J-S37030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.R.B., O/B/O MINOR CHILDREN L.H.,                 IN THE SUPERIOR COURT OF
J.H., AND A.H.,                                          PENNSYLVANIA

                           Appellees

                      v.

M.G.H.,

                           Appellant                   No. 1707 WDA 2015


              Appeal from the Order Entered September 29, 2015
                 In the Court of Common Pleas of Erie County
                    Civil Division at No(s): No. 17080-2015


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED SEPTEMBER 12, 2016

        J.R.B. (“Mother”) filed a petition pursuant to the Protection From

Abuse Act, 23 Pa.C.S. § 6101, et seq. (“PFA”) on behalf of herself and her

three minor children, J.H. (“Child”), L.H., and A.H. (collectively, “Children”),

after discovering bruises on Child following a visit with M.G.H. (“Father”).

The trial court granted the petition as to Children for a period of one year.

Father appealed and after careful review, we affirm in part and vacate in

part.

        The trial court set forth the facts and procedural history as follows:

              A Temporary Protection from Abuse Order was entered in
        favor of [Mother] on behalf of the three minor children on June
        23, 2015. At the time of the temporary hearing, [Mother]
        indicated OCY was involved in the matter and made a finding of
        indicated abuse to her son, [Child].
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           [Child] was scheduled to be interviewed by a forensic
     interviewer in the week following the Temporary Protection from
     Abuse hearing.      At the time, Mother expressed concern
     regarding the interview process and producing [Child] in court
     because he was autistic and mostly nonverbal.

           A final hearing was scheduled, but continued pending
     criminal investigation and to sort out a conflict of interest
     between the attorneys representing the parties.

          In the interim, the parties filed several motions, including
     a motion to compel production of records and motions for
     admission of [Child’s] statements under the Tender Year’s
     Exception to the hearsay rule at 42 Pa.C.S.A. § 5985.1.

           On September 15, 2015, the trial court continued the final
     hearing once more after finding [Mother’s] Motion to introduce
     Tender Year’s Hearsay Evidence failed to comply with the statute
     and after learning [Father] was scheduled for a preliminary
     hearing on related criminal charges on September 28, 2015.

           Formal testimony began September 29, 2015. At the
     time, the defects in [Mother’s] Tender Year’s Hearsay Motion had
     not been remedied.         [Mother’s] counsel proceeded with
     testimony from [Mother] and also introduced photographic
     evidence of [Child’s] injuries. No hearsay statement from . . .
     [Children] was admitted.

          The testimony revealed on the evening of June 19, 2015,
     Mother noticed severe bruising on [Child’s] legs, back, and rear
     end. No bruises were present earlier in the week when Mother
     dropped him off at [Father’s] residence for a visit.

           Mother then took [Child] to St. Vincent’s Hospital where he
     was examined. He had no broken bones, but hospital staff
     noticed bruising around some of [Child’s] ribs. The hospital
     contacted the Office of Children and Youth (OCY) to report the
     suspected abuse.

           The OCY worker dispatched to investigate the case took
     multiple pictures of the bruising on [Child] while at the hospital.
     The worker described that at the time, she noticed “linear
     bruising” on the backs of [Child’s] thighs and some bruising on
     his lower back and rear-end. These pictures were admitted into
     evidence.    Finally, the worker reported she was unable to



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       interview [Child] because he was nonverbal, but did state the
       investigation by OCY into this incident was unfounded.

             Criminal charges of simple assault and endangering the
       welfare of a child were filed against [Father] as a result of the
       bruising Mother observed on [Child].

              Father testified he and Mother have a contentious
       relationship.  It was his belief Mother filed a Petition for
       Protection from Abuse against him to obtain full custody of
       [Children] and to move to Connecticut. He claimed he did not
       know what caused the bruising on [Child], but suggested [Child]
       received the injuries from a birthday party he attended where
       many of the children were play-fighting. Father denied abusing
       the child.

            At the conclusion of testimony, this Court found Mother
       met her burden and granted her petition as to [Children], but
       found insufficient evidence had been presented to enter an Order
       on behalf of [Mother].

