J-S07002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.L.T. ON BEHALF OF A.L.T., A MINOR,             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

E.J.S.,

                          Appellant                  No. 1137 MDA 2014


                 Appeal from the Order Entered June 11, 2014
              In the Court of Common Pleas of Schuylkill County
                      Civil Division at No(s): A-161-2014


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 04, 2015

      E.J.S. (Mother) appeals from a final protection from abuse (PFA) order,

entered against her on June 11, 2014, on behalf of her minor daughter,

A.L.T., for a period of one year. After careful review, we are compelled to

vacate that order.

      The PFA court set forth the facts and procedural history of this case as

follows:

             On May 30, 2014, Father [M.L.T.] filed a Petition for
      Protection from Abuse (“PFA”) with this [c]ourt against Mother,
      alleging that while their daughter, [A.L.T.], was in Mother’s
      custody and care, [A.L.T.] was touched inappropriately. Another
      member of this [c]ourt entered an ex parte temporary PFA
      order. On June 11, 2014, we held a full evidentiary hearing.
      Both parties were represented by counsel.

            Father testified that he lives in Minersville, Pennsylvania[,]
      with [A.L.T.], Father’s girlfriend Danielle Moe, their son [B.], and
      Danielle’s twin brother Damian Hadlock. The parties follow a
      custody order for [A.L.T.]. On the Sunday in May, 2014[,] prior
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       to Memorial Day, Father and [A.L.T.] were sitting in the living
       room. [A.L.T.] was leaning on a table and Father asked her to
       sit back, because she almost spilled a drink. Over Mother’s
       counsel’s objection, we allowed Father to testify that [A.L.T.]
       told him her “hooha” hurt because someone had touched it. At
       first, [A.L.T.] would not tell Father who touched her, so Father
       took her into her bedroom and asked her privately. [A.L.T.] told
       Father that her “Uncle Phil” did it.

              Father identified “Uncle Phil” as being Mother’s brother,
       Phillip. Father asked [A.L.T.] when this happened, and whether
       [A.L.T.] told Mother about it. Father then called Mother, and
       reported what [A.L.T.] had said. Mother allegedly told Father to
       calm down, and that she “would handle it.” Father then called
       the police. As a result of that conversation, Father took [A.L.T.]
       to the hospital emergency room. Father testified that [A.L.T.]
       was examined and hospital staff told Father that [A.L.T.’s]
       hymen was torn.

             Mother’s counsel provided a copy of the emergency room
       doctor’s report.[1] It was marked as Plaintiff’s Exhibit 1. We
       admitted the unauthenticated report into the record for the
       purpose of showing that [A.L.T.] had been examined at the
       hospital. The alleged assault was reported to the Schuylkill
       County Children & Youth agency. Father also reported the
       incident to the Upper Gwynned police department.            The
       Montgomery County Children & Youth agency was also notified.

              …

             Father is concerned for [A.L.T.’s] safety because [A.L.T.]
       told him she told Mother about [being touched], and Mother did
       not do anything about it. This testimony was also admitted
       despite Mother’s counsel’s objection.

             On cross[-]examination, Father admitted that he had
       [A.L.T.] for the entire weekend. On Friday night, he had taken
       [A.L.T.] to Dorney Park … and they went on rides. Father was
       asked by defense counsel what [A.L.T.] had said to Father that
____________________________________________


1
 Mother’s counsel provided a copy of the medical report “as a courtesy,” but
Father’s counsel moved for the admission of the report into evidence. N.T.,
6/11/14, at 7.



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     Sunday. Father said [A.L.T.] told him it hurt when she peed,
     and that she couldn’t sit because it hurt. Father stated that in
     the past, [A.L.T.] had had multiple urinary tract infections ….
     Father testified that when he took [A.L.T.] for treatment, the
     hospital suggested that one of the possible causes of urinary
     tract infection could be sexual assault and suggested Father
     contact Children & Youth.

            We found Father’s testimony to be credible. Next, Mother
     testified. She now lives with her parents and brother in North
     Wales, Montgomery County, Pennsylvania. On Friday, May 23,
     2014, she brought [A.L.T.] to the Pennsylvania Turnpike
     Allentown Service Plaza for the parties’ routine custody
     exchange. Mother state[d] that [A.L.T.] did not say anything to
     Mother about any pain to her “hooha.” Earlier that same day,
     Mother and her boyfriend, Bruce, took [A.L.T.] to Peace Valley
     Park, where they played at a playground, had a picnic and
     walked around a lake. [A.L.T.] sat on both Mother’s and Bruce’s
     shoulders without incident. Mother did not see [A.L.T.] having
     any difficulty sitting.

