J-A16004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.P.,                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

T.N.,

                            Appellee                No. 1166 WDA 2015


                      Appeal from the Order July 2, 2015
              In the Court of Common Pleas of Allegheny County
                   Family Court at No(s): FD 06-009327-006


BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 26, 2016

        Appellant, Dr. M.P.1 (“Mother”), appeals from the order dismissing her

petition filed pursuant to the Protection from Abuse (“PFA”) Act, 23 Pa.C.S.

§§ 6101–6122 (“PFA Act”), against T.N. (“Father”), on behalf of the parties’

minor daughter, J., who was born in August of 2004 (“Daughter”). Mother

asks this Court to reverse the trial court’s order dismissing her PFA petition

and issue a final order granting it. She argues that she presented sufficient

evidence of abuse to warrant relief. Upon careful review, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Pursuant to our Internal Operating Procedure 424 (Confidentiality Issues),
we are using the parties’ initials to protect the identity of a minor.
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      Pursuant to a 2007 consent order of court, Father had supervised

visitation with Daughter on Thursday, Friday, and Sunday evenings. Order,

4/12/07. Pursuant to a subsequent consent order, Mother retained primary

physical custody of Daughter, and, beginning in mid-July 2008, Father’s

partial custody was modified to visits every other weekend and on

alternating Tuesday and Thursday evenings.          Order, 6/5/08, at ¶ 2(a–l).

The trial court entered a divorce decree on February 13, 2009.

      As   Daughter    matured,    her   relationship    with   Father   became

problematic, leading to an altercation in October of 2014.           Thereafter,

Mother arranged for the parties to attend family counseling sessions.

Although willing to participate at first, Father’s interest in counseling ended

with his filing for shared legal and physical custody. Petition for Modification

for Shared Physical Custody, 12/8/14.      Mother also sought modification of

custody.   Petition for Special Relief, 12/11/14.    Father filed a response to

Mother’s petition in which he detailed Mother’s efforts to undermine his

relationship with Daughter and requested a finding of contempt against

Mother. Response to Petition for Special Relief and Motion for Contempt and

Special Custody Relief, 12/10/14, at ¶¶ 3–10.        In the first of two orders

dated December 9, 2014, the trial court granted Father’s petition with

regard to Mother’s obstructive behavior and preserved Father’s contempt

issues. Order, 12/10/14. In the second order, the trial court directed the

parties to continue family counseling and modified Father’s partial custody


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periods.      Order, 12/11/14.    Subsequently, the trial court appointed a

guardian ad litem (“Guardian”) for Daughter. Order, 12/12/14.

      Daughter’s relationship with Father continued to deteriorate, leading to

an altercation on June 13, 2015. About two weeks later, Mother applied for

a PFA order against Father on Daughter’s behalf, and the trial court entered

a temporary PFA order suspending Father’s custody of Daughter. PFA Order,

6/25/15.

      The trial court conducted a hearing on July 1, 2015, at which only

Daughter and Father testified. N.T., 7/1/15, at 5–72. Daughter testified in

chambers with the trial judge and counsel present. Id. at 3. When asked

by the trial court why they were there, Daughter replied, “[M]y dad and me

have not a good relationship.” Id. at 8. Daughter then testified about the

June 13, 2015 incident which arose from a disagreement about how to fix

Daughter’s foggy cell phone.     Id. at 8–11, 31–33.   Daughter testified, “I

thought he was going to kill me because he was just scaring me and yelling

at me and grabbing me.”      Id. at 13.   Next, Daughter testified about the

October of 2014 incident, during which Father compared Daughter to [K.],

the daughter of Father’s girlfriend. Id. at 14, 27. Daughter stated that she

does not like to be compared to [K.] and that she felt Father cared more

about [K.], than her. Id. at 16, 27. She also stated, “I’m afraid he’s going

to kill me.   He terrifies me” because “he yells at me and grabs me and

shakes me.” Id. at 17, 34. When asked how she would feel if she did not


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see her dad for three years, Daughter answered, “I think that would be

fine.”    Id. at 35.   However, when asked if Father would stop yelling and

grabbing her, Daughter admitted that she “would want to see him, like,

tomorrow.”     Id. at 38.   Daughter further testified that she does not like

Father’s girlfriend or [K.] because they ignore her. Id. at 39.

         Father also testified at the PFA hearing about the June 13, 2015

incident involving Daughter’s phone. N.T., 7/1/15, at 46–60. According to

Father, Daughter asked his help to dry the phone and fix the fogginess. Id.

at 46. When Father suggested they had to take the LifeProof® case apart to

fix the phone, Daughter “didn’t want to hear that. . . .” Id. at 47. Father

described Daughter’s demeanor as “very irritable, very short tempered, very

demeaning, very condescending, and very mean.”         Id. at 48–49.   Father

testified that he then left the room for about four minutes, and when he

returned, Daughter was “freaking out, her legs are up, she’s looking at her

cell phone, she is, like, hitting it.” Id. at 50. Father also described how he

made suggestions for fixing the phone, how he physically tried to help

Daughter calm herself down, and how she reacted by kicking him.        Id. at

50–52, 54–58.      Father testified that, in response to Daughter’s “violent

behavior,” he called Mother, requesting that she come and help, but Mother

refused. Id. at 58. Lastly, Father described how he returned Daughter to

Mother’s custody at which point Daughter said goodbye and hugged him.

