Lastovka, N. v. Berila, A.
Opinion
J-A20029-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
NATALLIA LASTOVKA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
ALEXANDER BERILA :
:
Appellant : No. 1109 EDA 2024
Appeal from the Order Entered March 15, 2024 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2023-60772
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.E.: FILED DECEMBER 3, 2024
Alexander Berila (“Father”) appeals from the order entered in the Bucks
County Court of Common Pleas on March 15, 2024, granting a final protection
from abuse (“PFA”)1 order pursuant to a petition brought by Natallia Lastovka
(“Mother”) in favor of the parties’ minor child. After careful review, we affirm
on the basis of the well-written trial court opinion.
Father and Mother were married in March 2004, and divorced in June
2023. The parties share two minor children, A.A.B. (born March 2014) (“the
child”) and A.E.B. (born December 2019) (who is not subject to the instant
PFA order).
____________________________________________
1 Protection from Abuse Act (“PFA Act”), 23 Pa.C.S.A. §§ 6101 et seq.
J-A20029-24
On February 5, 2024, the trial court issued a temporary PFA order in
favor of Mother on behalf of both minor children against Father. The temporary
PFA order was amended on February 6, 2024. At a PFA hearing on February
14, 2024, the matter was continued by agreement of the parties, and the
temporary order was extended to February 28, 2024.
On February 28, 2024, a PFA hearing was held, during which testimony
was taken on the record from the child during an in-camera interview with
counsel and the Judge. The temporary order was extended at the conclusion
of the hearing until March 6, 2024.
Subsequently, three more PFA hearings were held, on March 6, 12, and
15, 2024, during which extensive testimony was taken and video evidence
was submitted. The temporary PFA was extended to each relisted date.
Upon the conclusion of testimony, the trial court entered a final PFA
order for a term of 9 months in favor of the child. The final order did not afford
protection to either Mother or the parties’ other minor child, as the record was
devoid of evidence alleging abuse against either of them. The final order
stipulates Father may have supervised visitation with the child and telephone
contact. The final order superseded a prior custody order between the parties
as it relates to the child.
On March 25, 2024, Father filed a motion for reconsideration of the final
PFA order, alleging Mother had failed to meet her burden of proof. See Motion
J-A20029-24
for Reconsideration, 3/25/24. The trial court denied the motion. This timely
appeal followed.
Father raises the following issues on appeal:
1. Whether the trial court committed an error of law and/or abused its discretion in entering a nine-month final [PFA] order under Section 6102(a)(2) of the Act where the order is not supported by the evidence?
2. Whether the trial court committed an error of law and/or abused its discretion in entering a nine- month final [PFA] order by failing to consider a parent’s right to corporal punishment under the PA Crime Code where a parent can use force to promote the welfare of the child, including preventing or punishment for his misconduct and the force was not designed to cause serious bodily injury.
See Appellant’s Brief, at 8 (unnecessary capitalization omitted).
When an appellant challenges the granting of a PFA petition, as Father
does here, we review the trial court’s legal conclusions to see whether the trial
court committed an error of law or abused its discretion. See K.B. v. Tinsley,
208 A.3d 123, 127 (Pa. Super. 2019).
Father’s first issue challenges the court’s finding by a preponderance of
the evidence that the PFA was warranted in this case. Father argues the
evidence was insufficient to support the PFA order because the child’s
testimony was not credible and Mother’s evidence was not sufficient.
If the appellant’s claim specifically alleges the evidence was not
sufficient to support the PFA order, “we review the evidence in the light most
favorable to the petitioner … [to] determine whether the evidence was
sufficient to sustain the trial court’s conclusion by a preponderance of the
J-A20029-24
evidence.” Karch v. Karch, 885 A.2d 535, 536-37 (Pa. Super. 2005) (citation
omitted). We defer to the credibility determinations of the trial court. See id.
The purpose of the PFA Act “is to protect victims of domestic violence
from those who perpetrate such abuse, with the primary goal [being the
prevention of abuse].” K.B., 208 A.3d at 127 (citation omitted). The PFA Act
defines “abuse,” in relevant part, as the occurrence of one or more acts,
including “[p]lacing another in reasonable fear of imminent serious bodily
injury.” 23 Pa.C.S.A. § 6102(a)(2).
“In the context of a PFA case, the court’s objective is to determine
whether the victim is in reasonable fear of bodily injury. The intent of the
alleged abuser is of no moment.” K.B., 208 A.3d at 128 (citations and internal
quotation marks omitted). Given the PFA’s goal of preventing abuse, “a victim
does not have to wait for physical or sexual abuse to occur for the Act to
apply.” Id. (citation omitted).
Here, the trial court granted the final PFA petition pursuant to Section
6102(a)(2) of the PFA Act. The PFA Act is clear that the court need only find
that the petitioner has established that one of the acts constituting “abuse”
under the Act applies, see 23 Pa. C.S.A. § 6102(a).
The trial court concluded, in accordance with the statute and in
consideration of all testimony presented throughout the PFA hearings, that
“abuse” had been established by a preponderance of the evidence as
J-A20029-24
proscribed by § 6102. Father essentially argues the trial court erred by
reaching this conclusion because the child’s testimony was not credible.
In its May 17, 2024 opinion, the trial court set forth the relevant law,
see Trial Court Opinion, 5/17/24, at 6-7, addressed Father’s sufficiency
challenge,2 and determined that it lacks merit, explaining as follows:
This determination was firmly grounded in the evidentiary record, which encompassed documented instances by [Father] against the child. Specifically, credible testimony from all parties (including [Father]) attested to incidents wherein he struck the child repeatedly with a stick, where the minor child was repeatedly smacked on or around his head, where Father struck the child with a slingshot loaded with acorns, and various additional occurrences that would reasonably induce fear in the child. Subsequent to the culmination of these events, the child testified to fearing his Father[], extending beyond mere apprehension of parental discipline. The court credited testimony which showed the child suffered substantial pain, reasonably causing in him a fear that continues today. [Father] was represented by counsel at a hearing where he provided extensive testimony and was able to cross- examine the parties through counsel. [Father] himself did not contest most of these occurrences, but rather, had a different perspective on them. He denied striking the child with acorns using a slingshot. Notably, no findings were made regarding abuse directed toward [Mother] or the younger female minor child.
____________________________________________
2 Father initially raised 7 issues in his 1925(b) concise statement. Finding there
was “significant overlap or convergence” among the issues presented, the court conducted a consolidated analysis of the issues. Specifically, the court addressed issues 1 through 3 together, as those issues generally challenged the sufficiency of the evidence. Next, the court addressed issues 4 through 6 together, as those issues all related to a parent’s use of corporal punishment. The court addressed issue 7 alone, pertaining to the court’s evaluation of custodial factors, which the court aptly found is not relevant in this PFA case.
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J-A20029-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
NATALLIA LASTOVKA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
ALEXANDER BERILA :
:
Appellant : No. 1109 EDA 2024
Appeal from the Order Entered March 15, 2024 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2023-60772
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.E.: FILED DECEMBER 3, 2024
Alexander Berila (“Father”) appeals from the order entered in the Bucks
County Court of Common Pleas on March 15, 2024, granting a final protection
from abuse (“PFA”)1 order pursuant to a petition brought by Natallia Lastovka
(“Mother”) in favor of the parties’ minor child. After careful review, we affirm
on the basis of the well-written trial court opinion.
Father and Mother were married in March 2004, and divorced in June
2023. The parties share two minor children, A.A.B. (born March 2014) (“the
child”) and A.E.B. (born December 2019) (who is not subject to the instant
PFA order).
____________________________________________
1 Protection from Abuse Act (“PFA Act”), 23 Pa.C.S.A. §§ 6101 et seq.
J-A20029-24
On February 5, 2024, the trial court issued a temporary PFA order in
favor of Mother on behalf of both minor children against Father. The temporary
PFA order was amended on February 6, 2024. At a PFA hearing on February
14, 2024, the matter was continued by agreement of the parties, and the
temporary order was extended to February 28, 2024.
On February 28, 2024, a PFA hearing was held, during which testimony
was taken on the record from the child during an in-camera interview with
counsel and the Judge. The temporary order was extended at the conclusion
of the hearing until March 6, 2024.
Subsequently, three more PFA hearings were held, on March 6, 12, and
15, 2024, during which extensive testimony was taken and video evidence
was submitted. The temporary PFA was extended to each relisted date.
Upon the conclusion of testimony, the trial court entered a final PFA
order for a term of 9 months in favor of the child. The final order did not afford
protection to either Mother or the parties’ other minor child, as the record was
devoid of evidence alleging abuse against either of them. The final order
stipulates Father may have supervised visitation with the child and telephone
contact. The final order superseded a prior custody order between the parties
as it relates to the child.
