W.W.H. v. M. K.

• Court: Superior Court of Pennsylvania
• Decided: September 11, 2014
• Docket: 1117 EDA 2014
• Status: Unpublished

Opinion

J-A24016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

W.W.H. AND ON BEHALF OF E.R.H., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

M.K.,

Appellant No. 1117 EDA 2014

Appeal from the Order Entered March 12, 2014 In the Court of Common Pleas of Bucks County Civil Division at No(s): A06-2013-62212-A-19

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 11, 2014

order entered against her on March 12, 2014, for a period of six months.

of t

On February 21, 2014, Father filed a PFA petition on behalf of Child,

alleging that Mother was exhibiting odd and mentally unstable behaviors

that placed Child in danger of serious bodily injury. That same day, the

court conducted an ex parte hearing and issued a temporary PFA order

against Mother. That order included a custody provision directing that

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A24016-14

Mother could have supervised custody of Child from 10:00 a.m. until 2:00

p.m. on Monday through Friday.

On March 12, 2014, a final PFA hearing was conducted.1 The court

thoroughly detailed the evidence presented at that hearing as follows:

Father testified that Mother believes she is physically ill. Specifically, he testified that Mother believes she has Lyme Disease, as well as sensitivities to many chemicals and airborne pollutants. Father testified that Mother has [been] treated [by] approximately ten (10) physicians over the past two (2) years for these various ailments. Father stated that these physicians - Mexico, New York, New Jersey, and Pennsylvania. N.T. March 12, 2014, pp. 10-11.

Father testified that, prior to her removal from the marital home pursuant to the temporary PFA Order, Mother was ordering pressurized oxygen tanks that were delivered to the

N.T. March 12, 2014, pp. 12-13.

1 The trial court notes that,

[a]t the time of the hearing, both Mother and Father filed Petitions seeking protection for themselves. Prior to hearing

and Father was given exclusive possession of the marital home. Therefore, the sole issue remaining was the Petition filed by -year-old son, E.R.H.

gran

PFA order entered against her for the protection of Child.

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Father asserted that, for safety purposes, the oxygen tanks had to be placed within a well-ventilated area at least thirty (30) feet from any appliances because of its potential flammability. Despite this warning, Father testified that he found Mother in the kitchen of the marital home using the oxygen next to the stove while she was cooking. Father further testified that, while using the oxygen in the kitchen, the stove was on and the parties' child was fifteen (15) feet away. Father testified that despite asking Mother to turn off the stove while using the oxygen, she continued to do so on numerous occasions while the child was present in the home. N.T. March 12, 2014, pp. 14-15.

Father also testified that Mother removed all of the

because Mother believed the prior insulation was making her ill. Father asserted that thereafter Mother starting knocking down

testified that Mother also placed tin foil around the edges of the floor and the household electronic appliances, and duct-taped

being circulated throughout the home. Father testified that there was no evidence of a mold problem in the residence. N.T. March 12, 2014, pp. 16-17.

which PECO installed outside their home, caused radioactivity

purchased a new meter to be placed outside the home despite reassurances from PECO that the "Smart Meter did not cause N.T. March 12, 2014, pp. 18-19.

ious pills, supplements, and medicines that Mother had within the marital home. See Father's Exhibit 2. Father testified that the majority of the pills were easily accessible to their three- year-old son, E.R.H. Father testified that the descriptions on some of the medicines were written in Russian and Mother would

N.T. March 12, 2014, p. 23.

Father asserted that Mother believes their son, E.R.H., is

has stated to Father that if she does not treat their son with

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these medicines the child will never be able to leave the home or go to school. N.T. March 12, 2014, pp. 18-19.

Father testified that their son [is] treat[ed] regularly [by] Dr. Jerry Green, a licensed pediatrician, and according to Father,

N.T. March 12, 2014, p. 24.

Regarding Mother's belief that their son needs to be medicated, Father testif water bottle and given it to their son. Father further testified

on the medicine stat

their son by his regular physician, and their son does not suffer from ulcerative colitis. N.T. March 12, 2014, pp. 28-29.

Father testified that since the Temporary Protection Order was in place, Mother had the opportunity to see E.R.H. from 10:00 a.m. to 2:00 p.m., Monday through Friday. Father asserted that after Mother's visit with the child during the second week after the entry of the Temporary Order, the child arrived home and was behaving erratically. Father testified that the N.T. March 12, 2014, pp. 31-32.

