The opinion
J. S10038/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
A.N. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
A.L., : No. 1699 MDA 2019
:
Appellant :
Appeal from the Order Entered September 11, 2019,
in the Court of Common Pleas of Lackawanna County
Civil Division at No. 2012-FC-40570
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 11, 2020
A.L. (“Father”) appeals from the final protection from abuse (“PFA”)
order entered against him on September 11, 2019, in the Court of Common
Pleas of Lackwanna County, pursuant to 23 Pa.C.S.A. § 6102(a)(5). After
careful review, we reverse and remand.
The trial court set forth the following:
This case involves a custody dispute and request for
[a PFA order] as a result of allegations of sexual abuse
by [Father] against the parties’ three (3) minor
children, J.L., R.L. and D.L., (hereinafter
“minor children”). By way of background, [] A.N.
(hereinafter “Mother”), filed an Emergency Petition for
Special Relief on April 24, 2019, wherein she alleges
the minor child, J.L., disclosed that she was sexually
molested by Father for over a period of two (2) years,
and the Lackawanna County Office of Youth and
Family Services (hereinafter “OYFS”) were
investigating the allegations. As a result, Mother was
granted temporary sole legal and physical custody of
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the minor children until further Order of Court. On
May 3, 2019, Mother filed a [PFA petition] on behalf
of the minor children against Father wherein she
alleges Father sexually molested the minor child, J.L.,
on multiple occasions, exhibiting grooming behavior
towards the minor children, R.L. and D.L., and
stalking the minor child, J.L., on social media and
through therapy. As a result, Mother was granted a
[t]emporary [PFA o]rder on behalf of the minor
children against Father. The hearings on Mother’s
Petition for Emergency Special Relief and Petition for
Protection from Abuse were consolidated and
continued on numerous occasions as a result of the
pending investigations. A hearing commenced before
[the trial court] on September 11, 2019. The
Guardian ad Litem, Elizabeth Munley, Esquire
(hereinafter “GAL”), provided her memorandums
dated July 11, 2019 and September 9, 2019 wherein
she recommended that th[e trial c]ourt’s [o]rder
dated July 12, 2019 granting Mother sole legal and
physical custody of the minor children remain in full
force and effect.
Trial court opinion, 11/7/19 at 1-2 (record citations omitted).
During the hearing, th[e trial c]ourt heard
uncontroverted testimony from the GAL, Mother and
Maternal Grandfather, [L.N.] (hereinafter
“Maternal Grandfather”). The GAL testified as to the
information collected during her investigation which
impacted her report and recommendation to th[e trial
c]ourt. Specifically, the GAL testified that, “The oldest
child, J.L., who’s 11 years old, made a disclosure to
her counselor, Ms. Simona Gavern at the
Aaron Center. As a result, the [OYFS was] contacted
and scheduled a [Children’s Advocacy Center (“CAC”)]
interview.” J.L. had undergone multiple interviews at
the [CAC] and submitted to a physical examination by
Ms. Cheryl Friedman on April 30, 2019. The GAL
stated, “As noted in Cheryl Friedman’s report, which
has been provided to counsel, she suspected that
sexual assault as evidence[d] by [J.L.’s] disclosure of
an object or finger being introduced past the labia
majora. After a conversation with Ms. Friedman —
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which I had with Ms. Friedman, she indicated that J.L.
was referring to [F]ather as being the individual who
introduced the object into J.L.” At the conclusion of
the CAC interviews, OYFS unfounded the allegations
of abuse against Father.
The GAL indicated that, “She (Ms. Gavern) explained
in her July 3rd, 2019 letter that [J.L.] is also
diagnosed[with] PTSD. She (J.L.) had commenced
some self-harming behaviors and expressed suicidal
ideation at the time that she had commenced therapy
when she was residing in [F]ather’s home.” “She
voluntarily disclosed that she wanted to -- did not
want to go and visit [F]ather because he quote, ‘Did
stuff to her’.” Then, J.L. drew on a diagram where
Father touched her being the breast and genital area.
