godmother, V.Y. In February of
2020, legal custody of [Appellee] was further transferred to V.Y.
by a Minor Power of Attorney form. During one telephonic
interaction between V.Y. and S.W., which [Appellee] overheard,
S.W. admitted that she had sexually abused one of [Appellee]’s
siblings, and either feared that she would, or planned to, do the
same to [Appellee] if given the opportunity. Having already been
the victim of sexual abuse, this caused [Appellee] to fear S.W.’s
potential presence at any time in the near future, and V.Y.
proceeded to advocate for [Appellee] safety by filing a Petition for
Protection from Abuse against S.W.
At or around the same time, M.P., M.C., and L.S. had begun to,
for some undetermined reason, disapprove of V.Y.’s custody of
[Appellee]. While this [c]ourt held that the reasons were not
relevant for the purposes of the [PFA] actions, some testimony by
M.P. without objection indicated Appellants felt [Appellee] was
unsafe in V.Y.’s residence because “there are three babies under
the age of [three] in that home and that’s just not the future that
I see for her.”
M.C. came into contact with his daughter, S.W., in order to discuss
[Appellee]’s placement going forward. [Appellee] proffered a
document which Appellants state S.W. signed on March 27, 2020,
which revokes V.Y.’s guardianship of [Appellee]. This document
was mailed to V.Y., and she received it on April 11, 2020. V.Y.
testified she did not believe the document was actually signed by
S.W. because S.W. and V.Y. were talking during this time and
S.W. never told V.Y. directly that she wanted V.Y.’s custody of
[Appellee] terminated. In part, V.Y.’s doubts were fostered by the
fact that the letter was delivered to her by M.C., not S.W.
At first, Appellants voiced no objection to [Appellee]’s placement
with V.Y. M.C. told V.Y. that V.Y.’s custody was the best place for
[Appellee], and even provided V.Y. with some money, although it
was testified that some of that money was intended for [Appellee].
L.S. visited [Appellee] while she was in V.Y.’s custody, and the
two enjoyed the visit, which was particularly notable as they had
been denied a relationship for some time on the basis of S.W.’s
objections. M.P. also communicated with [Appellee], typically by
phone on a bi-weekly basis. However, these positive
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communications and socializations were temporary. When the
placement of [Appellee]’s younger sibling with M.C. was complete,
it placed Appellants’ custodial focus on [Appellee]. The
conversations then switched from what one might think of as a
relationship between grandchild and grandparents, to one where
there was a seemingly constant pressure campaign mounting to
try to remove [Appellee] from V.Y.’s residence. [Appellee]
testified that she was receiving both phone calls and texts from
Appellants which made her “uncomfortable and terrified.”
She further testified that specifically on a phone call she was
“extremely upset,” and told M.C. that she, “was not leaving
[V.Y.’s] house,” to which M.C. responded, “you can’t say that.”
M.C.’s tone continued to be one of general dismissiveness towards
[Appellee], as she testified that he said to her that, “he was going
to give me the day to calm myself down and he would take me
out of the house next,” again amplifying the disregard to
[Appellee]’s mental health complaints. [Appellee] was terrified at
the possibility of leaving her residence with V.Y., in part because
she feared that Appellants had plans to reunite her with S.W. in
spite of S.W.’s threats to sexual[ly] abuse [Appellee]. At one
point, L.S. even called the police to have [Appellee] removed from
V.Y.’s residence. L.S. did not directly threaten to have [Appellee]
removed, however.
M.C. had now gained custody of [Appellee]’s younger sibling and
was working with M.P. and L.S. in order to gain physical and legal
custody of [Appellee] so she could be placed with M.P. in the same
home where [she] had been sexually abused. This is where
Appellants shifted from their softer attempts to relocate [Appellee]
with her cooperation, and began a course of conduct designed to
remove [Appellee] involuntarily. Appellants filed for custody of
[Appellee] in Adams County and made clear to [Appellee] that
their intention for her was to place her with M.P. back in the exact
same bedroom where her traumatizing abuse had occurred just
two years before. This decision was not one that was being made
unwittingly either. M.P., M.C., and L.S. all knew [Appellee] had
been sexually abused in M.P.’s home and, despite this knowledge,
intended that [Appellee] would be placed back into the room
central to her trauma. M.C. even admitted he voiced concern for
continuing with the custody action “Because I was concerned
about going forward. About her ability to live with [M.P.] in the
state of mind that she was in.”
