M.C.B. v. J.B. & D.B. ( 2016 )

J-A20032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.C.B., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
J.B. & D.B. : No. 1523 WDA 2015
Appeal from the Order September 22, 2015
in the Court of Common Pleas of Allegheny County,
Civil Division, No(s): FD 08-9184
BEFORE: BOWES, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 8, 2016
M.C.B. (“Mother”), pro se, appeals from the Order entering a final
Protection From Abuse (“PFA”) Order against her pursuant to the Protection
From Abuse Act (“PFAA”), 23 Pa.C.S.A. § 6101 et seq. We affirm.
The trial court set forth the relevant underlying history as follows:
Mother has a 12 year old daughter, [A.B. (“Child”),] of
whom J[.B.] and D[.]B[.] ([“]Paternal Grandparents[”]) have
been awarded primary legal and physical custody. By previous
[O]rder of the court, Mother’s contact with [Child] is
supervised.[FN 1]
[FN 1]
The parties have been involved in long and
protracted custody litigation. At the time of the PFA
hearing, the case was scheduled for a conciliation to
review the results of a psychological evaluation for
custody performed as a result of Mother’s Petition for
Modification of Custody. The existing custody [O]rder
was the subject of prior litigation before the Superior
Court, at which time [the trial court’s] ruling permitting
Mother to have unsupervised contact with [Child] was
reversed. See B.B. vs. M.C.B. vs. J.B. and D.B., [31
J-A20032-16
A.3d 733] (Pa. Super. 2011).[1] Since the PFA hearing,
the custody case was scheduled for trial on December
10, 2015[,] and continued to February 10, 2016[,] at
Mother’s request.
At the final PFA hearing on [September 22], 2015 [“the
PFA hearing”], the [court-appointed custody] supervisor[, C.H.
(“the supervisor”), an Allegheny County juvenile probation
officer,] credibly testified to the incident that led to [Paternal
Grandparents’] filing of the [P]etition [for a PFA order, on July
22, 2015]. [On July 20, 2015,] Mother informed the supervisor
via telephone that [Mother] wished to have her [scheduled] visit
with [Child] at the Highland Park Pool. [Mother] wished to swim
in the pool with [Child], but the supervisor objected that she was
not prepared to get into the pool along with Mother and [Child]
to supervise their contact and communications. Mother became
agitated and hung up on the supervisor. [Later that same day,
Mother arrived at the agreed-upon meeting place at Highland
Park, where she met Child and the supervisor after D.B.
(“Paternal Grandmother”) dropped them off in her car.] …
Mother told [Child] that the supervisor was not going to let
[Child] swim. The supervisor attempted to clarify that she was
not prohibiting [Child] from swimming, but rather that she was
not going to allow Mother to swim with [Child] without the
requisite close supervision the supervisor was there to provide.
At that point, Mother grabbed [Child] by the shoulder and
told the supervisor to get away from them. The supervisor
announced that she was ending the visit because of this
altercation, and she attempted to lead [Child] away by the arm.
Mother placed her arm around [Child’s] neck, and declared that
the visit was not ending, at which point both the supervisor and
Mother called 911 for assistance. Mother kept her arm around
[Child’s] neck during the 911 calls and[,] while waiting for
officers to arrive, intermittently hurl[ed] abusive epithets at the
supervisor[. D]uring this time, [Child’s] face became red, she
attempted to get away from [] Mother, and she appeared to be
“very upset and agitated about this.” [N.T., 9/22/15, at 11.]
1
This Court concisely summarized the protracted custody litigation in its
Memorandum, including the involvement of Child’s Father, B.B., in the
litigation. See B.B., 31 A.3d 733 (unpublished Memorandum at 1-5).
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Officers arriving on the scene observed Mother with her
arm around [Child’s] neck. They spoke with Mother, with the
supervisor, and with [Child], who indicated that she wanted to
go home. The officers let the parties go their separate ways[,]
with [Child] in the care of [P]aternal [G]randmother, who had
remained nearby during the whole episode. [Paternal
Grandmother also testified at the PFA hearing, stating that]
Mother’s use of a “choke hold” on [Child] caused [Child]
considerable fear and anxiety, leading her to tell [P]aternal
[G]randmother tearfully that Mother “was choking me to death.”
[Id. at 25.] [Child] also had difficulty sleeping and performing
at school for at least a week after this incident.
Trial Court Opinion, 12/2/15, at 1-3 (unnumbered) (emphasis and one
footnote in original, footnote added). Mother also testified at the PFA
hearing. Mother denied ever choking or strangling Child. N.T., 9/22/15, at
36-38. According to Mother, she was “just holding” Child, “in the shoulder,”
for approximately 20 minutes until the police responded to the 911 calls.
N.T., 9/22/15, at 36, 38. Mother stated that her reaction was attributable to
the supervisor’s unreasonable decision to cancel the visit for no reason. Id.
at 37.
At the close of the PFA hearing, the trial court entered a final PFA
Order, prohibiting contact between Mother and Child for sixty days, subject
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to a possible extension after a scheduled custody conciliation.2 In response,
Mother timely filed a pro se Notice of Appeal.
We initially observe that Mother’s handwritten, pro se brief fails to
comply with the Rules of Appellate Procedure in numerous ways, including it
lacking a statement of questions involved. See Pa.R.A.P. 2111(a).