Id. at 59–60.


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      In separate orders, the trial court limited Father’s custody to visitation

with Daughter in public places, directed Father and Daughter to undergo

reunification therapy, and dismissed the PFA petition. Order, 7/6/15; Order,

7/9/15. Mother appealed and complied with Pa.R.A.P. 1925(b).

      On appeal, Mother raises the following issues for our consideration:

      A.    Whether the Trial Court erred as a matter of law and
            abused its discretion in refusing to enter a Protection from
            Abuse Order on behalf of the parties’ minor daughter, J.,
            as a protected party, when the preponderance of the
            evidence, including testimony by the minor child,
            demonstrated that the minor child was in reasonable fear
            of serious bodily injury as defined by 23 Pa.C.S.
            §6102(a)(2).

      B.    Whether the Trial Court erred as a matter of law by
            applying an incorrect standard of law when refusing to
            enter a Protection from Abuse Order on behalf of the
            parties’ minor daughter, J.

Mother’s Brief at 6.

      In a PFA action, we review the trial court’s legal conclusions for an

abuse of discretion or an error of law.     Boykai v. Young, 83 A.3d 1043,

1045 (Pa. Super. 2014) (quoting Stamus v. Dutcavich, 938 A.2d 1098,

1100 (Pa. Super. 2007) (citation omitted)).        We defer to the credibility

determinations of the trial court as to witnesses who appeared before it.

Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004) (quoting Fonner v.

Fonner, 731 A.2d 160, 161 (Pa. Super. 1999)).

      In her first issue, Mother claims that the trial court erred in finding the

evidence insufficient to grant her PFA petition.        Mother’s Brief at 14.


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However, closer examination of Mother’s argument reveals a weight-of-the-

evidence claim:     “The Trial Court disregarded evidence of [Daughter’s]

reasonable fear of serious bodily injury. . .” Id. at 17.

      “[A]ppellate review of a weight claim consists of a review of the trial

court’s exercise of discretion, not a review of the underlying question of

whether the verdict is against the weight of the evidence.” Commonwealth

v. Walsh, 36 A.3d 613, 622 (Pa. Super. 2012) (discussing indirect criminal

contempt of PFA order).       We are bound by the trial court’s credibility

determinations. Karch v. Karch, 885 A.2d 535, 537 (Pa. Super. 2005).

      According to the PFA Act, the trial court “may grant any protection

order or approve any consent agreement to bring about a cessation of abuse

of the petitioner or minor children.”    23 Pa.C.S. § 6108(a).    The PFA Act

defines “abuse,” in pertinent part, as follows:

            “Abuse.” The occurrence of one or more of the following
      acts between family or household members, sexual or intimate
      partners or persons who share biological parenthood:

                                    * * *

            (2) Placing another in reasonable fear of imminent serious
      bodily injury.

23 Pa.C.S. § 6102.     “[T]he court’s objective is to determine whether the

victim is in reasonable fear of imminent serious bodily injury.... [The] intent

[of the alleged abuser] is of no moment.” Raker, 847 A.2d at 725. “Actual

physical harm is not a prerequisite for the entry of a PFA order[;] the victim

need only be in reasonable fear of imminent serious bodily injury.”

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Thompson v. Thompson, 963 A.2d 474, 477 (Pa. Super. 2008) (citing

Fonner, 731 A.2d at 163).

      In response to Daughter’s and Father’s testimonies about the June 13,

2015 incident, the trial court opined from the bench as follows:

            All right, I am ready to rule.   I don’t need to hear from
      [Father’s] girlfriend.

                                    * * *

            This is empowering [Daughter]. There is no PFA, okay?
      I’m dismissing the PFA. She has to be reasonably in fear. She’s
      afraid her dad is going to kill her? She’s ten years old, okay?
      Ten years old. There is no PFA.

             That being said, what I’m going to do is take my hat off on
      the PFA and I am going to take this as a Petition For Special
      Relief. What I am going to do -- why in God’s name they’re not
      in counseling together, not some counselor who says when I feel
      like it. They’re going into counseling with Dr. Bob as soon as
      possible, reunification counseling so she can say . . . about how
      she thinks [Father] favor[s] [K.] and these other things. You
      need an opportunity to talk to your daughter in a safe situation,
      okay? This baloney about some therapist saying we’re not ready
      to get everybody in -- this should have happened a year ago.