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Appellants were aware of the abuse she had suffered, and yet they
did not soften their approach or reconsider their actions before the
filing of these Protection from Abuse actions. [Appellee] began to
experience such a great concern for her safety and mental health
that she and V.Y. worked together to file these actions. V.Y.
testified that [Appellee] was continuing to “break down even more
and more,” and that she was “becoming more scared.”
Trial Ct. Op., 7/8/20, at 2-5 (unpaginated) (record citations omitted).
On April 28, 2020, following a bifurcated hearing, the trial court found
that Appellee established abuse under 23 Pa.C.S. § 6102(a)(4). The trial court
granted Appellee’s petition and entered one-year PFA orders against
Appellants.2
Appellants separately filed timely notices of appeal and identical
Pa.R.A.P. 1925(b) statements.3 The trial court issued a responsive Rule
1925(a) opinion addressing Appellants’ claims. See Trial Ct. Op. at 6-11.
On appeal, Appellants raise the following issues:
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2 We note that the trial court issued no contact orders against L.S. and M.P.,
who both stated that they did not want any contact with Appellee. See Trial
Ct. Op. at 10-11; see also N.T. PFA Hr’g, 4/28/20, at 169-70. The trial court
entered a limited contact order against M.C., who indicated that he was open
to having contact with Appellee. See Trial Ct. Op. at 10-11; see also N.T.
PFA Hr’g at 169-70. The trial court also entered a three-year order against
Appellee’s mother, S.W., who did not participate in the PFA hearings or file an
appeal.
3 We note that Appellants raised additional issues in their Rule 1925(b)
statement that they did not discuss in their brief. Therefore, those issues are
abandoned for purposes of appeal. See Commonwealth v. Walker, 836
A.2d 999, 1002 n.4 (Pa. Super. 2003).
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1. Whether there was sufficient evidence admitted at trial to
support a finding of abuse as that term is defined within the
[PFA] Act and the Child Protective Services law?
2. Whether [Appellants’] pursuit of a custody action, involving the
minor Appellee in this action, can constitute “mental abuse,”
as that term is defined within the Child Protective Services law,
simply because that child is not a willing participant in the
custody action filed by [Appellants]?
Appellants’ Brief at 3 (full capitalization omitted).
Although Appellants listed two separate issues in their statement of
questions, Appellants have combined those claims into one section in their
brief. Therefore, we will address both issues together.
Appellants argue that there was insufficient evidence to support the trial
court’s finding of abuse under 23 Pa.C.S. § 6303(b.1)(3). Appellants’ Brief at
11. Specifically, Appellants contend that Appellee failed to prove that
Appellants acted with “the requisite intent to harm [Appellee],” as Appellants’
“only intentional act was exercising [their] right to pursue custody.” Id. at
11. Appellants contends that they are “not aware of any precedent which
holds that pursuing a custody action constitutes abusive conduct against a
child. To hold otherwise, the whole Custody Act would now be open to
challenge as a result of such an extravagant interpretation of ‘abuse.’” Id.
Appellants also claim that Appellee failed to establish that she suffered from
a “serious mental injury” due to Appellants’ actions. Id. Appellants assert
that there was no “competent medical evidence, other than a gratuitous claim
of counseling,” to establish “the existence of a psychological condition” under
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Section 6303(a). Id. Therefore, Appellants argue that the trial court erred in
granting Appellee’s petition.4
Appellee responds that the PFA petitions were “never about the fact that
[Appellants] filed for custody.” Appellee’s Brief at 10. Appellee explains that
“with Appellants’ awareness of the trauma [she] suffered in M.P.’s home in
recent memory and the fact that Appellee clearly expressed her wishes not to
go back, the Appellants’ continued efforts to gain custody and place [Appellee]
in M.P.’s residence is a clear and reckless disregard for [Appellee’s] mental
health.” Id. at 11. She further contends that there was sufficient evidence
to establish that she “suffered from serious mental injury due to the
Appellants’ incessant attempts to gain custody of [Appellee] and place back
into M.P.’s residence.” Id. Specifically, Appellee refers to testimony from
V.Y., who stated that Appellee “continued to breakdown . . . and that she was
becoming more scared with each passing day,” as well as her own testimony
that she “had flashbacks and felt sick every time she returned to M.P.’s home.”
