Loose, E. v. Schonewolf, E.

J-S32002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERICA MARIE LOOSE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC SCHONEWOLF :
:
Appellant : No. 830 MDA 2022
Appeal from the Order Entered May 5, 2022
In the Court of Common Pleas of Berks County
Civil Division at No(s): 21 16986
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY PANELLA, P.J.: FILED: DECEMBER 2, 2022
Eric Schonewolf (“Father”) appeals from the order granting a protection
from abuse (“PFA”) order in favor of his daughter, E.S. (“Child”),1 born in May
2016. Father argues that the trial court abused its discretion in admitting
Child’s out-of-court statements at the PFA hearing under the tender years
hearsay exception. We affirm.
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1 Here, we will use the parties’ names in the caption “as they appeared on the
record of the trial court at the time the appeal was taken.” Pa.R.A.P.
904(b)(1). Notably, “upon application of a party and for cause shown, an
appellate court may exercise its discretion to use the initials of the parties in
the caption based upon the sensitive nature of the facts included in the case
record and the best interest of the child.” Pa.R.A.P. 904(b)(2); see
also Pa.R.A.P. 907(a). Neither party has applied to this Court for the use of
initials in the caption. We will, however, refer to Child by her initials or as
“Child” to protect her identity.
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Erica Marie Loose (“Mother”) and Father, who are the natural parents of
Child, divorced in 2021. The parties were granted shared legal custody of
Child, Mother was granted primary physical custody and Father was granted
partial physical custody every other weekend and four weeks during the
summer. Notably, Mother lived in Pennsylvania and Father lived in New Jersey.
In 2021, Mother observed that Child was exhibiting unusual behavior,
including having temper tantrums, nightmares, bedwetting, and asking to be
bathed before going to Father’s home. As a result, Mother consulted with
Kailey Esterly, a licensed therapist, who began treating Child. Child
subsequently informed Esterly that Father was inappropriately touching her
vagina. Because she is mandatory reporter, Esterly informed Berks County
Children and Youth Services (“CYS”) of the disclosure.
On December 16, 2021, CYS contacted Mother to inform her that it had
filed a report on behalf of Child indicating that Father had sexually abused her.
After a CYS caseworker interviewed Child, the case was transferred to the New
Jersey Division of Child Protection and Permanency (“DCPP”). Joan Quinn, a
DCPP caseworker, indicated that Child did not feel safe with Father. The DCPP
issued a safety plan and ordered that Father’s custody be supervised.
Subsequently, an attorney and a physician examined Child. Thereafter, the
DCPP issued a recommendation of no contact between Father and Child.
On December 23, 2021, Mother filed a PFA petition against Father on
behalf of Child. The trial court held a hearing, at which Mother and Quinn
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testified without any objection by Father. Following the hearing, the trial court
entered a temporary PFA order for one year against Father.
On February 8, 2022, New Jersey law enforcement informed Father that
no criminal charges would be filed, finding that the allegations were not
established. As a result, Father filed a petition to modify the PFA order,
requesting a dismissal of the PFA because no criminal charges had been filed.
Mother filed an answer and counterclaim, arguing that Father’s argument was
not grounds to modify a PFA order. Mother also filed a motion, requesting the
admission of the child’s out-of-court statements to Mother and Esterly, under
the tender years hearsay exception. The trial court denied the motion without
prejudice. Thereafter, Mother filed a petition to extend the PFA order, seeking
a three-year PFA order on behalf of Child.
On May 4, 2022, the trial court held an evidentiary hearing, at which
Father, Mother, Esterly, and Child’s teacher, Rachel Palm, testified. During the
hearing, the trial court held an in camera hearing with Child, and ruled that
Child was unavailable, but that Child’s out-of-court statements to Mother and
Esterly would be admitted. Ultimately, the trial court found the testimony of
Mother and Esterly to be credible and Father to be incredible and issued a final
PFA order against Father on behalf of Child for three years. The trial court
further articulated that Mother was awarded temporary exclusive custody of
Child and Father had no partial physical custody or visitation rights. Father
filed a timely appeal and Pa.R.A.P. 1925(b) concise statement.
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On appeal, Father raises the following questions for our review:
The court erred and abused its discretion in allowing the minor
child’s statements in under the Tender Years Exception where:
i. the court failed to conduct an independent, in camera hearing
to determine whether the proffered statements were relevant to
the proceedings and bore sufficient indicia of reliability;
ii. the minor child did not testify nor did the court specifically hold
that the minor child was unavailable to testify; and,
iii. no testimony was presented which provided that having the
minor child testify would result in serious emotional distress to the
minor child which would have substantially impaired the minor
child’s ability to reasonably communicate.
Appellant’s Brief at 4 (citation omitted).
