J. S10038/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

A.N.                                        :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
A.L.,                                       :         No. 1699 MDA 2019
                                            :
                          Appellant         :


              Appeal from the Order Entered September 11, 2019,
              in the Court of Common Pleas of Lackawanna County
                       Civil Division at No. 2012-FC-40570


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 11, 2020

        A.L. (“Father”) appeals from the final protection from abuse (“PFA”)

order entered against him on September 11, 2019, in the Court of Common

Pleas of Lackwanna County, pursuant to 23 Pa.C.S.A. § 6102(a)(5).         After

careful review, we reverse and remand.

        The trial court set forth the following:

              This case involves a custody dispute and request for
              [a PFA order] as a result of allegations of sexual abuse
              by [Father] against the parties’ three (3) minor
              children,   J.L.,    R.L.   and     D.L.,    (hereinafter
              “minor children”). By way of background, [] A.N.
              (hereinafter “Mother”), filed an Emergency Petition for
              Special Relief on April 24, 2019, wherein she alleges
              the minor child, J.L., disclosed that she was sexually
              molested by Father for over a period of two (2) years,
              and the Lackawanna County Office of Youth and
              Family     Services    (hereinafter     “OYFS”)     were
              investigating the allegations. As a result, Mother was
              granted temporary sole legal and physical custody of
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            the minor children until further Order of Court. On
            May 3, 2019, Mother filed a [PFA petition] on behalf
            of the minor children against Father wherein she
            alleges Father sexually molested the minor child, J.L.,
            on multiple occasions, exhibiting grooming behavior
            towards the minor children, R.L. and D.L., and
            stalking the minor child, J.L., on social media and
            through therapy. As a result, Mother was granted a
            [t]emporary [PFA o]rder on behalf of the minor
            children against Father. The hearings on Mother’s
            Petition for Emergency Special Relief and Petition for
            Protection from Abuse were consolidated and
            continued on numerous occasions as a result of the
            pending investigations. A hearing commenced before
            [the trial court] on September 11, 2019.           The
            Guardian ad Litem, Elizabeth Munley, Esquire
            (hereinafter “GAL”), provided her memorandums
            dated July 11, 2019 and September 9, 2019 wherein
            she recommended that th[e trial c]ourt’s [o]rder
            dated July 12, 2019 granting Mother sole legal and
            physical custody of the minor children remain in full
            force and effect.

Trial court opinion, 11/7/19 at 1-2 (record citations omitted).

            During the hearing, th[e trial c]ourt heard
            uncontroverted testimony from the GAL, Mother and
            Maternal      Grandfather,      [L.N.]       (hereinafter
            “Maternal Grandfather”). The GAL testified as to the
            information collected during her investigation which
            impacted her report and recommendation to th[e trial
            c]ourt. Specifically, the GAL testified that, “The oldest
            child, J.L., who’s 11 years old, made a disclosure to
            her counselor, Ms. Simona Gavern at the
            Aaron Center. As a result, the [OYFS was] contacted
            and scheduled a [Children’s Advocacy Center (“CAC”)]
            interview.” J.L. had undergone multiple interviews at
            the [CAC] and submitted to a physical examination by
            Ms. Cheryl Friedman on April 30, 2019. The GAL
            stated, “As noted in Cheryl Friedman’s report, which
            has been provided to counsel, she suspected that
            sexual assault as evidence[d] by [J.L.’s] disclosure of
            an object or finger being introduced past the labia
            majora. After a conversation with Ms. Friedman —


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          which I had with Ms. Friedman, she indicated that J.L.
          was referring to [F]ather as being the individual who
          introduced the object into J.L.” At the conclusion of
          the CAC interviews, OYFS unfounded the allegations
          of abuse against Father.

          The GAL indicated that, “She (Ms. Gavern) explained
          in her July 3rd, 2019 letter that [J.L.] is also
          diagnosed[with] PTSD. She (J.L.) had commenced
          some self-harming behaviors and expressed suicidal
          ideation at the time that she had commenced therapy
          when she was residing in [F]ather’s home.” “She
          voluntarily disclosed that she wanted to -- did not
          want to go and visit [F]ather because he quote, ‘Did
          stuff to her’.” Then, J.L. drew on a diagram where
          Father touched her being the breast and genital area.
          The GAL further testified that, “Ms. Gavern explained
          in her letter also that J.L. had experienced symptoms
          such as headaches, nightmares, and voices, hearing
          voices. As a result of this disclosure, that’s when one
          of the CAC interviews was scheduled. And also J.L.
          was -- felt very guilty at that time she was concerned
          about her brother being in the care of [F]ather
          because originally [F]ather still had the two boys.”

