K.F-M. v. J.W.M.

J-A15027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.F-M. IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

J.W.M.

Appellant No. 1955 MDA 2016

Appeal from the Order Entered November 7, 2016

In the Court of Common Pleas of Lancaster County

Civil Division at No(s): CI-16-07234

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED JULY 27, 2017

Appellant J.W.M. (“Father”) appeals from the order of the trial court

granting the petition by K.F.-M. (“Mother”) for a protection from abuse

(“PFA”) order. We affirm.

The underlying facts are as follows. Father and Mother are married

with three children, all of whom are female. L.M., who is thirteen-years-old,

is the eldest of the three girls.1 The parties separated on April 15, 2016,

when Mother left the marital home. The parties came to a custody

agreement on June 16, 2016, which established that they would share equal

custody of the children. The parties continued to dispute the specifics of

their custody and support arrangements and their impending divorce.

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1

The other two children are 11- and 8-years-old.

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Mother testified that while they were discussing divorce, Father, a police

officer, began looking at suicide information, “made it a point to tell [her]

how other officers have shot themselves because their wives left them,” and

complained about what she was doing to him. N.T., 10/25/16, at 22.

On August 7, 2016, while the children were staying with Mother, L.M.

gave Mother a letter at 9 p.m., before going to bed. In the letter, L.M.

disclosed that she had been sexually abused by Father in late 2015. A few

hours after receiving the letter, Mother telephoned the Lancaster County

Children and Youth Social Service Agency (“Agency”) to report the

allegations of abuse. The next day, August 8, 2016, Mother filed a report

with the police regarding the allegations of abuse.

On August 10, 2016, Mother filed a PFA petition. The trial court

conducted an ex parte proceeding on the petition that same day. At that

hearing, Mother testified regarding the contents of the letter. Based on

Mother’s testimony, the court entered a temporary PFA order pending a

hearing on the petition. The order excluded Father from the home of Mother

and Mother’s places of work, prohibited all contact with Mother and their

three children, awarded Mother temporary sole custody of the children, and

ordered Father to relinquish his firearm. The order stated that it would be

superseded by any subsequent custody order issued in a custody action. The

court scheduled a full evidentiary hearing on the petition for August 17,

2016.

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On August 17, 2016, Mother requested that the hearing be continued,

as she was in the process of seeking representation through the Domestic

Violence Legal Clinic (“DVLC”). The continuance was granted, and the

hearing was rescheduled for August 30, 2016.

On August 30, 2016, a continuance was again requested by Mother, at

the request of the Agency and the Lancaster County District Attorney’s

Office, both of which were investigating the allegations. The court granted

the request and scheduled the hearing for October 11, 2016. The court

chose that date because it was the first day following the sixty-day time-

frame in which the Agency planned to have completed its investigation. The

court also agreed to Father’s request to amend the temporary PFA order to

permit him to possess his firearm while on active duty as a police officer.

On September 9, 2016, Father filed a motion to dismiss Mother’s PFA

petition. In the motion, Father argued many points, including that the

temporary PFA order violated his constitutional right to bear arms and to

parent his children,2 the temporary PFA order was not founded on a showing

of “immediate and present danger of abuse,” and the two continuances that

had been granted violated his constitutional right to due process. Mot.,

9/9/16, at ¶ 14-38. Father moved on October 11, 2016, to obtain transcripts

of the ex parte proceeding for use in connection with his arguments.

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2

In particular, Father argued against the provision of the temporary PFA

which prevented contact with the two children who had not alleged abuse.

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On October 11, 2016, at the commencement of the evidentiary

hearing, Father brought up his outstanding motion to dismiss. The trial

court, which had been unaware of the motion because it mistakenly had not

been forwarded to the judge’s chambers after it had been filed, again

continued the hearing, until October 25, 2016, to allow Mother to respond to

the motion in writing and to allow the court to consider both the motion and

response. Mother filed a response on October 18, 2016.

