S.P. v. C.G. ( 2023 )

J-A02002-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
C.G. :
:
Appellant : No. 753 WDA 2022
Appeal from the Order Entered May 26, 2022
In the Court of Common Pleas of Washington County Civil Division at
No(s): No. 2022-3240
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 28, 2023
C.G. (“Father”) appeals the order granting a final protection from abuse
(“PFA”) order in favor of S.P. (“Grandmother”) on behalf of minors C.G. and
K.G. We affirm.
The trial court succinctly summarized the factual and procedural history
as follows:
On May 2, 2022, [Grandmother], mother-in-law of [Father]
and maternal grandmother of the minor children, filed a petition
for a PFA on behalf of minor children, C.G. ([born in January]
2005) an K.G. ([born in August] 2007) against [Father]. [Father]
is the biological father of the minor children. [Grandmother]
averred in her petition that she exercised partial physical custody
of C.G. and K.G. while [Father] exercised primary physical custody
of the subjects. [Grandmother] further averred that the children
were subject to constant violence in the house and specified that
[Father] had previously hit C.G., held C.G. on the ground and hit
him with a shoe four times and would have K.G. put out her face
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* Retired Senior Judge assigned to the Superior Court.
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and would smack her in the face harder if she attempted to put
her hands up to protect herself. [Grandmother] averred in her
petition that C.G. called the police on [Father] on April 30, 2022.
After a review of the petition and an ex parte proceeding in which
[Grandmother] and C.G. testified, this court entered a temporary
PFA.
A hearing on [Grandmother’s] petition for [PFA] was
scheduled for May 11, 2022. However, on May 9, 2022, the
parties agreed to continue the matter to May 25, 2022. After the
hearing on May 25, 2022, in which the children, [Father,] and
other witnesses testified, this court granted [Grandmother’s]
request for a final [PFA] for a period of three years.[1]
Trial Court Opinion, 7/19/22, at 1-2 (cleaned up).
Father timely appealed from the final PFA order, and both he and the
trial court complied with Pa.R.A.P. 1925. Father raises the following issues
for our review:
1. Do the actions of defendant Father, as a matter of law, rise to
the level of abuse?
2. Is the testimony of the children wholly deserving of credibility,
given the surrounding circumstances, as a matter of law and of
common sense?
3. Is the penalty of a [three-]year PFA appropriate in this case?
Father’s brief at 10.
“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.’” Boykai v. Young, 83 A.3d 1043, 1045 (Pa.Super.
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1 The final order specified that “any future custody order shall supersede this
Order.” Final PFA Order, 5/25/22, at 2.
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2014) (quoting Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa.Super.
2007)).
First, Father alleges that Grandmother did not meet her burden in
establishing the need for a final PFA order. “In reviewing the validity of a PFA
order, we must determine whether the evidence, in the light most favorable
to petitioner and granting her the benefit of all reasonable inferences, was
sufficient to sustain the trial court’s determination that abuse was shown by
the preponderance of the evidence.” S.W. v. S.F., 196 A.3d 224, 228
(Pa.Super. 2018) (citation omitted). 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.Supe. 2020). Accordingly, we defer to the lower court’s determination of
the credibility of witnesses where they are supported by the record. See
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.” Commonwealth v. Widmer, 744
A.2d 745 (Pa. 2000). The PFA Act defines “abuse” as follows:
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:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing bodily injury, serious bodily injury, rape,
involuntary deviate sexual intercourse, sexual assault,
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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.
(3) The infliction of false imprisonment pursuant to 18
Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including
such terms as defined in Chapter 63 (relating to child
protective services).
(5) Knowingly engaging in a course of conduct or repeatedly
committing acts toward another person, including following
the person, without proper authority, under circumstances
which place the person in reasonable fear of bodily injury.
...
23 Pa.C.S. § 6102(a). Importantly, past acts are significant in determining
the reasonableness of a PFA petitioner’s fear. E.K. v. J.R.A., 237 A.3d 509,
519 (Pa.Super. 2020).
