N.P. obo C.P. v. G.B.

J-A07034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.P., FILING ON BEHALF OF MINOR : IN THE SUPERIOR COURT OF
CHILD C.P. : PENNSYLVANIA
:
:
v. :
:
:
G.B. :
: No. 1994 MDA 2016
Appellant
Appeal from the Order Entered November 8, 2016
In the Court of Common Pleas of Luzerne County Civil Division
at No(s): 201609880
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 26, 2018
G.B. (“Father”) appeals from the order entered by the Court of Common
Pleas of Luzerne County, granting the request of N.P. (“Mother”) for the entry
of a final protection order pursuant to the Protection from Abuse Act (PFA)
against Father on behalf of the parties’ minor daughter, C.P. (“Child”), born in
February of 2010. After careful review, we affirm.
The certified record reveals the following factual background: Father
and Mother are unmarried and do not reside together. Mother has primary
physical custody of Child and the parties have a custody arrangement for
Father to have Child on Sunday overnight until Monday at noon as well as on
Thursdays until 4:00 p.m. The parties had made an additional agreement
during the school year wherein Mother would pick up Child every other Friday
from school and return her to Father’s home by dinner on Sunday.
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* Former Justice specially assigned to the Superior Court.
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On September 22, 2016, Mother filed a petition for a PFA order against
Father on behalf of Child after Mother was notified by the Victim’s Resource
Center of a report from Child’s school principal indicating that school personnel
had witnessed Father threatening to beat six-year-old Child because she had
wet herself at school. The Honorable Thomas F. Burke, Jr. issued a temporary
PFA order which was scheduled to expire upon a further court order.
On November 9, 2016, the parties proceeded to an evidentiary hearing
before the Honorable Tina Polachek Gartley. Mother testified that in addition
to the report of Father’s threats towards Child at school, Father had been
abusive towards Child on other occasions. In particular, Mother recalled a
past instance where she had called Father to her home to help Child with her
homework, and Mother stepped outside the home briefly to smoke. When she
returned, Child told Mother that Father had slapped her in the face. Mother
observed a visible red mark on Child’s face and documented this injury with a
photograph, which was entered as an exhibit at the hearing.
Mother also testified that Child had persistent incontinence problems
that seemed to coincide with the weekends where she was getting picked up
by Father. Mother noted that Child’s last accident was on the day she went
with Child to report the aforementioned incidents. Since contact ceased
between Child and Father, Mother indicated that Child is no longer was having
incontinence issues and has improved attitude and attention. Mother testified
that she fears for Child’s safety when Child is in Father’s custody.
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Mother also presented the testimony of Meredith Stevens, a certified
nurse at the elementary school where Child is enrolled. Ms. Stevens testified
that Child had been having regular difficulty with incontinence during school
and Child wet herself on a daily basis. As school nurse, Ms. Stevens was
required to contact Child’s parents to address this problem. When Father
arrived at the nurse’s office to pick up Child on September 16, 2016, Ms.
Stevens indicated to Father that she could understand his frustration with
Child’s incontinence. Father responded that he was “beyond frustrated … and
could choke the living shit out of [Child].” Hearing, 11/9/16, at sheet 4.1 Child
came out of the bathroom and Father told Child: “[I] should put you over my
knee and spank you right now.” Id.
As Ms. Stevens escorted Father and Child out of the school, Father yelled
at Child for skipping and screamed “[i]f I see you run again, I will beat your
butt right here.” Id. Ms. Stevens testified that Father’s comments made her
feel physically sick. She indicated that she was “afraid to send [Child] home
that day [as] I felt like we were placing her in danger.” Id. While Ms. Stevens
admitted that she did not see Father physically abuse Child, she saw Father
violently slam his car door when he placed Child in the vehicle.
Child also was present at the hearing and was deemed competent to
testify in camera after a colloquy. Child testified that she was six years old,
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1 The transcript in the certified record condenses four transcript pages on a
sheet of paper but does not individually number the pages. For the sake of
simplicity, we will cite to the numbered sheets.
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in first grade, and lives with her mother, her daddy, and her brothers. Child
indicated that Appellant lives with his mother and father.