On October 25, 2016, the evidentiary hearing commenced. At the

beginning of the hearing, the court denied Father’s motion to dismiss. The

court stated that Father had already received some relief related to his

firearm when the court amended the temporary PFA order to allow him to

possess his firearm while on active duty, and that, as stated in the

temporary order, Father could have pursued custody of the children through

a custody filing. The court also stated, “I think, at this point, we are ready to

proceed to a hearing, which would ultimately affirm the correctness of a

temporary order or vindicate the rights that [Father] is seeking to defend

depending on the outcome here.” N.T., 10/25/16, at 5.3

At the hearing, Mother, L.M., and Father each testified. Mother

testified consistently with her testimony at the ex parte hearing, and L.M.

testified consistently with the contents of the letter. Father denied all

allegations of abuse and claimed that Mother was pursuing the PFA action

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3

A written order denying the motion was issued on October 28, 2016.

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out of retaliation over disagreements related to the ongoing support and

custody issues. Due to time constraints, the hearing was split, with the

second half taking place on November 1, 2016.

Following the hearing, a final PFA order was entered, dated

November 3, 2017. That order is for a term of nine months, and set to

expire on August 3, 2017. It has the same protections as the temporary

order, and allows Father access to his firearm while on duty. The final order

also specifies that any order entered in a custody proceeding will supersede

the custody portion of the final PFA order. An amended final order was

entered on November 7, 2016, which named L.M. as the “protected party”

under the order.4

Father filed a timely appeal on December 1, 2016, and a timely

1925(b) statement on December 21, 2016. He raises the following issues for

our review:

I. Whether the trial court erred by issuing a temporary

protection from abuse order upon only the hearsay

testimony of [Mother], who had no [first-hand] knowledge

of the alleged abuse?

II. Whether the trial court erred by continuing the hearing on

the petition for protection from abuse more than 10 days

from the date the petition was filed?

III. Whether the trial court erred by failing to dismiss the

Petition for Protection from Abuse upon [Father’s] motion?

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4

Mother remained the named Plaintiff.

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IV. Whether the trial court erred by entering a final order

which precludes [Father] from possessing a firearm when

the allegation of abuse did not involve the use of a

firearm?

V. Whether the trial court erred by entering a final order

which precludes defendant from having custody of all three

of his children when the allegation of abuse was limited to

one child during a brief period more than one year before

the order was entered and the alleged victim’s own

testimony was that there had been no alleged incidents of

abuse [of the other children]?

Father’s Brief at 4 (suggested answers and some capitalization omitted).

We review the propriety of a PFA order for an abuse of discretion or an

error of law. Commonwealth v. Walsh, 36 A.3d 613, 617 (Pa. Super.

2012).

Continuances of the Evidentiary Hearing

We begin with Father’s second issue, in which he complains that the

trial court abused its discretion in granting continuances of the evidentiary

hearing on the petition. Father preserved this issue by objecting to each of

the continuances requested by Mother.

The Protection from Abuse Act, 23 Pa.C.S. §§ 6101-6122 (“Act”), sets

forth procedures by which a party may seek protection from violence, sexual

abuse, or other abuse defined in the Act.5 Proceedings under the Act are

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5

Insofar as is relevant here, “abuse” is defined by the Act as —

The occurrence of one or more of the following acts between

family or household members, . . . or persons who share

biological parenthood:

(Footnote Continued Next Page)

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initiated when a plaintiff files a petition pursuant to 23 Pa.C.S. § 6106. If the

petition “alleges immediate and present danger of abuse to the plaintiff or

minor children, the court shall conduct an ex parte proceeding.” 23 Pa.C.S. §

6107(b)(i). The court may also enter a temporary PFA order6 for the

protection of those in immediate and present danger. Id. § 6107(b)(ii).

Within ten days of the filing of the petition, the court must hold an

evidentiary hearing, at which the plaintiff bears the burden of proving the

allegation of abuse by a preponderance of the evidence. Id. § 6107(a). The

defendant must be given notice of the hearing, and must be notified of his or

her right to be represented by counsel. Id. Following the hearing, the court

may deny relief and dismiss the petition or grant relief by issuing a final PFA

_______________________

(Footnote Continued)

(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.

