H.M.H. on Behalf of L.M.H. v. D.J.G.

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2019 PA Super 156H.M.H. ON BEHALF OF MINOR, : IN THE SUPERIOR COURT OF
L.M.H. : PENNSYLVANIA
:
:
v. :
:
:
D.J.G. :
: No. 980 WDA 2018
:
APPEAL OF: H.M.H. :
Appeal from the Order Entered June 8, 2018
In the Court of Common Pleas of Mercer County Civil Division at No(s):
2018-0175
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
OPINION BY SHOGAN, J.: FILED MAY 13, 2019
Appellant H.M.H. (“Mother”) appeals from the order denying her petition
for a final protection from abuse (“PFA”) order, which she filed pursuant to the
PFA Act, 23 Pa.C.S. §§ 6101-6122, on behalf of her thirteen-year-old
daughter, L.M.H., against L.M.H.’s fifteen-year-old first cousin, D.J.G.1 Upon
review, we vacate the order, reinstate the temporary PFA order, and remand
for the trial court to conduct a final PFA hearing within ten days or as
expeditiously as possible.
In her PFA petition, Mother averred that D.J.G. sexually assaulted L.M.H.
on several occasions. Petition, 1/19/18, at ¶ 11. A court-appointed master
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1 L.M.H.’s father and D.J.G.’s mother are siblings. N.T., 6/8/18, at 4.
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conducted an ex parte hearing on January 19, 2018. Based on the master’s
recommendation, the trial court granted a temporary PFA order. Order,
1/19/18. The trial court scheduled a hearing for January 26, 2018, at which
Mother, L.M.H., and Mother’s counsel appeared. D.J.G. did not appear,
allegedly because he was hospitalized for mental health reasons. N.T.,
1/26/18, at 2. Therefore, the trial court continued the hearing to March 8,
2018, due to D.J.G.’s absence, the possibility of juvenile charges being filed
against D.J.G., and the possibility of self-incrimination if D.J.G. were present.
Id. at 4; Order, 1/26/18.
On March 8, 2018, Mother, L.M.H., and Mother’s counsel appeared, and
D.J.G. appeared pro se; neither D.J.G.’s parents nor a guardian appeared on
his behalf. N.T., 3/8/18, at 2. The trial court continued the hearing to June
8, 2018, and it appointed a guardian ad litem (“GAL”) for D.J.G. Id. at 5, 7;
Orders, 3/8/18 and 3/9/18. See Varner v. Holley, 854 A.2d 520 (Pa. Super.
2004) (instructing that minor named as respondent in PFA action must be
represented by a guardian).
At the June 8, 2018 hearing, Mother, L.M.H., Mother’s counsel, and a
colleague of D.J.G.’s GAL appeared; neither D.J.G. nor his parents appeared.
N.T., 6/8/18, at 3, 10. Following a “best practices policy,” the trial court
requested an offer of proof from Mother’s counsel regarding a prima facie case
of abuse and standing. Id. at 4. After counsel outlined the averments of
abuse and the relationship of L.M.H. and D.J.G., the trial court determined
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that Mother failed to present a prima facie case of abuse and that the
relationship of first cousins did not meet the definition of “family” in the PFA
Act, 23 Pa.C.S. § 6201. Id. at 4–10. The trial court vacated the temporary
PFA order and dismissed the petition without prejudice. Order, 6/8/18.
In denying a permanent PFA order, the trial court offered the following
justifications: (1) L.M.H. and D.J.G. were first cousins who live a
“considerable” distance from each other and seldom saw each other; (2) the
parties were pre-teens and teenagers when the incidents occurred; (3) D.J.G.
had been hospitalized for mental health issues; (4) D.J.G. was receiving family
support services through his county CYS; (5) D.J.G. had not violated the
temporary PFA order during its five-month existence; (6) the PFA Act “is the
most abused law in the Commonwealth”; (7) “The courts are not a solution to
every problem encountered by everybody”; (8) “it is within the trial court’s
power to employ a ‘best practice’ or to limit the scope of a familial relationship
to some rational basis”; and (9) “the parties can go ahead and control the
situation themselves.” Trial Court Opinion, 10/11/18, at 15–17; N.T., 6/8/18,
at 9–10.
Mother appealed and, along with the trial court, complied with Pa.R.A.P.
