W.W.H. v. M. K. ( 2014 )

J-A24016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
W.W.H. AND ON BEHALF OF E.R.H., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
M.K.,
Appellant No. 1117 EDA 2014
Appeal from the Order Entered March 12, 2014
In the Court of Common Pleas of Bucks County
Civil Division at No(s): A06-2013-62212-A-19
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 11, 2014
order entered against her on March 12, 2014, for a period of six months.
of t
On February 21, 2014, Father filed a PFA petition on behalf of Child,
alleging that Mother was exhibiting odd and mentally unstable behaviors
that placed Child in danger of serious bodily injury. That same day, the
court conducted an ex parte hearing and issued a temporary PFA order
against Mother. That order included a custody provision directing that
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*
Retired Senior Judge assigned to the Superior Court.
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Mother could have supervised custody of Child from 10:00 a.m. until 2:00
p.m. on Monday through Friday.
On March 12, 2014, a final PFA hearing was conducted.1 The court
thoroughly detailed the evidence presented at that hearing as follows:
Father testified that Mother believes she is physically ill.
Specifically, he testified that Mother believes she has Lyme
Disease, as well as sensitivities to many chemicals and airborne
pollutants. Father testified that Mother has [been] treated [by]
approximately ten (10) physicians over the past two (2) years
for these various ailments. Father stated that these physicians
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Mexico, New York, New Jersey, and Pennsylvania. N.T. March 12,
2014, pp. 10-11.
Father testified that, prior to her removal from the marital
home pursuant to the temporary PFA Order, Mother was
ordering pressurized oxygen tanks that were delivered to the
N.T. March 12, 2014, pp.
12-13.
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1
The trial court notes that,
[a]t the time of the hearing, both Mother and Father filed
Petitions seeking protection for themselves. Prior to hearing
and Father was given exclusive possession of the marital home.
Therefore, the sole issue remaining was the Petition filed by
-year-old son, E.R.H.
gran
PFA order entered against her for the protection of Child.
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Father asserted that, for safety purposes, the oxygen
tanks had to be placed within a well-ventilated area at least
thirty (30) feet from any appliances because of its potential
flammability. Despite this warning, Father testified that he found
Mother in the kitchen of the marital home using the oxygen next
to the stove while she was cooking. Father further testified that,
while using the oxygen in the kitchen, the stove was on and the
parties' child was fifteen (15) feet away. Father testified that
despite asking Mother to turn off the stove while using the
oxygen, she continued to do so on numerous occasions while the
child was present in the home. N.T. March 12, 2014, pp. 14-15.
Father also testified that Mother removed all of the
because Mother believed the prior insulation was making her ill.
Father asserted that thereafter Mother starting knocking down
testified that Mother also placed tin foil around the edges of the
floor and the household electronic appliances, and duct-taped
being circulated throughout the home. Father testified that there
was no evidence of a mold problem in the residence. N.T. March
12, 2014, pp. 16-17.
which PECO installed outside their home, caused radioactivity
purchased a new meter to be placed outside the home despite
reassurances from PECO that the "Smart Meter did not cause
N.T. March 12, 2014, pp. 18-19.
ious
pills, supplements, and medicines that Mother had within the
marital home. See Father's Exhibit 2. Father testified that
the majority of the pills were easily accessible to their three-
year-old son, E.R.H. Father testified that the descriptions on
some of the medicines were written in Russian and Mother would
N.T. March 12, 2014, p. 23.
Father asserted that Mother believes their son, E.R.H., is
has stated to Father that if she does not treat their son with
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these medicines the child will never be able to leave the home or
go to school. N.T. March 12, 2014, pp. 18-19.
Father testified that their son [is] treat[ed] regularly [by]
Dr. Jerry Green, a licensed pediatrician, and according to Father,
N.T. March 12, 2014, p. 24.
Regarding Mother's belief that their son needs to be
medicated, Father testif
water bottle and given it to their son. Father further testified
on the medicine stat
their son by his regular physician, and their son does not suffer
from ulcerative colitis. N.T. March 12, 2014, pp. 28-29.
Father testified that since the Temporary Protection Order
was in place, Mother had the opportunity to see E.R.H. from
10:00 a.m. to 2:00 p.m., Monday through Friday. Father
asserted that after Mother's visit with the child during the second
week after the entry of the Temporary Order, the child arrived
home and was behaving erratically. Father testified that the
N.T.
March 12, 2014, pp. 31-32.
As a result, Father testified that he called the child's
nanny, who supervised the visits with Mother. According to
Father, the nanny informed him that Mother brought their son
do. N.T. March 12, 2014, p. 33.