            Mother, her parents, her brother Phillip and [A.L.T.] all
     have their own bedrooms in the home where Mother resides.
     “Uncle Phil” works and usually arises for work around 2:00[]PM
     each day. [A.L.T.] did not tell Mother of any problems with
     “Uncle Phil.” Mother does the laundry for herself and [A.L.T.],
     and did not see any blood on [A.L.T.’s] laundry, underwear or
     bed sheets. Mother states that if she had seen anything like
     that, she would have taken action.

           Mother state[d] that when Father called her to tell her
     what he had learned from [A.L.T.], Father told Mother he
     questioned [A.L.T.] for 30-45 minutes before [A.L.T.] told him
     what happened. Mother believes Father might have “scared”
     [A.L.T.] when he talked with her about what happened. Mother
     report[ed] that she is cooperating with Montgomery County
     Children & Youth, but had not yet spoken to Schuylkill County’s
     agency.

           On cross[-]examination, Mother testified that Phil still lives
     with her, and that he was not present to testify. Mother stated
     that although she was “very shocked” to hear the allegation,
     [A.L.T.] and Phil are very close, and sometimes they play games
     where [A.L.T.] blames Phil for “a lot of things.” The police told
     Mother that [A.L.T.] is no longer allowed to go to Mother’s


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      house. Mother testified that if [A.L.T.] is permitted by this
      [c]ourt to return to Mother’s [home], either Phil will move out or
      Mother will move out.

             During counsels’ closing arguments, Mother’s counsel
      argued that there was no evidence of a sexual assault, only
      hearsay testimony by a four year old girl. Rather, Mother
      believes that Father made this story up because Father no longer
      wishes to pay child support, and the parties do not get along and
      this is just part of a custody battle between them.

            We disagreed and entered the permanent PFA order at the
      conclusion of the hearing.       We ordered that Mother would
      continue to have visitation with[, and partial custody of,]
      [A.L.T.], but that it had to be exercised within Schuylkill County.
      [The order also directed that A.L.T. have no contact with her
      maternal uncle.] Mother’s counsel asked to consider modifying
      that custody [determination] in the event Mother obtained her
      own residence, and that “Uncle Phil” would not have any contact
      with [A.L.T.]. We denied the request at that time because the
      investigation was not yet complete, and the parties had an
      ongoing companion custody proceeding.

            On June 16, 2014, Mother filed a Motion for
      Reconsideration, and on June 18, 2014, [she] filed an Amended
      Motion for Reconsideration attaching a missing Exhibit. We did
      not rule on Mother’s motions. On July 9, 2014, Mother filed this
      appeal.

PFA Court Opinion (PCO), 8/18/14, at 1-5 (unnumbered).

      Mother filed a timely, court-ordered concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, she raises

the following five issues for our review, which we have reordered for ease of

disposition:

      I. Can hearsay evidence of a minor under age 12 be admitted
      without an in camera hearing or without a declaration of
      unavailability?

      II. Was the Plaintiff’s burden of proof met?



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      III. Can hearsay evidence of a minor under age 12 be admitted if
      there is no notice to [the] opposing party, of intentions to use
      such [evidence]?

      IV. Can an unauthenticated medical report be used for the truth
      of the matter asserted when said report was not submitted for
      its contents?

      V. Under what circumstances can an individual be named a
      defendant to a protection from abuse petition?

Mother’s Brief at 5.

      Initially, we note that “[i]n the context of a [PFA] order, we review the

trial court’s legal conclusions for an error of law or abuse of discretion.”

Commonwealth v. Walsh, 36 A.3d 613, 617 (Pa. Super. 2012) (quoting

Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super. 2007) (citation

omitted)).

      First, Mother argues that the PFA court erred by permitting Father to

testify about the out-of-court statements A.L.T. made to Father regarding

“Uncle Phil’s” touching her. At the PFA hearing, Mother’s counsel repeatedly

objected to Father’s testimony, claiming that it constituted hearsay.     N.T.,

6/11/14, at 5, 6, 12.       The court overruled those objections without

explanation.   Id.     On appeal, Mother contends that the court erred by

admitting A.L.T.’s hearsay statements without satisfying the dictates of 42

Pa.C.S. § 5985.1, which states, in pertinent part:

      (a) General rule.--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 18 Pa.C.S. Chs. 25 (relating to criminal
      homicide), 27 (relating to assault), 29 (relating to kidnapping),
      31 (relating to sexual offenses), 35 (relating to burglary and
      other criminal intrusion) and 37 (relating to robbery), not

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      otherwise admissible by statute or rule of evidence, is admissible
      in evidence in any criminal or civil proceeding 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; and

         (2) the child either:

            (i) testifies at the proceeding; or

            (ii) is unavailable as a witness.