On March 25, 2024, Father filed a motion for reconsideration of the final
PFA order, alleging Mother had failed to meet her burden of proof. See Motion
J-A20029-24
for Reconsideration, 3/25/24. The trial court denied the motion. This timely
appeal followed.
Father raises the following issues on appeal:
1. Whether the trial court committed an error of law and/or abused its discretion in entering a nine-month final [PFA] order under Section 6102(a)(2) of the Act where the order is not supported by the evidence?
2. Whether the trial court committed an error of law and/or abused its discretion in entering a nine- month final [PFA] order by failing to consider a parent’s right to corporal punishment under the PA Crime Code where a parent can use force to promote the welfare of the child, including preventing or punishment for his misconduct and the force was not designed to cause serious bodily injury.
See Appellant’s Brief, at 8 (unnecessary capitalization omitted).
When an appellant challenges the granting of a PFA petition, as Father
does here, we review the trial court’s legal conclusions to see whether the trial
court committed an error of law or abused its discretion. See K.B. v. Tinsley,
208 A.3d 123, 127 (Pa. Super. 2019).
Father’s first issue challenges the court’s finding by a preponderance of
the evidence that the PFA was warranted in this case. Father argues the
evidence was insufficient to support the PFA order because the child’s
testimony was not credible and Mother’s evidence was not sufficient.
If the appellant’s claim specifically alleges the evidence was not
sufficient to support the PFA order, “we review the evidence in the light most
favorable to the petitioner … [to] determine whether the evidence was
sufficient to sustain the trial court’s conclusion by a preponderance of the
J-A20029-24
evidence.” Karch v. Karch, 885 A.2d 535, 536-37 (Pa. Super. 2005) (citation
omitted). We defer to the credibility determinations of the trial court. See id.
The purpose of the PFA Act “is to protect victims of domestic violence
from those who perpetrate such abuse, with the primary goal [being the
prevention of abuse].” K.B., 208 A.3d at 127 (citation omitted). The PFA Act
defines “abuse,” in relevant part, as the occurrence of one or more acts,
including “[p]lacing another in reasonable fear of imminent serious bodily
injury.” 23 Pa.C.S.A. § 6102(a)(2).
“In the context of a PFA case, the court’s objective is to determine
whether the victim is in reasonable fear of bodily injury. The intent of the
alleged abuser is of no moment.” K.B., 208 A.3d at 128 (citations and internal
quotation marks omitted). Given the PFA’s goal of preventing abuse, “a victim
does not have to wait for physical or sexual abuse to occur for the Act to
apply.” Id. (citation omitted).
Here, the trial court granted the final PFA petition pursuant to Section
6102(a)(2) of the PFA Act. The PFA Act is clear that the court need only find
that the petitioner has established that one of the acts constituting “abuse”
under the Act applies, see 23 Pa. C.S.A. § 6102(a).
The trial court concluded, in accordance with the statute and in
consideration of all testimony presented throughout the PFA hearings, that
“abuse” had been established by a preponderance of the evidence as
J-A20029-24
proscribed by § 6102. Father essentially argues the trial court erred by
reaching this conclusion because the child’s testimony was not credible.
In its May 17, 2024 opinion, the trial court set forth the relevant law,
see Trial Court Opinion, 5/17/24, at 6-7, addressed Father’s sufficiency
challenge,2 and determined that it lacks merit, explaining as follows:
This determination was firmly grounded in the evidentiary record, which encompassed documented instances by [Father] against the child. Specifically, credible testimony from all parties (including [Father]) attested to incidents wherein he struck the child repeatedly with a stick, where the minor child was repeatedly smacked on or around his head, where Father struck the child with a slingshot loaded with acorns, and various additional occurrences that would reasonably induce fear in the child. Subsequent to the culmination of these events, the child testified to fearing his Father[], extending beyond mere apprehension of parental discipline. The court credited testimony which showed the child suffered substantial pain, reasonably causing in him a fear that continues today. [Father] was represented by counsel at a hearing where he provided extensive testimony and was able to cross- examine the parties through counsel. [Father] himself did not contest most of these occurrences, but rather, had a different perspective on them. He denied striking the child with acorns using a slingshot. Notably, no findings were made regarding abuse directed toward [Mother] or the younger female minor child.
____________________________________________
2 Father initially raised 7 issues in his 1925(b) concise statement. Finding there
was “significant overlap or convergence” among the issues presented, the court conducted a consolidated analysis of the issues. Specifically, the court addressed issues 1 through 3 together, as those issues generally challenged the sufficiency of the evidence. Next, the court addressed issues 4 through 6 together, as those issues all related to a parent’s use of corporal punishment. The court addressed issue 7 alone, pertaining to the court’s evaluation of custodial factors, which the court aptly found is not relevant in this PFA case.
On appeal, Father has presented one issue from each of the first two consolidated analysis sections. As such, the courts’ analysis from those sections is still directly on point even without the additional, overlapping, issue statements.
J-A20029-24
An appeal does not serve as a platform to re-litigate the facts of a prior PFA Hearing or to introduce new facts. Nor is it a venue to debate the discretion afforded to the trial court judge in finding testimony credible. Instead, its purpose is to review the cold record to determine if the judge adhered to applicable laws and rules of evidence during the hearing. To satisfy its burden of proof, a movant must specify any errors committed by the judge in the application of law or legal procedures that influenced their decision in the Protection from Abuse hearing.
The Pennsylvania Superior Court will only overturn a judgement if such errors are present and have demonstrably influenced the outcome of the Final Order. Nevertheless, Appellant has failed to provide adequate rationale to justify a review or refute the credibility of any witness. On the contrary, Appellant conceded and substantiated many of Petitioner’s allegations. Instead, he rationalized them as a reasonable form of discipline based on his own opinion.
Considering the evidence presented and all reasonable inferences drawn therefrom, the trial court found that the offenses necessitating protection had been duly established, as supported by the record.
Trial Court Opinion, 5/17/24, at 7-8.
Viewing the evidence in the light most favorable to Mother, and
deferring to the trial court’s explicit credibility findings, we do not find any
error in the court’s finding that there was sufficient evidence to enter a PFA
order under Section 6102(a)(2) of the PFA Act, and Father’s arguments to the
contrary do not persuade us otherwise. We agree with the sound reasoning of
the trial court and affirm on this basis as to Father’s first issue. See id.
In Father’s second issue, he argues the trial erred in failing to consider
a parent's right to corporal punishment under the PA Crime Code.
The Pennsylvania Crime Code permits the justifiable use of force if:
J-A20029-24
(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person and:
(i) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct; and
(ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.
18 Pa.C.S.A. § 509(1).
In rejecting Father’s argument, the trial court reasoned as follows:
In the present case, the court heard testimony that [Father], in his actions, exceeded permissible discipline of his child. Credible testimony was heard in that [Father] would frequently hit or strike his minor child, with acorns, with his hands, or with a stick. Many of which left injury or markings on the child. It is clear from the record and the uncontroverted testimony that [Father] frightened the minor child on more than one occasion in his use of what he views as corporal punishment. The child articulated instances of wrongdoing that were met with disproportional force from [Father], and other times when [Father] used force on the child for no reason at all. This court maintains, as do nearly all Courts on this issue, that “[c]orporal punishment is not the blanket justification that [Father] suggests, and when administered in anger, it may in fact, warrant a PFA.” Corporal punishment is permitted to discipline one’s child “so long as the force used is not designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain, or mental distress or gross degradation.”
…
[Father] substantiated many of the allegations that [Mother]
leveled against him, arguing he did them in a way that was to discipline his child. It is important to note the intent of the alleged abuser is irrelevant to the trial court’s determination. Notwithstanding the aforementioned, it is also imperative to
J-A20029-24
recognize that, “the PFA Act does not require actual physical harm before issuing a PFA order.” Pennsylvania jurisprudence on this topic is unambiguous and dictates that there are several ways to convey a threat of physical harm, therefore, a showing of “reasonable fear’ is sufficient.”
The record belies any outcome advocated for by [Father].
All relevant cases presented (and not presented) support the same principle: discipline is acceptable if it’s a reasonable and measured response to correct an action. [Father]’s “discipline” against the child were either excessive, or not corresponding to anything the child did to warrant discipline, such that the child’s “mental distress” reasonably made him fear his Father’s abuse. The court heard extensive testimony demonstrating [Father] exceeded the bounds of reasonable discipline, and in doing so, caused the child to fear him. Whether it was intentional or not (as noted, [Father]’s intent is largely irrelevant), his unreasonable or excessive actions brought about that fear. A fear the court deemed reasonable based on the testimony provided.