1925. D.J.G. did not file a responsive brief. Mother raises two issues:
I. Did the trial court err when it denied [Mother] the
opportunity to have a final hearing where she could present
evidence on her [PFA] petition and then dismissed the action
sua sponte after [D.J.G.] failed to appear?
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II. Did the trial court err when it ruled that first cousins are not
family as defined in the [PFA] statute?
Mother’s Brief at 5 (full capitalization omitted) (emphasis supplied).
Mother first challenges the trial court’s refusal to conduct a hearing
before dismissing her petition for a final PFA. Mother’s Brief at 15. According
to Mother, she was entitled to a hearing pursuant to 23 Pa.C.S. § 6107. Id.
at 17. We agree.
“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, 83
A.3d 1043, 1045 (Pa. Super. 2014) (citations omitted). Pursuant to the PFA
Act, “[w]ithin ten business days of the filing of a petition under this chapter,
a hearing shall be held before the court, at which the plaintiff must prove the
allegation of abuse by a preponderance of the evidence.” 23 Pa.C.S. § 6107.
“In interpreting Section 6107, this Court has held that the word ‘shall’ in
Section 6107(a) mandates that a final evidentiary hearing must be conducted
within ten days.” Lanza v. Simconis, 914 A.2d 902, 906 (Pa. Super. 2006)
(citing Drew v. Drew, 870 A.2d 377 (Pa. Super. 2005), and Burke v.
Bauman, 814 A.2d 206 (Pa. Super. 2002)). The Pennsylvania Legislature’s
use of the word “shall” requires that the court hold an evidentiary hearing
where the plaintiff has the opportunity to appear, with counsel, to submit
evidence, and present witnesses in support of the allegation of abuse. Drew,
870 A.2d at 378; Burke, 814 A.2d at 208.
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Here, the trial court explained that it asked Mother for a proffer of
evidence of abuse as part of a “best practices policy” in deciding whether to
conduct a hearing. Trial Court Opinion, 10/11/18, at 8–9. According to the
trial court, the “best practices policy”:
has been suggested [at various judicial conferences] as [an]
alternative to having a minor child testify in open court or be
interviewed by the court in camera. This is especially applicable
when the minor is the sole witness to the complained of events.
If the offer of proof fails to establish a prima facie case of “abuse,”
there is no need to proceed further, thus preventing any further
distress or trauma to the minor by forcing him or her to testify.
Conversely, if the offer of proof does establish a prima facie case,
then the minor should testify, either in open court or in camera.
Id. at 5 n.4 (emphasis supplied). Finding that Mother did not present a prima
facie case of abuse, the trial court did not conduct a hearing before vacating
the temporary PFA and dismissing Mother’s petition for a permanent PFA.
N.T., 6/8/18, at 5–10.
Significantly, the trial court does not refer to the PFA Act requirement
of an evidentiary hearing pursuant to 23 Pa.C.S. § 6107, and it presents no
authority for its assertion that it was entitled to forego a hearing because
Mother did not present a prima facie case of abuse. Trial Court Opinion,
10/11/18, at 7–11. More significantly, in its opinion to this Court, the trial
court opined that Mother’s “proffer did present a prima facie case of ‘abuse,’”
specifically, indecent assault, 18 Pa.C.S. § 3101. Id. at 11 (emphasis and
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italics supplied).2 Assuming the “best practices policy” for protecting minor
victims from testifying unnecessarily has merit—which issue is not before us—
Mother’s proffer of abuse and this Court’s interpretation of the mandatory
language of Section 6107 required the trial court to conduct a hearing. Drew
and Burke. The failure to do so was error.
Next, Mother challenges the trial court’s ruling that L.M.H. did not have
standing to pursue a PFA against D.J.G. because L.M.H. and D.J.G. did not
have the requisite relationship under the PFA Act. Mother’s Brief at 25.
According to Mother, the Pennsylvania General Assembly’s use of narrow
terms and familial limits in the Crimes Code and the Child Protective Services
Act—and the lack of such terms and limits in the PFA Act—suggests that it
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2 The trial court opined:
“[I]ndecent assault” only requires “indecent contact” which is
defined as “any touching of the sexual or other intimate parts of
the person for the purpose of arousing or gratifying sexual desire
in either person.” 18 Pa.C.S.A. § 3101.