                                    * * *

            Now, that being said, she has been empowered I think.
      But, on the other hand, I do think she’s a little bit afraid of
      [Father], all right?

                                    * * *

            What I am going to do is do exactly what I said I was
      going to do before, is we are going to have a period until I can
      get in a couple things with Dr. Bob, and we will talk about that in
      a minute, but custody is going to have to be in a public place,
      okay?

                                    * * *

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           This is to me to try to get some cooperation from
     [Daughter] so that we can fix whatever is going on between you.
     I am convinced that she is afraid of [Father] and not reasonably
     so. She has a whole bunch of things, like I said, that she needs
     to say to [Father] but she was all over the block. I cannot see
     my dad for three years, I could see my dad.

            What the bottom line it boiled down -- and this is really the
     telling thing -- if I could wave a magic wand that your dad
     couldn’t do this anymore to you, when would you want to see
     him? Tomorrow. Tomorrow, okay?

           So this has to be fixed.

                                      * * *

            This child can’t be empowered anymore. If half of what
     [Father] is saying is true about these fits she’s having, he’s
     terrified to discipline her, I don’t blame him. So you guys have
     to get together on how to discipline this child. I don’t know if
     there’s something wrong with her or not. Some kids are like
     that, they’re teenagers. Has she [gone] through puberty yet?
     Well, I guess she’s about to. You guys have to be on the same
     thing, because you will screw her up if [Father] can’t discipline
     and [Daughter] can do whatever she wants in the house and she
     can come back running to [Mother] all the time.

           He’s not right for the way he handled this, I’m not saying
     that at all, but [Daughter] is being empowered to think she can
     run in here and get a PFA under these circumstances.

           So I’m going to give you an opportunity -- I want by
     tomorrow, you either pick a therapist, reunification therapist for
     [Father] and [Daughter], period. [Father] and [Daughter]. I
     don’t care if she’s going to 45 other people other than, I don’t
     care. This is to reunify, so that [Daughter] can say the things
     she felt comfortable enough saying to me, that she can say to
     [Father].

N.T., 7/1/15, at 73–77.

     We reiterate that “[c]redibility determinations are crucial components

to any trial proceeding.” Ferko–Fox v. Fox, 68 A.3d 917, 924 (Pa. Super.

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2013).   “The trial court’s ability to view the petitioner’s facial expressions

and mannerisms during the ... hearing is critical to an ability to render its

credibility determinations.”    Id.   Here, the trial court opined that Father

mishandled Daughter’s outburst, but it did not credit “an emotional ten year

old who is admittedly jealous of Father’s relationship with [K.].” Trial Court

Opinion, 9/21/15, at 6.        Indeed, the trial court questioned Daughter’s

testimony that she was “afraid her dad is going to kill her” and concluded

that she was not reasonably in fear of Father. N.T., 7/1/15, at 74, 76. The

trial court wisely distinguished Daughter’s “fits” and her emotional issues

toward Father that need to be resolved.        Id. at 76; Trial Court Opinion,

9/21/15, at 6.

      The trial court weighed the evidence that was properly before it,

discredited Daughter’s testimony, and, based on a preponderance of the

evidence, concluded that Father did not abuse Daughter, as defined in

section 6102 of the PFA Act. Mother asks this Court to reweigh Daughter’s

testimony and conclude it was sufficient for “the Trial Court [to] find by a

preponderance of the evidence that [Daughter] was in reasonable fear of

serious bodily injury.” Mother’s Brief at 17. Given the record before us and

the trial court’s determination that Daughter’s testimony was not credible,

we discern no abuse of its discretion. Accordingly, Mother’s first issue does

not warrant relief. See Leonard v. Smith, 684 A.2d 622, 627 (Pa. Super.




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1996)   (appellate     court    will   not      disturb   PFA    court’s   credibility

determinations).

     Mother’s second claim of error is that the trial court applied a

heightened standard in concluding that Daughter was not in fear of her life

while in Father’s custody.     Mother’s Brief at 21. Father responds that the

trial court “cited the correct language of the PFA statute in its opinion in

support of the PFA dismissal.” Father’s Brief at 13. We agree with Father.

     The applicable standard for a finding of abuse is that the victim was in

“reasonable fear of imminent serious bodily injury.”            23 Pa.C.S. § 6102.

Here, the trial court found “no evidence to support [Daughter’s] espoused

fear that Father was going to kill her, or cause her serious bodily injury.”

Trial Court Opinion, 9/21/15, at 6.      Additionally, the trial court found that

Daughter was “afraid” of Father but not “reasonably so.” N.T., 7/1/15, at

76. Thus, we reject Mother’s argument that the trial court “should not have

used a ten year old’s words as the standard for abuse under the Act.”

Mother’s Brief at 22. Based on our review of the trial court’s analysis, we

conclude that it used the appropriate standard when it decline to find abuse.

Thus, Mother’s second claim of error does not warrant relief.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




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