* * *

(4) Physically or sexually abusing minor children, including such

terms as defined in Chapter 63 (relating to child protective

services).

23 Pa.C.S. § 6102(a).

6

We use the term “temporary PFA order” to refer to the PFA order that is

entered pursuant to 23 Pa.C.S. § 6107(b)(ii).

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order. Id. § 6108. The court is obligated to hold the evidentiary hearing

before granting or denying relief on the petition. See Burke ex rel. Burke

v. Bauman, 814 A.2d 206, 209 (Pa. Super. 2002) (trial court erred by

dismissing petition prior to holding an evidentiary hearing).

Father asserts that the trial court erred because it did not hold an

evidentiary hearing within ten days of Mother’s filing of her petition under

Section 6106. The Act states, “Within 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(a). Father argues that because of the

multiple continuances granted by the trial court, this provision was violated. 7

The trial court stated that the first continuance was granted to allow

Mother to obtain counsel, and that the purposes for the other continuances

“appear in the record.” Trial Ct. Op. at 18. The court stated that it had “good

cause” to grant the continuances, and that it —

took steps to protect [Father’s] rights by scheduling the

evidentiary aspect of the hearing to proceed as soon as possible

in light of the Agency’s investigation and the Court’s need to

properly address the [Father’s] Motion to Dismiss. The

continuances granted in the present case were not unreasonable

or the result of partiality, prejudice, bias or ill-will, and were

within the Court’s sound discretion to grant.

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7

Father specifically objects to the continuances granted on August 17,

August 30, and October 11, 2016. His brief does not contain an objection to

the fact that the hearing was adjourned on October 25 and resumed on

November 1, 2016. See Father’s Brief at 10-11.

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Id. at 18.

This issue is governed by our decision in Ferko-Fox v. Fox, 68 A.3d

917 (Pa. Super. 2013). In that case, a PFA petition was filed on March 22,

2011, and a temporary PFA order was entered pending a hearing scheduled

for March 28, 2011. Over the defendant’s objection, the hearing was then

continued to allow the plaintiff to secure counsel. The hearing commenced

on May 9, 2011, but there was insufficient time to complete it on that date,

requiring it to be resumed on September 28, 2011. The hearing completed

on September 28, and the final order was issued on November 23, 2011.

See Ferko-Fox, 68 A.3d at 919-20, 925-26.

The defendant in Ferko-Fox contended that the lengthy continuance

violated the ten-day requirement in Section 6107(a), but we disagreed. We

noted that Section 6107(c) of the Act, entitled “Continued hearings,” clearly

contemplated that a hearing under Section 6107 could be continued and

therefore that the defendant’s “contrary interpretation of the trial court's

statutory authority to continue the evidentiary hearing is unpersuasive.” 68

A.3d at 926. At oral argument, Father argued that our decision in Ferko-

Fox should be limited to facts similar to those presented in that case —

allowance of a single continuance to obtain counsel — but nothing in our

decision or in Section 6107(c) supports such a narrow rule. Rather, we held

that a trial court has statutory authority to continue a Section 6106 hearing,

and that we will review its decision only to determine whether the grant of

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the continuance was an abuse of discretion. See id. at 925-26. That holding

is binding on this panel.

We concluded in Ferko-Fox that the trial court did not abuse its

discretion in granting the continuance in that case. 68 A.3d at 926. But we

also reprimanded the trial court for the duration of the delay that it

permitted to take place:

Although we find that the trial court did not abuse its discretion

by granting the requested continuance so that Wife could obtain

counsel, we must emphasize that the resultant six-month delay

between the March 2011 PFA petition and the conclusion of the

evidentiary hearing during September 2011 is inexcusable. While

we are cognizant of the scheduling difficulties that trial courts

encounter on a daily basis, we stress that it is imperative to

promptly schedule PFA proceedings in order to effectuate the

purpose of the PFA Act and to protect a respondent's significant

interest in mounting a defense to the allegations leveled in the

PFA petition.