Id. Appellee argues that “such testimony clearly illuminates that [Appellee]
was suffering from significant mental abuse due to the continual efforts of
Appellants to remove her from V.Y.’s care,” even without evidence from a
medical professional. Id. at 12.
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4 In their argument section, Appellants contend that although the PFA orders
were “only effective for six months,” their claims should not be dismissed for
mootness. Appellants’ Brief at 7, 12-13. However, the record clearly reflects
that the trial court entered one-year PFA orders against Appellants, which
expire on April 28, 2021. Therefore, we need not address this issue on appeal.
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“In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.” Boykai v. Young, 83
A.3d 1043, 1045 (Pa. Super. 2014) (citation and quotation marks omitted).
“When faced with a sufficiency challenge under the PFA Act, we review the
evidence in the light most favorable to the petitioner and, granting her the
benefit of all reasonable inferences, determine whether the evidence was
sufficient to sustain the trial court’s conclusion by a preponderance of the
evidence.” Custer v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007) (en
banc). “[T]he preponderance of evidence standard is defined as the greater
weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement
for preponderance of the evidence.” Raker v. Raker, 847 A.2d 720, 724 (Pa.
Super. 2004). In making this assessment, this Court must defer to the
credibility determinations of the trial court. See Custer, 933 A.2d at 1058.
“The purpose of the PFA Act is to protect victims of domestic violence
from those who perpetrate such abuse, with the primary goal of advance
prevention of physical and sexual abuse.” Id. at 1054 (citation omitted).
Therefore, this Court has repeatedly held that a “PFA petitioner is not required
to file a police report, nor is it necessary for her to introduce medical evidence
of an injury. The petitioner’s testimony is sufficient if it is believed by the trial
court.” Id. at 1058 (citation omitted).
The definition of “abuse” under the PFA Act includes physical and sexual
abuse of minors, “including such terms as defined in Chapter 63 (relating to
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child protective services).” 23 Pa.C.S. § 6102(a)(4)). The Child Protective
Services Act sets forth the elements that an agency must prove in order to
establish that a child’s serious mental injury constitutes “child abuse” under
the law. Specifically, Section 6303(b.1) defines “child abuse” as “intentionally,
knowingly or recklessly . . . [c]ausing or substantially contributing to serious
mental injury to a child through any act or failure to act or a series of such
acts or failures to act.” 23 Pa.C.S. § 6303(b.1)(3).
Further, Section 6303(a) defines “serious mental injury” as
[a] psychological condition, as diagnosed by a physician or
licensed psychologist, including the refusal of appropriate
treatment, that:
(1) renders a child chronically and severely anxious,
agitated, depressed, socially withdrawn, psychotic or in
reasonable fear that the child’s life or safety is threatened;
or
(2) seriously interferes with a child’s ability to accomplish
age-appropriate developmental and social tasks.
23 Pa.C.S. § 6303(a).
This Court has explained that
The remedy for child abuse under the Child Protective Services
Act is the removal of the child from the home and placement of
the child in protective custody. 23 Pa.C.S. § 6315. Under the
[PFA] Act, a parent, guardian, or adult household member may
seek the legal remedies available under that Act, i.e., a protective
order prohibiting contact between an abuser and a victim or
exclusion of the abuser from the victim’s residence, for a victim of
child abuse.
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Miller on Behalf of Walker v. Walker, 665 A.2d 1252, 1258 (Pa. Super.
1995); see also Viruet ex rel. Velasquez v. Cancel, 727 A.2d 591, 595
(Pa. Super. 1999) (emphasizing this Court’s “clear pronouncement that the
PFA Act broadly defines abuse to allow a petitioner to obtain protection from
abuse that may not rise to the level of abuse required for action under the
Child Protective Services Law”).