Trial Court Opinion, 12/23/15, at 2–4 (record references omitted).

       Father raises one issue for our review:    “Whether the evidence was

sufficient to establish, by a preponderance of the evidence, that [Father]

committed abuse under the Protection from Abuse Act?” Father’s Brief at 2.1

       We review the propriety of a PFA order for an abuse of the trial court’s

discretion or for error in the trial court’s legal conclusions.   Ferko-Fox v.

Fox, 68 A.3d 917, 920 (Pa. Super. 2013) (citing Commonwealth v.

Walsh, 36 A.3d 613, 617 (Pa. Super. 2012)). This Court defers to the trial

court’s determinations regarding the credibility of witnesses at the hearing.

____________________________________________


1
   In his Pa.R.A.P. 1925(b) statement, Father raised a second issue relating
to the admission of certain testimony. Father is not pursuing that issue in
this appeal. Father’s Brief at 2 n.1.



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Ferko-Fox, 68 A.3d at 928 (citation omitted). When the claim on appeal is

that the evidence was insufficient to support an order of protection from

abuse, “we review the evidence in the light most favorable to the petitioner

and granting her the benefit of all reasonable inferences, determine whether

the evidence was sufficient to sustain the trial court’s conclusion by a

preponderance of the evidence.”       Ferri v. Ferri, 854 A.2d 600, 602 (Pa.

Super. 2004) (quoting Miller on Behalf of Walker v. Walker, 665 A.2d

1252, 1255 (Pa. Super. 1995)). “[T]he preponderance of evidence standard

‘is defined as the greater weight of the evidence, i.e., to tip a scale slightly is

the criteria or requirement for preponderance of the evidence.’”        Raker v.

Raker, 847 A.2d 720, 724 (Pa. Super. 2004) (citing Commonwealth v.

Brown, 786 A.2d 961, 968 (Pa. 2001)).

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

that a final PFA order against Father was warranted:

            First and most significantly was the admission of the
      photographic evidence taken by the OCY worker at St. Vincent’s
      Hospital. The photographs showed severe bruising covering
      much of [Child’s] back, legs, and rear-end. This Court rejected
      as incredible [Father’s] testimony [Child] could have been hurt
      while playing at a birthday party with other children. The
      bruises were dark in color and covered a large enough area
      [that] they could not have been the product of normal “child’s
      play.” Additionally, there was evidence [Child] was autistic and
      nonverbal, making it unlikely he possessed the social skills
      necessary to engage in that type of play with other children.

            Second, Mother testified she discovered the bruising on the
      evening [Child] was returned to her while getting him ready for
      bed. The length of time [Child] was in [Father’s] care, the
      bruises were discovered after his return to [Mother], and his

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      evaluation at the hospital create an inference strong enough to
      meet a preponderance of the evidence standard that the bruising
      could only have been caused, at a minimum, with [Father’s]
      knowledge or by his direct actions, especially in view of the fact
      [Child] was not in the care of any other individual other than
      [Father] while he was away from [Mother].

Trial Court Opinion, 12/23/15, at 5 (record reference omitted).

      Father first argues that the PFA order cannot stand because the

evidence was insufficient to prove that the injury suffered by Child was

“intentionally, knowingly, or recklessly inflicted.” Father’s Brief at 5 (citing

Miller on Behalf of Walker, 665 A.2d at 1258). Father’s citation to Miller

is not persuasive. In Miller, the trial court concluded that the evidence was

sufficient to support a conclusion that child abuse had occurred under 23

Pa.C.S. § 6102(a)(1).      Miller, 665 A.2d at 1256.    This subsection defines

“abuse” as “[a]ttempting to cause or intentionally, knowingly or recklessly

causing bodily injury, serious bodily injury, rape, involuntary deviate sexual

intercourse, sexual assault, statutory sexual assault, aggravated indecent

assault, indecent assault or incest with or without a deadly weapon.” 23 Pa.