      (a.1) 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. 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. § 5985.1(a), (a.1).

      Here, the PFA court did not conduct an in camera hearing. The court

also ruled that A.L.T. was ‘unavailable’ because “the child was not present at

the hearing[] [and] neither party sought to present the child’s testimony.”

PFO at 9 (unnumbered).           The court did not base its determination of

unavailability on A.L.T.’s “suffering serious emotional distress that would

substantially impair the child’s ability to reasonably communicate.”       42

Pa.C.S.A. § 5985.1(a.1). At no point did the court observe A.L.T. or hear

any testimony regarding the impact that testifying might have on A.L.T.



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Under these circumstances, we are compelled to agree with Mother that the

court    improperly   admitted    the     hearsay    testimony   regarding       A.L.T.’s

statements to Father.

        While “it is well-settled that not every legal mishap prejudices a

defendant to the extent that reversal is necessary[,]” we are unable to

conclude     that   the   PFA   Court’s    error    was   harmless   in   this     case.

Commonwealth v. Rickabaugh, 706 A.2d 826, 838 (Pa. Super. 1997)

(citation omitted).       For the reasons that follow, we are constrained to

conclude that without A.L.T.’s hearsay statements, the evidence was

insufficient to support the entry of a PFA order against Mother.

        We begin by setting forth the PFA court’s rationale for determining that

a final PFA order against Mother was warranted:

               The Protection From Abuse Act (“PFA Act”) is codified at 23
        Pa.C.S. §§ 6101 et seq. “Abuse” is defined therein as “[t]he
        occurrence of one or more of the following acts between family
        or household members,” including “[p]hysically or sexually
        abusing minor children, including such terms as defined in
        Chapter 63 (relating to child protective services).” 23 Pa.C.S. §
        6102. Under the Child Protective Services Act, 23 Pa.C.S. §§
        6301 et seq., “[c]hild abuse” is defined as [a]ny recent act or
        failure to act by a perpetrator which causes … sexual abuse … of
        a child under 18 years of age.” 23 Pa.C.S. § 6303 (emphasis
        added). It also includes “[a]ny recent act, failure to act, or
        series of such acts or failures to act by a perpetrator which
        creates an imminent risk of … sexual abuse … of a child under 18
        years of age.” Id. (emphasis added). The PFA Act’s definition of
        abuse is considered broader than the definition found in the
        Child Protective Services Law. Velasquez v. Cancel, 727 A.2d
        591, 595 (Pa. Super. 1999).

            “The purpose of the PFA Act is to protect victims of
        domestic violence from those who perpetrate such abuse, with


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     the primary goal of advance prevention of physical and sexual
     abuse.” Buchhalter v. Buchhalter, 959 A.2d 1260, 1262 (Pa.
     Super. 2008) (further citation omitted). “The intent of the
     remedies under the Act is to allow persons to reside peaceably
     and without injury within their families and/or residences.”
     Scott v. Shay, 928 A.2d 312, 314 (Pa. Super. 2007). The PFA
     Act temporarily suspends the due process rights of an alleged
     abuser and enables a court to “[r]esort … to extraordinary
     measures when necessary to ensure that orders designed to
     provide protection actually do so.” Commonwealth v. Padilla,
     885 A.2d 994, 997 (Pa. Super. 2005).

            A parent may seek relief under the PFA Act on behalf of
     minor children. 23 Pa.C.S. § 6106(a). “The court may grant
     any protection order … to bring about a cessation of abuse of the
     … minor child[.]” 23 Pa.C.S. § 6108(a). This relief may include
     “[a]warding temporary custody of or establishing temporary
     visitation rights with regard to minor children.” 23 Pa.C.S. §
     6108(a)(4). In making that determination, the following shall
     apply:

       (i) A defendant shall not be granted custody, partial
       custody or unsupervised visitation where it is alleged in the
       petition, and the court finds after a hearing under this
       chapter, that the defendant:

          (A) abused the minor children of the parties or poses
          a risk of abuse toward the minor children of the
          parties[.]

          …

          (iii) Where the court finds after a hearing under this
          chapter that the defendant has inflicted serious
          abuse upon the plaintiff or a child or poses a risk of
          abuse toward the … child, the court may:

              (A) award supervised visitation in a secure
              visitation facility; or

              (B) deny the defendant custodial access to a
              child.