Father further testified that Mother purchased a tent and
moved from the marital home into the backyard. On occasion,
Father testified that their son slept outside in the tent with
Mother. Father further testified that he did not object to his
ping outside in the tent until Mother moved the tent
According to Father, the tent was approximately 18 inches from
the edge of the pool when he found Mother and their son inside
the tent. Father testified that their son could not swim, and from
that point thereafter he did not allow their son to sleep in the
tent with Mother. N.T. March 12, 2014, pp. 35-36.
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Mother also testified at the hearing of March 12, 2014. She
testified that in 2006 she was diagnosed with Lyme Disease by a
N.T. March 12,
2014, pp. 54-55.
because she is being treated by Dr. William Rea, an
N.T.
March 12, 2014, p. 56.
testified that her treating physician believes these meters have
N.T. March 12, 2014, p.
59.
Mother testified that the various medications shown in
Father's Exhibit-2 were prescribed by Dr. William Rea because
N.T. March 12,
2014, p. 59.
Mother testified that she administered charcoal to their
Mother testified that she would contact a doctor in Ukraine
concerning their child's alleged symptoms. Mother further
be poison by
N.T. March 12, 2014, p. 65.
Regarding her habit of sleeping in a tent outside the home,
she felt better outside the house because of her physical
sensitivities. N.T. March 12, 2014, p. 68.
understands that she cannot use it near an open flame. Mother
further testified that she used oxygen twice a day for
approximately eight (8) weeks. N.T. March 12, 2014, p. 70.
Mother admitted that she underwent a psychiatric
evaluation at Philmont Guidance Center, and the report from this
Center indicated that she did not manifest any signs of
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psychosis. Mother further testified that she would never hurt her
son, and he was never in danger when in her care. N.T. March
12, 2014, pp. 72-73.
On cross-examination, Mother testified that during her
psychiatric evaluation, she did not inform the physician as to the
medications she was taking, however, she asserted that she was
has seen approximately ten (10) doctors regarding her illnesses.
Mother also averred that she believes their son suffers from the
same symptoms as she does. N.T. March 12, 2014, pp. 76-81.
Regarding the demolition of the sunroom in the marital
home, Mother testified that she wanted to add new toxic-free
insulation to determine whether it improved her symptoms. N.T.
March 12, 2014, pp. 72-73.
After hearing the foregoing testimony, this court rendered
its decision, stating the following:
The focus of the hearing and the object of the hearing, as
agreed to by the parties, is this three-year-old little boy [].
The narrow view is whether this [c]ourt should, or should
Many of things which I've heard today are rational and can
be explained. For example, Mother believes that she
previously had Lyme Disease, although there is some
evidence that perhaps she did not. But accepting that she
did, it is not unforeseen that that event would cause her
behavior to change, because the Father has said prior to
that she was healthy.
travels around the country is not illegal and has brought
no harm to the child...[.] The fact that she believes that
she needs oxygen is also something we can accept. What
is out of the ordinary, what we consider to be very
important, are some of the by-products of her belief that
she has these illnesses and these sensitivities. For
example, the oxygen is delivered to the home. Contrary to
common sense, and what she knows to be correct, she
leaves [the oxygen] very close to the kitchen stove. We
know that that could cause a potentially explosive situation
which will tend to place everyone in that home in harm's
way.
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She apparently used a meat tenderizer to knock down the
walls and replaced the drywall with DragonBoard. We do
not believe that she was attempting to save [Father]
money by being proactive in home remodeling, especially
when that's coupled with her placing shopping bags on the
vents of the house.
We find [Father's] testimony to be more credible than
[Mother's]. We saw tin foil placed in various locations in
the living room. That is aberrational behavior in and of
itself. It's not harmful to the child, but it sends a strong
[]Father has testified, and I believe him, that she had a lot
of pills and syringes in the house. We saw very close to the
stove and on the kitchen counter, what appear to be
hundreds of bottles of medicines, some of which may be
required to be administered pursuant to a doctor's request
or prescription. She leaves these medicines in clear reach
of the three-year-old child. They're also, according to
Father we credit his testimony left in the refrigerator.
She has told Father and we believe his testimony that
the child needs to be medicated, despite evidence to the
contrary that he does not need to be medicated. He's
under the care of a pediatrician who finds he suffers from
none of the ailments from which Mother suffers.
I'm not a psychiatrist. I'm not a psychologist, but one
would think that this seems to be a Munchausen by Proxy.
Mother has projected her sensitivities onto the child.
It's a great leap to believe that something in his soup
dilated his pupils. On the other hand, it's not a great leap
when we believe that nothing had occurred to that child
until Mother fed him her homemade soup. We know that
Mother has a history of adding items such as charcoal,
such as other substances, to his food and water.