Id. at 926 n.8. We review the trial court’s exercise of discretion in granting

continuances in this case in light of our admonition in Ferko-Fox. In doing

so, we note that “[a]n abuse of discretion is more than just an error in

judgment and, on appeal, the trial court will not be found to have abused its

discretion unless the record discloses that the judgment exercised was

manifestly unreasonable, or the results of partiality, prejudice, bias or ill-

will.” Id. at 925 (citation omitted).

The trial court scheduled the evidentiary hearing for August 17, 2016,

which was within ten business days of the filing of Mother’s petition. Father

had notice of the hearing and was present. The court therefore complied

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with the Act by scheduling the hearing within ten days of the petition. See

Ferko-Fox, 68 A.3d at 926. The court then granted Mother’s first

continuance request so that she could secure counsel, and it rescheduled the

hearing to begin just two weeks later, on August 30, 2016. We find no abuse

of discretion in granting this continuance. See id.

The court’s later continuances are more problematic. On August 30,

2016, the court granted a second continuance request to permit completion

of an investigation of the allegations by the Agency and the Lancaster

County District Attorney’s Office. The court rescheduled the hearing for a

date six weeks later, October 11, 2016, because that was the first available

day following the 60-day time-frame given by the Agency for completion of

its work. In granting this continuance, the court expressed concern that

holding the hearing would interfere with the investigations:

There’s always concern in a situation like [the external

investigations] that something may happen in a collateral

proceeding such as this that could adversely affect the other

matters, whether it’s a dependency matter or a criminal

prosecution . . . .

I would be inclined to grant the continuance because I’m very

sensitive to – I’m not allowing either party to, in any manner,

interfere with an ongoing investigation . . . . I realize that [this

continuance] works a certain hardship on both parents and

children depending on what the reality is, and we don’t know

what the reality is yet at this particular time. But I think it’s for

all concerned to keep the investigative process as pure as

possible until there is some resolution.

N.T., 8/30/16, at 6. Although Father argues in his brief that this and the

other continuances allowed by the trial court violated the ten-day

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requirement in Section 6106(a), he makes no argument that the grounds

advanced by the trial court for granting this continuance were an abuse of

discretion. In the absence of such an argument, and cognizant of the limited

basis for Father’s objection, we do not find the decision of the court to allow

an additional six weeks for an external investigation to be an abuse of

discretion.

On October 11, 2016, the court, sua sponte, continued the evidentiary

hearing for another two weeks to allow time for Mother to respond in writing

to Father’s motion to dismiss and for the court to assess that motion and

Mother’s response.8 When the court reconvened on October 25, 2016, it

denied the motion to dismiss, largely on the basis that it was moot due to

the commencement of the evidentiary hearing. We find this final delay by

the trial court to have been an abuse of discretion. While a breakdown of the

court’s operations (the failure to forward the motion to the trial judge)

resulted in the delay in its consideration of Father’s motion, the court should

have been aware that any motion to dismiss the petition could not have

been resolved absent a hearing on the petition, see Burke, 814 A.2d at

208, and that any motion to amend the temporary PFA order would have

been rendered moot by the order entered following that hearing. Instead,

the trial court again delayed that hearing, prolonging the duration of the

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8

Mother also requested a further continuance because the District Attorney’s

Office had not concluded its investigation, but the court did not grant that

request.

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temporary PFA and aggravating the very complaints voiced in the motion.

The final continuance was therefore manifestly unreasonable.

We conclude, however, that Father is not entitled to relief on this

issue. The two-week delay was of relatively short duration. The order

entered following the hearing was substantially similar to the temporary PFA

order that was in place pending the hearing, meaning that Father was not

substantially prejudiced by being forced to abide by that temporary order for

that additional two-week period. The Act is silent on what remedy is

appropriate when there is undue delay between the filing of a PFA petition

and an evidentiary hearing, and Father’s brief does not specify the relief he

seeks on this issue, other than to have the final PFA order “overturned.” See

Father’s Brief at 10-11, 18. In light of the trial court’s findings in favor of

Mother on the merits at the final hearing, we find outright reversal of the

PFA order to be an inappropriate remedy for this error. In the words of

Ferko-Fox, 68 A.3d at 926 n.8, reversal would neither “effectuate the

purpose of the PFA Act,” nor “protect [Father’s] significant interest in

mounting a defense to the allegations leveled in the PFA petition.” Therefore,

here, as in Ferko-Fox, we reprimand the trial court for this two-week delay,

but conclude that no additional relief is due.

