Opinion
J. S01014/14 No. 746 WDA 2013
02-26-2014
B.M. ON BEHALF OF L.K. v. C.T.K., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered April 2, 2013,
in the Court of Common Pleas of Allegheny County
Civil Division at No. FD-07-07064
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Appellant, C.T.K. ("Father"), appeals from the April 2, 2013 order granting appellee, B.M.'s ("Mother") request on behalf of L.K. ("Child") for a final protection order filed pursuant to the Protection From Abuse Act ("PFA Act"), 23 Pa.C.S.A. § 6101 et seq. After careful review, we affirm.
The parties were married on February 14, 2005, and divorced in August of 2007. Child was born in June of 2005. Father resides in Westmoreland County, and Mother resides in Allegheny County. After their divorce, both parties sought custody of Child. By order of the Court of Common Pleas of Allegheny County, Mother was awarded primary physical custody with Father having custody on Wednesdays and every other weekend, and both parties shared legal custody.
On April 12, 2012, Mother filed a PFA petition in Westmoreland County alleging that Father sexually abused Child in March. A hearing occurred on April 25, 2012, before the Honorable Chris Scherer. At the conclusion of the hearing, the trial court denied the petition finding the evidence insufficient.
On September 18, 2012, Mother filed a PFA petition in Allegheny County based on reports by Child that Father had inappropriately touched her during an overnight visit on August 22, 2012. A temporary PFA order was entered on September 18, 2012, prohibiting Father from having any contact with Child pending a final PFA hearing that was scheduled for September 25, 2012. On September 25th, the parties appeared and consented to a continuance to October 9, 2012, to await a report by Westmoreland County Children's Bureau ("WCCB") involving the March 2012 allegation of sexual abuse. On October 9th, the parties again consented to a continuance to November 2, 2012, to await the completed investigation by the WCCB. Once again, on November 2nd, the parties consented to a continuance and agreed to a final hearing date of November 30, 2012; however, a supervised visitation order was entered on November 2nd.
On November 30th, the final hearing proceeded. Testimony was taken on that date and on March 5, 2013. Mother presented Dr. Susan Nathan, the supervising psychologist at A Child's Place at Mercy, who conducted a forensic interview of Child, and testified Child made "a detailed disclosure and demonstration of how her dad allegedly touched her vaginal area under her clothing with his thumb moving it in small circles as he did so." (Notes of testimony, 11/30/12 at 10.)
On March 5, 2013, Father presented three witnesses: Janice Goldsborough, a former girlfriend; Robert White, a friend; and Catherine White, a caseworker from the WCCB. (Notes of testimony, 3/5/13 at 20, 44, 68.) Ms. Goldsborough testified regarding one weekend she spent at Father's house while Child was there. She stated that nothing inappropriate happened. ( Id. at 22, 27.) Mr. White testified he stayed two or three nights at Father's house while Child was there. ( Id. at 44, 50.) He testified he saw nothing inappropriate. ( Id. at 49.) Caseworker White testified she investigated a prior incident of alleged sexual abuse of Child in Westmoreland County in March of 2012. ( Id. at 68.) Ms. White testified she believed Child was "coached," but ultimately concluded the report was unfounded because Child was not sufficiently consistent or credible at that time to indicate the report. ( Id. at 70-71.) Father testified he did not molest Child. ( Id. at 90.) Child was interviewed in chambers on January 31, 2013.
On April 2, 2013, the trial court found that Mother established by a preponderance of the evidence that abuse had occurred and granted her petition. Father filed a timely appeal. On May 14, 2013, the trial court issued its Rule 1925(b) order directing Father to file his concise statement within 21 days. On June 4, 2013, Father, acting pro se , filed a concise statement raising 11 issues. In response, the trial court authored a Rule 1925(a) opinion addressing the matters complained of on appeal.
Father is now represented by counsel. Father's counsel has chosen to pursue five of Father's alleged claims of error. Those issues are as follows:
7.) The Courts [sic] did not dismiss the PFA after Westmoreland County Children's Bureau Caseworker Catherine White gave testimony that the child was "Coached" in [the] prior PFA allegations and hearing in Westmoreland County that were dismiss[ed] on April 25, 2012. No charges were file[d] by the Westmoreland D.A.['s] office.Father's brief at 4-5.
8.) The court did not give [Father] sufficient time to defend and present a complete defense. All of [Father's] witness[es] had to be sanctioned and authorized therefore impeding [Father's] defense.
9.) The court gave [Father] (4) hours to build a defense on March 5, 2013 then hand[ed] the judgment down on April 2, 2013 postmarked April 10, 2013.
10.) [Mother] had over (6) months to bring forth the burden of proof. [Father] was limited to (4) hours on March 5, 2013.
11.) The court [did] not consider prior, dismissed PFA's along with numerous unfounded allegations by the investigating CPS Westmoreland County Children's Bureau.
"In the context of a PFA order, we review the trial court's legal conclusions for an error of law or abuse of discretion." Ferri v. Ferri , 854 A.2d 600, 602 (Pa.Super. 2004). We also note that the burden is on the petitioner to prove the allegations of abuse by a preponderance of the evidence. Fonner v. Fonner , 731 A.2d 160, 161 (Pa.Super. 1999). Additionally, "[t]his court defers to the credibility determinations of the trial court as to witnesses who appeared before it." Id.
The trial court addressed Father's issues 7 through 11 as follows:
The seventh matter complains that the Court should have dismissed this PFA based on the testimony of Catherine White that a prior allegation of abuse had been unfounded. Catherine White had no involvement in this allegation of abuse which was determined to be founded.Trial court opinion, 8/1/13 at 6-7.
Matters eight, nine and ten were never raised by Father at any of the hearings and are waived.
Matter eleven is directed to the Court's alleged failure to consider that prior PFAs were dismissed or unfounded. There was considerable argument and testimony regarding prior PFAs and the Court was made aware and considered that a prior PFA had been determined to be unfounded.
After reviewing the record in this matter, we find that Father's issues have been properly disposed of by the trial court in its opinion as set forth above. However, before concluding this matter, we note the following. In his brief, Father consolidates his five issues into two topics; first, that the trial court failed to comply with the PFA Act by failing to conduct a "final hearing" within 10 days from the filing of the PFA petition, and second, that the trial court improperly declined to apply the doctrine of collateral estoppel.
As already set out, the parties consented to several continuances for good cause. Father cannot now complain the court failed to hold a final hearing within ten days. See Thompson v. Thompson , 963 A.2d 474 (Pa.Super. 2008) (one must object to errors, improprieties, or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter). More importantly, this particular argument was not presented in Father's Rule 1925(b) statement and is waived. See Dietrich v. Dietrich , 923 A.2d 461, 463 (Pa.Super. 2007) (stating that, when an appellant filed a Rule 1925(b) statement, any issues not raised in that statement are waived on appeal).
Next, Father's Rule 1925(b) statement does not raise the defense of collateral estoppel; therefore, any attempt to raise that claim now is waived. Dietrich, supra . We note that in responding to error 11, relating to the prior dismissed PFA, the trial court stated it had considered the prior dismissal but it did not mitigate against granting the current PFA petition based on the most recent allegation. Even if the issue of collateral estoppel had been preserved, it is inapplicable to the present PFA which is based on an incident of abuse that occurred in August of 2012.
Accordingly, we affirm. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary