S.W. v. S.F., 331 MDA 2018

• Decision Date: 18 September 2018
• Docket Number: No. 331 MDA 2018,331 MDA 2018
• Citation: 196 A.3d 224
• Parties: S.W., Appellee v. S.F., Appellant
• Court: Pennsylvania Superior Court

196 A.3d 224

S.W., Appellee

v.S.F., Appellant

No. 331 MDA 2018

Superior Court of Pennsylvania.

Submitted June 4, 2018

Filed September 18, 2018

Charles J. Hobbs, York, for appellant.

Suzanne S. Smith, York, for appellee.

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

OPINION BY BENDER, P.J.E.:

S.F. (Mother) appeals from the January 23, 2018 order that granted S.W.'s (Child) petition seeking a final protection from abuse (PFA) order.¹ After review, we affirm.

In her brief, Mother lists the following issues for our review:

I. Whether the trial court abused its discretion and made an error of law under 23 P[a].C.S.[ ]. [§] 6107 when it did not allow [Child] to testify at the [PFA] [h]earing[?]

A. Whether the [t]rial [c]ourt denied [Mother's] due process rights by not permitting [Child] to testify at the PFA hearing and denying [Mother] the opportunity to cross examine her accuser?

B. Whether the trial [c]ourt abused its discretion and made an error of law in relying upon testimony taken during an ex-parte hearing that was not of record during the PFA hearing[?]

C. Whether the trial court abused its discretion and made an error of law in determining that sufficient evidence was presented at the PFA hearing to make a finding of abuse[?]

II. Whether [Mother] waived her rights to object to due process violations and sufficiency of evidence arguments on appeal, for not objecting with specificity on the record[?]

Mother's brief at 7.

"In reviewing the validity of a PFA order, we must determine whether the evidence, in the light most favorable to petitioner and granting her the benefit of all reasonable inferences, was sufficient to sustain the trial court's determination that abuse was shown by the preponderance of the evidence." R.G. v. T.D., 448 Pa.Super. 525, 672 A.2d 341, 342 (1996). "Moreover, we must defer to the lower court's determination of the credibility of witnesses at the hearing." Id.

We have reviewed the certified record, Mother's brief,² the applicable law, and the thorough opinion authored by the Honorable N. Christopher Menges of the York County Court of Common Pleas, dated March 13, 2018. We conclude that Judge Menges' opinion accurately disposes of the issues presented by Mother on appeal and we discern no abuse of discretion or error of law. Accordingly, we adopt Judge Menges' opinion as our own and affirm the order appealed from on that basis.

Order affirmed.

Attachment

IN THE COURT OF COMMON PLEASE OF YORK COUNTY, PENNSYLVANIA

S.W. (A MINOR),

Plaintiff

S.F.

Defendant

No. 20009-FC-001342-12A

OPINION IN SUPPORT OF ORDER PURSUANT TO Pa.R.A.P. 1925(a)

Appellant [S.F., Mother] appeals to the Superior Court of Pennsylvania from the Final Protection from Abuse ("PFA") Order entered in this matter on January 23, 2018. On February 22, 2018, [Mother] filed a Concise Statement of Errors Complained of Pursuant to Rule of Appellate Procedure 1925(a) (2) (i). The trial court now issues this 1925(a) (2) (ii) Opinion.

FACTUAL AND PROCEDURAL HISTORY

The minor child Appellee, S.W., is the natural born child of the [Mother] and [Father]. The custody of S.W. has been the subject of repeated litigation dating to 2009. The latest and current Order directs the parents to exercise shared month-to-month custody of the child. The current custody action was brought by Father's Petition for Contempt and Petition to Modify Custody on August 3, 2017. A custody hearing is scheduled before this Court on March 22, 2018.

On January 16, 2018, [Father] filed a petition seeking a Protection From Abuse (PFA) order for his child S.W., the protected party and plaintiff. The petition named S.W.'s. [Mother], Appellant, as Defendant.

The PFA order on Appeal was prompted by events that occurred on January 9, 2018. According to the Petition for Protection from Abuse, [Child] called [Mother] at approximately 7:30 P.M. A disagreement ensured, during which [Child] states that [Mother] threatened to beat her. Apparently finding the threat to be credible, [Child] became upset and [Father] thus filed the petition on his [Child's] behalf.

The Petition alleges several incidents of abuse, dating to 2014. The incidents include details of [Mother] drinking and driving with [Child] in the car, pushing [Child] to the floor, punching her repeatedly in the ribs, throwing household objects at her, and hitting her in the head with a hairbrush, resulting in bruising which led to [Child's] teacher contacting a Children & Youth agency. The Petition requested an Ex Parte Hearing, claiming that the [Child], a minor child, was in imminent danger. In accordance with 23 Pa. C.S. § 6107 (b) (l), "If a plaintiff petitions for temporary order for protection from abuse and alleges immediate and present danger of abuse to the plaintiff or minor children, the court shall conduct an ex parte proceeding," this Court conducted an ex parte proceeding with [Child] in the form of an in camera interview.