As a result, Father testified that he called the child's nanny, who supervised the visits with Mother. According to Father, the nanny informed him that Mother brought their son

do. N.T. March 12, 2014, p. 33.

Father further testified that Mother purchased a tent and moved from the marital home into the backyard. On occasion, Father testified that their son slept outside in the tent with Mother. Father further testified that he did not object to his ping outside in the tent until Mother moved the tent

According to Father, the tent was approximately 18 inches from the edge of the pool when he found Mother and their son inside the tent. Father testified that their son could not swim, and from that point thereafter he did not allow their son to sleep in the tent with Mother. N.T. March 12, 2014, pp. 35-36.

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Mother also testified at the hearing of March 12, 2014. She testified that in 2006 she was diagnosed with Lyme Disease by a

N.T. March 12, 2014, pp. 54-55.

because she is being treated by Dr. William Rea, an

N.T. March 12, 2014, p. 56.

testified that her treating physician believes these meters have

N.T. March 12, 2014, p. 59.

Mother testified that the various medications shown in Father's Exhibit-2 were prescribed by Dr. William Rea because N.T. March 12, 2014, p. 59.

Mother testified that she administered charcoal to their

Mother testified that she would contact a doctor in Ukraine concerning their child's alleged symptoms. Mother further be poison by

N.T. March 12, 2014, p. 65.

Regarding her habit of sleeping in a tent outside the home,

she felt better outside the house because of her physical sensitivities. N.T. March 12, 2014, p. 68.

understands that she cannot use it near an open flame. Mother further testified that she used oxygen twice a day for approximately eight (8) weeks. N.T. March 12, 2014, p. 70.

Mother admitted that she underwent a psychiatric evaluation at Philmont Guidance Center, and the report from this Center indicated that she did not manifest any signs of

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psychosis. Mother further testified that she would never hurt her son, and he was never in danger when in her care. N.T. March 12, 2014, pp. 72-73.

On cross-examination, Mother testified that during her psychiatric evaluation, she did not inform the physician as to the medications she was taking, however, she asserted that she was

has seen approximately ten (10) doctors regarding her illnesses. Mother also averred that she believes their son suffers from the same symptoms as she does. N.T. March 12, 2014, pp. 76-81.

Regarding the demolition of the sunroom in the marital home, Mother testified that she wanted to add new toxic-free insulation to determine whether it improved her symptoms. N.T. March 12, 2014, pp. 72-73.

After hearing the foregoing testimony, this court rendered its decision, stating the following:

The focus of the hearing and the object of the hearing, as agreed to by the parties, is this three-year-old little boy []. The narrow view is whether this [c]ourt should, or should

Many of things which I've heard today are rational and can be explained. For example, Mother believes that she previously had Lyme Disease, although there is some evidence that perhaps she did not. But accepting that she did, it is not unforeseen that that event would cause her behavior to change, because the Father has said prior to that she was healthy.

travels around the country is not illegal and has brought no harm to the child...[.] The fact that she believes that she needs oxygen is also something we can accept. What is out of the ordinary, what we consider to be very important, are some of the by-products of her belief that she has these illnesses and these sensitivities. For example, the oxygen is delivered to the home. Contrary to common sense, and what she knows to be correct, she leaves [the oxygen] very close to the kitchen stove. We know that that could cause a potentially explosive situation which will tend to place everyone in that home in harm's way.

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She apparently used a meat tenderizer to knock down the walls and replaced the drywall with DragonBoard. We do not believe that she was attempting to save [Father] money by being proactive in home remodeling, especially when that's coupled with her placing shopping bags on the vents of the house.

We find [Father's] testimony to be more credible than [Mother's]. We saw tin foil placed in various locations in the living room. That is aberrational behavior in and of itself. It's not harmful to the child, but it sends a strong

[]Father has testified, and I believe him, that she had a lot of pills and syringes in the house. We saw very close to the stove and on the kitchen counter, what appear to be hundreds of bottles of medicines, some of which may be required to be administered pursuant to a doctor's request or prescription. She leaves these medicines in clear reach of the three-year-old child. They're also, according to Father we credit his testimony left in the refrigerator.

She has told Father and we believe his testimony that the child needs to be medicated, despite evidence to the contrary that he does not need to be medicated. He's under the care of a pediatrician who finds he suffers from none of the ailments from which Mother suffers.

I'm not a psychiatrist. I'm not a psychologist, but one would think that this seems to be a Munchausen by Proxy. Mother has projected her sensitivities onto the child.