Issues Relating to the Temporary PFA Order

Father’s first and third issues both relate to the temporary PFA order.

His first issue is a complaint that the trial court erred when it issued that

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order because it was based solely on hearsay testimony by Mother about the

abuse that L.M. had asserted in her August 7, 2016 letter to Mother.

Although Mother testified at the ex parte hearing that gave rise to the

temporary PFA order, L.M. did not. Mother did not witness any of the abuse

alleged by L.M. Father cites K.H.D. v. J.D., 696 A.2d 232 (Pa. Super. 1997),

in which this Court held that hearsay testimony alone is insufficient grounds

on which to enter a final PFA order.

In his third issue, Father argues that the trial court erred in failing to

grant his motion to dismiss the petition for protection from abuse. That

motion argued, among other things, that the trial court erred in entering the

temporary PFA order because the petition did not allege an immediate and

present danger of abuse. Motion at ¶¶ 33-39 (23 Pa.C.S. § 6107(b)).9 The

alleged abuse took place in November or December of 2015, nine months

prior to the filing of the petition, and there were no allegations of present

abuse. Id. According to Father, the victim’s fear of future abuse must be

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9

On appeal, Father also advances several reasons why the allegations

against him are not credible. He bases his argument, however, on testimony

presented at the evidentiary hearing for the final PFA order. Because

Father’s motion to dismiss challenged entry of the temporary PFA order on

the basis of evidence not presented during the proceedings seeking that

order, we find his argument regarding this evidence without merit and will

not discuss it further.

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reasonable, due to the definition of “abuse” contained within the Act, and

L.M.’s fear of future abuse was not reasonable.10

We have held that issues relating to the propriety of a temporary PFA

order will usually be mooted by the entry of a final PFA order. See Ferko-

Fox v. Fox, 68 A.3d at 920 (an issue relating to the propriety of a

temporary PFA order “is moot because the trial court entered a final PFA”

order unless the issue is of great public importance, is capable of repetition

but likely to evade review, or is likely to cause continuing detriment to a

party). That certainly is true of Father’s third issue regarding the sufficiency

of the evidence supporting the temporary PFA order. Because that issue is

specific to the facts of this case and any detriment to Father caused by

errors regarding the temporary order has been superseded by entry of the

final PFA order, the exceptions to the mootness doctrine do not apply.

Even if Father’s third issue were not moot, we would conclude that

Father is not entitled to relief with respect to it. Mother argues that her

testimony at the ex parte proceeding did indicate an immediate and present

danger of abuse sufficient to warrant the temporary PFA. During the ex parte

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10

The trial court did not address this particular aspect of Father’s motion in

its Rule 1925(a) opinion. Father’s motion to dismiss covered several issues,

but his Rule 1925(b) statement, like his statement of questions presented in

his brief, did not specify precisely which issue he wished to pursue on

appeal, and stated only that “the trial court erred by failing to dismiss the

Petition for Protections from Abuse upon [Father’s] motion.” We caution that

where a Rule 1925(b) statement is too vague for the trial court to identify

the issue he wishes to appeal, this Court has discretion to find the issue

waived. See Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006).

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proceeding, Mother testified that, according to L.M., Father “made it a point

to [make her] hug [him],” and that Father had been “staying in [L.M.’s]

room for at least 30 minutes” after putting the other two girls to bed.

