J-A30005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.H., A MINOR            :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
    APPEAL OF: P.H., STEPFATHER                  :
                                                 :
                                                 :
                                                 :
                                                 :
                                                 :   No. 1352 MDA 2019

                  Appeal from the Order Entered July 12, 2019
    In the Court of Common Pleas of York County Juvenile Division at No(s):
                            CP-67-DP-0000323-2018


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                               FILED FEBRUARY 20, 2020

        Appellant, P.H. (“Stepfather”), appeals from the July 12, 2019 Order

entered in the York County Court of Common Pleas that found him to be a

perpetrator of sexual abuse against J.H. (“Child”). Upon careful review, we

affirm.

        On August 22, 2018, the York County Office of Children, Youth, and

Families (“Agency”) received a report alleging that Stepfather sexually abused

7-year-old Child while living in the home with Child, T.H. (“Mother”)1, and

Child’s two younger half-siblings.             The Agency immediately conducted a

“minimal facts” interview with Child and implemented a safety plan where

Child and Child’s siblings resided with a maternal great aunt for sixty days.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Mother is Child’s mother and Stepfather’s former wife.
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On August 28, 2018, the Children’s Advocacy Center conducted a forensic

interview of Child (“CAC interview”).

      During the recorded CAC interview, Child described an incident when

Mother and Stepfather both showed Child their genitalia to teach Child about

the difference between male and female anatomy. Child disclosed that she

saw Stepfather’s penis and testicles, that Stepfather’s penis was hard and soft

during this interaction, and that she touched Stepfather’s penis.

      Also during the CAC interview, Child disclosed a second incident when

Child touched Stepfather’s penis while Mother was not home and Stepfather

told her to lie about it.

      On October 23, 2018, the trial court adjudicated Child dependent and

Child remained in the care of the maternal great aunt.

      In November 2018, Mother participated in a psychosexual evaluation.

In sum, Mother explained that during the first incident, Child asked to see

Stepfather naked and Mother and Stepfather agreed.         Adult Psychosexual

Evaluation, 11/5/18, at 1-2. Mother described that Stepfather undressed and

allowed Child to ask questions about Stepfather’s penis. Id. Mother stated

that when Child asked to see Stepfather’s penis erect, Mother excused Child

from the room while she performed oral sex on Stepfather. Id. Mother then

summoned Child back into the room to see Stepfather’s erect penis and

Mother disclosed that she also undressed from the waist down so that Child

could see the difference. Id.




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      Mother recalled the second incident and stated that when she arrived

home Child was on the floor while Stepfather was lying on the couch with a

blanket over him and she saw Stepfather jump and Child have a strange look

on her face. Id. Mother reported that when she questioned Child about the

incident, Child replied that she asked Stepfather if she could touch his penis.

Id.

      In   December    2018,   Stepfather   participated   in   a   psychosexual

evaluation.   In sum, Stepfather confirmed Mother’s account of the first

incident and explained that Mother and he were teaching Child about anatomy.

Adult Psychosexual Evaluation, 12/6/2018, at 1-2. Stepfather reported that

during the second incident, he was sleeping on the couch when Child asked to

see his penis several times and he finally said yes and let her poke it a few

times. Id.

      On March 1, 2019, the Agency received a report regarding the second

incident between Stepfather and Child. At the conclusion of the investigations,

the Agency indicated both reports.

      The Agency filed a motion seeking a finding of abuse against Stepfather

and, on July 12, 2019, the trial court conducted a hearing. The trial court

heard testimony from Mother and the Agency caseworker Stacie Wineholt.

The trial court also admitted into evidence Mother’s psychosexual evaluation,

Stepfather’s psychosexual evaluation, and the reports of abuse.

      The trial court also admitted into evidence the video of the CAC interview

pursuant to the exception to the hearsay rule set forth in 42 Pa.C.S. § 5986.

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The trial court viewed the video in camera and found that Child would suffer

serious emotional distress if called to testify and thus, was unavailable as a

witness.

      The trial court concluded that Stepfather was a perpetrator of sexual

abuse against Child pursuant to 23 Pa.C.S. § 6303(a).          Stepfather timely

appealed. Both Stepfather and the trial court complied with Pa.R.A.P. 1925.

      Stepfather raises the following issues on appeal:

      I.     Did the trial court err when it made a finding of abuse
             against [] Appellant by considering evidence that was
             improperly made part of the record and admitted into
             evidence without being introduced by any party?

      II.    Did the trial court err and/or abuse its discretion when it
             made a finding of abuse against [] Appellant where there
             was insufficient evidence to prove abuse?

      III.   Did the trial court violate [] Appellant’s right to due process
             by denying an uncontested continuance of the case where
             [] Appellant exercised his right to remain silent pending a
             criminal investigation in ongoing collateral proceedings?

Stepfather’s Br. at 4.