          The GAL went on to testify regarding disclosures made
          by the other minor children, D.L. and R.L., to their
          therapist, Ms. Justine Andrews. The GAL stated that,
          “D.L. disclosed to Ms. Andrews that [F]ather tried to
          touch his penis on a few occasions. He was able to
          push him away on all occasions with the exception of
          one time and he also indicated to Ms. Andrews that
          after that time that he touched his penis it hurt after
          that. Additionally, the GAL indicated, “There was also
          concern that D.L. had that he disclosed to
          Ms. Andrews regarding witnessing [F]ather hit J.L.
          with a badminton racket as well.” Such disclosure was
          reported to OYFS and the minor children submitted to
          another CAC interview.         The minor children’s
          disclosures at the CAC did not corroborate each other
          and, as a result, OYFS closed the case.

          The GAL also testified that, “I spoke with her
          (Ms. Andrews) on September 9, 2019 in order to


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          clarify her report and asked her some questions
          regarding her report and she clarified that R.L. is not
          ready to meet with [F]ather yet, as he still has some
          issues that he needs to work through.” The GAL went
          on to state, “Regarding D.L., he not only made the
          disclosures to Ms. Andrews, which precipitated a third
          CAC interview, but he also continues to experience
          nightmares, has separation anxiety with [M]other,
          and continues to have difficultly expressing and
          processing his emotions regarding [F]ather. As part
          of our phone conversation, Ms. Andrews told me that
          D.L. is not ready at this time to reunite with [F]ather.”

          The GAL confirmed that both D.L. and R.L. have also
          been diagnosed with PTSD as a result of the trauma
          from Father and being separated from their sister for
          a period of time. The GAL testified that, as a result of
          the PTSD, “He (D.L.) has anxiety, irritability, hyper
          vigilance, negative outlook, and intrusive thoughts
          and nightmares.” “He was working on decreasing the
          severity of symptoms.        He continues to report
          nightmares, nervousness regarding [F]ather, along
          with difficulty processing and expressing emotions
          regarding [F]ather.” The GAL testified further that,
          “He (R.L.) is working on decreasing his symptoms.
          However, he continues to report anger towards
          [F]ather and his difficulty managing his emotions and
          using coping skills when he is angry.

          Additionally, the GAL stated that during her
          investigation she spoke with Detective Tim Mackerel
          of    [the]     Carbondale     Police     Department.
          Detective Mackerel indicated that the criminal
          investigation against Father is still ongoing and the
          counselors continue to be in contact with him
          regarding further disclosures by the minor children.

          The GAL had an opportunity to interview the minor
          children.    The GAL stated the minor children
          expressed fear and concerns with Father. Specifically,
          R.L. stated to the GAL that Father did not really take
          care of him. J.L. indicated to the GAL that she would
          take care of her brothers when she lived with Father
          and would ask Father for help, but she did not get the


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            help she needed. J.L. continued to express how
            worried she was for brother living with Father and her
            concerns that Father drinks a lot. Further, J.L. said
            that she was scared when she talked to Father and
            was afraid that he would try to pick her up.

            Furthermore, during the hearing, Mother testified
            that, “She (J.L.) had approximately 40 cuts on her
            forearms. She disclosed to me that due to the fact of
            [F]ather hurting her she thought that that was going
            to be an easier way out of his house.” Mother went
            on to testify that, “She’s (J.L.) just disclosed her fear
            of [F]ather.” Mother stated that, “I have not seen fear
            in my child’s eye like this ever before . . . , I mean,
            J.L., she has nervous breakdowns even talking about
            him (Father). Both my boys experience nightmares.
            Even after the CAC interview last week they were just
            so emotionally distraught.”

