Rishel, T. v. Fuller, A.

J-A19024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TEAL P. RISHEL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDRE DASHAWN FULLER :
:
Appellant : No. 483 MDA 2022
Appeal from the Order Entered February 15, 2022
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 10973-2019
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: SEPTEMBER 26, 2022
Appellant, Andre Dashawn Fuller (“Father”), appeals pro se from the
order entered in the Luzerne County Court of Common Pleas, denying his
petition for modification of an order entered under the Protection from Abuse
(“PFA”) Act,1 in favor of Appellee, Teal P. Rishel (“Mother”). We affirm.
The trial court opinion set forth the relevant facts and procedural history
of this appeal as follows:
The parties have a minor child, E.F. [(“Child”)]. [Father]
has been incarcerated for the entire life of [Child] and has
only seen [Child] a few times.
On September 3, 2019, a temporary [PFA] order was
entered against [Father] in the Court of Common Pleas of
Luzerne County. The temporary order directed that [Father]
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* Former Justice specially assigned to the Superior Court.
1 23 Pa.C.S.A. §§ 6101-6122.
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shall not abuse, harass, stalk, threaten, or attempt or
threaten to use physical force against [Mother] in any place
where she may be found. The temporary order further
directed that [Father] shall have no contact with [Mother]
by any telephone, or by any other means, including third
persons. Additionally of importance, the order specifically
directed that until a final hearing, [Father] is to have “no
contact” with his child, and awards temporary custody of
[Child] to [Mother]. A hearing on the final [PFA] order was
scheduled before the court on September 10, 2019.
At the September 10, 2019 hearing, a final [PFA] order was
entered for a three-year period, expiring on September 10,
2022. The final order was entered into by agreement
without admission of wrongdoing. With regard to contact
with [Child], the final [PFA] order specified that [Father]
may have contact with [Mother] “via text only regarding the
welfare of the minor child.”
On January 16, 2020, [Father] was arrested for an alleged
violation of the final [PFA] order…. On February 13, 2020,
[Father] pled guilty to indirect criminal contempt, and was
sentenced to a term of incarceration at the Luzerne County
Correctional Facility for a period of six (6) months, to be
served consecutive to any sentence that [Father] was
currently serving. … At the time of [Father’s] sentencing,
the court extended [Mother’s] final [PFA order] to February
13, 2023. The extended order removed the provision
allowing [Father] to contact [Mother] through text message
and prohibited him from having any contact with her
whatsoever. The extended final order further clarified that
[Mother] has full physical and legal custody of [Child].
On November 8, 2021, [Father] filed a [pro se] “petition for
modification of [PFA] order,” seeking to modify the
extended final order to permit him to call [Mother] from the
correctional facility to have contact with [Child]. On
February 15, 2022, following a hearing before [the trial
court], [Father’s] modification request was denied.
(PFA Court Opinion, filed 4/22/22, at 1-2) (some capitalization and footnote
omitted). Father timely filed a pro se notice of appeal on March 16, 2022,
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along with a Pa.R.A.P. 1925(a)(2)(i) concise statement of errors.
Father now raises one issue for our review:
Whether the trial court committed an error of law or abused
its discretion by denying [Father’s] petition to modify
existing [PFA] order basing judgment on a two (2) year old
violation and failing to consider the required factors set forth
in 23 Pa.C.S.A. § 5328(a) relating to the best interest of a
minor child.
(Father’s Brief at 1).
On appeal, Father acknowledges the alleged violation of the final PFA
order that resulted in his indirect criminal contempt conviction. Father insists,
however, that he had a legitimate excuse for his conduct. Father claims that
he “was informed of [Child] suffering an injury placing him in the hospital,”
and he could not send a text message to Mother to inquire about Child’s status
due to his incarceration. (Id. at 7). Moreover, Father asserts that he called
“the cellular phone used by [Child] but belong[ing] to” Mother. (Id.) Father
emphasizes that he attempted to contact Child directly, which would not have
violated the final PFA order. Under these circumstances, Father argues that
the PFA court should not have relied upon a stale and unintentional violation
of the final PFA order as a basis for denying his modification petition.