      We review findings in a dependency case for an abuse of discretion. In

re L.Z., 111 A.3d 1164, 1174 (Pa. 2015). This Court is required to accept the

findings of fact and credibility determinations of the trial court if the record

supports them, but not required to accept the lower court’s inferences or

conclusions of law. Id. “The trial court is free to believe all, part, or none of

the evidence presented and is likewise free to make all credibility

determinations and resolve conflicts in the evidence.” Interest of T.G., 208

A.3d 487, 490 (Pa. Super. 2019) (citation omitted), appeal denied, 211 A.3d

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750 (Pa. 2019). Notably, “we are not in a position to reweigh the evidence

and the credibility determinations of the trial court.” In re R.J.T., 9 A.3d

1179, 1190 (Pa. 2010).

      In his first issue, Stepfather avers that the video of the CAC interview

constitutes hearsay and the trial court improperly admitted the CAC interview

as an exception to hearsay pursuant to 42 Pa.C.S. § 5986. Stepfather’s Br.

at 7. Stepfather specifically argues that the trial court erred when it failed to

hear testimony from the forensic interviewer to determine whether the CAC

interview provided sufficient indicia of reliability. Id. at 8. Stepfather further

argues that the trial court erred when it failed to hear testimony from a

statutorily prescribed individual prior to making the determination that Child

was unavailable due to serious emotional distress and admitting the video into

evidence. Id. This issue lacks merit.

      A trial court’s decision to admit or exclude evidence lies within the sound

discretion of the trial court and will not be disturbed absent an abuse of

discretion. In re C.M.T., 861 A.2d 348, 355 (Pa. Super. 2004).

      Instantly, the trial court admitted the video of the CAC interview

pursuant to Section 5986, which provides an exception to the rule against

hearsay when a child is describing sexual abuse in dependency proceedings.

See 42 Pa.C.S. § 5986. This provision permits the admission into evidence of

the child’s statement under certain circumstances. See id. First, the trial

court must determine that the child’s statement is relevant and reliable:




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      (a) General rule.--A statement made by a child describing acts
      and attempted acts of indecent contact, sexual intercourse or
      deviate sexual intercourse performed with or on the child by
      another, not otherwise admissible by statute or court ruling, is
      admissible in evidence in a dependency proceeding initiated under
      Chapter 63 (relating to juvenile matters), involving that child or
      other members of that child's family, 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;

42 Pa.C.S. § 5986(a).     The Rule further provides that the trial court may

excuse the child from testifying (and deem the child unavailable) if the trial

court determines that the child, by testifying, will suffer serious emotional

distress such that testifying will impair the child’s ability to reasonably

communicate:

      (b) Emotional distress.--In order to make a finding under
      subsection (a)(2)(ii) that the child is unavailable as a witness, 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 that would substantially impair the
      child's ability to reasonably communicate.

42 Pa.C.S. § 5986(b). In making the determination of whether the child will

suffer “serious emotional distress,” the trial court may observe or question

the child or hear testimony of a parent or person who has dealt with the child

in a medical or therapeutic setting:

      In making this determination, the court may do all of the
      following:

      (1) Observe and question the child, either inside or outside the
      courtroom.




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       (2) Hear testimony of a parent or custodian or any other person,
       such as a person who has dealt with the child in a medical or
       therapeutic setting.


Id. (emphasis added). We note that the statute does not limit the type of

evidence that the trial court may consider in making the determination of

“serious emotional distress.”

       In this case, the trial court found that the CAC interview was relevant

and reliable from the interview itself. Stepfather argues that the trial court

erred when it failed to hold an in camera hearing to hear testimony from the

forensic interviewer to determine whether the CAC interview and the

statements     made      therein    provided     “sufficient   indicia   of   reliability.”

Stepfather’s Br. at 8. At the hearing on the admissibility of the CAC interview,

however, Stepfather’s counsel stated that he did not object to the trial court’s

dismissal of the forensic interviewer. Stepfather cannot now argue that the

trial court should have considered the testimony of the forensic interviewer

when determining the reliability of the CAC interview. Stepfather has waived

any challenge. See N.T. Hearing, 7/12/19, at 15; Interest of L.V., 209 A.3d

399, 418 (Pa. Super. 2019) (citation omitted) (“In order to preserve an issue

for appellate review, a party must make a timely and specific objection at the

appropriate stage of the proceedings before the trial court.”).2 Accordingly,

Stepfather is not entitled to relief.
____________________________________________


2 Even if Stepfather had not waived this issue, the statute does not require a
trial court to hear extrinsic evidence to determine “that the evidence is
relevant and that the time, content and circumstances of the statement
provide sufficient indicia of reliability[.]” See 42 Pa.C.S. § 5986(a)(1).

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      Stepfather next argues that the record is devoid of evidence or

testimony from a parent, custodian, or medical or therapeutic provider to

demonstrate that Child would experience emotional distress upon testifying.

Stepfather’s Br. at 6. Therefore, Stepfather argues, the trial court erred when

it determined that Child was unavailable pursuant to Section 5986.