Mother’s counsel asked Child specifically about the time when Father
came over to help Child with her homework. Child indicated that she
remembered that she was having trouble with her homework and stated that
Father “slapped me across the face right here that really hurted.” Hearing at
6. Child pointed to an area on her face under her eye. Child indicated that,
as Father hit her “very hard,” she started to cry. Id. at 7. In addition, Child
recalled that Father would get very angry when she would have accidents at
school. When asked to talk about this topic further, she did not respond.
Father testified on his own behalf. When asked about the allegations
that he slapped Child’s face, Father denied causing the injury documented by
Mother, denied hitting Child’s eye, and indicated that he has “tapped [Child]
on the mouth … when she’s gotten mouthy.” Id. at 8. Father indicated that
he had never seen the documented bruise under Child’s eye, but asserted that
he had seen Child with bumps and bruises and characterized Child as clumsy.
Father denied threatening Child at school and suggested that Ms.
Stevens had fabricated her testimony. He explained that he had told his
daughter that he was getting tired of her having accidents in school and was
worried that the school district would ask him to pull Child out of school due
to her incontinence. He also asserted that he told his daughter that she could
not run in the halls at school. Father noted for the record that he does not
believe he is a danger to his daughter.
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At the conclusion of the hearing, the trial court granted a final protection
order on behalf of Child, which was set to expire in three years on November
8, 2019. Father filed this timely appeal and complied with the trial court’s
direction to file a concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
[1] Did the trial court abuse its discretion or commit an error of
law where it appears from a review of the record that there is
insufficient evidence to support the court’s findings?
[2] Did the trial court err in failing to find that [Mother] did not
prove, by substantial, competent evidence pursuant to section
6107(a) of the Protection from Abuse Act, the allegation of abuse
by a preponderance of the evidence?
[3] Did the trial court fail to review the evidence in the light most
favorable to [Father] and grant [Mother] the benefit of all
reasonable inferences, in determining whether the evidence was
sufficient to sustain the court’s conclusions by a preponderance of
the evidence?
[4] Was the trial court’s decision in the instance case contrary to
law and in error because it failed to find that Protection from Abuse
orders are intended to protect individuals from immediate danger?
[5] Did the PFA court abuse its discretion in sentencing/ordering
[Father] from any contact with his natural, minor child for a period
of three (3) years?
[6] Was the PFA court’s sentence order/excessive?
[7] Did the PFA court err in failing to consider the best interests
of the child?
Appellant’s Brief, at 4-5.
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As an initial matter, we note that Father’s brief does not comply with
our rules of appellate procedure. Although Father raises seven issues in his
statement of questions involved, his brief has one argument section in which
he combines all of his claims into one discussion. See Pa.R.A.P. 2119(a)
(stating that “[t]he argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part−in distinctive
type or in type distinctively displaced−the particular point treated therein”).
Nevertheless, we will address Father’s claims, which can be summarized in
challenges to the (1) trial court’s finding of sufficient evidence of abuse to
warrant the entry of the PFA order and (2) appropriateness of the three-year
duration of the PFA restrictions.2
Our standard of review of a trial court’s decision to grant a PFA order is
as follows:
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2 In the argument section of his brief, Father contends that the PFA court erred
in failing to admit evidence of three prior PFA petitions Mother brought against
Father that were not granted, a Pennsylvania State Police criminal record
check that showed Father had no criminal history, and alleged letters from
county and state agencies indicating that Mother’s abuse complaints were
unfounded. Father did not raise this evidentiary challenge in his Rule 1925(b)
statement or in his Statement of Questions Involved in his appellate brief.
The PFA court’s 1925(b) order informed Father that “any issue not included in
this Statement timely filed and served pursuant to Rule 1925(b) shall be
waived.” Order, 12/16/16, at 1. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived”); In re M.Z.T.M.W., 163 A.3d 462, 466
(Pa.Super. 2017) (stating that “it is well-settled that issues not included in an
appellant's statement of questions involved and concise statement of errors
complained of on appeal are waived”) (citing Krebs v. United Refining Co.
of Pa., 893 A.2d 776, 797 (Pa. Super. 2006)).
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[i]n the context of a PFA order, we review the trial court's legal
conclusions for an error of law or abuse of discretion. This Court
has emphasized that the purpose of the PFA Act is to protect
victims of domestic violence from those who perpetrate such
abuse, with the primary goal of advance prevention of physical
and sexual abuse.
T.K. v. A.Z., 157 A.3d 974, 976 (Pa.Super. 2017) (citations omitted).
