DeHaas v. DeHaas

DEL SOLE, Judge:

This is an appeal from an order granting Appellee father’s petition for Protection from Abuse. The record shows that Appellee petitioned the court on behalf of his three children, E.D., M.D. and J.D. The facts underlying the petition were summarized by the trial court as follows:

The credible evidence from the hearing was that Defendant was bathing her children that she became angry with the mess the children had made, that she held [E.D.] down on her back in the bathtub and splashed water in [E.D.’s] face until [E.D.] began to choke. [E.D.] was in fear of her mother. Defendant thereafter reported the incident to the mental health counselor.

The trial court found the evidence was sufficient to establish that Appellant abused E.D. and, therefore, ordered Appellant to refrain from abusing her again. In addition, the order granted Appellant visitation every other weekend and temporary custody and visitation for two one-week periods.

Appellant argues the evidence presented was not sufficient to prove that she “abused” E.D. as that term is defined in the Protection From Abuse Act (PFAA), 23 Pa.C.S.A §§ 6101-6118. She also claims that by directing the PFA Hearing to proceed even though the court dismissed the children’s court-appointed counsel and refused to appoint another attorney to represent them, the court violated Section 6382(a) and (b) of the Child Protective Service Law (CPSL), 23 Pa.C.SA. In addition, Appellant argues the trial court lacked jurisdiction over the matter because at the time of the hearing there was no PFA petition pending and the previously filed petition had been dismissed by the court more than 30 days earlier.

We will first address Appellant’s claim regarding the trial court’s jurisdiction. The record shows the petition was filed on March 15, 1995, and on March 24, 1995, the parties entered into a stipulation whereby Appellee agreed to withdraw the petition and agreed to supervised visitation for the children with Appellant. Thereafter, in response to a motion filed by the children’s attorney, Asher Morris, the court scheduled a conference for the purpose of discussing an alleged breach of the stipulation. Following the conference, the court entered an order on June 1, 1995, directing that a hearing on the PFA petition be held on June 9, 1995 and that Appellant have supervised visitation with the children during the intervening weekend. After a postponement, the hearing was held on June 22, 1995. Appellee’s counsel argued that by holding the hearing, the court was proceeding erroneously because it was, in effect, declaring the stipulation null and void and therefore, was giving Appellant “a second bite at the apple.” The court responded as follows:

I am I guess candidly troubled by the procedure here. I guess I’m candidly troubled with the fact that it begins with an agreement that converts a protection from abuse proceeding into a custody proceeding, and I guess I’m troubled somewhat by the fact that it is brought before the court on what is titled a motion to review, and perhaps should have been brought as a contempt petition or petition to rescind the agreement, but I guess I’m just going to say this as simply and as plainly as I can. I’m concerned about the best interests of the children, and I want to get to the bottom of it right now. And we’re going to hear testimony on what transpired and whether the court treats it hereafter as a protection from abuse proceeding or treats it as a special relief petition with respect to custody or visitation I’m not going to get troubled with that too much, but it’s quite obvious that there are some serious allegations here, and it’s also obvious that Mrs. DeHaas was for a time denied access altogether with the children. I guess I’m going to concede to you that you have raised some good points about procedural problems and irregularities here, and it may be a poor precedent that I’m setting, but I want to get to the bottom of it, give these people there[sic] day in court, because it has been batted around for quite some time.

N.T. 6/22/95 at 10-20.

We are cognizant of the fact that this case is fraught with procedural irregularities. However, we hold the trial court did not err in holding a hearing to review the merits of the PFA petition after the stipulation was breached. The parties entered into the stipulation as a compromise. When it was brought to the court’s attention that the stipulation had been breached, however, its terms were no longer in effect and the court correctly considered the merits of the original petition.

Appellant’s claim that the evidence was insufficient is also without merit. The trial court found the evidence was sufficient to show that Appellant “abused” E.D. as that term is defined in Section 6102(a)(2) of the PFAA That section defines abuse as:

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:

(2) Placing another in reasonable fear of imminent serious bodily injury.

In the instant case, E.D. testified that as her mother held her down, she swallowed water, which caused her to choke. N.T. 6/22/95 at 18. She stated that she was frightened until her mother stopped and she was able to breathe again. Id. Appellant argues that while her behavior may have been “inappropriate” it did not constitute abusive behavior. She claims that she didn’t attempt to inflict any physical injury and that, in fact, E.D. did not suffer any physical injury. As the Act clearly states, however, the victim of abuse need not suffer actual injury, but rather be in reasonable fear of imminent serious bodily injury. 23 Pa.C.S.A § 6102(a)(2). Here, Appellant acknowledged that she was angry with E.D. when she physically restrained her in the bathtub and splashed her. In light of these facts, we hold that the trial court did not err in finding that Appellant “abused” E.D. as that term is defined in the PFAA

Appellant’s final claim is that the court abused its discretion in dismissing the children’s court-appointed counsel and in failing to appoint new counsel to represent them at the June 22,1995 hearing. Appellant argues the court’s action deprived it of hearing a necessary third view, the view of the children. Appellant claims that if the children had had benefit of independent counsel, information might have surfaced which would have been beneficial to her.

In support of her claim, Appellant cites to § 6382(a) of The Child Protective Service Law (CPSL), 23 Pa.C.S.A. which directs that, “[wjhen a proceeding has been initiated alleging child abuse, the Court shall appoint a guardian ad litem for the child. The guardian ad litem shall be an attorney at law.” Appointment of a guardian ad litem is not required, however, under the PFAA, and, therefore, this claim must fail. While the PFAA, in defining “abuse”, references the CPSL, there is nothing in the PFAA which imposes the procedural requirements of the CPSL to proceedings instituted under the PFAA.¹ Accordingly, we hold that this issue is without merit.

Order affirmed.

TAMILIA, J., files a concurring opinion.

1 . Subsection 6102(a)(4) of the PFAA defines child abuse as "[pjhysically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services)” [emphasis added].