Here, the trial court addressed the sufficiency of the evidence
establishing abuse as follows:
It is this [c]ourt’s holding that when an adult, or group of adults,
conspires to place a child who has been traumatized by sexual
abuse back into the environment where that very abuse took
place, after that child has communicated that that action will place
them into severe emotional peril, and where those adults know
that the child continues to suffer from trauma as a result of the
abuse, it meets this definition of abuse by substantially
contributing to serious mental injury.
M.P. testified she knew [Appellee] “needed counseling.” M.P. also
knew [Appellee] could not follow through on a criminal action
“because [she] had too much anxiety.” Even with this knowledge,
M.P. worked toward having [Appellee] move into the same
bedroom inside the same home where [Appellee] was sexually
abused because, M.P. testified, [Appellee] is “a very strong girl
and we’ll get you through this.” When [Appellee] told M.P. she
did not want to move into M.P.’s house, M.P. did not inquire as to
why, but instead joined a custody action seeking to force
[Appellee] into her residence—the very residence in which
[Appellee] was sexually abused only [two] years ago. Notably,
this [c]ourt did not find M.P. undertook these actions intentionally.
However, the definition of abuse does not require intentional acts.
Instead, this [c]ourt found M.P. acted recklessly. Here, M.P.
consciously disregarded the risk of serious mental injury to
[Appellee] by attempting to force her into the environment in
which she was abused.
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M.C. testified that at one point he thought the custody action
should be withdrawn because he had concerns about [Appellee]’s
mental health in forcing her to life with M.P. in the same bedroom
in which the abuse had taken place. Despite his own concerns,
he moved forward with joining the custody action. M.C. knew it
was Appellants’ intention have [Appellee] live with M.P. As with
M.P., M.C. has consciously disregarded his own admitted concern
for [Appellee]’s mental health and sought to make her move into
the home where she was sexually abused.
L.S. testified she was aware of the sexual abuse perpetrated
against [Appellee]. L.S. also testified she knew the purpose of the
custody complaint was to have [Appellee] stay “mainly with M.P.”
On April 9, 2020, 4 days before the custody complaint was filed,
[Appellee] told L.S. through a text message “If you want back in
my life and for me to ever speak to you, you’ll stop this from
happening.” L.S. understood “this” to be the custody action of
which M.C. had already told [Appellee]. Each of the three
Appellants here knew [Appellee] had been sexually abused in
M.P.’s home, knew [Appellee] did not want to return to M.P.’s, was
still suffering trauma from effects of the abuse, and still sought to
force [Appellee] through a custody action, back into M.P.’s home.
As the [c]ourt opined while announcing its decision at the
conclusion of the hearing, “In light of the context of [Appellee]’s
trauma and in light of the context of what recently occurred with
her stepbrother and with the training this [c]ourt has, I interpret
[Appellee’s] statement that she will not leave her current house
as if you make me leave this house and go live there, I may
commit suicide.” Whether or not [Appellee] would have
contemplated or committed suicide or she simply would have
suffered from flashbacks and getting sick as she had in the past,
the [PFA] Act clearly provides that this [c]ourt can enter a final
order to protect a child from serious mental injury.
Trial Ct. Op. at 7-9 (record citations omitted and some formatting altered).
Based on our review of the record, we discern no error of law or abuse
of discretion by the trial court. See Boykai, 83 A.3d at 1045. The trial court
specifically credited testimony that Appellee was suffering from mental
breakdowns and experiencing fear and anxiety, possibly to the point where
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she was contemplating suicide. See Trial Ct. Op. at 9. There being no dispute
that Appellee was a victim of sexual abuse and the absurdity of Appellants’
efforts to place her back in the bedroom where the abuse occurred, we find
no error in the trial court’s finding that Appellee suffered from abuse. See
Custer, 933 A.2d at 1054. Therefore, under the circumstances of this case,
Appellants are not entitled to relief.5
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/26/2021
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5 In any event, the trial court found that Appellee feared that Appellants would
“reunite her with S.W. in spite of S.W.’s threats to sexual[ly] abuse
[Appellee].” Trial Ct. Op. at 11; see Custer, 933 A.2d at 1054 (stating that
the primary goal of the PFA Act is “advance prevention of physical and sexual
abuse”); see also 23 Pa.C.S. § 6303(b.1)(6) (stating that “child abuse”
includes “creating a likelihood of sexual abuse or exploitation of a child
through any recent act or failure to act”).
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