J-S52045-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

H.S.G., FILING ON BEHALF OF MINOR         :   IN THE SUPERIOR COURT OF
CHILDREN S.R.H. AND K.M.H.                :         PENNSYLVANIA
                                          :
         v.                               :
                                          :
M.A.H.                                    :
                                          :
APPEAL OF: GUARDIAN AD LITEM              :   No. 518 EDA 2016

                     Appeal from the Order January 11, 2016,
              in the Court of Common Pleas of Montgomery County,
                     Civil Division, at No(s): No. 2015-31197

BEFORE:       FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED AUGUST 23, 2016

     The guardian ad litem (GAL) appeals from the order entered January

11, 2016, granting H.S.G.’s request, pursuant to the Protection From Abuse

Act (PFA), 23 Pa.C.S. § 6101-6122, for entry of a final protection order

against M.A.H. (Father) on behalf of the parties’ minor Children,    S.R.H.,

born in July of 2004, and K.M.H., born in March of 2012 (collectively, the

Children). We remand with instructions.

     The certified record reveals the following.    Father and Mother are

unmarried and have not resided together since S.R.H. was two years old.

Although there is an existing support order, there is no formal custody

arrangement. The last time Father saw the Children was in late October or

early November of 2015.

     On November 26, 2015, S.R.H. disclosed to Mother that she had been

sexually abused by Father three years earlier (approximately 2012) during

*Retired Senior Judge assigned to the Superior Court.
J-S52045-16


overnight visits at the home of a paternal great aunt. In response to this

information, Mother filed a petition for a temporary PFA order on behalf of

the Children. This request was granted by order dated November 30, 2015,

and the court scheduled a final PFA hearing for December 15, 2015. Also on

November 30, 2015, the court appointed GAL on behalf of the Children.

        On December 15, 2015, the scheduled PFA hearing was continued to

January 11, 2016.      On January 11, 2015, following the hearing, the court

entered a final PFA order on behalf of the Children, which was set to expire

on June 30, 2016. The GAL timely-filed a notice of appeal and statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 905(a)(2) and

Pa.R.A.P. 1925(a(2).1      On March 8, 2016, the PFA court filed its Pa.R.A.P.

1925(a) opinion.

        On appeal, the GAL asks us to consider whether the PFA court abused

its discretion by entering a five-and-a-half-month-long final order. GAL’s

Brief at 2-3. Specifically, the GAL contends that the duration of the order

was too short to effectuate the purpose of the PFA Act where the court

determined by a preponderance of the evidence that S.R.H.’s allegation of

sexual abuse was credible. Id.

        “Our standard of review for PFA orders is well settled. In the context of

a PFA order, we review the trial court’s legal conclusions for an error of law

1
    Neither Mother nor Father has filed a brief with this Court.



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or abuse of discretion.” Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa.

Super. 2007) (citation omitted). “An abuse of discretion is more than just an

error in judgment and, on appeal, the trial court will not be found to have

abused its discretion unless the record discloses that the judgment exercised

was manifestly unreasonable, or the [result] of partiality, prejudice, bias or

ill-will.” Id.

       Pursuant to the PFA Act “[t]he court may grant any protection order or

approve any consent agreement to bring about a cessation of abuse of the

plaintiff or minor Children.” 23 Pa.C.S § 6108. With respect to duration of a

final order, the Act provides that “[a] protection order or approved consent

agreement shall be for a fixed period of time not to exceed three years. The

court may amend its order or agreement at any time upon subsequent

petition filed by either party.” 23 Pa.C.S § 6108(d).

       Instantly, the PFA court was presented with allegations of sexual

abuse that occurred three years before its disclosure.      While it believed

those allegations, the court noted that Mother, as primary physical

custodian, controlled Father’s access to the Children. PFA Court Opinion,

3/8/2016, at 4-5. The court noted that Mother believed S.R.H.’s allegations,

id., and it is apparent from the record that the trial court believed that

Mother’s control over Father’s sporadic contact with the Children, the last of




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which occurred at the agreement of the parties and a month before the

allegations were brought to light, was sufficient to prevent future abuse. Id.

      The trial court’s rationale places on Mother the burden of preventing

Father from accessing the Children and fails to consider other ways in which

Father could encounter S.R.H. when she is outside of Mother’s care, either at

school or under the supervision of another caretaker. The court’s admittedly

short order, which ostensibly expired before the conclusion of the Children

and Youth Services (CYS) investigation, the filing of criminal charges, or the

implementation of a custody order, is at odds with the PFA Act’s stated goal

of protecting “victims of domestic violence from those who perpetrate such

abuse, with the primary goal of advance prevention of physical and sexual

abuse.” Buchhalter v. Buchhalter, 959 A.2d 1260, 1262 (Pa. Super. 2008)

      Accordingly, we reinstate the order of January 11, 2016, to remain in

effect pending a new hearing at which the PFA court can consider the results

of any CYS or criminal investigation, and any necessary conditions to protect

the Children’s safety.

      Case remanded with instructions. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/23/2016




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