* * *
[Mother] proferred that about six months prior to filing her
PFA Petition, over the July 4, 2017 weekend, [D.J.G.] “grabbed
[L.M.H.’s] hand and put it on his penis.” Given that the parties
were respectively 15 and 13 years old at the time of this
occurrence, it should be easier for [Mother] to prove that this
conduct by D.J.G. was for the purpose of “sexual gratification.”
Trial Court Opinion, 10/11/18, at 11.
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intended to include a broader scope of relationships under the PFA Act. Id.
at 32. We agree.
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. Lawrence v. Bordner, 907 A.2d
1109, 1112 (Pa. Super. 2006). To that end, the PFA Act provides the following
definition of “family or household members”:
“Family or household members.” Spouses or persons who
have been spouses, persons living as spouses or who lived as
spouses, parents and children, other persons related by
consanguinity or affinity, current or formal sexual or intimate
partners or person who share biological parenthood.
23 Pa.C.S. § 6102(a) (emphasis supplied). For parties to be related by
consanguinity there must merely be a direct blood relationship. Slusser v.
DeBoer, 985 A.2d 974 (Pa. Super. 2009). First cousins are within the fourth
degree of consanguinity. Black’s Law Dictionary at 344 (9 th Ed. 2009) (citing,
James Kent, 4 Commentaries on American Law 410-420 (11th ed. 1886)).
Here, the trial court acknowledged that it was narrowly interpreting the
PFA Act by imposing a limit on the degree of consanguinity required to meet
the definition of “family” because it was “unable to find any other Pennsylvania
statute that is so broad and encompassing.” Trial Court Opinion, 10/11/18,
at 13. The trial court reasoned that, because the PFA Act fails to specify the
degree of consanguinity that would limit a relative from being a party to a PFA
action, “a relative could be any living blood relative or a relative related
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through marriage. . . . Such an interpretation is unreasonable.” Id.Comparing the PFA statute to the more narrow language regarding “incest” in
the Crimes Code, 18 Pa.C.S. § 4302, and “perpetrator” in the Child Protective
Services Act, 23 Pa.C.S. § 6303, the trial court concluded that first cousins
“would not qualify as ‘relatives’ or ‘family members.’” Id. at 14. Upon review,
we conclude that the trial court erred.
Pursuant to the PFA Act, family includes “other persons related by
consanguinity.” 23 Pa.C.S. § 6102(a).3 This statutory definition of family is
broad, but unambiguous. Thus, no further analysis is warranted. See 1
Pa.C.S. § 1921(b) (“When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.”); § 1921(c) (factors such as the statute’s purpose may
only be considered “[w]hen the words of the statute are not explicit”).
The trial court acknowledged that L.M.H. and D.J.G. “are related by
consanguinity, sharing the same grandparent, and they are first cousins—four
degrees of consanguinity.” Trial Court Opinion, 10/11/18, at 12. Given the
plain language of Section 6102, L.M.H. had standing to pursue a PFA order
against her first cousin. Furthermore, we disagree with the trial court’s
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3 We note that the pre-printed Petition for PFA form filed by Mother lists the
same relationships identified in the Section 6102 definition of “family.”
Petition for PFA, 1/19/18, at ¶ 5. In identifying L.M.H.’s relationship to D.J.G.,
Mother checked the box for “family member related by blood (consanguinity)
to Defendant.” Id.
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opinion that such a broad interpretation of Section 6102 is “unreasonable.”
Id. at 13. Contrary to the trial court’s reasoning, the use of limiting language
regarding relationships in the Pennsylvania Crimes Code and the Child
Protective Services Act reasonably suggests that the General Assembly
intended the definition of “family” in the PFA Act to cover a broad scope of
relationships. The General Assembly could have included limiting language in
the PFA Act as it did in the other statutes, but it did not. Thus, because the
definition of “family” includes first cousins under the PFA, the trial court erred
in ruling that L.M.H. and D.J.G. were not family.
In sum, the trial court erred in failing to conduct a hearing on Mother’s
petition for a permanent PFA order and in ruling that L.M.H. lacked standing.
Thus, we vacate the trial court’s order, reinstate the temporary PFA order, and
remand for the trial court to conduct a final PFA hearing within ten days or as
expeditiously as possible.
Order vacated. Case remanded for proceedings consistent with this
Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2019
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