J.R.B. v. M.G.H ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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