Finding the [Child] to be credible and compelling, and that she was in immediate and present danger of abuse this Court entered a temporary PFA Order pursuant to the statute. "The court may enter such a temporary order as it deems necessary to protect the plaintiff or minor children when it finds they are in immediate and present danger of abuse. The order shall remain in effect until modified or terminated by the court after notice and hearing." 23 Pa.C.S. § 6107 (b) (2). That Order was a contact order which explicitly permitted contact between the Parties in accordance with the controlling custody order. The Order stated that all contact was to be non-abusive in nature.

An evidentiary hearing to determine whether a final PFA order should be entered was held January 23, 2018, as required by 23 Pa. C.S. § 6107 (a). During the hearing the Court heard testimony from [Child's] Father and Stepmother, [J.W.], as well as the [Mother] and her mother, [T.S.-I.]. Both parties were given ample opportunity to be heard and to cross-examine the other party's witnesses. A full and accurate record was produced.

Following that hearing, the Honorable N. Christopher Menges ("Trial Court") granted the petition for a PFA Order against [Mother] extending the terms of the Temporary Order to a term of three years and assigning court costs to [Mother] (Final Order at 2.)

On February 20, 2018, [Mother] filed a Notice of Appeal and a § 1925 (a)(2) (i) statement. The Court hereby reaffirms the Final Order.

ISSUES FOR APPEAL

In her statement, [Mother] alleges five (5) issues to be considered on Appeal:

1) The Trial Court abused its discretion and made an error of law when it conducted an exparte [sic] hearing with [Child]. and made a determination of credibility without Providing [Mother] an opportunity to cross-examine the witness.

2) The Trial Court abused its discretion and made an error of law by deciding the merits of the case prior to the hearing while having only conducted an exparte [sic] interview with the [Child].

3) The Trial Court abused its discretion and made an error of law in relying solely on the exparte [sic] interview of the witness in determining sufficient evidence was presented by the [Child]. On demurrer, after [Child] had rested, Trial Court had only heard the hearsay testimony of Father and the [Child's] Stepmother, yet ruled the evidence was sufficient to survive a motion to dismiss. Trial Court cited exceptions for excusing the [Child] from being required to testify, that are not supported by statute or case law.

4) The Trial Court abused its discretion and made an error of law in allowing the entire hearing and ultimate findings of the Court to be based upon inadmissible hearsay evidence, in that the [Child] never testified to any allegations at the hearing and only provided testimony at an exparte [sic] hearing.

5) The Trial Court abused its discretion and made an error of law by violating [Mother's] due process rights when not allowing the [Child] to testify and refusing [Mother] the opportunity to cross-examine [Child].

Specifically, [Mother] invites the Court's attention to:

" Section 6107(a) requires that a hearing be conducted at which time the petitioner must prove the allegation of abuse by a preponderance of the evidence." Drew v. Drew, 870 A.2d 377, 378 (Pa.Super.2005) (emphasis in original). In determining whether a hearing pursuant to Section 6107(a) comports with due process, this Court has held that the parties must, at a minimum, have the opportunity to present witnesses, testify on one's behalf, and cross-examine the opposing party and his/her witnesses. See Drew, supra ; Leshko v. Leshko, 833 A.2d 790 (Pa.Super.2003). Lanza v. Simconis, 2006 PA Super 369, ¶ 10, 914 A.2d 902, 906 (2006)

The Parties must, at a minimum, have the opportunity to present witnesses, testify on one's behalf, and cross-examine the opposing party and his/her witnesses."

R.G. v. TD., 448 Pa. super. 525, 672 A.2d 341, 343 (Pa. super. 1996). Rizk v. Barghoutt, No. 898 MDA 2012, 2014 WL 10936780, at *8 (Pa. Super Ct. Apr. 14, 2014)

[Mother's] Concise Statement of Errors Complained of, Pursuant to Pennsylvania Rule of Appellate Procedure 1925 (a)(2)(i).

DISCUSSION

"In an appeal from a PFA action, this Court reviews the trial court's legal conclusions for an error of law or an abuse of discretion." Hood—O'Hara v. Wills, 873 A.2d 757, 759 (Pa.Super.2005) quoted in Lawrence v. Bordner, 907 A.2d 1109, 1112 (Pa. Super. 2006). Assessing the "[c]redibility of witnesses and the weight to be accorded to their testimony is within the exclusive province of the trial court as the fact finder. Karch v. Karch, 885 A.2d 535, 537 (Pa.Super.2005) quoted in Mescanti v. Mescanti, 956 A.2d 1017, 1020 (Pa. Super. 2008).

[Mother's] claim in the present case is properly characterized as a challenge to the sufficiency of the evidence in support of the PFA order. In reviewing such a claim, this Court must "view the evidence in the light most favorable to the verdict winner, granting her the benefit of all reasonable inferences." Fonner v. Fonner, 731...