C.S. § 6102(a)(1). In this matter, however, the trial court indicated that 23

Pa.C.S. § 6102(a)(4), defining abuse as “physically or sexually abusing

minor children,” was the operative subsection.            Trial Court Opinion,

12/23/15, at 4. As subsection 6102(a)(4) does not employ the intentional,

knowing,   or   reckless   language   of   subsection   6102(a)(1),   Father   is

advocating an incorrect standard for evaluating his alleged conduct.




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      Father, however, also contends that the fact that Child sustained an

injury does not compel a conclusion that the injury was a result of abuse as

defined by the Protection from Abuse Act. To this end, Father avers that the

trial court’s conclusion that statutory abuse occurred was unreasonable in

light of the record evidence.   Father particularly assails, in the absence of

any medical testimony, the trial court’s observation that the bruising could

not have resulted “from normal ‘child’s play’” and its suggestion that Child’s

autism made it “unlikely he possessed the social skills necessary to engage

in that type of play with other children.” Father’s Brief at 7 (quoting Trial

Court Opinion, 12/23/15, at 5).

      We do not agree with Father that the trial court abused its discretion in

rendering these factual findings.    First, the trial court made clear that its

abuse determination was reasoned primarily by the “photographic evidence

taken by the OCY worker at St. Vincent’s Hospital.”       Trial Court Opinion,

12/23/15, at 5. Second, the trial court’s comment that the bruising was not

consistent with commonplace child’s play was issued in the context of its

assessment of Father’s credibility, and we accord great deference to its

determination in this regard.     Ferko-Fox, 68 A.3d at 928 (appellate court

defers to the trial court’s determinations regarding the credibility of

witnesses at a PFA hearing).       Third, the trial court’s mention of Child’s

inability to socially interact is better characterized as speculation and not as

a specific factual finding.


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      Father’s next argument is that the finding that he was the perpetrator

of the abuse to Child could not reasonably be inferred from the evidence

presented at the hearing.      Father asserts that the trial court’s conclusion

that he was either the abuser or had knowledge of the abuse is based on the

unsubstantiated fact that “[Child] was not in the care of any other individual

other than [Father] while he was away from [Mother].” Trial Court Opinion,

12/23/15, at 5; Father’s Brief at 8–9. While we agree with Father that there

was no direct evidence that Child did not have contact with others when he

was in Father’s care, “not every legal misstep prejudices a defendant to the

extent that reversal is necessary.”    Commonwealth v. Rickabaugh, 706

A.2d 826 (Pa. Super. 1997) (citation omitted).              In this matter, the

timeframe when Child was in Father’s care, the discovery of the bruising

when Child was returned to Mother, and Child’s evaluation at the hospital,

reviewed favorably to Mother, create a strong inference that Father either

committed or had knowledge of the abuse.         This competent evidence was

sufficient to sustain the trial court’s conclusion by a preponderance of the

evidence.

      We    are   convinced,    however,    by   Father’s    argument   that   a

preponderance of the evidence demonstrates that the PFA order should not

have issued regarding Child’s siblings, L.H. and A.H.             While Mother

attempted to claim that L.H. and A.H. informed her that they were afraid of


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Father, the trial court noted that “[n]o hearsay statement from any [Child]

was admitted.” Trial Court Opinion, 12/23/15, at 3. Additionally, although

the trial court concluded that Mother met her burden that Children were “in

imminent danger of bodily and/or emotional harm or had been physically

abused by [Father],” it cites no facts supporting this determination relating

to L.H. and A.H. other than “[Mother’s] testimony, coupled with the pictures

of the severe bruising sustained by [Child].” Id. at 1, 6. However, the trial

court made clear that it did not consider Mother’s testimony concerning

L.H.’s and A.H.’s fear of Father. Id. at 3, 6. The remaining evidence, the

photographs of Child’s bruising, is not sufficient to tip the scales in Mother’s

favor to substantiate the entry of the PFA order as to L.H. and A.H.

Accordingly, the PFA order is vacated as to L.H. and A.H.

      Order affirmed as to Child and vacated as to L.H. and A.H. Jurisdiction

relinquished.

      Judge Lazarus joins the Memorandum.

      P.J. Gantman Concurs in the Result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2016



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