Father contends that the trial court abused its discretion in admitting
Child’s out-of-court statements to Mother and Esterly at the PFA hearing. See
id. at 12. Father argues that the trial court failed to follow the dictates of the
tender years hearsay exception to admit the statements. See id. at 12-13,
24. More specifically, Father asserts that the trial court failed to assess the
relevance and reliability of Child’s statements and the unavailability of Child
to testify at the hearing, including whether testifying would cause Child serious
emotional distress that would substantially impair her ability to communicate
reasonably. See id. at 15-16, 17, 26-27; see also id. at 16 (challenging
various statements by Child to Mother and Esterly in which she alleged Father
inappropriately touched her vagina). Father further claims that the trial court
did not independently review any of the proffered statements, including
examining the time, content, and circumstances in which the statements were
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made. See id. at 17-18. Moreover, Father argues that Child’s statements were
unreliable, highlighting that the allegations arose from the highly contentious
nature of the custody proceedings. See id. at 19-21, 28.
Father also claims that the trial court failed to make a finding regarding
Child’s unavailability to testify at the hearing, as it did not determine that Child
would suffer emotional distress that would substantially impair her ability to
reasonably communicate. See id. at 21-23. Father maintains that although
the trial court had an opportunity to observe Child, it made no finding
regarding emotional distress. See id. at 24. Relatedly, Father contends that
Esterly’s opinion that Child would not be able to speak at the hearing did not
establish emotional distress. See id. at 23-24. Father finally emphasizes that
the trial court could not consider Child’s competency in its application of the
tender years exception. See id. at 25-29. Father concludes that the final PFA
order must be vacated and a new PFA hearing be granted. See id. at 12, 29.2
Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or misapplication
of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.
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2 We note that the trial court found that Father did not properly preserve his
claims due to a vague Rule 1925(b) concise statement, as he did not
specifically identify the statements he sought to exclude. See Trial Court
Opinion, 6/24/22, at 7-9. We decline to find waiver, as Father’s claims
encompass the trial court’s procedure in allowing Child’s testimony to be
admitted under the tender years hearsay exception. Accordingly, Father
properly preserved these claims in his Rule 1925(b) concise statement.
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Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (en
banc) (citations and quotation marks omitted).
Hearsay is defined as “a statement that (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers into
evidence to prove the truth of the matter asserted in the statement.” Pa.R.E.
801(c). “Hearsay is not admissible except as provided by [the Pennsylvania
Rules of Evidence], by other rules prescribed by the Pennsylvania Supreme
Court, or by statute.” Pa.R.E. 802. The tender years hearsay exception allows
for the admission of out-of-court statements relating to sexual abuse made
by a child victim who was sixteen years old or younger at the time of the
statements to third parties. See 42 Pa.C.S.A. § 5985.1(a); see also
Commonwealth v. Walter, 93 A.3d 442, 451-52 (Pa. 2014).
Relevant to this appeal, a court may admit a child-victim’s out-of-court
statement for the truth of the matter asserted under the tender years hearsay
exception when (1) “the court finds, in an in camera hearing, that the evidence
is relevant and that the time, content[,] and circumstances of the statement
provide sufficient indicia of reliability;” and (2) the child “is unavailable as a
witness.” 42 Pa.C.S.A. § 5985.1(a)(1)(i), (ii)(B).
The statute requires “indicia of reliability,” which compels courts to look
to “the spontaneity of the statements, consistency in repetition, the mental
state of the declarant, use of terms unexpected in children of that age, and
the lack of a motive to fabricate.” Interest of D.C., 263 A.3d 326, 335 (Pa.
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Super. 2021) (citation omitted). “[A] trial court must consider the totality of
the circumstances when determining whether a child’s out-of-court statement
is trustworthy.” Id. (citation omitted); see also Commonwealth v.
Delbridge, 855 A.2d 27, 45 (Pa. 2003) (noting that the admissibility of out-
of-court statements under the tender years hearsay exception “is determined
by assessing the particularized guarantees of trustworthiness surrounding the
circumstances under which the statements were uttered to the person who is
testifying.”).
Moreover, to make a finding “that the child is unavailable as a witness,
the court must determine, based on evidence presented to it, that testimony
by the child as a witness will result in the child suffering serious emotional
distress that would substantially impair the child’s ability to reasonably
communicate.” 42 Pa.C.S.A. § 5985.1(a.1). In making this finding, the trial
court may “[o]bserve and question the child, either inside or outside the
courtroom.” Id. § 5985.1(a.1)(1). Trial courts may also rely on testimony “of
a parent or custodian or any other person, such as a person who has dealt
with the child in a medical or therapeutic setting.” Id. § 5985.1(a.1)(2).
Here, the trial court held an in camera hearing with Child, and thereafter
stated the following:
The record should reflect I briefly spoke to [Child]. I find
that pursuant to Rule 601 of the Pennsylvania Rules of Evidence,
[Child] is minimally competent. She is very young. She is five
years old. She will turn six next week. She does know when her
birthday is. She was largely not communicative in the sense that
she did not speak; she simply nodded or shook her head.