Trial Court Opinion, 5/17/24, at 9-12 (citations omitted).
In its opinion, the trial court set forth the relevant law, addressed
Father’s corporal punishment challenge, and determined that it lacks merit.
Once again, we agree with the sound reasoning of the trial court and affirm
on this basis as to Father’s final issue. See id.
Accordingly, we affirm on the basis of the trial court’s comprehensive
and cogent opinion filed on May 17, 2024.
Order affirmed.
J-A20029-24
Date: 12/3/2024
Circulated
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. 11/21/2024 (PA. R.A.P. 03:34 Page 1925(A)), PM 1
IN IN THE THE COURT COURT OF OF COMMON
COMMON PLEAS
PLEAS OF
OF BUCKS
BUCKS COUNTY,
COUNTY, PENNSYLVANIA
PENNSYLVANIA
FAMILY DIVISION FAMILY DIVISION
NATALLIA NATALLIA LASTOVKA LASTOVKA ( :
Plaintiff/Appellee, Plaintiff/Appellee, Wi No.
No. A06-2023-60772-A__
A06-2023-60772-A
>: 1109 EDA 20241
1109 EDA 202 PN
SETI
V. V. : ;
ALEXANDER ALEXANDER BERILA BERILA Defendant/Appel/ant. Defen dant/Ap p ellant.
� yy .RI8NW | || tails
2023.60772-0086 AA 13658279 Case #:# 2023-60772-0086 Case 13658279 ||
Main Main (Public)
(Public)
Code: Code: 5214
5214 Judge:42
Judge:42
4:25.41 PM
N Rept: Z2809540 5/17/2024 Rcpt 22809540
TRIAL COURT' TRIAL COURT'S 1925(a) OPINIO S 1925(a) OPINION 5/17/2024 4.25:41 PM
Alexander Alexander Berila Berila (“Defendant/Appellant”)
("Defendant/Appellant") now now appeals
appeals following
following the
the Protection
Protection
from from Abuse Abuse (“PFA”)
(PFA") Hearing
Hearing which
which ended
ended on
on March
March 15,
15, 2024,
2024, inin the
the Bucks
Bucks County
County Court
Court
of of Common Common Pleas, Pleas, granting
granting aa Final
Final Protection
Protection Order
Order (“Final
("Final Order”)
Order") for
for aa span
span of
of nine
nine (9)
(9)
months months on on behalf behalf of
of Defendant’s
Defendant's minor
minor son
son expiring
expiring December
December 15,
15, 2024.
2024. AA Motion
Motion for
for
Reconsideration Reconsideration was was denied
denied on
on March
March 26,
26, 2024.
2024. OnApril
On April 12,
12, 2024,
2024, Defendant
Defendant submitted
submitted
Notice Notice of of Appeal Appeal with
with his
his Concise
Concise Statement
Statement of
of Matters
Matters Complained
Complained of,
of, raising
raising various
various
contentions contentions for for appellate
appellate review.
review. Defendant
Defendant now
now advances
advances this
this appeal,
appeal, invoking
invoking Pa.
Pa.
R.A.P. R.A.P. §S 904(f)
904() as
as aa Children’s
Children's Fast
Fast Track
Track Appeal.
Appeal.
Pursuant Pursuant to to Pa.
Pa. R.A.P.
RAP. §§ 1925(a),
1925(a), this
this Trial
Trial Court
Court submits
submits its
its Opinion
Opinion herewith
herewith as
as
aa supplementary supplementary component component to
to the
the record,
record, reiterating
reiterating its
its determinations
determinations and
and the
the
consequent consequent Final Final Order.
Order.
BACKGROUND BACKGROUND
On On February February 5,5, 2024,
2024, the
the Bucks
Bucks County
County Court
Court of
of Common
Common Pleas
Pleas issued
issued aa
Temporary Temporary PFA PFA Order
Order (“Temporary
(''Temporary Order’)
Order") inin favor
favor of
of Petitioner/Plaintiff
Petitioner/Plaintiff and
and on
on behalf
behalf of
of
her her minor minor children children against
against Defendant.
Defendant. This
This Temporary
Temporary Order
Order was
was amended
amended February
February 6,6,
2024. 2024. At At aa PFA PFA Hearing
Hearing on
on February
February 14,
14, 2024,
2024, the
the matter
matter was
was continued
continued by
by agreement
agreement
of of the the parties, parties, and and the
the Temporary
Temporary Order
Order extended
extended to
to February
February 28,
28, 2024.
2024. On
On February
February 28,
28,
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 2
2024, aa PFA 2024, PFA Hearing Hearing began
began where
where testimony
testimony was
was taken
taken on
on the
the record
record from
from the
the minor
minor
child during child during an an out
out of
of court
court examination
examination by
by counsel
counsel and
and the
the Judge,
Judge, conducted
conducted under
under oath,
oath,
and recorded and recorded by by a
a stenographer.
stenographer. The
The Temporary
Temporary Order
Order was
was extended
extended at
at the
the conclusion
conclusion
of testimony of testimony and and hearing
hearing continued
continued until
until March
March 6,
6, 2024.
2024. Subsequently,
Subsequently, the
the PFA
PFA Hearing
Hearing
spanned aa period spanned period of of three
three days,
days, during
during which
which extensive
extensive testimonial
testimonial and
and video
video evidence
evidence
was adduced was adduced on on March
March 6,
6, 12,
12, &
& 15,
15, 2024.
2024. Notably, during Notably, during this
this process,
process, the
the
aforementioned examination aforementioned examination of of the
the child
child was
was conducted
conducted on
on the
the record,
record, and
and testimony
testimony was
was
adduced from adduced from both both litigants.
litigants. ,
Testimony at Testimony at the the PFA
PFA Hearing
Hearing established
established that
that Defendant
Defendant and
and Petitioner
Petitioner were
were
married on married on March March 8,
8, 2004,
2004, and
and separated
separated on
on or
or about
about June
June 27,
27, 2023.
2023. See N.T., See N.T.,
03/12/2024, at 03/12/2024, at 5-6:21-4).
5-6:21-4). The
The parties
parties share
share two
two minor
minor children,
children, A.A.B.
A.A.B. (DOB
(DOB 03/17/2014)
03/17/2014)
(‘the child") ("the child”) and and A.E.B.
A.E.B. (DOB
(DOB 12/03/2019).
12/03/2019). Id. at 6:5-7.
Id. at 6:5-7. The
The parties
parties no
no longer
longer reside
reside
together, and together, and itit is is evident
evident from
from the
the proceedings
proceedings they
they don't
don’t communicate
communicate or
or maintain
maintain an
an
amicable relationship. amicable relationship.
Upon the Upon the conclusion conclusion of
of testimony,
testimony, this
this court,
court, presided
presided over
over by
by the
the Honorable
Honorable
Matthew D. Matthew D. Weintraub, Weintraub, found
found credible
credible evidence
evidence sufficient
sufficient to
to justify
justify the
the issuance
issuance of
of a
a Final
Final
Order for Order for a a term
term of
of nine
nine (9)
(9) months
months to
to protect
protect A.A.B,
A.A.B, aa minor.
minor. The
The Final
Final Order
Order did
did not
not
afford protection afford protection to to either
either the
the Petitioner
Petitioner or
or to
to her
her other
other minor
minor child,
child, as
as the
the record
record was
was
devoid of devoid of evidence evidence alleging
alleging abuse
abuse against
against either
either of
of them.
them. The
The Final
Final Order
Order stipulates
stipulates that
that
Defendant may Defendant may have have supervised
supervised visitation
visitation with
with the
the child
child and
and telephone
telephone contact,
contact, as
as
appropriate. Furthermore, appropriate. Furthermore, the the parties
parties were
were advised
advised to
to begin
begin in
in Court
Court Conciliation
Conciliation and
and
Evaluation Services Evaluation Services ("CCES")
(“CCES”) in
in the
the pursuit
pursuit of
of the
the best
best interests
interests of
of the
the children.
children. This
This
amended the amended the Custody Custody Order
Order that
that was reached by
was reached by agreement
agreement dated
dated May
May 15,
15, 2023.
2023.
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 3
On On March March 25, 25, 2024,
2024, Defendant
Defendant submitted
submitted aa Motion
Motion for
for Reconsideration
Reconsideration of
of this
this Final
Final
Order. Order. This This Motion Motion merely
merely sought
sought to
to re-litigate
re-litigate the
the facts
facts and
and credibility
credibility determinations determinations
previously previously addressed addressed inin the
the PFA
PFA Hearing.