The GAL further testified that, “Ms. Gavern explained
in her letter also that J.L. had experienced symptoms
such as headaches, nightmares, and voices, hearing
voices. As a result of this disclosure, that’s when one
of the CAC interviews was scheduled. And also J.L.
was -- felt very guilty at that time she was concerned
about her brother being in the care of [F]ather
because originally [F]ather still had the two boys.”
The GAL went on to testify regarding disclosures made
by the other minor children, D.L. and R.L., to their
therapist, Ms. Justine Andrews. The GAL stated that,
“D.L. disclosed to Ms. Andrews that [F]ather tried to
touch his penis on a few occasions. He was able to
push him away on all occasions with the exception of
one time and he also indicated to Ms. Andrews that
after that time that he touched his penis it hurt after
that. Additionally, the GAL indicated, “There was also
concern that D.L. had that he disclosed to
Ms. Andrews regarding witnessing [F]ather hit J.L.
with a badminton racket as well.” Such disclosure was
reported to OYFS and the minor children submitted to
another CAC interview. The minor children’s
disclosures at the CAC did not corroborate each other
and, as a result, OYFS closed the case.
The GAL also testified that, “I spoke with her
(Ms. Andrews) on September 9, 2019 in order to
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clarify her report and asked her some questions
regarding her report and she clarified that R.L. is not
ready to meet with [F]ather yet, as he still has some
issues that he needs to work through.” The GAL went
on to state, “Regarding D.L., he not only made the
disclosures to Ms. Andrews, which precipitated a third
CAC interview, but he also continues to experience
nightmares, has separation anxiety with [M]other,
and continues to have difficultly expressing and
processing his emotions regarding [F]ather. As part
of our phone conversation, Ms. Andrews told me that
D.L. is not ready at this time to reunite with [F]ather.”
The GAL confirmed that both D.L. and R.L. have also
been diagnosed with PTSD as a result of the trauma
from Father and being separated from their sister for
a period of time. The GAL testified that, as a result of
the PTSD, “He (D.L.) has anxiety, irritability, hyper
vigilance, negative outlook, and intrusive thoughts
and nightmares.” “He was working on decreasing the
severity of symptoms. He continues to report
nightmares, nervousness regarding [F]ather, along
with difficulty processing and expressing emotions
regarding [F]ather.” The GAL testified further that,
“He (R.L.) is working on decreasing his symptoms.
However, he continues to report anger towards
[F]ather and his difficulty managing his emotions and
using coping skills when he is angry.
Additionally, the GAL stated that during her
investigation she spoke with Detective Tim Mackerel
of [the] Carbondale Police Department.
Detective Mackerel indicated that the criminal
investigation against Father is still ongoing and the
counselors continue to be in contact with him
regarding further disclosures by the minor children.
The GAL had an opportunity to interview the minor
children. The GAL stated the minor children
expressed fear and concerns with Father. Specifically,
R.L. stated to the GAL that Father did not really take
care of him. J.L. indicated to the GAL that she would
take care of her brothers when she lived with Father
and would ask Father for help, but she did not get the
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help she needed. J.L. continued to express how
worried she was for brother living with Father and her
concerns that Father drinks a lot. Further, J.L. said
that she was scared when she talked to Father and
was afraid that he would try to pick her up.
Furthermore, during the hearing, Mother testified
that, “She (J.L.) had approximately 40 cuts on her
forearms. She disclosed to me that due to the fact of
[F]ather hurting her she thought that that was going
to be an easier way out of his house.” Mother went
on to testify that, “She’s (J.L.) just disclosed her fear
of [F]ather.” Mother stated that, “I have not seen fear
in my child’s eye like this ever before . . . , I mean,
J.L., she has nervous breakdowns even talking about
him (Father). Both my boys experience nightmares.
Even after the CAC interview last week they were just
so emotionally distraught.”