Father further argues that he filed the modification petition at issue only
after seeking greater custody rights in family court.2 Father contends that the
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2We observe that the prothonotary docketed Father’s family court action at
No. 11235 of 2019. In that case, Father filed a petition for modification of an
(Footnote Continued Next Page)
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family court did not permit video visits or telephone calls with Child, and the
family court “suggested … that [Father] seek modification” of the final PFA
order as the first step toward obtaining more custody. (Id. at 9). Because
Father filed the petition for modification of the final PFA order as a vehicle “to
obtain communication with” Child, Father posits that the PFA court was
required to evaluate the statutory custody factors, set forth in the Child
Custody Act, before it disposed of the instant petition. (Id.) In addition to
the custody factors, Father submits:
Public policy in Pennsylvania is that the best interests of
children are served by permitting them to maintain a
meaningful relationship with both parents; as a
consequence, contact between parents and child will be
disallowed only in extreme situations where the parental
contact would have severe adverse impact upon the child’s
welfare.
(Id. at 11). Based upon the foregoing, Father concludes that the PFA court
erred or abused its discretion by denying his petition for modification of the
final PFA order. We disagree.
“Our standard of review for PFA orders is well settled. In the context of
a PFA order, we review the trial court’s legal conclusions for an error of law or
abuse of discretion.” E.K. v. J.R.A., 237 A.3d 509, 519 (Pa.Super. 2020)
(internal citation and quotation marks omitted).
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existing custody order to provide him with monthly video visits or telephone
calls. On August 2, 2021, the family court denied Father’s petition. This Court
affirmed the denial of relief on March 9, 2022. See Rishel v. Fuller, 276
A.3d 223 (Pa.Super. 2022) (unpublished memorandum).
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The term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
with the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused when the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill will.
Mescanti v. Mescanti, 956 A.2d 1017, 1019 (Pa.Super. 2008) (quoting
Custer v. Cochran, 933 A.2d 1050, 1053-54 (Pa.Super. 2007) (en banc)).
“Assessing the [c]redibility of witnesses and the weight to be accorded
to their testimony is within the exclusive province of the trial court as the fact
finder.” S.G. v. R.G., 233 A.3d 903, 907 (Pa.Super. 2020) (quoting S.W. v.
S.F., 196 A.3d 224, 230 (Pa.Super. 2018)). “In reviewing the validity of a
PFA order, this Court must … defer to the [PFA] court’s determination of the
credibility of witnesses at the hearing.” C.H.L. v. W.D.L., 214 A.3d 1272,
1276-77 (Pa.Super. 2019).
“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.” E.K., supra at 519 (quoting
Buchhalter v. Buchhalter, 959 A.2d 1260, 1262 (Pa.Super. 2008)). “[T]he
victim of abuse need not suffer actual injury, but rather be in reasonable fear
of imminent serious bodily injury.” Burke ex rel. Burke v. Bauman, 814
A.2d 206, 208 (Pa.Super. 2002) (quoting DeHaas v. DeHaas, 708 A.2d 100,
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102 (Pa.Super. 1998), appeal denied, 557 Pa. 629, 732 A.2d 615 (1998)).
The PFA Act also contemplates that a final PFA order may include an
award of temporary custody of minor children:
§ 6108. Relief
(a) General rule.—Subject to subsection (a.1), the
court may grant any protection order or approve any
consent agreement to bring about a cessation of abuse of
the plaintiff or minor children. The order or agreement may
include:
* * *
(4) Awarding temporary custody of or
establishing temporary visitation rights with regard to
minor children. In determining whether to award
temporary custody or establish temporary visitation
rights pursuant to this paragraph, the court shall consider
any risk posed by the defendant to the children as well
as risk to the plaintiff. The following shall apply:
* * *
(iii) Where the court finds after a hearing
under this chapter that the defendant has inflicted
serious abuse upon the plaintiff or a child or poses
a risk of abuse toward the plaintiff or a child, the
court may:
(A) award supervised visitation in a
secure visitation facility; or
(B) deny the defendant custodial
access to a child.
* * *
(v) Nothing in this paragraph shall bar
either party from filing a petition for custody under
Chapter 53 (relating to custody) or under the
Pennsylvania Rules of Civil Procedure.
