H.S.G. v. M.A.H. ( 2016 )

J-S52045-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
H.S.G., FILING ON BEHALF OF MINOR : IN THE SUPERIOR COURT OF
CHILDREN S.R.H. AND K.M.H. : PENNSYLVANIA
:
v. :
:
M.A.H. :
:
APPEAL OF: GUARDIAN AD LITEM : No. 518 EDA 2016
Appeal from the Order January 11, 2016,
in the Court of Common Pleas of Montgomery County,
Civil Division, at No(s): No. 2015-31197
BEFORE: FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 23, 2016
The guardian ad litem (GAL) appeals from the order entered January
11, 2016, granting H.S.G.’s request, pursuant to the Protection From Abuse
Act (PFA), 23 Pa.C.S. § 6101-6122, for entry of a final protection order
against M.A.H. (Father) on behalf of the parties’ minor Children, S.R.H.,
born in July of 2004, and K.M.H., born in March of 2012 (collectively, the
Children). We remand with instructions.
The certified record reveals the following. Father and Mother are
unmarried and have not resided together since S.R.H. was two years old.
Although there is an existing support order, there is no formal custody
arrangement. The last time Father saw the Children was in late October or
early November of 2015.
On November 26, 2015, S.R.H. disclosed to Mother that she had been
sexually abused by Father three years earlier (approximately 2012) during
*Retired Senior Judge assigned to the Superior Court.
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overnight visits at the home of a paternal great aunt. In response to this
information, Mother filed a petition for a temporary PFA order on behalf of
the Children. This request was granted by order dated November 30, 2015,
and the court scheduled a final PFA hearing for December 15, 2015. Also on
November 30, 2015, the court appointed GAL on behalf of the Children.
On December 15, 2015, the scheduled PFA hearing was continued to
January 11, 2016. On January 11, 2015, following the hearing, the court
entered a final PFA order on behalf of the Children, which was set to expire
on June 30, 2016. The GAL timely-filed a notice of appeal and statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 905(a)(2) and
Pa.R.A.P. 1925(a(2).1 On March 8, 2016, the PFA court filed its Pa.R.A.P.
1925(a) opinion.
On appeal, the GAL asks us to consider whether the PFA court abused
its discretion by entering a five-and-a-half-month-long final order. GAL’s
Brief at 2-3. Specifically, the GAL contends that the duration of the order
was too short to effectuate the purpose of the PFA Act where the court
determined by a preponderance of the evidence that S.R.H.’s allegation of
sexual abuse was credible. Id.
“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
1
Neither Mother nor Father has filed a brief with this Court.
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or abuse of discretion.” Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa.
Super. 2007) (citation omitted). “An 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 [result] of partiality, prejudice, bias or
ill-will.” Id.Pursuant to the PFA Act “[t]he court may grant any protection order or
approve any consent agreement to bring about a cessation of abuse of the
plaintiff or minor Children.” 23 Pa.C.S § 6108. With respect to duration of a
final order, the Act provides that “[a] protection order or approved consent
agreement shall be for a fixed period of time not to exceed three years. The
court may amend its order or agreement at any time upon subsequent
petition filed by either party.” 23 Pa.C.S § 6108(d).
Instantly, the PFA court was presented with allegations of sexual
abuse that occurred three years before its disclosure. While it believed
those allegations, the court noted that Mother, as primary physical
custodian, controlled Father’s access to the Children. PFA Court Opinion,
3/8/2016, at 4-5. The court noted that Mother believed S.R.H.’s allegations,
id., and it is apparent from the record that the trial court believed that
Mother’s control over Father’s sporadic contact with the Children, the last of
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which occurred at the agreement of the parties and a month before the
allegations were brought to light, was sufficient to prevent future abuse. Id.
The trial court’s rationale places on Mother the burden of preventing
Father from accessing the Children and fails to consider other ways in which
Father could encounter S.R.H. when she is outside of Mother’s care, either at
school or under the supervision of another caretaker. The court’s admittedly
short order, which ostensibly expired before the conclusion of the Children
and Youth Services (CYS) investigation, the filing of criminal charges, or the
implementation of a custody order, is at odds with the PFA Act’s stated goal
of protecting “victims of domestic violence from those who perpetrate such
abuse, with the primary goal of advance prevention of physical and sexual
abuse.” Buchhalter v. Buchhalter, 959 A.2d 1260, 1262 (Pa. Super. 2008)
Accordingly, we reinstate the order of January 11, 2016, to remain in
effect pending a new hearing at which the PFA court can consider the results
of any CYS or criminal investigation, and any necessary conditions to protect
the Children’s safety.
Case remanded with instructions. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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