It's a great leap to believe that something in his soup dilated his pupils. On the other hand, it's not a great leap when we believe that nothing had occurred to that child until Mother fed him her homemade soup. We know that Mother has a history of adding items such as charcoal, such as other substances, to his food and water.

I am troubled by the fact that the photographs confirm what Father has said; that the Mother has placed a flimsy tent within a few feet of a swimming pool and that Mother did not supervise the child to the degree where she was

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vigilant in making sure that he and the tent didn't fall into the pool.

So if you take all of these particulars in the aggregate, what we find is a woman perhaps not of her own making, but nonetheless, the results are the same who has placed her son in danger of grievous and serious bodily injury.

[Mother] [is] attempting to harm your child, but it seems apparent to this Court that is the result.

So we find that Father has proven his case under the applicable statute. Mother has failed to prove her claim under the same statute.

TCO at 2-8 (quoting N.T., 3/12/14, at 95-100).

order. The

court also directed that the custody order granting Mother supervised visits

with Child from 10:00 a.m. to 2:00 p.m., Monday through Friday, remained

supervision upon Mother. Id. at 101-102.

Mother filed a timely notice of appeal, as well as a timely Rule 1925(b)

concise statement of errors complained of on appeal. Herein, she presents

three issues for our review:

I. Did the [t]rial [c]ourt abuse its discretion/commit an error of law when it entered an ex-parte [t]emporary [PFA] [o]rder?

II. Did the [t]rial [c]ourt abuse[] its discretion/commit an error of law when it entered a [f]inal [PFA] [o]rder?

III. Did the [t]rial [c]ourt abuse its discretion/commit an error of

supervised partial physical custody as part of the [f]inal [PFA] [o]rder?

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Before addressing Mot

review the trial court's legal conclusions for an error of law or abuse of

Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super. 2007)

(quoting Drew v. Drew, 870 A.2d 377, 378 (Pa. Super. 2005) (citation

omitted)).

temporary PFA order, arguing that Father failed to meet his burden of

Drew, 870 A.2d at 378). We need not delve

s

expiration prior to the full hearing and the entry of a [f]inal [PFA] [o]rder on

Ferko-Fox v. Fox, 68

A.3d 917 (Pa. Super. 2013), to argue that this issue is not moot, her

reliance on that decision is misplaced. In Ferko-Fox, this Court was faced

with the question of whether a trial court may issue a temporary PFA order

without conducting an ex parte hearing. Id. at 920. Initially, we noted:

At the outset, we observe that this issue relating to the propriety of the temporary PFA is moot because the trial court entered a final PFA on November 21, 2011. Nevertheless, we find that this case falls within a recognized exception to the mootness doctrine.

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In Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa.Super.2011) (quoting In re D.A., 801 A.2d 614, 616 (Pa.Super.2002) (en banc Court will decide questions that otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial cou i.e., due to the evanescent nature of temporary PFA orders, questions relating to the adequacy of ex parte proceedings are capable of repetition and apt to elude appellate review. Indeed, this Court has employed exceptions to the mootness doctrine to review issues stemming from expired PFA orders. Shandra v. Williams, 819 A.2d 87, 90 (Pa. Super. 2003) (quoting Snyder v. Snyder, 427 Pa.Super. 494, 629 A.2d 977, 980 n. 1 for this Court to confront the pertinent issue that Husband asserts in this appeal, even though our ruling has no legal force or effect upon the order that granted Wife's temporary PFA order.

Id. at 920-921.

Here, unlike in Ferko-Fox, Mother does not present a question

Id. at 902. Instead, she simply challenges the

order in this particular case. As noted in Ferko-Fox, our ruling on this issue

has already expired. Id. at 921. It would also have no applicability to, nor

offer any guidance in, future PFA cases. Consequently, we agree with the

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ppeal that the evidence was not sufficient to support an order of protection from abuse, we review the evidence in the light most favorable to the petitioner and granting her the benefit of all reasonable inference, determine whether the evidence was sufficient to sustain the trial court's conclusion by a

credibility determinations of the trial court as to witnesses who appeared before it.

Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999) (quoting Miller on Behalf of Walker v. Walker, 445 Pa.Super. 537, 665 A.2d 1252, 1255 (1995)). We also note that the preponderance of evidence standard is defined as the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence. Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 968 (2001), cert. denied, 537 U.S. 1187, 123 S.Ct. 1351, 154 L.Ed.2d 1018 (2003).

Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004).

In particular, Mother maintains that the evidence presented at the final

as that term is defined in section 6102 of the Protection From Abuse Act

(PFAA), 23 Pa.C.S. §§ 6101-6122. That section reads:

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, 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.

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(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. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecution commenced under Title 18 (relating to crimes and offenses).

23 Pa.C.S. § 6102(a).

In averring that her conduct did not amount to abuse, Mother first

at 29. In the portion of the transcript cited by Mother, the

attempted to use physical force, but we can certainly read into the clear

tion by any means, and if it continues,

instead, the court explained that while Mother had yet to cause injury to the

health and her treatment of th

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Id. o the

Id. at 30-31.

However, Mother ignores that in determining a PFA order was

Mot

fact that Mother renovated the sunroom using unorthodox methods.

gave it to Child; Mother gave Child a prescription, adult-grade probiotic

medication, despite that there was no diagnosis of any digestive issues by

an oxygen tank near the stove while Child was in close proximity;2 Mother

with Child that was placed withi

despite that Child cannot swim. TCO at 13-14. The evidence that Mother ____________________________________________

2 The fact that Father did not produce a video

such conduct occurred.

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that Father reasonably feared Mother would cause Child serious bodily

injury.3

ency

of the evidence is that the court improperly failed to consider that Mother did

not intend to harm Child. In support of this claim, Mother relies on

Chronister ex. rel. Morrison v. Brenneman, 742 A.2d 190 (Pa. Super.

1999), where this Court examined ____________________________________________

3 Mother also argues that the PFA order should not have been issued odily injured nor was there any indication that the child manifested a reasonable fear of

unreasonable to expect a three-year-old to understand the danger posed to g an oxygen tank next to the stove, adding a prescription probiotic medicine to his food, or by her allowing Child to sleep in a tent close to a pool. In any event, in Ferri v. Ferri, 854 A.2d 600 (Pa. petition seeking protection for his then six-year-

final PFA order, we noted that the six-year- demonstra Id. with some evidence of either an injury or reasonable fear of imminent Id. (emphasis omitted). Here, Father was the party seeking the PFA order on behalf of Child. His testimony was sufficient to prove that he reasonably feared that Child would suffer serious bodily injury if unprotected from Mother. It was not necessary that the three-year-old child also testify that he feared Mother would seriously injure him.

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punishment on his sixteen year-

PFAA. Id.

her. Id. We went on to state that,

contemplation of the Act. But clearly an intent is an important element in the equation.

Id.

Based on the above-emphasized language, Mother contends that the

trial court was required to assess her innocent intent in determining if she

explicitly acknowledged that Mother

to harm Child. N.T. PFA Hearing at 99. Thus, the record demonstrates that

on her conduct, Father reasonably feared imminent serious bodily injury

would be inflicted by Mother upon Child. Therefore, we see no conflict with

this case and our decision in Chronister.

provided sufficient evidence for the trial court to conclude, by a

behavior placed Child in danger of imminent serious bodily injury.

the entry of a final PFA order is meritless.

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imposed by the [t]rial [c]ourt was an abuse of discretion because the

requirements imposed by the [t]rial [c]ourt made it difficult for Mother to

actually exercise her custo

supervise her visits with Child, and that Mother bear the costs of that

which

Id. at

Id. Thus, she claims that the

court abused its discretion in drafting the custody provision of the PFA order

and, as such, the order should be reversed.

Our review of the record confirms that Mother did not raise these

claims during the final PFA hearing or in her Rule 1925(b) statement. First,

at the PFA hearing, Mother did not object when the trial court directed that

she assume the costs of Kids First supervision. N.T. at 102. She also

offered no argument regarding the cost of that supervision and how it would

limit her ability to spend time with Child. While Mother did request that the

Id. are waived.

See

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Additionally, Mother failed to present this claim with sufficient

specificity in her Rule 1925(b) statement to preserve it for our review.

child to four hours per day of supervised time, weekly on Monday through

Friday

did not mention the financial burden of her having to pay for supervision by

Kids First, nor did she contend that it reduced her ability to spend time with

Child. Because Mother did not specifically assert these claims, the trial court

final issue is waived on this basis, as well. See Pa.R.A.P. 1925(b)(4)(ii)

error that the

appellant intends to challenge with sufficient detail to identify all pertinent

Statement and/or not raised in accordance with the provisions of this

paragraph (

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/2014

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