In his first claim, Father alleges that the evidence of “abuse” was
insufficient because the incidents of physical abuse that the children alleged
were “within the appropriate bounds of parental correction.” Father’s brief at
40. Father points to the fact that “the school, the therapist, the doctor, [and]
neighbors” did not report observing any injuries to C.G. or K.G as evidence
supporting his position. Id. at 41.
Father did not preserve this issue for appellate review. The certified
record reveals that, during the hearing on Grandmother’s PFA petition, Father
emphatically denied imposing any form of physical punishment for bad
behavior and testified that he never physically struck C.G. or K.G. See N.T.
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Hearing, 5/25/22, at 62 (“I would never hit my kids, Your Honor. I swear to
God. I never would hit my kids, on my mother’s life, and she just got rid of
cancer, dude.”). Therefore, as Grandmother accurately points out in her brief,
Father cannot presently argue that he was justified in striking C.G. and K.G.
for disciplinary reasons because that issue was never raised in the trial court.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); see also Grandmother’s Brief
at 20-21 (citing, inter alia, Kelley v. Mueller, 912 A.2d 202 (Pa. 2006)
(holding issue relating to PFA proceedings was waived under Rule 302(a)
because it was not preserved in the trial court)). Accordingly, Father’s first
claim fails.2
Next, Father challenges the weight of the evidence presented at the PFA
hearing, arguing that the trial court abused its discretion when it found the
children “wholly deserving of credibility.” Father’s brief at 41. Father
contends that K.G. was “in tears” during her testimony because she was
“ashamed about lying” and that C.G. had an “incentive to lie” because he had
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2 Even if Father had not waived this issue, his claim would not succeed, as
we would affirm on the basis of the well-reasoned opinion of the Honorable
Jesse Pettit. See Trial Court Opinion, 7/19/22, at 4-10 (paraphrasing the
testimony of K.G. and C.G. describing multiple incidents of past physical abuse
perpetrated by Father and expressing fear that Father would continue to
assault them in the future, analyzing the evidence in accordance with
controlling precedent, and finding that Father’s actions rose to the level of
abuse within the meaning of the PFA Act).
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been “involved” with a fourteen-year-old girl. Id. at 42-43. The trial court
found Father’s bare accusations unpersuasive, explaining:
This court found the testimony of C.G. and K.G. to be credible and
stated so, on the record, at the hearing. The minor children
testified in detail and with great emotion. During cross-
examination, in which defense counsel asked K.G. repeatedly how
long she would need to stand before being smacked by [Father],
K.G. began bawling to the point this court had to go off the record
and allow the minor child to calm.
[Father] argues that K.G. was “hushed” during her
testimony because “she was concerned to get her story straight.”
This court disagrees with [Father’s] position regarding K.G.’s
demeanor and placed its reasoning on the record at the hearing
when the issue was first raised by counsel for [Father].[3]
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3 At the hearing, the trial court responded to defense counsel’s claims that
K.G. was feigning tears in order to garner unfair credibility as follows:
I will say this again for the record. We are in a formal proceeding
here. All right? We’re in the Washington County Courthouse.
These children are coming in, testifying before two attorneys. I
have a court reporter sitting at the table capturing everything
before a sitting Court of Common Pleas Judge. This isn’t
something that these children do on a daily basis. In fact, I would
go as far as saying these children have probably never had this
type of experience before in their lives.
Secondly, in my experience in practicing law and/or sitting in this
type of position for over the last [twenty] years, I know that
people, adults, get nervous and act a little differently when they
have to come into a courthouse and be sworn in under oath and
have to be subject to questioning, whether it’s direct examination
or cross-examination in a formal proceeding. I think this is
entirely natural.
But for a [fourteen]-year-old child and/or a [seventeen]-year-old
child to have to come in and testify as to how – what they testified
about, knowing that they have a father sitting right through the
doors on the other side, I can certainly, in my mind, understand
(Footnote Continued Next Page)
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[Father] testified that he would never hit his kids despite
having wanted to in the past. Further, [Father] testified that the
children testified to abuse because “[Grandmother] is putting it
into them.” This court did not find the testimony of [Father] to be
credible.