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* * *
23 Pa.C.S.A. § 6108(a)(4).
Significantly, this Court has determined that “a PFA court need not
conduct a best interests custody analysis to award temporary custody as [a]
form of relief under section 6108 of the [PFA] Act.” C.H.L., supra at 1281
(emphasis in original).
Custody wise, a PFA order is not designed to impose
anything but emergency relief. See Dye for McCoy[ v.
McCoy, 621 A.2d 144, 145 (Pa.Super. 1993)]. To
understand this, look no further than the PFA Act: “Nothing
in this paragraph [relating to temporary custody as a form
of relief] shall bar either party from filing a petition for
custody under Chapter 53 (relating to custody) or under the
Pennsylvania Rules of Civil Procedure.” But while the
domestic violence emergency is still pending, a PFA order
may alter a pre-existing custody order and remand for
clarification to avoid conflict. See Dye for McCoy, 621 A.2d
at 145. “To hold otherwise would have the effect of
emasculating the central and extraordinary feature of the
PFA which is to prospectively control and prevent domestic
violence.” Id.Moreover, the PFA Act does not require a child to be
physically struck before a court can award temporary sole
custody to a plaintiff. The court may do so even though the
defendant has inflicted serious abuse upon the plaintiff
alone.
* * *
[W]hen awarding temporary custody out of a PFA
order, the court need only consider the risk the
defendant poses to the child as well as the plaintiff.
Id. at 1281-83 (emphasis added) (some internal citations omitted).
Instantly, the PFA court conducted a hearing on Father’s modification
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petition on February 15, 2022. At that time, Mother testified that Father has
no relationship with Child. (See N.T. Hearing, 2/15/22, at 4). Mother
elaborated on Father’s involvement, indicating that she “did try to facilitate
phone calls” when Child was younger. (Id.) Father, however, would “say
some inappropriate things, and then try to get [Child] to give [Mother] the
phone[.]” (Id.) Father’s inappropriate comments included: 1) blaming
Mother for Father’s inability to live with Child; 2) insinuating that Mother
somehow “allowed” Child to contract the COVID-19 virus; and 3) disparaging
Mother’s decision to make Child wear glasses. (Id. at 4-5). Mother also
testified that Child has not spoken with Father for approximately two (2)
years, and “opening up any sort of contact is going to disrupt what [Child]
knows and what he’s comfortable with and it’s going to confuse him.” (Id. at
5).
Mother also explained that she is “terrified” of Father. (Id. at 9).
Mother claimed that Father attempted to murder another individual, and “[h]e
made threats to kill [Mother] and [her] fiancé.” (Id.) Upon Father’s release
from prison, Mother “probably will be hiding in [her] house,” and she would
“go into witness protection” if it were possible. (Id.)
The court expressly found Mother’s testimony to be credible. (See PFA
Court Opinion at 3). The court also relied on Mother’s testimony to draw the
following conclusions:
This court has a serious concern with [Father] using the
minor child as a tool to speak to and locate [Mother]…. The
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court found [Mother’s] fear of [Father] to be credible,
especially after learning that [Father] has apparently
obtained her address, which has been confidential for
years.[3] The court found that based on the credible
testimony of [Mother], coupled with the past actions of
[Father], any contact from [Father] to [Mother] would be
harmful and put her at risk. [Father’s] actions and the
history of this case demonstrate that [Father] cannot
comply with the relief that he is requesting.
(Id. at 4) (some capitalization and citations to the record omitted).
On this record, we cannot say that the PFA court’s consideration of
Father’s “actions and the history of this case” constituted an abuse of
discretion or error of law. See Mescanti, supra. Regarding Father’s
argument that the PFA court was required to conduct a “best interests”
analysis using the statutory custody factors, we reiterate that “the court need
only consider the risk the defendant poses to the child as well as the plaintiff.”
See C.H.L., supra; 23 Pa.C.S.A. § 6108(a)(4). We cannot fault the manner
in which the PFA court considered the risk that Father poses to Child and
Mother in the instant case. Accordingly, we affirm the order denying Father’s
petition for modification of the final PFA order.
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3 Father testified that he obtained Mother’s purportedly confidential address
“[f]rom the police.” (See N.T. Hearing at 10).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2022
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