            During Maternal Grandfather’s testimony, he
            indicated that D.L. told him that he saw Father hitting
            J.L. with a badminton racket.        Further, Maternal
            Grandfather testified that, “He (D.L.) did tell me that
            [R.L.] had told him that [Father] had touched him
            where you’re not supposed to be touched and I asked
            if [Father] touched you and he said, ‘He tried, but not,
            I smacked him.’”

            Therefore, based upon the uncontroverted testimony,
            th[e trial c]ourt found that the preponderance of the
            evidence indicated the minor children were entitled to
            a [PFA o]rder against Father. Thus, th[e trial c]ourt
            granted a [PFA o]rder on behalf of the three (3) minor
            children against Father for a period of three (3) years.

Id. at 4-7 (record citations omitted).

      Father filed a timely notice of appeal “from an [o]rder entered [at

No. 2012 FC 40570] on the 11th day of September 2019.” (Father’s notice of

appeal, 10/9/19.) Attached to Father’s notice of appeal is the trial court’s

September 11, 2019 order that deemed Mother’s emergency petition for


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special relief moot. Father contemporaneously filed a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) wherein

he raised 13 issues challenging the September 11, 2019 PFA order.

      On November 22, 2019, this court entered a rule to show cause order

directing Father to explain whether he intended to appeal the order deeming

Mother’s emergency petition for special relief moot or whether he intended to

appeal the PFA order.       (Order of court, 11/22/19.)   Father filed a timely

response wherein he states that he “intended to appeal the [trial] court’s

granting of a three (3) year PFA on behalf of the minor children.” (Father’s

“answer to this court’s order of November 22, 2019,” 12/2/19 at 2, ¶ 7 (full

capitalization omitted).)

      On December 13, 2019, this court entered an order acknowledging

Father’s response to the show-cause order and Father’s intent to seek review

of the PFA order. (Order of court, 12/13/19.) The order also removed this

appeal from the Children’s Fast Track designation because it is not an appeal

from a child custody order but, rather, an appeal from a PFA order, which is

not a permissible Children’s Fast Track designation.       See Superior Court

I.O.P. 212(A)(1) (designating dependency, termination of parental rights,

adoption, custody, and paternity as Children’s Fast Track cases).

      Appellant raises the following issues for our review:

            [1.]   Whether the trial court erred in law and/or
                   abused its discretion in awarding sole custody of
                   the minor children to [Mother?]



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          [2.]   Whether the trial court erred in law and/or
                 abused its discretion in granting a three (3) year
                 [PFA o]rder naming the minor children as
                 protected parties[?]

          [3.]   Whether the trial court erred in law and/or
                 abused its discretion in failing to allow the
                 [Father] to call the minor children as
                 witnesses[?]

          [4.]   Whether the trial court erred in law and/or
                 abused its discretion in failing to allow [Father]
                 to call the minor children as witnesses when
                 neither [Mother] nor the [GAL] filed a Motion to
                 Quash the Subpoena[?]

          [5.]   Whether the trial court erred in law and/or
                 abused its discretion in admitting hearsay
                 statements of the minor children[?]

          [6.]   Whether the trial court erred in law and/or
                 abused its discretion in failing to afford [Father]
                 his right to confront witnesses under the United
                 States Constitution and the Commonwealth
                 Constitution[?]

          [7.]   Whether the trial court erred in law and/or
                 abused its discretion in admitting hearsay
                 statements of the minor children’s therapists[?]

          [8.]   Whether the trial court erred in law and/or
                 abused its discretion in admitting a drawing
                 purportedly drawn by [] one of the minor
                 children which was hearsay[?]

          [9.]   Whether the trial court erred in law and/or
                 abused its discretion in admitting a drawing
                 purportedly drawn by [] one of the minor
                 children    which     was    not     properly
                 authenticated[?]

          [10.] Whether the trial court erred in law and/or
                abused its discretion in failing to allow [Father]
                to question [Mother] regarding the death of her


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                  child while the child was in the custody of
                  [Mother’s] then paramour[?]

            [11.] Whether the trial court erred in law and/or
                  abused its discretion in failing to allow [Father]
                  to question [Mother] relative to broken bones
                  suffered by a child in her care[?]

            [12.] Whether the trial court erred in law and/or
                  abused its discretion in accepting the
                  recommendation of the GAL when the GAL
                  never made an inspection of the minor
                  children’s residence and could not testify to the
                  minor children’s school attendance[?]