Nevertheless, we decline to find waiver and will briefly address Mother’s
claims.
The sole cognizable claim that Mother presents on appeal3 is that the
trial court erred by issuing the PFA Order because the evidence presented at
the PFA hearing was insufficient to support a finding of abuse under the
PFAA. Mother’s Brief at 2. Specifically, Mother alleges that the evidence
belies the testimony of the supervisor and Paternal Grandmother that Mother
strangled Child. Id.
“In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.” Boykai v. Young,
2
The trial court did not extend the PFA Order beyond its expiration date.
Additionally, we observe that Mother’s appeal from the final PFA Order is not
rendered moot by the expiration of the Order. See Shandra v. Williams,
819 A.2d 87, 90 (Pa. Super. 2003) (stating that appeals from PFA orders
“[raise] issues that fall into the well-recognized exception to the mootness
doctrine of issues which have important public policy considerations and yet
may escape review. [PFAA] Orders are usually temporary, and it is seldom
that we have the opportunity to review one before it expires.” (internal
citation and quotation marks omitted)); see also Ferko-Fox v. Fox, 68
A.3d 917, 920 (Pa. Super. 2013).
3
The majority of Mother’s assertions in her brief concern the child custody
litigation, which is not relevant to the instant case.
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83 A.3d 1043, 1046 (Pa. Super. 2014) (citation and quotation marks
omitted). “When faced with a sufficiency challenge under the PFA[A], 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.” Custer v. Cochran, 933 A.2d 1050, 1058
(Pa. Super. 2007) (en banc). Moreover, in making this assessment, this
Court must defer to the credibility determinations of the trial court. Id.“The [PFAA] was created to protect the victims of domestic violence
from their abusers. Its goal is not punishment of abusers for past violent
behavior, but advance prevention of physical and sexual abuse.” Burke ex
rel. Burke v. Bauman, 814 A.2d 206, 208 (Pa. Super. 2002) (internal
citations omitted). Section 6102(a) of the PFAA defines “abuse” as:
([1]) intentionally, knowingly, or recklessly causing bodily injury;
([2]) placing another in reasonable fear of imminent [serious]
bodily injury; ([3]) infliction of false imprisonment; ([4])
physically or sexually abusing minor children; or, ([5]) knowingly
engaging in a course of conduct or repeatedly committing acts
towards another person, including following the person, without
proper authority, under circumstances which place the person in
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reasonable fear of bodily injury.
Id. (citing 23 Pa.C.S.A. § 6102(a)).4 Actual physical harm is not a
prerequisite for the entry of a PFA order; rather, the victim needs only to be
in reasonable fear of imminent serious bodily injury. Fonner v. Fonner,
731 A.2d 160, 163 (Pa. Super. 1999).
In the instant case, the trial court found that Mother’s conduct in
placing Child in a “choke hold” constituted abuse under subsection
6102(a)(2) (defining abuse as “placing another in reasonable fear of
imminent serious bodily injury.”). Trial Court Opinion, 12/2/15, at 3
(unnumbered). In support of this ruling, the trial court reasoned as follows:
Mother contends that she had no intention of hurting [Child].
However, the fact remains that [Mother] had [Child] in a choke
hold for an extended period of time. The restraint Mother placed
around [Child’s] neck clearly constituted an impairment of
[Child’s] physical condition constituting “bodily injury” within the
meaning of the [PFAA]. See Commonwealth v. Ogin, [540
A.2d 549, 552] ([Pa. Super.] 1988) ([stating that] “[t]he
existence of substantial pain may be inferred from the
circumstances surrounding the use of physical force even in the
absence of a significant injury.”)[; s]ee also[] Karch v. Karch,
885 A.2d 535[, 539] ([Pa. Super.] 2005) ([where] husband
made shape of [a] gun with his fingers, “fired” it while touching
wife’s head with enough force to cause pain, and told wife that
“there is your future[,]” [holding that this was evidence of abuse
that was sufficient to sustain the grant of a PFA order]).
Further, under Section [6102(a)](2) of the definition of abuse,
Mother’s actions placed [Child] in reasonable fear of imminent
4
The PFAA does not contain definitions of “serious bodily injury” or “bodily
injury.” However, we observe that the Crimes Code defines serious bodily
injury as “[b]odily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ[,]” and bodily injury as
“impairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.
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serious bodily injury. Placing a twelve year old child in a choke
hold certainly would – and did – cause that child to fear that she
would be seriously hurt.
Trial Court Opinion, 12/2/15, at 3-4 (unnumbered). The trial court’s
rationale is supported by the record and the law, and we discern no error of
law or abuse of discretion in its ruling. See Boykai, supra, at 1046.
Though Mother denies that she ever “choked” Child (instead asserting
that Mother was merely holding Child by the shoulder), this Court must defer
to the trial court’s determinations regarding the credibility of witnesses at
the PFA hearing. See Custer, supra at 1058; Ferko-Fox, 68 A.3d at 928.
Here, the trial court discredited Mother’s assertion in this regard, and
credited the testimony of the supervisor and Paternal Grandmother.
Accordingly, we conclude that the trial court did not abuse its
discretion in finding that the evidence warranted the issuance of a final PFA
Order pursuant to section 6102(a), and Mother’s challenge to the sufficiency
of the evidence fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2016
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