Hearing. Defendant
Defendant alleged
alleged “the
"the Court
Court erred
erred and/or
and/or
abused abused its its discretion discretion inin this
this nine-month
nine-month order
order as
as Respondent
Respondent failed
failed to
to meet
meet her
her burden
burden
of of proof proof inin this this matter,”
matter," contending
contending because
because Petitioner/Appellee Petitioner/Appellee failed failed to
to produce
produce any
any
photographic photographic evidence evidence of
of abuse,
abuse, the
the Final
Final Order
Order must
must be
be vacated.
vacated. Defendant’s Defendant's Motion
Motion
for for Reconsideration, Reconsideration, 3/25/2024.
3/25/2024. Accordingly, Accordingly, this
this Court
Court denied
denied the
the Motion
Motion for
for
Reconsideration Reconsideration on on March
March 26,
26, 2024,
2024, as
as supported
supported by
by the
the credibility
credibility determinations determinations made
made
on on the the record record set set forth
forth below.
below. On
On April
April 12,
12, 2024,
2024, Defendant
Defendant timely
timely initiated
initiated an
an appeal
appeal
before before the the Pennsylvania Pennsylvania Superior
Superior Court
Court inin accordance
accordance with
with Pa.
Pa. R.A.P.
R.A.P. §§ 1925(a)(2),
1925(a)(2),
invoking invoking §§ 905(a)(2)
905(a)(2) to
to now
now hasten
hasten proceedings.
proceedings.
STATEMENT STATEMENT OF
OF ERRORS
ERRORS COMPLAINED
COMPLAINED OF
OF ON
ON APPEAL
APPEAL
InIn his his appeal, appeal, Appellant
Appellant raises
raises numerous
numerous issues:
issues:
1.1. The The trial trial court
court erred
erred and/or
and/or abused
abused its
its discretion
discretion inin entering
entering this
this nine-month
nine-month order
order
as as [Petitioner/Appellee]
[Petitioner/Appellee] failed failed to
to meet
meet her
her burden
burden of
of proof
proof inin this
this matter.
matter. At
At the
the
time time the the Order
Order was
was entered,
entered, the
the Honorable
Honorable Matthew
Matthew D.
D. Weintraub
Weintraub indicated
indicated his
his
finding finding was was based
based on
on 23
23 Pa.
Pa. C.S.
C.S. §§ 6102(a)(2),
6102(a)(2), “placing
"placing another
another inin reasonable
reasonable fear
fear
. of of imminent imminent serious serious bodily
bodily injury.”
injury."
2.2. The The trial trial court
court committed
committed an
an error
error of
of law
law and/or
and/or abuse
abuse of
of discretion
discretion when
when entering
entering
the the March March 15,
15, 2024,
2024, final
final protection
protection from
from abuse
abuse order
order by
by failing
failing to
to consider
consider [that]
[that]
the the PA PA Crime
Crime Code
Code also
also permits
permits corporal
corporal punishment
punishment where
where the
the parent
parent uses
uses force
force
to to promote promote the the welfare
welfare of
of the
the child
child including
including [[ ]] punishment punishment for
for misconduct
misconduct and
and
[that] [that] the the force
force used
used was
was not
not designed
designed to
to cause
cause serious
serious bodily
bodily injury.
injury.
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 4
3.3. The The trial
trial court
court abused
abused its
its discretion
discretion [in]
[in] entering
entering its
its Order
Order contrary
contrary to
to the
the “best
"best
I
interests” interests" standard standard of
of Pennsylvania
Pennsylvania witout
without full
full knowledge
knowledge of
of the
the facts
facts of
of the
the case,
case,
I
necessary necessary to to enter
enter such
such an
an Order.
Order.
4.4. The The trial trial court’s
court's conclusions
conclusions were
were unreasonable
unreasonable [based
[based upon]
upon] the
the evidence
evidence of
of
record record and and [therefore
[therefore its]
its] decision
decision was
was not
not supported
supported by
by the
the evidence.
evidence.
5.5. The The trial trial court
court abused
abused its
its discretion
discretion by
by entering
entering aa final
final order
order when
when Plaintiff
Plaintiff was
was
unable unable to to produce
produce any
any evidence
evidence of
of abuse
abuse other
other than
than the
the child
child being
being afraid
afraid of
of
Father’s Father's corporal corporal punishment.
punishment.
6. 6. The The trial trial court
court committed
committed an
an error
error of
of law
law by
by ruling
ruling that
that an
an isolated
isolated corporal
corporal
punishment punishment incident incident was
was grounds
grounds to
to issue
issue aa Protection of Abuse Protection of Abuse Order Order [sic] for the
[sic]for the
protection protection of of the
the child.
child.
7.7. The The trial trial court
court committed
committed an
an error
error of
of law
law [[ ]] by
by not
not applying
applying the
the evaluation
evaluation of
of 16
16
custody custody factors factors when
when making
making its
its decision.
decision.
DISCUSSION DISCUSSION
InIn accordance accordance with
with Pennsylvania’s
Pennsylvania's Domestic
Domestic Relations
Relations Act
Act (“the
("the PFA
PFA Act”)
Act") §$ 6102,
6102,
an an Appellate Appellate Court Court isis vested
vested with
with the
the authority
authority to
to “review[]
"review[] appeals
appeals from
from PFA
PFA orders
orders for
for
an an abuse abuse of of discretion discretion or
or error
error of
of law.”
law." Diaz
Diaz v.v. Nabiyev,
Nabiyev, 235
235 A.3d
A.3d 1270,
1270, 1273
1273 (Pa.
(Pa. Super.
Super.
Ct. Ct. 2020).
2020). This This review
review process
process necessitates
necessitates aa “review
"review [of]
[of] the
the evidence
evidence inin the
the light
light most
most
favorable favorable to to the
the petitioner
petitioner and,
and, granting
granting her
her the
the benefit
benefit of
of all
all reasonable
reasonable inferences,
inferences,
determine determine whether whether the
the evidence
evidence was
was sufficient
sufficient to
to sustain
sustain the
the Trial
Trial Court’s
Court's conclusion
conclusion by
by
aa preponderance preponderance of of the
the evidence.”
evidence." Hood-O'Hara
Hood-O'Hara v.v. Wills,
Wills, 873
873 A.2d
A.2d 757,
757, 760
760 (Pa.
(Pa. Super.
Super.
Ct. Ct. 2005).
2005). InIn order order to
to successfully
successfully petition
petition for
for aa PFA
PFA order,
order, “the
"the petitioner
petitioner must
must establish
establish
abuse abuse by by aa preponderance preponderance of
of the
the evidence,
evidence, that
that is,
is, ‘the
'the greater
greater weight
weight of
of the
the evidence,
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 5
i.e., i.e., enough enough to to tip
tip aa scale
scale slightly.”
slightly."' E.K.
E.K. v.v. J.R.A.,
J.R.A., 237
237 A.3d
A.3d 509,
509, 519
519 (Pa.
(Pa. Super.
Super. Ct.
Ct.
2020). 2020). Keeping Keeping inin mind
mind that
that “the
"the intent
intent of
of the
the alleged
alleged abuser
abuser isis not
not relevant
relevant to
to our
our
determination.” determination." Buchhalter Buchhalter v.y. Buchhalter, Buchhalter, 959
959 A.2d
A.2d 1260,
1260, 1263
1263 (Pa.
(Pa. Super.
Super. Ct.
Ct. 2008).
2008).
InIn aa PFA PFA proceeding,
proceeding, trial
trial judges
judges are
are granted
granted the
the authority
authority as
as the
the trier
trier of
of fact,
fact,
thereby thereby possessing possessing the the inherent
inherent discretion
discretion to
to make
make credibility
credibility determinations determinations of
of witnesses
witnesses
presented presented before before the
the court.
court. Karch
Karch v.v. Karch,
Karch, 885
885 A.2d
A.2d 535,
535, 537
537 (Pa.
(Pa. Super.
Super. Ct.
Ct. 2005);
2005);
Thompson Thompson v.v. Thompson, Thompson, 963
963 A.2d
A.2d 474,
474, 477
477 (Pa.
(Pa. Super.
Super. Ct.
Ct. 2008).
2008). This
This deferential
deferential
stance stance isis particularly particularly distinct
distinct inin the
the context
context of
of evidence
evidence introduced
introduced during
during hearings
hearings or
or
trials. trials. As As highlighted highlighted inin Soda
Soda v.v. Baird,
Baird, 600
600 A.2d
A.2d 1274
1274 (Pa.