            [13.] Whether the trial court erred in law and/or
                  abused its discretion when the GAL admitted the
                  minor children never made a disclosure of
                  sexual abuse to her[?]

Father’s brief at 4-6.

      “In the context of a PFA order, we review the trial court’s legal

conclusions for an error of law or abuse of discretion.” Drew v. Drew, 870

A.2d 377, 378 (Pa.Super. 2005) (citation omitted).

      At the outset, we note that Father’s brief may be characterized as

inartfully drafted. Nevertheless, Issues 5, 7, and 8 of Father’s statement of

questions presented raise hearsay challenges.      A reading of Father’s brief

demonstrates that he repeatedly and consistently, albeit inartfully, raises

these hearsay challenges and essentially contends that because the hearsay

testimony of the GAL did not qualify for any exception to the hearsay rule,

that hearsay testimony alone constituted an insufficient basis for entry of a

final PFA order. We agree.



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      In reviewing the admissibility of evidence, “an appellate court may only

reverse upon a showing that the trial court abused its discretion. An abuse of

discretion is not a mere error in judgment but, rather, involves bias, ill will,

partiality, prejudice, manifest unreasonableness, or misapplication of law.”

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (citations

omitted).

      The Pennsylvania Rules of Evidence define hearsay as “a statement that

(1) the declarant does not make while testifying at the current trial or hearing;

and (2) a party offers into evidence to prove the truth of the matter asserted

in the statement.”    Pa.R.E. 801(c).   “Hearsay is not admissible except as

provided by [the Pennsylvania Rules of Evidence], by other rules prescribed

by the Pennsylvania Supreme Court, or by statute.”           Pa.R.E. 802.    The

Tender Years Act, 42 Pa.C.S.A. § 5985.1, creates an exception to the hearsay

rule for victims of childhood sexual abuse.          See Commonwealth v.

G.D.M., Sr., 926 A.2d 984, 988 (Pa.Super. 2007).            “The tender years

exception allows for the admission of a child’s out-of-court statement because

of the fragile nature of young victims of sexual abuse.” Commonwealth v.

Lukowich, 875 A.2d 1169, 1172 (Pa.Super. 2005), appeal denied, 885 A.2d

41 (Pa. 2005). The tender years exception provides:

            (a)   General rule.--

            (1)   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 any of the offenses enumerated in


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                 [18 Pa.C.S.A. Chapter 31 (relating to sexual
                 offenses)], not otherwise admissible by statute
                 or rule of evidence, is admissible in evidence in
                 any criminal or civil proceeding if:

                 (i)    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

                 (ii)   the child either:

                        (A)   testifies    at        the
                              proceeding; or

                        (B)   is unavailable    as    a
                              witness.

42 Pa.C.S.A. § 5985.1(a).

           (a.1) Emotional distress.--In order to make a
                 finding under subsection (a)(1)(ii)(B) 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. In
                 making this determination, the court may do all
                 of the following:

                 (1)    Observe and question the child,
                        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 in a medical or
                        therapeutic setting.

42 Pa.C.S.A. § 5985.1(a.1).


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         “Any statement admitted under the [tender years hearsay exception]

must possess sufficient indicia of reliability, as determined from the time,

content, and circumstances of its making.” Commonwealth v. O’Drain, 829

A.2d 316, 320 (Pa.Super. 2003), citing 42 Pa.C.S.A. § 5985.1(a). “The main

consideration for determining when hearsay statements made by a child

witness are sufficiently reliable is whether the child declarant was particularly

likely    to   be   telling   the   truth     when   the   statement   was   made.”

Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa.Super. 2003). Factors the

court may consider when determining reliability include, but are not limited

to, “the spontaneity of the statements, consistency in repetition, the mental

state of the declarant, use of terms unexpected in children of that age and the

lack of a motive to fabricate.” Commonwealth v. Delbridge, 855 A.2d 27,

47 (Pa. 2003); see also Lyons, 833 A.2d at 255.