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With regard to her father, she clearly stated that she does
not want to see him.... I asked her — I said if I asked her anything
that made her uncomfortable, to let me know. And she looked at
me, clearly not understanding what I said, so I asked her again. I
asked her do you know what comfortable means, and she said she
did not. So I asked her, I said to her if I asked her something that
she does not want to answer, that she can tell me that. So going
back to it, I asked her whether she wanted to see her father again,
and she said no. I asked her if she wanted to tell me what
happened — if she would tell me what happened, and she looked
at me, she cocked her head to the side and down and spoke very
softly and said, I don’t want to answer that question. So I did not
push her. In light of these circumstances, I find that the hearsay
testimony of the Tender Years applies.
N.T., 5/4/22, at 114-15; see also N.T. (in camera hearing), 5/4/22, at 2-9.
Further, Esterly testified that she is Child’s therapist. See N.T., 5/4/22,
at 88. Esterly stated that Child does not like talking about Father and
particularly does not talk to anyone who she does not know about Father. See
id. at 96; see also id. at 107 (wherein Esterly stated that Child would not
disclose the incidents to the trial court). Esterly indicated that Mother was not
coaching Child, noting that Child used age-appropriate words when describing
the incidents. See id. at 97. More specifically, Esterly testified that Child
stated that Father touched her vagina and that she does not like it. N.T.,
5/4/22, at 99-100, 101, 104; see also id. at 96 (stating that Child does not
want to see Father).
Mother testified that Child told her that Father touches her vagina
inappropriately. See N.T., 5/4/22, at 115. Mother testified that Child’s
statements in this regard were spontaneous, as Child disclosed them while in
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the bathtub and playing a boardgame, without Mother’s prompting. See id.
at 115, 117-18. Mother indicated that Child’s behavior changed, including
having inconsolable temper-tantrums, bed-wetting, and picking at her own
skin, and Child would have Mother bathe her before she would have to go to
Father’s home. See id. at 67-68, 69-70, 72-73, 115-16. Mother stated that
Child’s statements in this regard were consistent, and that Child was afraid of
Father. See id. at 118-19; see also N.T., 1/6/22,3 at 25 (wherein Quinn
observed that Child’s disclosures have been consistent).
Initially, although Father correctly points out that the trial court’s finding
that Child was mildly competent to testify is a distinct issue from the
admissibility of out-of-court statements under the tender years hearsay
exception, see Walter, 93 A.3d at 452, we do not find an abuse of discretion,
as the trial court did not rely solely on Child’s lack of competency in
determining admissibility under the tender years hearsay exception. See
Interest of D.C., 263 A.3d at 334. Here, the trial court conducted an in
camera hearing with Child, found Child’s statements to be relevant and
reliable, and found Child was unavailable as a witness at the hearing. See 42
Pa.C.S.A. § 5985.1(a)(1), (a.1).
More specifically, the trial court found that the testimony was relevant,
“as it bore directly upon the allegations against Father.” Trial Court Opinion,
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3The trial court took judicial notice of the January 6, 2022 proceedings at the
May 4, 2022 hearing. See N.T., 5/4/22, at 41, 85, 130-31.
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6/24/22, at 18; see also Commonwealth v. Lyons, 833 A.2d 245, 255-56
(Pa. Super. 2003) (finding child victim’s out-of-court statements describing
attack was relevant testimony and admissible under the tender years hearsay
exception). Furthermore, the trial court properly considered the
trustworthiness of Child’s out-of-court statements, noting the spontaneity of
her statements, her consistency in making the statements, her use of age-
appropriate terms, and her lack of a motive to fabricate. See Interest of
D.C., 263 A.3d at 335-36 (concluding that child victim’s out-of-court
statements were reliable because her statements were spontaneous and
spoken in her own words and made without any motive to fabricate the
allegations); Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super.
2018) (noting that child’s out-of-court statements to family members and
therapist were reliable, as the statements were spontaneous and consistent,
and child had not motive to fabricate).
The trial court also found Child to be unavailable for the hearing based
upon the “harm that would be caused to [Child] if an attempt were made to
compel her to testify.” Trial Court Opinion, 6/24/22, at 19. Indeed, the trial
court noted that Child was noncommunicative, she lowered her head and
became sullen when asked about Father, and she did not want to speak about
what happened with Father. See id. at 20. Moreover, Esterly and Mother
credibly testified that Child would not speak with the court and Child was
upset. See Ferko-Fox v. Fox, 68 A.3d 917, 927 (Pa. Super. 2013) (noting
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that this Court must defer to the trial court’s credibility determinations).
Therefore, based upon the trial court’s own observations in conjunction with
the credible testimony of Esterly and Mother, we conclude that the trial court
did not abuse its discretion in finding that Child was unavailable for the hearing
pursuant to the tender years hearsay exception. See Interest of D.C., 263
A.3d at 333-34 (concluding that the trial court did not abuse its discretion in
finding that child was unavailable under the tender years exception based
upon testimony from Mother and two other custodians, and the court’s
observations of victim). Accordingly, we conclude that the trial court properly
admitted Child’s out-of-court statements under the tender years hearsay
exception.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2022
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