(Pa. Super.
Super. Ct.
Ct. 1991),
1991), “[qJuestions
"[q]uestions
concerning concerning the the admission
admission or
or exclusion
exclusion of
of evidence
evidence are
are within
within the
the sound
sound discretion
discretion of
of the
the
trial trial court court and and may
may be
be reversed only when
reversed-only when a a clear clear error
error of
of discretion
discretion was
was present.”
present."
InIn accordance accordance with
with established
established legal
legal precedent,
precedent, the
the scope
scope of
of evidence
evidence considered
considered
inin cases cases of of this
this nature
nature extends
extends beyond
beyond the
the confines
confines of
of the
the Petition
Petition itself.
itself. Petitioners
Petitioners “will
"will
not not be be rigorously rigorously limited limited to
to the
the specific
specific allegations
allegations of
of abuse
abuse found
found inin the
the Petition."
Petition." Snyder
Snyder
v.v. Snyder, Snyder, 629 629 A.2d
A.2d 977,
977, 981
981 (Pa.
(Pa. Super.
Super. Ct.
Ct. 1993).
1993). Pennsylvania Pennsylvania jurisprudence jurisprudence
recognizes recognizes that that the
the previous
previous history
history of
of the
the defendant
defendant isis relevant,
relevant, emphasizing
emphasizing that
that “past
"past
abusive abusive conduct conduct on on the
the [defendant's]
[defendant's] part
part [is]
[is] aa crucial
crucial inquiry
inquiry necessary
necessary for
for entry
entry of
of aa
proper proper order.”
order." Custer Custer v.v. Cochran,
Cochran, 933
933 A.2d
A.2d 1050,
1050, 1059
1059 (Pa.
(Pa. Super.
Super. Ct.
Ct. 2007),
2007), quoting
quoting
Raker Raker v.v. Raker, Raker, 847
847 A.2d
A.2d 720,
720, 726
726 (Pa.
(Pa. Super.
Super. Ct.
Ct. 2004).
2004).
Moreover, Moreover, itit isis imperative imperative to
to acknowledge
acknowledge that
that the
the burden
burden of
of proof
proof rests
rests upon
upon the
the
petitioner, petitioner, as as affirmed
affirmed inin Hood-O’Hara.
Hood-O'Hara. The
The sufficiency
sufficiency of
of petitioner’s
petitioner's testimony
testimony isis
deemed deemed established established ifif itit isis found found credible
credible by
by the
the trial
trial court.
court. Hood-O’Hara,
Hood-O'Hara, 873
873 A.2d
A.2d at
at
761. 761. This This principle principle reflects
reflects the
the long-standing
long-standing caselaw
caselaw that
that permits
permits the
the trier
trier of
of fact,
fact, in
in
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 6
assessing assessing the the credibility
credibility ofof the
the witnesses
witnesses and
and the
the weight
weight ofof the
the evidence
evidence presented,
presented, “to
"to
believe believe all, all, part part oror none
none ofof the
the evidence.”
evidence." Kaur
Kaur v.v. Singh,
Singh, 259
259 A.3d
A.3d 505,
505, 509
509 (Pa.
(Pa. 2021).
2021 ).
InIn light light ofof the
the significant
significant overlap
overlap oror convergence
convergence apparent
apparent among
among several
several ofof the
the
errors errors challenged challenged on on appeal,
appeal, itit isis judicious judicious toto conduct
conduct aa consolidated
consolidated analysis
analysis ofof these
these
issues. issues.
A. A. The The trial trial court
court erred
erred and/or
and/or abused
abused its
its discretion
discretion inin entering
entering this
this nine-month
nine-month
order order asas [Petitioner/Appellee]
[Petitioner/Appellee] failed failed toto meet
meet her
her burden
burden ofof proof
proof inin this
this
matter. matter. At the time the Order was entered, the Honorable Matthew D.
At the time the Order was entered, the Honorable Matthew D.
Weintraub Weintraub indicated indicated his
his finding
finding was
was based
based on
on 23 23 Pa.
Pa. C.S.
C.S. §§ 6102(a)(2),
6102(a)(2),
“placing "placing another another inin reasonable
reasonable fear
fear of
of imminent
imminent serious
serious bodily
bodily injury.”
injury."
B. B. The The trial trial court’s
court's conclusions
conclusions were
were unreasonable
unreasonable [based
[based upon]
upon] the
the evidence
evidence
of of record record and
and [therefore
[therefore its]
its] decision
decision was
was not
not supported
supported by
by the
the evidence.
evidence.
C. C. The The trial trial court
court abused
abused its
its discretion
discretion [in]
[in] entering
entering its
its Order
Order contrary
contrary to to the
the
“best "best interests”
interests" standard
standard of
of Pennsylvania
Pennsylvania without
without full
full knowledge
knowledge ofof the
the facts
facts
of of the the case, case, necessary
necessary to
to enter
enter such
such an
an Order.
Order.
InIn considering considering the the initial
initial arguments
arguments presented
presented by
by Appellant,
Appellant, itit isis evident evident that
that he
he alleges
alleges
that that the the court court erred erred inin matters
matters of
of both
both credibility
credibility and
and exercise
exercise of
of discretion.
discretion. Defendant
Defendant
contends contends that that the the trial
trial court
court erred
erred inin its
its exercise
exercise of
of discretion
discretion inin its
its determination
determination that
that the
the
actions actions of of Defendant Defendant led
led toto the
the child’s
child's reasonable
reasonable fear
fear of
of imminent
imminent serious
serious bodily
bodily injury.
injury.
As As articulated articulated inin Custer,
Custer, the
the fundamental
fundamental purpose
purpose of
of the
the PFA
PFA Act
Act isis to
to “protect
"protect
victims victims of of domestic domestic violence
violence from
from those
those who
who perpetrate
perpetrate such
such abuse,
abuse, with
with the
the primary
primary goal
goal
of of advancing advancing prevention prevention of
of physical
physical and
and sexual
sexual abuse.”
abuse." Custer,
Custer, 933 A.2d at
933A.2d at 1054.
1054. Under
Under
§$ 6102(a)
6102(a) of of the PFA Act, abuse
the PFAAct, abuse isis unequivocally unequivocally defined
defined as
as encompassing
encompassing at
at least
least one
one
of of five five specified specified actions:
actions:
“Abuse.” "Abuse." TheThe occurrence occurrence of
of one
one or
or more
more of
of the
the following
following acts
acts between
between
family family or or household
household members,
members, sexual
sexual or
or intimate
intimate partners
partners or
or persons
persons who
who
share share biological biological parenthood:
parenthood:
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 7
23 23 Pa.C.S.
Pa.C.S. §§ 6102.
6102.
This This isis not not aa subjective
subjective standard.
standard. 18
18 Pa.C.S.
Pa.C.S. §§ 2301
2301 clearly
clearly defines
defines bodily
bodily injury
injury
as as an an “impairment "impairment of of physica!
physical condition
condition or
or substantial
substantial pain.”
pain."
InIn accordance accordance with
with the
the statute
statute and
and after
after having
having thoroughly
thoroughly considered
considered all
all testimony
testimony
presented presented throughout throughout the
the PFA
PFA Hearing,
Hearing, the
the court
court found
found “abuse”
"abuse" had
had been
been established
established by
by
aa preponderance preponderance of of the
the evidence,
evidence, and
and that
that Appellant
Appellant engaged
engaged inin actions
actions proscribed
proscribed by
by §§
6102. 6102. Raker, Raker, 847 847 A.2d
A.2d at
at 725
725 (“Explaining
("Explaining that
that defendant's
defendant's actual
actual intent
intent with
with regard
regard to
to
his his or or her her actions actions toward
toward PFA
PFA petitioner
petitioner isis ‘of
'of no
no moment’;
moment'; proper
proper inquiry
inquiry isis whether
whether the
the
circumstances circumstances placed placed the
the victim
victim inin reasonable
reasonable fear’).
fear").