         “[P]rior to concluding a child witness is unavailable, a court must

determine whether forcing the child to testify will result in such serious

emotional distress to the child that [the child] will not be able to reasonably

communicate.”       Lyons, 833 at 254, citing 42 Pa.C.S.A. § 5985(a.1).         “To

reach this determination, the court ‘may’ either question the child witness or

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

therapeutic setting.” Id. at 254-255, citing 42 Pa.C.S.A. § 5985(a.1)(1)-(2).

“The Tender Years Statute requires that an in camera hearing take place to




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determine whether a child witness is unavailable to testify.” Lyons, 833 A.2d

at 254, citing 42 Pa.C.S.A. § 5985(a).

      Here, the trial court permitted the GAL to testify on the basis of reports

prepared by Simona Gavern, Cheryl Friedman, and Justine Andrews. (Notes

of testimony, 9/11/19 at 5-12.)     Ms. Gavern and Ms. Friedman provided

counseling to J.L. Their reports contained alleged disclosures of sexual abuse

by Father made by J.L.     Ms. Andrews worked with D.L. and J.L. as their

therapist. Ms. Andrews’s report contained alleged disclosures of sexual abuse

by Father made by D.L. and J.L. The trial court also permitted the GAL to

testify about a conversation that she had with Ms. Andrews that served to

clarify the sexual abuse disclosures contained in Ms. Andrews’s report. See

id. We note that neither Ms. Gavern, Ms. Friedman, nor Ms. Andrews testified

at the hearing.1




1 We note that Father’s counsel repeatedly placed hearsay objections on the
record.

We further note that “[a]n out-of-court declaration containing another
out-of-court declaration is double hearsay.” Commonwelath v. Laich, 777
A.2d 1057, 1061 (Pa. 2001) (citation omitted). "In order for double hearsay
to be admissible, the reliability and trustworthiness of each declarant must be
independently established. This requirement is satisfied when each statement
comes within an exception to the hearsay rule." Id. (citation omitted). Father
did not raise the issue of whether the GAL’s testimony contained double
hearsay because it relayed the minor children’s alleged sexual abuse
disclosures through the reports of Ms. Gavern, Ms. Friedman, and
Ms. Andrews, as well as the GAL’s conversation with Ms. Andrews. Therefore,
the issue is not before us.


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      In its Rule 1925(a) opinion, the trial court set forth the tender years

exception to the hearsay rule and then concluded that it permitted the GAL to

testify after determining that the minor children were unavailable as

witnesses. Nothing in the certified record before us, however, indicates that

the trial court conducted an in camera tender years hearing to determine the

reliability of the minor children’s statements or the unavailability of the minor

children. We note that at the PFA hearing, Mother’s counsel stated that he

“believe[d] it was the [trial c]ourt and the [GAL’s] recommendation that after

multiple interviews with the [minor] children through CAC and ongoing

therapy,” that “it would not be in the [minor] children’s best interest to

testify.” (Notes of testimony, 9/11/19 at 5.) Counsel for Mother then stated

that “if the [trial c]ourt wishes to interview them[,] that’s certainly possible

and [Mother] has no objection to bringing them here. But it’s not in their best

interest and actually very risky for them to be here.” (Id.) Clearly, the trial

court did not conduct an in camera tender years hearing. Consequently, the

GAL’s testimony of the minor children’s alleged sexual abuse disclosures

constituted inadmissible hearsay and the trial court abused its discretion by

misapplying the law when it permitting those hearsay statements to come into

evidence through the testimony of the GAL. In the absence of the hearsay

testimony of the GAL, the evidence of record is insufficient to support a finding

that Father sexually abused the minor children by a preponderance of the




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evidence.2   See K.D., by K.H.D. v. J.D., 696 A.2d 232 (Pa.Super. 1997)

(reversing PFA order based on inadmissible hearsay testimony).

      We, therefore, reverse the final PFA order entered by the trial court.

Based on our disposition, we need not address Father’s remaining issues.

      Order reversed and case remanded for a new hearing in compliance with

this decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/11/2020




2  The two other witnesses who testified were Mother and Maternal
Grandfather.    Mother testified that none of the minor children made
disclosures of sexual abuse to her. (Notes of testimony, 9/11/19 at 33.)
Maternal Grandfather testified that D.L. told him that he saw Father hit J.L.
with a badminton racket, but he did not testify as to any sexual abuse
disclosures. (Id. at 49-50.)


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