Further, with respect to a challenge to the sufficiency of the evidence
supporting a PFA order, we are guided by the following principles:
“When a claim is presented on appeal 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 preponderance of the evidence.” Miller on
Behalf of Walker v. Walker, 445 Pa.Super. 537, 665 A.2d 1252,
1255 (1995). See 23 Pa.C.S.A. § 6107(a) (“the plaintiff must
prove the allegation of abuse by a preponderance of the
evidence”). This court defers to the credibility determinations of
the trial court as to witnesses who appeared before it. Alfred v.
Braxton, 442 Pa.Super. 381, 659 A.2d 1040, 1043 (1995).
McCance v. McCance, 908 A.2d 905, 910 (Pa.Super. 2006).
The PFA Act, 23 Pa.C.S.A. §§ 6101-6122, defines “abuse” in relevant
part as follows:
“Abuse.” 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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***
(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 prosecutions
commenced under Title 18 (relating to crimes and offenses).
23 Pa.C.S.A. § 6102.
In a similar case, this Court upheld a PFA order in Miller where a father
spanked his son with a board and caused bruising on his leg. The daughter
saw the contact but did not report it because she was afraid. On another
occasion, the father had squeezed this son’s harm with enough force that he
caused a bruise. The child’s mother also indicated that she had seen bruises
on the children and noted that the children’s father had issues with his temper.
This Court emphasized that the Protection from Abuse Act does not
outlaw a parent’s corporal punishment of a child, but will “permit a remedy
for bodily injury to a family or household member which is inflicted
intentionally, knowingly, or recklessly.” Miller, 665 A.2d at 1258 (citing 23
Pa.C.S.A. § 6102(a)). Moreover, this Court found that “corporal punishment
properly inflicted will not produce bodily injury in a child[,] ‘corporal
punishment’ inflicted recklessly or in an enraged manner may result in bodily
injury.” Id. As a result, this Court concluded that the father’s infliction of
bruises on his son’s body constituted “bodily injury” as defined in the definition
of abuse set forth in Section 6102(a). See also B.T.W. ex rel. T.L. v. P.J.L.,
956 A.2d 1014 (Pa.Super. 2008) (finding that daughter had been abused and
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suffered bodily injury when her father had caused bruises on her back from
whips with a belt).
In this case, Mother and Child claim that Father hit Child with an open
hand under her eye when he was frustrated that Child was having trouble with
her homework. Child testified that Father hit her “very hard” and caused a
bruise to form under her eye. Hearing, at 7. On another occasion, Child’s
school nurse, Ms. Stevens, reported that Father threatened to “choke the
living shit out of [Child]” as he was frustrated by Child’s incontinence. Id. at
4. Father showed little anger control as he continued to threaten to spank
Child for the accident, screamed that he would “beat [her] butt” for skipping
down the hall, and violently slamming his car door shut. Id. Ms. Stevens
indicated that Father’s demeanor and threats made her fear for Child’s safety.
Moreover, Ms. Stevens confirmed that after Father was prohibited from
contact with Child, Child’s incontinence problems stopped.
Viewing the record in the light most favorable to Mother, we find the
record confirms that Father inflicted bodily injury upon Child and engaged in
a course of conduct that placed Child in reasonable fear of sustaining bodily
injury. Accordingly, we conclude that the trial court did not abuse its
discretion in finding Father abused Child under Section 6102(a).
Appellant also contends the trial court erred in ordering the PFA order
to remain in effect for three years. However, Appellant did not preserve this
challenge by filing a motion for reconsideration in the lower court. “Issues not
raised in the lower court are waived and cannot be raised for the first time on
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appeal.” Pa.R.A.P. 302(a). Accordingly, we decline to review this claim
further.3
As we conclude that Appellant’s arguments either lack merit or are
waived, we affirm the lower court’s order.
Order affirmed.
Judge Panella joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/26/18
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3 Appellant has a remedy in the Court of Common Pleas with appropriate
appellate rights. Section 6108(d) of the PFA Act states that a “court may
amend its order or agreement at any time upon subsequent petition filed by
either party.” 23 Pa.C.S.A. 6108(d). Section 6117(a) clarifies that
“modification [of a PFA order] may be ordered after the filing of a petition for
modification, service of the petition and a hearing on the petition.” 23
Pa.C.S.A. § 6117(a).
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