During Maternal Grandfather’s testimony, he
indicated that D.L. told him that he saw Father hitting
J.L. with a badminton racket. Further, Maternal
Grandfather testified that, “He (D.L.) did tell me that
[R.L.] had told him that [Father] had touched him
where you’re not supposed to be touched and I asked
if [Father] touched you and he said, ‘He tried, but not,
I smacked him.’”
Therefore, based upon the uncontroverted testimony,
th[e trial c]ourt found that the preponderance of the
evidence indicated the minor children were entitled to
a [PFA o]rder against Father. Thus, th[e trial c]ourt
granted a [PFA o]rder on behalf of the three (3) minor
children against Father for a period of three (3) years.
Id. at 4-7 (record citations omitted).
Father filed a timely notice of appeal “from an [o]rder entered [at
No. 2012 FC 40570] on the 11th day of September 2019.” (Father’s notice of
appeal, 10/9/19.) Attached to Father’s notice of appeal is the trial court’s
September 11, 2019 order that deemed Mother’s emergency petition for
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special relief moot. Father contemporaneously filed a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) wherein
he raised 13 issues challenging the September 11, 2019 PFA order.
On November 22, 2019, this court entered a rule to show cause order
directing Father to explain whether he intended to appeal the order deeming
Mother’s emergency petition for special relief moot or whether he intended to
appeal the PFA order. (Order of court, 11/22/19.) Father filed a timely
response wherein he states that he “intended to appeal the [trial] court’s
granting of a three (3) year PFA on behalf of the minor children.” (Father’s
“answer to this court’s order of November 22, 2019,” 12/2/19 at 2, ¶ 7 (full
capitalization omitted).)
On December 13, 2019, this court entered an order acknowledging
Father’s response to the show-cause order and Father’s intent to seek review
of the PFA order. (Order of court, 12/13/19.) The order also removed this
appeal from the Children’s Fast Track designation because it is not an appeal
from a child custody order but, rather, an appeal from a PFA order, which is
not a permissible Children’s Fast Track designation. See Superior Court
I.O.P. 212(A)(1) (designating dependency, termination of parental rights,
adoption, custody, and paternity as Children’s Fast Track cases).
Appellant raises the following issues for our review:
[1.] Whether the trial court erred in law and/or
abused its discretion in awarding sole custody of
the minor children to [Mother?]
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[2.] Whether the trial court erred in law and/or
abused its discretion in granting a three (3) year
[PFA o]rder naming the minor children as
protected parties[?]
[3.] Whether the trial court erred in law and/or
abused its discretion in failing to allow the
[Father] to call the minor children as
witnesses[?]
[4.] Whether the trial court erred in law and/or
abused its discretion in failing to allow [Father]
to call the minor children as witnesses when
neither [Mother] nor the [GAL] filed a Motion to
Quash the Subpoena[?]
[5.] Whether the trial court erred in law and/or
abused its discretion in admitting hearsay
statements of the minor children[?]
[6.] Whether the trial court erred in law and/or
abused its discretion in failing to afford [Father]
his right to confront witnesses under the United
States Constitution and the Commonwealth
Constitution[?]
[7.] Whether the trial court erred in law and/or
abused its discretion in admitting hearsay
statements of the minor children’s therapists[?]
[8.] Whether the trial court erred in law and/or
abused its discretion in admitting a drawing
purportedly drawn by [] one of the minor
children which was hearsay[?]
[9.] Whether the trial court erred in law and/or
abused its discretion in admitting a drawing
purportedly drawn by [] one of the minor
children which was not properly
authenticated[?]
[10.] Whether the trial court erred in law and/or
abused its discretion in failing to allow [Father]
to question [Mother] regarding the death of her
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child while the child was in the custody of
[Mother’s] then paramour[?]
[11.] Whether the trial court erred in law and/or
abused its discretion in failing to allow [Father]
to question [Mother] relative to broken bones
suffered by a child in her care[?]