This This determination determination was
was firmly
firmly grounded
grounded inin the
the evidentiary
evidentiary record,
record, which
which
encompassed encompassed documented documented instances
instances by
by Appellant
Appellant against
against the
the child.
child. Specifically,
Specifically, credible
credible
testimony testimony from from all
all parties
parties (including
(including Appellant)
Appellant) attested
attested to
to incidents
incidents wherein
wherein he
he struck
struck the
the
child child repeatedly repeatedly with with aa stick,
stick, where
where the
the minor
minor child
child was
was repeatedly
repeatedly smacked
smacked on
on or
or around
around
his his head, head, where where Father
Father struck
struck the
the child
child with
with aa slingshot
slingshot loaded
loaded with
with acorns,
acorns, and
and various
various
additional additional occurrences occurrences that
that would
would reasonably
reasonably induce
induce fear
fear inin the
the child.
child. See
See N.T.,
N.T.,
03/12/2024, 03/12/2024, at at 9:7-17;
9:7-17; 11:13-21;
11:13-21; 13-14:25-24;
13-14:25-24; 15-19:10-3;
15-19:10-3; 47:9-23;
47:9-23; 85:1-13;
85:1-13; 87:13-20;
87:13-20;
88:17-21; 88:17-21; 106:4-15;
106:4-15; 115:6-24;
115:6-24; 117-19:23-24;
117-19:23-24; 121:14-23;
121:14-23; 124-25:11-2;
124-25:11-2; 130:19-25;
130:19-25; 132:7-
132:7-
25. 25. Subsequent Subsequent to to the
the culmination
culmination of
of these
these events,
events, the
the child
child testified
testified to
to fearing
fearing his
his
Father/Appellant, Father/Appellant, extending extending beyond
beyond mere
mere apprehension
apprehension of
of parental
parental discipline.
discipline. The
The court
court
credited credited testimony testimony which which showed
showed the
the child
child suffered
suffered substantial
substantial pain,
pain, reasonably
reasonably causing
causing
inin him him aa fear that continues fear that continues today.
today. See
See N.T.,
N.T., 03/15/2024,
03/15/2024, at
at 22-24:23-20.
22-24:23-20. Defendant
Defendant was
was
represented represented by by counsel
counsel at
at aa hearing
hearing where
where he
he provided
provided extensive
extensive testimony
testimony and
and was
was able
able
to to cross-examine cross-examine the the parties
parties through
through counsel.
counsel. Appellant
Appellant himself
himself did
did not
not contest
contest most
most of
of
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 8
these these occurrences, occurrences, but but rather,
rather, had
had aa different
different perspective
perspective on
on them.
them. He
He denied
denied striking
striking
the the child child with with acorns
acorns using
using aa slingshot.
slingshot. Notably,
Notably, no
no findings
findings were
were made
made regarding
regarding abuse
abuse
directed directed toward toward Petitioner Petitioner oror the
the younger
younger female
female minor
minor child.
child.
An An appeal appeal does does not
not serve
serve as
as a a platform
platform toto re-litigate re-litigate the
the facts
facts ofof aa prior
prior PFA
PFA Hearing
Hearing
oror toto introduce introduce new
new facts.
facts. Nor
Nor isis itit aa venue
venue toto debate
debate the
the discretion
discretion afforded
afforded toto the
the trial
trial
court court judge judge inin finding finding testimony
testimony credible.
credible. Instead,
Instead, its
its purpose
purpose isis toto review
review the
the cold
cold record
record
toto determine determine ifif the the judge
judge adhered
adhered toto applicable
applicable laws
laws and
and rules
rules ofof evidence
evidence during
during the
the
hearing. hearing. To To satisfy satisfy its
its burden
burden ofof proof,
proof, aa movant
movant must
must specify
specify any
any errors
errors committed
committed by
by
the the judge judge inin the the application
application ofof law
law or
or legal
legal procedures
procedures that
that influenced
influenced their
their decision
decision inin the
the
Protection Protection from from Abuse
Abuse hearing.
hearing.
The The Pennsylvania Pennsylvania Superior Superior Court
Court will
will only
only overturn
overturn aa judgement
judgement ifif such
such errors
errors are
are
present present and and have have demonstrably
demonstrably influenced
influenced the
the outcome
outcome of
of the
the Final
Final Order.
Order. Nevertheless,
Nevertheless,
Appellant Appellant has has failed
failed toto provide
provide adequate
adequate rationale
rationale toto justify
justify aa review
review or
or refute
refute the
the
credibility credibility of of any
any witness.
witness. On
On the
the contrary,
contrary, Appellant
Appellant conceded
conceded and
and substantiated
substantiated many
many
of of Petitioner’s Petitioner's allegations.
allegations. Instead, Instead, he
he rationalized
rationalized them
them as
as aa reasonable
reasonable form
form of
of
discipline discipline based based on
on his
his own
own opinion.
opinion.
Considering Considering the the evidence
evidence presented
presented and
and all
all reasonable
reasonable inferences
inferences drawn
drawn
therefrom, therefrom, the the trial
trial court
court found
found that
that the
the offenses
offenses necessitating
necessitating protection
protection had
had been
been duly
duly
established, established, as as supported
supported by
by the
the record.
record.
D. D. The The trial trial court
court committed
committed an an error
error of
of law
law and/or
and/or abuse
abuse ofof discretion
discretion when
when
entering entering the the March
March 15,
15, 2024,
2024, final
final protection
protection from
from abuse
abuse order
order by
by failing
failing to
to
consider consider [that]
[that] the
the PA
PA Crime[s]
Crime[s] Code
Code also
also permits
permits corporal
corporal punishment
punishment
where where the the parent
parent uses
uses force
force to
to promote
promote thethe welfare
welfare of
of the
the child
child including
including [[]]
punishment punishment for for misconduct misconduct andand [that]
[that] the
the force used was
force used not designed was not designed toto
cause serious bodily injury. cause serious bodily injury.
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 9
E. E. The The trial trial court
court committed
committed anan error
error of
of law
law by
by ruling
ruling that
that an
an isolated
isolated corporal
corporal
punishment punishment incident incident was
was grounds
grounds to to issue
issue aa Protection
Protection of
of Abuse
Abuse Order
Order [sic]
[sic}
for for the the protection
protection of
of the
the child.
child.
F. F. The The trial trial court
court abused
abused its
its discretion
discretion by
by entering
entering aa final
final order
order when
when Plaintiff
Plaintiff
was was unable unable toto produce
produce any
any evidence
evidence ofof abuse
abuse other
other than
than the
the child
child being
being
afraid afraid ofof Father’s Father's corporal
corporal punishment.
punishment.
Defendant Defendant next next asserts
asserts that
that the
the court
court failed
failed to
to consider
consider that
that the
the Pennsylvania
Pennsylvania
Crimes Crimes Code Code permits permits corporal
corporal punishment
punishment as
as aa form
form of
of discipline
discipline and
and suggests
suggests that
that his
his
actions actions should should not not be
be regarded
regarded as
as aa form
form of
of abuse.
abuse. The
The Trial
Trial Court
Court considered
considered this
this
defense defense and and rejected rejected itit at
at the
the hearing’s
hearing's conclusion.
conclusion.
23 23 Pa.C.S.
Pa.C.S. §§
$$ 6301-6388
6301-6388 of
of the
the Pennsylvania
Pennsylvania Child
Child Protective
Protective Services
Services Law
Law
(“CPSL’), (CPSL"), which which governs
governs Child
Child Protective
Protective Services
Services Organizations,
Organizations, excludes
excludes from
from its
its
definition definition of of “child
"child abuse”
abuse" the
the use
use of
of reasonable
reasonable force
force inin aa few
few defined
defined situations,
situations, including
including
instances instances of of discipline.
discipline. However,
However, this
this doesn’t
doesn't mean
mean that
that any
any form
form of
of discipline
discipline isis allowed.
allowed.
Instead, Instead, itit must must be
be “the
"the use
use of
of reasonable
reasonable force
force on
on or
or against
against aa child
child by
by the
the child’s
child's own
own
parent parent or or person person responsible
responsible for
for the
the child’s
child's welfare...”
welfare..." and
and must
must only
only be
be “(1)
"(1) the
the use
use of
of
reasonable reasonable force force [which]
[which] constitutes
constitutes incidental,
incidental, minor,
minor, or
or reasonable
reasonable physical
physical contact
contact with
with
the the child child or or other
other actions
actions that
that are
are designed
designed to
to maintain
maintain order
order and
and control.”
control." 23
23 Pa.C.S.
Pa.C.S. §§
6304(c) 6304(c) (emphasis (emphasis added).
added). The
The Crimes
Crimes Code
Code permits
permits similar
similar uses
uses of
of force
force “for
"for the
the
purpose purpose of of safeguarding safeguarding or
or promoting
promoting the
the welfare
welfare of
of the
the minor,
minor, including
including the
the preventing
preventing
or or punishment punishment of of his
his misconduct...”
misconduct..." 18
18 Pa.C.S.
Pa.C.S. §$ 509(1).
509(1).