Mother’s Brief at 11 (citing N.T. 8/10/16, at 5). Mother also testified that her

daughter was fearful of returning to Father’s care. Id. Because the abuse

occurred within the year prior to the proceeding, Mother argues that

returning L.M. to Father would place her in fear of immediate and present

danger of abuse. We agree with Mother that this evidence at the ex parte

hearing satisfied the statutory requirements for the entry of a temporary PFA

order by establishing that L.M. was in immediate and present danger in light

of L.M.’s ongoing fear of being with Father.11

Although Father’s first issue, regarding hearsay testimony, might

present a type of recurring issue that would bring it within an exception to

the mootness doctrine, we conclude that no relief is due with respect to it

because that issue is waived. The trial court opined that Father waived that

issue because he raised it for the first time in his Rule 1925(b) statement of

errors. Trial Ct. Op., 1/23/17, at 13 (citing Pa.R.A.P. 302 (issues not raised

before the trial court may not be raised for the first time on appeal)). We

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11

We note that Section 6107, which provides that a temporary PFA order is

appropriate where there is an “immediate and present danger of abuse,”

does not use the word “reasonable.” Mother alleged that Father sexually

abused L.M., their minor child. Nowhere in the statutory language for

granting a temporary PFA does it ask the court to ascertain whether the

victim’s fear of future abuse is “reasonable.”

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agree, as our review of the record discloses no place where Father raised

this issue prior to the filing of his Rule 1925(b) statement. We recognize that

temporary orders under the Act are issued following an ex parte proceeding

with no notice to the defendant, which means that the defendant — here,

Father — has no immediate opportunity to object to the evidence presented.

Father does not argue, however, that it was impossible for him to object

once he received the temporary order. Indeed, after entry of that order,

Father successfully moved to amend it, and he obtained a transcript of the

proceedings. In the absence of any argument by Father that he was unable

to object, we conclude that his failure to do so before the trial court waived

this issue and that Father is entitled to no relief with respect to it.

Firearm Restriction in the Final PFA Order

In his fourth issue, Father complains that the trial court erred by

including in the final PFA order a provision preventing him from possessing a

firearm while he was not on active police duty. According to Father, because

the allegations of abuse did not involve the use of a firearm, and no threats

were made with a firearm, the court could not restrict his possession of

firearms without analyzing the factors listed in 23 Pa.C.S. §

6107(b)(3)(ii)(E), one of the provisions of the Act addressing temporary PFA

orders. Section 6107(b)(3) states:

In addition to any other relief, the court may, pursuant to

section 6108 (relating to relief), direct that the defendant

temporarily relinquish to the sheriff any firearms, other weapons

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or ammunition for the duration of the temporary order if the

petition demonstrates any of the following:

(i) Abuse which involves a firearm or other weapon.

(ii) An immediate and present danger of abuse. In

determining whether an immediate and present danger of

abuse exists, the court shall consider a number of factors,

including, but not limited to:

(A) Whether the temporary order of protection from abuse

is not likely to achieve its purpose in the absence of such a

condition.

(B) Whether the defendant has previously violated a

protection from abuse order.

(C) Whether past or present abuse to the plaintiff or any of

the plaintiff’s minor children resulted in injury.

(D) Whether the abuse occurred in public.

(E) Whether the abuse includes:

(I) threats of abuse or suicide;

(II) killing or threatening to kill pets;

(III) an escalation of violence;

(IV) stalking or obsessive behavior;

(V) sexual violence; or

(VI) drug or excessive alcohol use.

23 Pa.C.S. § 6107(b)(3). The trial court did not review these factors when it

issued the final PFA order.

In response, Mother points out that the factors listed in Section

6107(b)(3)(ii)(E) apply only to temporary PFA orders, and that the court has

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authority to restrict a defendant’s possession of a firearm in a final PFA order

under Section 6108(a)(7), which provides:

(a) General rule.—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:

* * *

(7) Ordering the defendant to temporarily relinquish to the

sheriff the defendant's other weapons and ammunition which

have been used or been threatened to be used in an incident

of abuse against the plaintiff or the minor children and the

defendant’s firearms and prohibiting the defendant from

acquiring or possessing any firearm for the duration of the

order and requiring the defendant to relinquish to the sheriff

any firearm license . . . the defendant may possess. . . .

23 Pa.C.S. § 6108(a)(7). Alternatively, Mother argues that factors (E)(I) and

(E)(V) under Section 6107(b)(3)(ii) were met because Father threatened

suicide and the abuse he perpetrated was sexual violence.