I am troubled by the fact that the photographs confirm
what Father has said; that the Mother has placed a flimsy
tent within a few feet of a swimming pool and that Mother
did not supervise the child to the degree where she was
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vigilant in making sure that he and the tent didn't fall into
the pool.
So if you take all of these particulars in the aggregate,
what we find is a woman perhaps not of her own
making, but nonetheless, the results are the same who
has placed her son in danger of grievous and serious bodily
injury.
[Mother] [is] attempting to harm your child, but it seems
apparent to this Court that is the result.
So we find that Father has proven his case under the
applicable statute. Mother has failed to prove her claim
under the same statute.
TCO at 2-8 (quoting N.T., 3/12/14, at 95-100).
order. The
court also directed that the custody order granting Mother supervised visits
with Child from 10:00 a.m. to 2:00 p.m., Monday through Friday, remained
supervision upon Mother. Id. at 101-102.
Mother filed a timely notice of appeal, as well as a timely Rule 1925(b)
concise statement of errors complained of on appeal. Herein, she presents
three issues for our review:
I. Did the [t]rial [c]ourt abuse its discretion/commit an error of
law when it entered an ex-parte [t]emporary [PFA] [o]rder?
II. Did the [t]rial [c]ourt abuse[] its discretion/commit an error
of law when it entered a [f]inal [PFA] [o]rder?
III. Did the [t]rial [c]ourt abuse its discretion/commit an error of
supervised partial physical custody as part of the [f]inal [PFA]
[o]rder?
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Before addressing Mot
review the trial court's legal conclusions for an error of law or abuse of
Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super. 2007)
(quoting Drew v. Drew, 870 A.2d 377, 378 (Pa. Super. 2005) (citation
omitted)).
temporary PFA order, arguing that Father failed to meet his burden of
Drew, 870 A.2d at 378). We need not delve
s
expiration prior to the full hearing and the entry of a [f]inal [PFA] [o]rder on
Ferko-Fox v. Fox, 68
A.3d 917 (Pa. Super. 2013), to argue that this issue is not moot, her
reliance on that decision is misplaced. In Ferko-Fox, this Court was faced
with the question of whether a trial court may issue a temporary PFA order
without conducting an ex parte hearing. Id. at 920. Initially, we noted:
At the outset, we observe that this issue relating to the propriety
of the temporary PFA is moot because the trial court entered a
final PFA on November 21, 2011. Nevertheless, we find that this
case falls within a recognized exception to the mootness
doctrine.
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In Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa.Super.2011)
(quoting In re D.A., 801 A.2d 614, 616 (Pa.Super.2002) (en
banc
Court will decide questions that otherwise have been rendered
moot when one or more of the following exceptions to the
mootness doctrine apply: 1) the case involves a question of
great public importance, 2) the question presented is capable of
repetition and apt to elude appellate review, or 3) a party to the
controversy will suffer some detriment due to the decision of the
trial cou i.e.,
due to the evanescent nature of temporary PFA orders,
questions relating to the adequacy of ex parte proceedings are
capable of repetition and apt to elude appellate review. Indeed,
this Court has employed exceptions to the mootness doctrine to
review issues stemming from expired PFA orders. Shandra v.
Williams, 819 A.2d 87, 90 (Pa. Super. 2003) (quoting Snyder
v. Snyder, 427 Pa.Super. 494, 629 A.2d 977, 980 n. 1
for this Court to confront the
pertinent issue that Husband asserts in this appeal, even though
our ruling has no legal force or effect upon the order that
granted Wife's temporary PFA order.
Id. at 920-921.
Here, unlike in Ferko-Fox, Mother does not present a question
Id. at 902. Instead, she simply challenges the
order in this particular case. As noted in Ferko-Fox, our ruling on this issue
has already expired. Id. at 921. It would also have no applicability to, nor
offer any guidance in, future PFA cases. Consequently, we agree with the
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ppeal that the evidence
was not sufficient 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 inference, determine whether the evidence was
sufficient to sustain the trial court's conclusion by a
credibility determinations of the trial court as to witnesses
who appeared before it.
Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999)
(quoting Miller on Behalf of Walker v. Walker, 445 Pa.Super.
537, 665 A.2d 1252, 1255 (1995)). We also note that the
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.
Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 968
(2001), cert. denied, 537 U.S. 1187, 123 S.Ct. 1351, 154
L.Ed.2d 1018 (2003).
Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004).
In particular, Mother maintains that the evidence presented at the final
as that term is defined in section 6102 of the Protection From Abuse Act
(PFAA), 23 Pa.C.S. §§ 6101-6122. That section reads:
The occurrence of one or more of the following
acts between family or household members, sexual or
intimate partners or persons who share biological
parenthood.