Trial Court Opinion, 7/19/22, at 11 (cleaned up and citations omitted).
Our review of the certified record supports the trial court’s findings.
Both children testified about specific instances of physical abuse they suffered
from Father and expressed fear of further bodily injury from Father. See N.T.,
5/25/22, at 13-19 (C.G. testifying that Father had repeatedly hit him with a
shoe, broken yard stick, back scratcher, and bare hand and that he does not
feel safe with Father); id. at 32-43 (K.G. testifying that Father would
unpredictably slap her across the face and that she was afraid of him).
Moreover, the court was under no obligation to accept Father’s denials and his
bald claim that the allegations were the result of Grandmother “feeding [C.G.
and K.G.’s] minds nothing but hatred.” N.T., 5/25/22, at 59; see also S.G.
v. R.G., supra at 907. Accordingly, we defer to the trial court’s
determinations regarding the credibility of witnesses at the hearing and find
that Father’s second issue merits no relief. See N.T., 5/25/22, at 74 (“I found
the testimony of both of the children to be concerning and certainly
understandable that they would be in fear for their safety based on what
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why their behavior might be a little different than sitting in their
house discussing some type of matter with an attorney.
N.T., 5/25/22, at 57-58.
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they’ve testified to.”); see also Kaur v. Singh, 259 A.3d 505, 509 (Pa. Super.
2021) (stating that, “this Court will defer to the credibility determinations of
the trial court as to witnesses who appeared before it[, and it] is well-settled
that the trier[-]of[-]fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part[,] or none of
the evidence”).
Father’s final argument is that a three-year PFA is “too harsh,” since it
separates the family. Father’s brief at 44. “Instead of wrenching [the
children] out of their home, less drastic measures could have been taken.”
Id. at 43. However, a review of Father’s appellate brief demonstrates that he
failed to set forth an argument with citation to appropriate authorities in
support of this issue. See Father’s brief at 43-44. As such, Father waived it
as a basis for relief. See C.H.L. v. W.D.L., supra at 1276; see also Pa.R.A.P.
2119(a).
In any event, the trial court found Father’s argument misplaced,
explaining that:
[Father] ignores that this court included language in the final order
which allows any future custody order to supersede the PFA Order.
This language was included so that [Father] would have the
opportunity to seek some form of visitation and/or custody with
C.G. and K.G., through custody proceedings, if such future contact
is determined by the court to be in the best interests of the
children.
Trial Court Opinion, 7/19/22, at 12 (cleaned up).
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The PFA Act empowers the court to order a PFA “for a fixed period of
time not to exceed three years” in order to “prospectively control and prevent
domestic violence.” 23 Pa.C.S. § 6108(d). After finding abuse occurred and
that Father continued to pose a risk of harm to the children, the trial court
properly entered a PFA order that fell within the statute’s parameters. Thus,
we find no abuse of discretion.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2023
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4 Although we conclude that the trial court properly found that Father’s
conduct with respect to K.G. and C.G. rose to the statutory definitions of
“abuse” in the PFA Act, our decision has no impact on the viability of potential
custody proceedings. In contrast to PFA proceedings, custody proceedings
are designed to award custody based on the best interests of a child following
the court’s broad consideration of sixteen statutorily prescribed factors,
including evidence of past abuse. See 23 Pa.C.S. §5328(2) and (2.1); see
also E.K. v. J.R.A., 237 A.3d 509, 527 (Pa.Super. 2020) (“PFA matter, while
interrelated to [a] custody matter, is a wholly separate matter on a wholly
separate docket.”). Thus, Father’s arguments regarding the separation of the
family would be better posed in a custody proceeding, which, as the PFA court
explained, would supersede this PFA order. See N.T., 5/25/22, at 74; see
also Final PFA Order, 5/25/22, at 2.
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