In In the the present
present case,
case, the
the court
court heard
heard testimony
testimony that
that Defendant,
Defendant, inin his
his actions,
actions,
exceeded exceeded permissible permissible discipline discipline of
of his
his child.
child. Credible
Credible testimony
testimony was
was heard
heard inin that
that
Defendant Defendant would would frequently
frequently hit
hit or
or strike
strike his
his minor
minor child,
child, with
with acorns,
acorns, with
with his
his hands,
hands, or
or
with with aa stick.
stick. See See N.T.,
N.T., 03/12/2024,
03/12/2024, at
at 15-19:14-3.
15-19:14-3. Many
Many of
of which
which left
left injury
injury or
or markings
markings
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 10
onon the the child.
child. ItIt isis clear
clearfrom
from the
the record
record and
and the
the uncontroverted
uncontroverted testimony
testimony that
that Defendant
Defendant
frightened frightened the the minor
minor child
child onon more
more than
than one
one occasion
occasion inin his
his use
use ofof what
what hehe views
views asas
corporal corporal punishment.
punishment. The
The child
child articulated
articulated instances
instances ofof wrongdoing wrongdoing that
that were
were met
met with
with
disproportional disproportional force force from
from Appellant,
Appellant, and
and other
other times
times when
when Appellant
Appellant used
used force
force onon the
the
child child for for nono reason reason atat all.
all. This
This court
court maintains,
maintains, asas do
do nearly
nearly allall Courts
Courts onon this
this issue,
issue, that
that
“IcJorporal "(c]orporal punishment punishment isis not
not the
the blanket
blanketjustification
justification that
that [Defendant]
[Defendant] suggests,
suggests,
and and when when administered administered inin anger, anger, itit may
may inin fact,
fact, warrant
warrant aa PFA.”
PFA." Miller
Miller ex
ex rel.
rel. Walker
Walker
v.v. Walker, Walker, 665 665 A.2d
A.2d 1252
1252 (Pa.
(Pa. Super.
Super. Ct.
Ct. 1995)
1995) (emphasis
(emphasis added).
added). Corporal
Corporal punishment
punishment
isis permitted permitted toto discipline discipline one’s
one's child
child “so
"so long
long asas the
the force
force used
used isis not
not designed
designed oror known
known
toto create create aa substantial substantial risk
risk ofof death,
death, serious
serious bodily
bodily injury,
injury, disfigurement,
disfigurement, extreme
extreme pain,
pain,
oror mental mental distress distress oror gross
gross degradation.”
degradation." Chronister
Chronister v.v. Brenneman, Brenneman, 742
742 A.2d
A.2d 190,
190, 191
191
(Pa. (Pa. Super.
Super. Ct.
Ct. 1999)
1999) (emphasis
(emphasis added).
added).
The The Court Court inin Chronister
Chronister similarly
similarly held,
held, where
where “the
"the trial
trial court
court inin the
the case
case sub
sub judice
judice
made made aa specific specific finding finding that
that J.F.
J.F. was
was terrified
terrified toto return
return toto Mother’s
Mother's home
home and
and the
the
aggregation aggregation ofof Mother’s Mother's acts
acts committed
committed against
against her
her son
son amounted
amounted toto a a finding finding ofof abuse
abuse
under under the PFA Act.” Fialkowski the PFAAct." Fialkowski v.v. Carrelli, Carrelli, No.
No. 995
995 MDA
MDA 2023,
2023, 2024
2024 Pa.
Pa. Super.
Super. Unpub.
Unpub.
LEXIS LEXIS 458, 458, atat *18 18 (Feb.
(Feb. 21,
21, 2024).
2024).
Appellant Appellant substantiated substantiated many
many ofof the
the allegations
allegations that
that Petitioner
Petitioner leveled
leveled against
against him,
him,
arguing arguing he he did did them
them inin aa way
way that
that was
was toto discipline
discipline his
his child.
child. ItIt isis important important toto note
note the
the
intent intent ofof the the alleged
alleged abuser
abuser isis irrelevant
irrelevant toto the
the trial
trial court’s
court's determination.
determination. Bucchalter, Bucchalter, 959
959
A.2d A.2d atat 1263.
1263. Notwithstanding
Notwithstanding the
the aforementioned,
aforementioned, itit isis also also imperative
imperative toto recognize recognize that,
that,
“the PFA Act does "the PFAAct require actual not require
does not physical harm actual physical before issuing harm before order." E.K., PFA order.”
issuing aa PFA E.K,
237 A.3d 237 Pennsylvania jurisprudence 522. Pennsylvania
A.3d atat 522. this topic on this
jurisprudence on and dictates unambiguous and
topic isis unambiguous dictates
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 11
that that there there are are several
several ways
ways to
to convey
convey aa threat
threat of
of physical
physical harm,
harm, therefore,
therefore, aa showing
showing of
of
“reasonable '"reasonable fear’
fear' isis sufficient.”
sufficient." S.W.
S.W. v.v. S.F..
S.F.. 196 A.3d 224,
196A.3d 231 (Pa.
224,231 (Pa. Super.
Super. Ct.
Ct. 2018).
2018).
The The record record belies
belies any
any outcome
outcome advocated
advocated for
for by
by Appellant.
Appellant. All
All relevant
relevant cases
cases
presented presented (and (and not
not presented)
presented) support
support the
the same
same principle:
principle: discipline
discipline isis acceptable acceptableif if it’s
it's
aa reasonable reasonable and and measured
measured response
response to
to correct
correct an
an action.
action. Appellant’s Appellant's “discipline”
"discipline"
against against the the child child were
were either
either excessive,
excessive, or
or not
not corresponding
corresponding to
to anything
anything the
the child
child did
did to
to
warrant warrant discipline, discipline, such such that
that the
the child’s
child's “mental
"mental distress”
distress" reasonably
reasonably made
made him
him fear
fear his
his
Father’s Father's abuse.
abuse. The The court
court heard
heard extensive
extensive testimony
testimony demonstrating
demonstrating Appellant
Appellant exceeded
exceeded
the the bounds bounds of of reasonable
reasonable discipline,
discipline, and
and inin doing
doing so,
so, caused
caused the
the child
child to
to fear
fear him.
him.
Whether Whether itit was was intentional
intentional or
or not
not (as
(as noted,
noted, Appellant's
Appellant's intent
intent isis largely
largely irrelevant),
irrelevant), his
his
unreasonable unreasonable or or excessive
excessive actions
actions brought
brought about
about that
that fear.
fear. AA fear
fear the
the court
court deemed
deemed
reasonable reasonable based based on
on the
the testimony
testimony provided.
provided. See
See N.T.,
N.T., 03/12/2024,
03/12/2024, at
at 24:1-5.
24:1-5.
Following Following the the presentation
presentation of
of evidence,
evidence, the
the court
court opined:
opined:
|I find
find [A.A.B]
[A.A.B] to to be
be credible.
credible. ForFor that
that reason
reason —-- and and | I will will place
place my my
reasons reasons on on the the record
record —- |I am
am going
going to
to enter
enter aa nine-month
nine-month protection
protection from from
abuse abuse order order as as pertains pertains toto [A.A.B]
[A.A.B] only.
only. | I find
find [A.A.B]
[A.A.B] to to bebe inin need need of of
protection protection under under 6102(a)(2)
6102(a)(2) where
where |I do
do believe
believe he he isis reasonably reasonably inin fear fear ofof serious serious bodilybodily injury.
injury. NotNot that
that serious
serious bodily
bodily injury
injury waswas caused,
caused, but but |I dodo
believe believe despite despite the the corporal
corporal punishment
punishment that that the
the lawlaw permits,
permits, thatthat [A.A.B]
[A.A.B]
was was reasonably reasonably inin fear fear because because of of the
the daily
daily inflictions
inflictions potentially
potentially by by his
his
father father toto him.him.
|I do
do find
find [A.A.B]
[A.A.B] toto be
be credible
credible with
with respect
respect to to the
the stick
stick incident,
incident, to to
the the slap slap incident,
incident, andand both
both were
were conceded
conceded by by father.
father. And And | I also
also find
find [A.A.B]
[A.A.B]
to to be be credible
credible with with respect respect to
to the
the slingshot
slingshot incident.
incident.
See See N.T., N.T., 03/15/2024, 03/15/2024, at
at 23-24:17-11.
23-24:17-11.