[12.] Whether the trial court erred in law and/or
abused its discretion in accepting the
recommendation of the GAL when the GAL
never made an inspection of the minor
children’s residence and could not testify to the
minor children’s school attendance[?]
[13.] Whether the trial court erred in law and/or
abused its discretion when the GAL admitted the
minor children never made a disclosure of
sexual abuse to her[?]
Father’s brief at 4-6.
“In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.” Drew v. Drew, 870
A.2d 377, 378 (Pa.Super. 2005) (citation omitted).
At the outset, we note that Father’s brief may be characterized as
inartfully drafted. Nevertheless, Issues 5, 7, and 8 of Father’s statement of
questions presented raise hearsay challenges. A reading of Father’s brief
demonstrates that he repeatedly and consistently, albeit inartfully, raises
these hearsay challenges and essentially contends that because the hearsay
testimony of the GAL did not qualify for any exception to the hearsay rule,
that hearsay testimony alone constituted an insufficient basis for entry of a
final PFA order. We agree.
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In reviewing the admissibility of evidence, “an appellate court may only
reverse upon a showing that the trial court abused its discretion. An abuse of
discretion is not a mere error in judgment but, rather, involves bias, ill will,
partiality, prejudice, manifest unreasonableness, or misapplication of law.”
Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (citations
omitted).
The Pennsylvania Rules of Evidence define hearsay 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 Act, 42 Pa.C.S.A. § 5985.1, creates an exception to the hearsay
rule for victims of childhood sexual abuse. See Commonwealth v.
G.D.M., Sr., 926 A.2d 984, 988 (Pa.Super. 2007). “The tender years
exception allows for the admission of a child’s out-of-court statement because
of the fragile nature of young victims of sexual abuse.” Commonwealth v.
Lukowich, 875 A.2d 1169, 1172 (Pa.Super. 2005), appeal denied, 885 A.2d
41 (Pa. 2005). The tender years exception provides:
(a) General rule.--
(1) An out-of-court statement made by a child
victim or witness, who at the time the statement
was made was 12 years of age or younger,
describing any of the offenses enumerated in
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[18 Pa.C.S.A. Chapter 31 (relating to sexual
offenses)], not otherwise admissible by statute
or rule of evidence, is admissible in evidence in
any criminal or civil proceeding if:
(i) 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
(ii) the child either:
(A) testifies at the
proceeding; or
(B) is unavailable as a
witness.
42 Pa.C.S.A. § 5985.1(a).
(a.1) Emotional distress.--In order to make a
finding under subsection (a)(1)(ii)(B) 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. In
making this determination, the court may do all
of the following:
(1) Observe and question the child,
either inside or outside the
courtroom.
(2) Hear 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.
42 Pa.C.S.A. § 5985.1(a.1).
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“Any statement admitted under the [tender years hearsay exception]
must possess sufficient indicia of reliability, as determined from the time,
content, and circumstances of its making.” Commonwealth v. O’Drain, 829
A.2d 316, 320 (Pa.Super. 2003), citing 42 Pa.C.S.A. § 5985.1(a). “The main
consideration for determining when hearsay statements made by a child
witness are sufficiently reliable is whether the child declarant was particularly
likely to be telling the truth when the statement was made.”
Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa.Super. 2003). Factors the
court may consider when determining reliability include, but are not limited
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.” Commonwealth v. Delbridge, 855 A.2d 27,
47 (Pa. 2003); see also Lyons, 833 A.2d at 255.
“[P]rior to concluding a child witness is unavailable, a court must
determine whether forcing the child to testify will result in such serious
emotional distress to the child that [the child] will not be able to reasonably
communicate.” Lyons, 833 at 254, citing 42 Pa.C.S.A. § 5985(a.1). “To
reach this determination, the court ‘may’ either question the child witness or
hear testimony of a parent or person who has dealt with the child in a
therapeutic setting.” Id. at 254-255, citing 42 Pa.C.S.A. § 5985(a.1)(1)-(2).