      Stepfather mischaracterizes the statutory requirements.       Pursuant to

Section 5986, in order for a trial court to make a determination that a child is

unavailable to testify due to emotional distress, the trial court may, not shall,

“observe and question the child” and/or “[h]ear testimony of a parent or

custodian or any other person[.]” 42 Pa.C.S. § 5986(b).

      Here, prior to admitting the CAC interview presented by the Agency into

evidence, the trial court viewed the CAC interview in camera.         Based on

previously admitted evidence regarding Child’s therapy, including reports from

Child’s therapist, and the Child’s demeanor during the CAC interview, the trial

court found that testifying would cause the Child “serious emotional distress”

and concluded that the Child was unavailable as a witness. See Trial Ct. Op.,

filed 8/26/19, at 9.

      We find that Rule 5986 does not require the trial court, in determining

a child’s unavailability, to rely solely on the testimony of a parent or medical

or therapeutic professional. Rather, the trial court may rely upon other

properly admitted evidence. In this case, the trial court properly considered

the CAC video and the other reports in determining that Child was unavailable




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and did not abuse its discretion in making its determination based upon that

evidence.

      In his second issue, Stepfather avers that the Agency presented

insufficient evidence to prove that he was a perpetrator of abuse against Child.

Stepfather’s Br. at 9. Stepfather argues that the evidence demonstrated that

the alleged incidents between Stepfather and Child occurred for educational

purposes rather than Stepfather’s sexual arousal, stimulation, or gratification.

Id. at 10. Upon review, Stepfather is not entitled to relief.

      To obtain a finding of child abuse under the Child Protective Services

Law (“CPSL”), the petitioning party must demonstrate the existence of child

abuse by clear and convincing evidence. L.Z., 111 A.3d at 1174. The CPSL

defines “child abuse” to include, in relevant part, intentionally, knowingly or

recklessly “causing sexual abuse or exploitation of a child through any act or

failure to act.” 23 Pa.C.S. § 6303(b.1)(4). In turn, the CPSL defines “sexual

abuse or exploitation” as “[t]he employment, use, persuasion, inducement,

enticement or coercion of a child to engage in or assist another individual to

engage in sexually explicit conduct,” which includes, inter alia:

      (i) Looking at the sexual or other intimate parts of a child or
      another individual for the purpose of arousing or gratifying sexual
      desire in any individual.

      (ii) Participating in sexually explicit conversation either in person,
      by telephone, by computer or by a computer-aided device for the
      purpose of sexual stimulation or gratification of any individual.

      (iii) Actual or simulated sexual activity or nudity for the purpose
      of sexual stimulation or gratification of any individual.


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23 Pa.C.S. § 6303(a).

      The trial court did not find Stepfather’s explanation, that his actions

were for educational purposes, to be credible and found that Stepfather’s

conduct met the definition of sexual abuse under Section 6303.          The Trial

court opined:

      Stepfather employed, used, persuaded, induced, enticed or
      coerced [] Child to engage in sexually explicit conduct, because
      he showed [] Child his penis, both when aroused and when not
      aroused; prior to both incidents there was conversation with []
      Child about touching [Stepfather]’s penis, and during both
      incidents [] Child touched [Stepfather]’s penis.

      The [c]ourt is not persuaded at all by [Stepfather]’s assertion that
      the first incident was only an innocent teaching lesson for [] Child
      as to the differences between the male and female body.
      Common sense should have told both [Stepfather] and Mother
      that allowing and encouraging a 7-year-old child to touch an adult
      male’s penis is to say the least disturbing behavior. Regarding
      the second incident, whether initiated by [] Child or not,
      [Stepfather] was the adult in the situation and should have acted
      like one. However, the [c]ourt finds little believability in the
      statements it is alleged that [Stepfather] made to Mother, the
      police, and the psychosexual evaluator regarding the second
      incident. [C]hild’s statement[,] that [Stepfather] asked her not
      to tell Mother what happened, weighs heavily against
      [Stepfather].

Trial Ct. Op. at 6-7. The record supports the trial court’s findings and we

decline to reweigh the trial court’s credibility determinations. Accordingly, we

find no abuse of discretion.

      In his final issue, Stepfather avers that the trial court violated his right

to due process when the court denied his request for a continuance to exercise

his right to remain silent while an ongoing collateral criminal investigation is


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pending. Stepfather’s Br. at 10. In his one-paragraph argument, Stepfather

fails to develop any legal argument, provide citation to the record, or provide

citation to legal authorities to support his averment.     Accordingly, we are

constrained to find this issue waived. See R.L.P. v. R.F.M., 110 A.3d 201,

208–09 (Pa. Super. 2015) (stating that arguments that are not appropriately

developed     are     waived,     including    those     where    the    party

has failed to cite any authority in support of a contention).

      In conclusion, the record supports the trial court’s finding that

Stepfather was a perpetrator of child abuse against Child for sexual abuse or

exploitation and we find no abuse of discretion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2020




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