     23 Pa.C.S. § 6108(a)(4) (in relevant part) (emphasis added).

           There is no question that a sexual assault on a four year
     old child resulting in bruising and a torn hymen is considered

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      abuse under the definitions of both the PFA Act and the Child
      Protective Services Act.          After considering the evidence
      presented at the hearing, we concluded that the child was
      sexually abused most likely while in Mother’s care and suffered
      bodily injury as a result. In order to protect the child from any
      further sexual abuse, it was necessary and in the child’s best
      interests for this [c]ourt to enter a PFA against Mother, because
      Mother is the person responsible for the child, and Mother
      resides with the alleged perpetrator, “Uncle Phil.” At the time of
      the hearing, Mother continued to reside with Phillip, even though
      she knew from two police departments that [A.L.T.] was not
      allowed to come home with Mother so long as Mother resided
      with Phillip. We found that because Mother continued to reside
      with the alleged perpetrator, and because Mother has periods of
      custody of the child pursuant to the existing custody order and,
      during those times, the child resides with Mother and the alleged
      perpetrator, Mother poses a continued risk of abuse towards the
      child. Mother clearly does not take the allegations seriously, and
      it is questionable whether Mother even believes her daughter
      has been sexually assaulted. The only way to ensure the current
      and future safety of the child is to limit Mother’s custody of the
      child to visitation in Schuylkill County.

             We found Mother’s testimony not to be credible. She
      clearly believes that nothing happened between [A.L.T.] and
      “Uncle Phil,” but has no explanation for [A.L.T.’s] injuries.

            The purpose of the PFA Act is not to determine criminal
      culpability. Boykin v. Brown, 868 A.2d 1264, 1266 (Pa. Super.
      2005). Father is not required to establish that abuse occurred
      beyond a reasonable doubt, only by a preponderance of the
      evidence. Id. We found it necessary to enter the order to
      provide the minor child with immediate protection from further
      sexual abuse.

PCO at 6-9 (unnumbered; emphasis in original; footnote omitted).

      From the PFA court’s overall discussion, the legal authority on which it

relies, and the emphasis it places on certain portions of that law, it is evident

that the PFA court concluded that Mother’s conduct constituted “abuse”

under the PFA because (1) she knew about the alleged assault of A.L.T. and



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failed to act, and (2) because she continues to live with the alleged

perpetrator of the assault, thereby posing a risk of continued abuse to A.L.T.

We need not determine if these are valid bases on which to conclude that a

defendant committed “abuse” warranting protection under the PFA Act

because, even if they are, the record does not support the PFA court’s

findings in these regards.

       First, the only evidence that Mother knew of the assault and failed to

act was Father’s testimony that A.L.T. told him “that she reported it to her

mother and nothing was done about it.” N.T. at 12.2 As discussed supra,

this hearsay statement by A.L.T. was inadmissible, as the court failed to

satisfy the dictates of section 5985.1(a) and (a.1). Without that evidence,

the record is void of any indication that Mother knew of the alleged abuse of

A.L.T. and failed to act. Second, the only evidence that “Uncle Phil” was the

perpetrator of the sexual assault of A.L.T. was A.L.T.’s inadmissible hearsay

statements to Father.3 Because there was no other evidence demonstrating

____________________________________________


2
   Mother’s counsel immediately objected to this testimony on the basis that
it was hearsay. Id.
3
  We acknowledge that A.L.T. vaguely named ‘her uncle’ as the perpetrator
in the medical record of A.L.T.’s hospital examination.       However, the
contents of that record were not admitted into evidence; instead, the report
was admitted for the limited purpose of showing that A.L.T. sought medical
treatment. See N.T. at 8; PCO at 2 (unnumbered). Accordingly, the PFA
court “did not rely on the contents of the medical report in making [its]
decision.” PCO at 10 (unnumbered).

(Footnote Continued Next Page)


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that “Uncle Phil” was the person who abused A.L.T., the court’s finding that

Mother is placing A.L.T. at risk of further abuse by continuing to reside with

“Uncle Phil” is unsupported by the record.

      In sum, we are compelled to conclude that the PFA court erred by

admitting A.L.T.’s hearsay statements, without which the evidence is

insufficient to support the court’s entry of a final PFA order against Mother.4

Accordingly, we vacate the court’s June 11, 2014 order.           Due to this

disposition, we need not address Mother’s remaining issues.

      Order vacated. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




                       _______________________
(Footnote Continued)

      Additionally, the parties stated that there is an ongoing criminal
investigation involving “Uncle Phil.”    However, there was no evidence
admitted regarding the scope or details of that investigation.
4
 We point out that nothing in our disposition precludes Father from seeking
protection from abuse, on behalf of A.L.T., against “Uncle Phil.”



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