InIn its its Final
Final Order,
Order, the
the court
court recognized
recognized that
that the
the Appellant's
Appellant's conduct
conduct exceeded
exceeded
acceptable acceptable bounds bounds of
of reasonable
reasonable corporal
corporal punishment,
punishment, thus
thus instilling
instilling aa reasonable
reasonable fear
fear
inin the the child child for for his
his life
life or
or safety.
safety. The
The court
court made
made clear:
clear:
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 12
My My findings findings as as they
they relate
relate toto [A.A.B]
[A.AB] are
are not
not based
based onon any
any ofof the
the evidence
evidence
that | heard for the following facts: Regarding the chickens, the groundhogs, that I heard for the following facts: Regarding the chickens, the groundhogs, lack lack ofof food, food, forced
forced parenting
parenting ofof [A.E.B],
[A.E.B], branding
branding ofof tattoos,
tattoos, the
the ropes,
ropes, oror
the the guns.
guns. And And | I do
do not
not find
find that
that any
any ofof those
those materially
materially contributed
contributed toto the
the
need need forfor protecting protecting [A.A.B]
[A.AB] fromfrom abuse.
abuse.
Id. Id. atat 25:9-18.
25:9-18.
G. G. The The trial trial court
court committed
committed an
an error
error of
of law
law inin its
its decision
decision byby not
not applying
applying the
the
evaluation evaluation of of Pennsylvania’s Pennsylvania's 1616 Custodial Custodial Factors
Factors pursuant
pursuant toto Section
Section
5328(a) 5328(a) ofof the the child
child Custody
Custody Law
Law when
when making
making its its decision.
decision.
Appellant Appellant lastly lastly contends
contends that
that the
the trial
trial court
court failed
failed toto consider
consider Pennsylvania’s
Pennsylvania's 16
16 ©
'--
Custodial Custodial Factors Factors when
when rendering
rendering the
the Final
Final Order.
Order. However,
However, these
these factors
factors are
are intended
intended
for for application application inin custodial custodial proceedings,
proceedings, distinct
distinct from
from the
the Protection
Protection from
from Abuse
Abuse action
action
presently presently on on appeal.
appeal. The
The Trial
Trial Court
Court only
only exercised
exercised jurisdiction
jurisdiction over
over the
the PFA
PFA matter
matter atat
the the time time ofof hearing.
hearing. ItIt isis also
also important
important toto note
note that
that Appellant
Appellant didn’t
didn't raise
raise an
an objection
objection toto
this this during during the the PFA
PFA Hearing,
Hearing, and
and therefore,
therefore, this
this issue
issue isis waived
waived pursuant
pursuant toto Rule
Rule 302(a).
302(a).
Appellant Appellant proffered proffered case
case law
law that
that states,
states, "[albsent
"[a]bsent guidance
guidance from
from our
our Legislature
Legislature or
or
our our Supreme Supreme Court, Court, we
we conclude
conclude that
that aa PFA
PFA court
court need
need not
not conduct
conduct aa best
best interests
interests
custody custody analysis analysis toto award award temporary
temporary custody
custody as
as form
form of
of relief
relief under
under section
section 6108
6108 of
of the
the
Protection Protection from from Abuse
Abuse Act.")
Act.") (emphasis
(emphasis inin original).”
original)." Fialkowski
Fialkowski v.v. Carrelli, Carrelli, No.
No. 995
995 MDA
MDA
2023, 2023, 2024 2024 Pa.
Pa. Super.
Super. Unpub.
Unpub. LEXIS
LEXIS 458,
458, atat *19
19 (Feb.
(Feb. 21,
21, 2024).
2024). While
While indeed
indeed denoted
denoted
aa Final Final Order Order for for Protection
Protection from
from Abuse,
Abuse, itit isis imperative imperative to
to clarify
clarify that
that itit does
does not
not constitute
constitute
aa conclusive conclusive custodial custodial decree.
decree.
Custody Custody wise, wise, aa PFA
PFA order
order isis not
not designed
designed toto impose
impose anything
anything but
but
emergency emergency relief.
relief. To
To understand
understand this,
this, look
look no
no further
further than
than the
the PFA
PFA Act:
Act:
‘Nothing in this paragraph relating to temporary custody as a form of relief 'Nothing in this paragraph relating to temporary custody as a form of relief shall shall bar bar either
either party
party from
from filing
filing aa petition
petition for
for custody
custody under
under Chapter
Chapter 53
53
(relating (relating to custody)
to custody) or under the Pennsylvania or under the Pennsylvania Rules of Civil Procedure.’
Rules of Civil Procedure.'
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 13
Id. Id. atat 458, 458, atat *20.
20. ItIt isis aa temporary temporary award
award ofof physical
physical custody.
custody. “Simply
"Simply stated,
stated, the
the trial
trial
court court isis empowered empowered by
by §§ 6108(a)(4)
6108(a)(4) toto award
award temporary
temporary custody
custody with
with regard
regard toto minor
minor
children children inin granting granting relief
relief under
under the
the PFA.”
PFA." C.H.L.
C.H.L. v.y. W.D.L., 214 A.3d W.D.L,214 A.3d 1272,
1272, 1281
1281 (Pa.
(Pa.
Super. Super. Ct.
Ct. 2019).
2019).
H.H. Children’s Children's fast fast track
track appeal
appeal pursuant
pursuant to
to Pa.
Pa. R.A.P.
R.A.P. §§ 904(f).
904(f).
Defendant Defendant submits submits this
this Notice
Notice ofof Appeal,
Appeal, asserting
asserting itit as
as aa Children’s
Children's Fast
Fast Track
Track
Appeal Appeal pursuant pursuant toto Pa.
Pa. R.A.P.
R.A.P. 904(f).
904(f).
While While this this appeal appeal has
has been
been endorsed
endorsed as
as aa Fast
Fast Track
Track Appeal,
Appeal, this
this court
court duly
duly notes,
notes,
as as explicitly explicitly stated stated on
on the
the record,
record, that
that the
the nine
nine (9)
(9) month
month duration
duration of
of this
this Final
Final Order
Order was
was
deliberate, deliberate, with with the
the understanding
understanding that
that the
the order
order remains
remains subject
subject to
to prospective
prospective
modification modification inin subsequent subsequent proceedings
proceedings associated
associated with
with this
this matter.
matter. Id.
ld. atat 23-24:13-21;
23-24:13-21;
25:9-18. 25:9-18. The The separate separate custody
custody petition
petition was
was docketed
docketed atat the
the time
time of
of the
the PFA
PFA Hearing,
Hearing, and
and
the the PFA PFA Order Order was was crafted
crafted toto “dovetail”
"dovetail" with
with future
future custodial
custodial hearings,
hearings, thereby
thereby forestalling
forestalling
any any avoidable avoidable instability instability for
for the
the children
children involved.
involved. During
During the
the hearing,
hearing, itit was
was expressly
expressly
emphasized emphasized that that the
the parties
parties should
should initiate
initiate CCES
CCES promptly,
promptly, as
as itit would
would be
be aa requisite
requisite ©
component component inin the the subsequent
subsequent custody
custody hearing
hearing scheduled
scheduled for
for aa later
later date.
date. The
The court
court
chose chose this this approach approach toto afford
afford the
the parties
parties an
an advantageous
advantageous head
head start
start inin engaging
engaging with
with
the the program program for for an
an expeditious
expeditious conclusion.
conclusion. Id.
Id. at
at 27:6-19.
27:6-19. The
The court’s
court's nine
nine (9)
(9) month
month
Order Order aligned aligned itit with with the
the anticipated
anticipated resolution
resolution of
of all
all other
other pending
pending matters
matters between
between the
the
parties, parties, i.e.
i.e. CCES CCES and
and custody.
custody. Id.
Id. at
at 24:16-20.
24:16-20.
CONCLUSION CONCLUSION
InIn conclusion, conclusion, the
the Trial
Trial Court’s
Court's Final
Final Order
Order was
was predicated
predicated upon
upon aa thorough
thorough
examination examination of of the
the evidence
evidence presented
presented and
and comprehensive credibility assessments.
comprehensive credibility assessments.
2023-60772-0086 FC- OPINION IN SUPPORT OF ORDER FILED. (PA. R.A.P. 1925(A)), Page 14
Appellant's Appellant's appeal appeal fails
fails to
to demonstrate
demonstrate substantive
substantive grounds
grounds warranting
warranting review,
review, while
while the
the
Trial Trial Court’s Court's determinations determinations are
are substantiated
substantiated within
within the
the record.
record. Accordingly,
Accordingly, Appellant's
Appellant's
appeal appeal must must be be denied,
denied, and
and the
the Final
Final Order
Order of
of the
the court
court affirmed.
affirmed.
BY BY THE
THE COURT,
COURT,
Date: o. 5/h Sh iD uy Lt Q/ATT WEINTRAUB, J.
N. B. It isis yo N.B. It ur re your sponsibil
responsibility
foto no tify all notify all in terested parties interested parties
of of th thee ab ove ac
above tion.
action.
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