The trial court agreed with Mother that it ordered the firearms

restriction under Section 6108, not Section 6107, and it stated that the

restriction is valid because a temporary limitation of the right to possess a

firearm “is tailored to meet the special exigencies of . . . abuse cases.” Trial

Ct. Op. at 20. We agree that Section 6108, not Section 6107, is the

applicable statutory provision and that the trial court therefore did not err,

when entering a final PFA order, in failing to consider the factors in Section

6107, which address the entry of a temporary PFA order. We also find no

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abuse of discretion or error of law in the court’s restriction on Father’s

firearm.

Pursuant to § 6108(a)(7), the final order granting relief on a petition

for protection from abuse may contain a provision ordering a defendant to

relinquish:

[1] the defendant’s other weapons and ammunition which have

been used or been threatened to be used in an incident of abuse

against the plaintiff or the minor children and [2] the

defendant’s firearms . . .

23 Pa.C.S. § 6108(a)(7). Thus, while the statute states that the order may

order relinquishment of weapons other than firearms if they “have been

used or been threatened to be used in an incident of abuse against the

plaintiff or the minor children,” it places no such qualifier on an order for the

relinquishment of firearms. Moreover, there was evidence in the case about

a threat of suicide by firearm, and the trial court was convinced by a

preponderance of the evidence that Father posed a danger to himself or

others sufficient to warrant providing in the order a prohibition against

possessing a firearm outside of active policy duty. The trial court therefore

did not err in ordering Father to relinquish his firearm, even though it was

not alleged to be an instrument of abuse by him.

Prohibition on Contact with the Two Non-Victim Children

In his final issue, Father complains that the trial court abused its

discretion in awarding Mother sole custody of their two younger daughters

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whom he did not abuse. In support of this argument, Father relies on two

subparts of Section 6108(a)(4) of the Act. The first, paragraph (i)(A), states:

A defendant shall not be granted custody, partial custody or

unsupervised visitation where it is alleged in the petition, and

the court finds after a hearing under this chapter, that the

defendant . . . abused the minor children of the parties or poses

a risk of abuse toward the minor children of the parties.

23 Pa.C.S. § 6108(a)(4)(i)(A) (emphases added). The other provision,

paragraph (iii), provides:

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.

23 Pa.C.S. § 6108(a)(4)(iii) (emphases added).12

Father argues that because Section 6108(a)(4)(iii) refers to a singular

“child,” it refers solely to the child who suffered the abuse. He continues:

“when these two provisions are read together, it becomes clear that [Father]

should at a minimum be granted supervised custodial access of children not

named as parties in the Protection from Abuse action.” Father’s Brief at 16.

Because in the instant case only one child, L.M., was shown to be abused,

Father reasons he should not be deprived of supervised visits with his other

two children.

____________________________________________

12

Father erroneously cites to 23 Pa.C.S. § 6108(a)(4)(ii)(A)-(B).

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Mother counters that Father poses a risk to the other children and

should therefore not be granted custody under Section 6108(a)(4)(i).

Mother’s Brief at 12-13. She notes that L.M. testified that she was concerned

that the abuse could start again, due in part to Father sitting in her room at

night while she tries to fall asleep and because she was scheduled to be

spending more time alone with Father due to the shared custody agreement.

Id. (citing N.T., 11/1/16, at 74). Mother claims “[i]t was not an error of law

or abuse of discretion for the trial court to determine that, after finding that

the Father had sexually abused [L.M.] less than one year prior, Father also

posed a risk of abuse to the other two minor children.” Id. at 13.

In its opinion, the trial court stated without explanation that it granted

sole custody of the two younger children to Mother because it found that

Father poses a threat to all three children. The trial court also pointed out

that Father’s complaint of any custody error “is moot in light of the fact that

the Defendant is pursuing his remedies in the child custody cases.” Trial Ct.

Op. at 22.