“The Tender Years Statute requires that an in camera hearing take place to
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determine whether a child witness is unavailable to testify.” Lyons, 833 A.2d
at 254, citing 42 Pa.C.S.A. § 5985(a).
Here, the trial court permitted the GAL to testify on the basis of reports
prepared by Simona Gavern, Cheryl Friedman, and Justine Andrews. (Notes
of testimony, 9/11/19 at 5-12.) Ms. Gavern and Ms. Friedman provided
counseling to J.L. Their reports contained alleged disclosures of sexual abuse
by Father made by J.L. Ms. Andrews worked with D.L. and J.L. as their
therapist. Ms. Andrews’s report contained alleged disclosures of sexual abuse
by Father made by D.L. and J.L. The trial court also permitted the GAL to
testify about a conversation that she had with Ms. Andrews that served to
clarify the sexual abuse disclosures contained in Ms. Andrews’s report. See
id. We note that neither Ms. Gavern, Ms. Friedman, nor Ms. Andrews testified
at the hearing.1
1 We note that Father’s counsel repeatedly placed hearsay objections on the
record.
We further note that “[a]n out-of-court declaration containing another
out-of-court declaration is double hearsay.” Commonwelath v. Laich, 777
A.2d 1057, 1061 (Pa. 2001) (citation omitted). "In order for double hearsay
to be admissible, the reliability and trustworthiness of each declarant must be
independently established. This requirement is satisfied when each statement
comes within an exception to the hearsay rule." Id. (citation omitted). Father
did not raise the issue of whether the GAL’s testimony contained double
hearsay because it relayed the minor children’s alleged sexual abuse
disclosures through the reports of Ms. Gavern, Ms. Friedman, and
Ms. Andrews, as well as the GAL’s conversation with Ms. Andrews. Therefore,
the issue is not before us.
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In its Rule 1925(a) opinion, the trial court set forth the tender years
exception to the hearsay rule and then concluded that it permitted the GAL to
testify after determining that the minor children were unavailable as
witnesses. Nothing in the certified record before us, however, indicates that
the trial court conducted an in camera tender years hearing to determine the
reliability of the minor children’s statements or the unavailability of the minor
children. We note that at the PFA hearing, Mother’s counsel stated that he
“believe[d] it was the [trial c]ourt and the [GAL’s] recommendation that after
multiple interviews with the [minor] children through CAC and ongoing
therapy,” that “it would not be in the [minor] children’s best interest to
testify.” (Notes of testimony, 9/11/19 at 5.) Counsel for Mother then stated
that “if the [trial c]ourt wishes to interview them[,] that’s certainly possible
and [Mother] has no objection to bringing them here. But it’s not in their best
interest and actually very risky for them to be here.” (Id.) Clearly, the trial
court did not conduct an in camera tender years hearing. Consequently, the
GAL’s testimony of the minor children’s alleged sexual abuse disclosures
constituted inadmissible hearsay and the trial court abused its discretion by
misapplying the law when it permitting those hearsay statements to come into
evidence through the testimony of the GAL. In the absence of the hearsay
testimony of the GAL, the evidence of record is insufficient to support a finding
that Father sexually abused the minor children by a preponderance of the
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evidence.2 See K.D., by K.H.D. v. J.D., 696 A.2d 232 (Pa.Super. 1997)
(reversing PFA order based on inadmissible hearsay testimony).
We, therefore, reverse the final PFA order entered by the trial court.
Based on our disposition, we need not address Father’s remaining issues.
Order reversed and case remanded for a new hearing in compliance with
this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/11/2020
2 The two other witnesses who testified were Mother and Maternal
Grandfather. Mother testified that none of the minor children made
disclosures of sexual abuse to her. (Notes of testimony, 9/11/19 at 33.)
Maternal Grandfather testified that D.L. told him that he saw Father hit J.L.
with a badminton racket, but he did not testify as to any sexual abuse
disclosures. (Id. at 49-50.)
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