(1) Attempting 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.
(2) Placing another in reasonable fear of imminent
serious bodily injury.
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(3) The infliction of false imprisonment pursuant to
18 Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children,
including such terms as defined in Chapter 63
(relating to child protective services).
(5) Knowingly engaging in a course of conduct or
repeatedly committing acts toward another person,
including following the person, without proper
authority, under circumstances which place the
person in reasonable fear of bodily injury. The
definition of this paragraph applies only to
proceedings commenced under this title and is
inapplicable to any criminal prosecution commenced
under Title 18 (relating to crimes and offenses).
23 Pa.C.S. § 6102(a).
In averring that her conduct did not amount to abuse, Mother first
at 29. In the portion of the transcript cited by Mother, the
attempted to use physical force, but we can certainly read into the clear
tion by any means, and if it continues,
instead, the court explained that while Mother had yet to cause injury to the
health and her treatment of th
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Id. o the
Id. at 30-31.
However, Mother ignores that in determining a PFA order was
Mot
fact that Mother renovated the sunroom using unorthodox methods.
gave it to Child; Mother gave Child a prescription, adult-grade probiotic
medication, despite that there was no diagnosis of any digestive issues by
an oxygen tank near the stove while Child was in close proximity;2 Mother
with Child that was placed withi
despite that Child cannot swim. TCO at 13-14. The evidence that Mother
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2
The fact that Father did not produce a video
such conduct occurred.
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that Father reasonably feared Mother would cause Child serious bodily
injury.3
ency
of the evidence is that the court improperly failed to consider that Mother did
not intend to harm Child. In support of this claim, Mother relies on
Chronister ex. rel. Morrison v. Brenneman, 742 A.2d 190 (Pa. Super.
1999), where this Court examined
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3
Mother also argues that the PFA order should not have been issued
odily injured nor
was there any indication that the child manifested a reasonable fear of
unreasonable to expect a three-year-old to understand the danger posed to
g an oxygen tank next to the stove, adding a
prescription probiotic medicine to his food, or by her allowing Child to sleep
in a tent close to a pool. In any event, in Ferri v. Ferri, 854 A.2d 600 (Pa.
petition seeking
protection for his then six-year-
final PFA order, we noted that the six-year-
demonstra
Id.with some evidence of either an injury or reasonable fear of imminent
Id. (emphasis omitted). Here, Father was the party seeking the
PFA order on behalf of Child. His testimony was sufficient to prove that he
reasonably feared that Child would suffer serious bodily injury if unprotected
from Mother. It was not necessary that the three-year-old child also testify
that he feared Mother would seriously injure him.
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punishment on his sixteen year-
PFAA. Id.her. Id. We went on to state that,
contemplation of the Act. But clearly an intent is an
important element in the equation.
Id.Based on the above-emphasized language, Mother contends that the
trial court was required to assess her innocent intent in determining if she
explicitly acknowledged that Mother
to harm Child. N.T. PFA Hearing at 99. Thus, the record demonstrates that
on her conduct, Father reasonably feared imminent serious bodily injury
would be inflicted by Mother upon Child. Therefore, we see no conflict with
this case and our decision in Chronister.
provided sufficient evidence for the trial court to conclude, by a
behavior placed Child in danger of imminent serious bodily injury.
the entry of a final PFA order is meritless.
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imposed by the [t]rial [c]ourt was an abuse of discretion because the
requirements imposed by the [t]rial [c]ourt made it difficult for Mother to
actually exercise her custo
supervise her visits with Child, and that Mother bear the costs of that
which
Id. at
Id. Thus, she claims that the
court abused its discretion in drafting the custody provision of the PFA order
and, as such, the order should be reversed.
Our review of the record confirms that Mother did not raise these
claims during the final PFA hearing or in her Rule 1925(b) statement. First,
at the PFA hearing, Mother did not object when the trial court directed that
she assume the costs of Kids First supervision. N.T. at 102. She also
offered no argument regarding the cost of that supervision and how it would
limit her ability to spend time with Child. While Mother did request that the
Id. are waived.
See
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Additionally, Mother failed to present this claim with sufficient
specificity in her Rule 1925(b) statement to preserve it for our review.
child to four hours per day of supervised time, weekly on Monday through
Friday
did not mention the financial burden of her having to pay for supervision by
Kids First, nor did she contend that it reduced her ability to spend time with
Child. Because Mother did not specifically assert these claims, the trial court
final issue is waived on this basis, as well. See Pa.R.A.P. 1925(b)(4)(ii)
error that the
appellant intends to challenge with sufficient detail to identify all pertinent
Statement and/or not raised in accordance with the provisions of this
paragraph (
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2014
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