We find that the trial court did not abuse its discretion when granting

sole custody of all three children to Mother based on its finding that Father

also poses a risk to his two younger children. See 23 Pa.C.S. §

6108(a)(4)(i)(A). We have previously explained, within a dependency

context, that “it may be that a family member who perpetrates sexual abuse

on one child is likely to abuse another child, either sexually or otherwise.” In

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re M.W., 842 A.2d 425, 428-29 (Pa. Super. 2004); see also In re S.B.,

833 A.2d 1116, 1122-23 (Pa. Super. 2003), appeal denied, 856 A.2d 835

(Pa. 2004); In Interest of Y.P., 509 A.2d 397, 399 (Pa. Super. 1986)

(finding that where one sibling was sexually abused, protection of the other

sibling could not be achieved in the abuser’s custody). 13 In light of its finding

that Father had sexually abused his eldest daughter, it was not unreasonable

for the trial court to conclude that Father may pose a risk of abuse to his two

younger daughters. The trial court observed the witnesses’ testimony first-

hand, and we defer to its findings.14

Moreover, as the trial court repeatedly informed the parties in this

case, a PFA action is not the primary vehicle by which custody issues ought

____________________________________________

13

But see In Interest of J.M., 652 A.2d 877, 881 (Pa. Super.) (where one

child sustained sexual abuse but siblings did not, stating that “a child should

not be found dependent merely because a sibling is dependent”), appeal

denied, 663 A.2d 692 (Pa. 1995). We find J.M. distinguishable from the

present case. In J.M., we had already reversed the finding of abuse by the

father in a separate matter; the latter appeal was from the trial court’s order

declaring six siblings dependent after finding that one child had been abused

by unrelated persons who had access to the home. We held that there was

not clear and convincing evidence that proper parental care was unavailable

for all of the children who had not been abused. We did not grant custody of

any children to the child’s abuser.

14

In response to Father’s complaint that the trial court ought to have

allowed him supervised visits with his two younger children, we note that the

Act does not mandate that a court tailor its relief to those custody solutions

which are least restrictive to defendants. Rather, the Act, which allows only

for temporary orders to prevent domestic abuse, provides that where the

defendant poses any risk of abuse, the court may deny custodial access.

See 23 Pa.C.S. § 6108(a)(4)(iii).

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to be resolved. While the Act allows for emergency temporary orders of

custody,15 the “central and extraordinary feature of the PFA,” is to

“prospectively control and prevent domestic violence.” Stamus v.

Dutcavich, 938 A.2d 1098, 1102 n.5 (Pa. Super. 2007) (citation omitted).

In contrast, custody proceedings, see 23 Pa.C.S. § 5321 to 5340, are

designed to award custody based on the best interests of a child following

the court’s broad consideration of sixteen statutorily prescribed factors. See

23 Pa.C.S. §§ 5323, 5328, 5329.1.16 Once entered, custody orders are not

subject to change until a party petitions the court. See 23 Pa.C.S. § 5338.

Thus, custody proceedings — not PFA proceedings — are the appropriate

avenue in which to fully assess the best interests of the children and provide

for their long-term needs.

We understand that custody proceedings are currently scheduled

before the trial court and are expected to explore the magnitude of any risk

Father poses to the children. We trust that the trial court will consider all

relevant factors when deciding custody. In the meantime, we cannot say

____________________________________________

15

Section 6108(a)(4) specifies that custody relief under a PFA is to be

“temporary,” and Section 6108(d) provides that PFA orders shall be for a

fixed time not to exceed three years. 23 Pa.C.S. § 6108(a)(4), (d).

16

These include a consideration of: “The present and past abuse committed

by a party or member of the party's household, whether there is a continued

risk of harm to the child or an abused party and which party can better

provide adequate physical safeguards and supervision of the child.” Id. at

5328(a)(2). In considering such issues, the court may order a psychological

evaluation of one or more parties. See Pa.R.C.P. 1915.8(a); Jordan v.

Jackson, 876 A.2d 443, 455 (Pa. Super. 2005).

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that the trial court abused its discretion in granting Mother temporary sole

custody under the PFA order.

For all of the above reasons, Father is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/2017

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