Opinion
1200 MDA 2023 J-S45034-23
01-17-2024
ERICA MARIE LOOSE v. ERIC SCHONEWOLF Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered July 26, 2023 In the Court of Common Pleas of Berks County Civil Division at No(s): 21-16986
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Eric Schonewolf ("Father") appeals from the order entered in the Court of Common Pleas of Berks County denying his petition to modify the court's three-year order issued pursuant to the Protection from Abuse ("PFA") Act, 23 Pa.C.S.A. § 6101-6122. In response, Erica Marie Loose ("Mother") presents a counterclaim asking this Court to direct that Father pay for her reasonable appellate counsel fees. After careful consideration, we affirm the order, grant Mother's request for appellate counsel fees, and remand to allow the trial court to determine the reasonable amount of such fees.
The trial court provides an apt summary of the relevant facts and procedural history of record in the case sub judice:
This case presents the third attempt by [Father] to alter the custody provisions of a protection from abuse ["PFA"] order
obtained by [Appellee Mother] on behalf of her daughter, [Child]. The protection from abuse order was issued as a result of Father's sexual abuse of [Child.]
In each attempt to alter the custody provisions of the protection from abuse order, Father's goal has been the same. Specifically, Father [asks the trial court] to order reunification therapy with [Child] and supervised physical custody. [It is the trial court's determination that if] it granted Father's request, the result would be the issuance of a court order forcing a very young, abused child to begin reuniting with her abuser.
[Child] is the natural child of Father and Mother, who had been husband and wife. N.T. 1/6/22, p.4. [Child] was born in . . . 2016 and was five (5) years old at the [time Wife's petition for a PFA order against Husband] was granted. N.T., 1/6/22, at 5.
The last time Child had been with Father was at a dance recital. N.T., 5/4/22, at 67. When Child saw Father, she was visibly upset, saying she did not want to go with him. According to Mother, the desire of Child to not go with Father was a common occurrence. N.T. at 65.
Prior to any of the disclosures that are salient to this case, Mother consulted with a licensed therapist because of outbursts by Child, her behavior, and [her] being [inconsolable despite Mother's attempts to comfort her]. N.T. at 116-17. Due to these concerns about Child's behavior, Mother made an appointment for Child to meet with a licensed therapist. Kailey Esterly, the licensed
therapist, [testified that] the concerns at the time of intake [were Child's] emotional outbursts and [difficulties with] regulating emotions, . . . calming down on her own, and verbalizing her feelings. N.T. at 106. Based upon disclosures made by Child, Ms. Esterly, being a mandatory reporter, made a report to children protective services.
Joan Quinn is employed by the Division of Child Protection Permanency in New Jersey. In her position, she had received a report of an allegation of sexual abuse against Father regarding Child. At the time, Father lived in the State of New Jersey. As result of the report, a safety plan was put in place that provided
Father was not permitted to be alone with the Minor Child. N.T., 1/6/22, at 19-22.
Mother was notified by Berks County Children and Youth Services that a report had been filed on behalf of [Child]. N.T. at 5. Mother subsequently learned that a safety plan for [Child] had been put in place to protect [Child].
On Monday, December 20, 2021, Mother was requested to bring Child to New Jersey and meet with Ms. Quinn together with a detective from the Camden County Prosecutor's Office. N.T. at 6. At all times, the Minor Child's allegations of sexual abuse were consistent with all who interviewed her. N.T. at 25.
The last time Child was with Father prior to Mother receiving the call to bring Child to New Jersey was on Sunday, December 19, 2021. According to Mother, when E.S. returned home from being with Father, "she was extremely tired, she was crying, which happens every time she comes home. She's extremely hungry, and she just is in a a not-so-great mood when she comes back from visitation with her father." N.T. at 12.
The allegations against Father included that while bathing Child, Mother was putting soap on a loofah and was getting ready to hand it to Child. At that time, Child said, "Mommy, don't put it in me like daddy does." Child proceeded to get very upset. N.T., 5/4/22, at 115. Father admitted giving Child baths when she was in his custody. N.T. at 54.
A few days later, Child asked Mother, "Did daddy do those things to you, mommy?" According to Mother, Child was asking her whether Father did similar things to Mother and Child told mother that Father was touching her vagina inappropriately. Child also told Mother that she does not want to see Father again. N.T. at 116.
On one occasion, while Mother and Child were playing Monopoly, without being prompted, Child started talking about Father going into her room and touching her vagina. N.T. at 117. Child has also told Mother that she is afraid of Father. N.T. at 118. Child has said she is scared to go back to Father's out of fear of a recurrence. N.T. at 119.
In the time leading up to December of 2021, Child began asking Mother to bathe her prior to going to see Father on weekends. [Specifically,] [o]n the Fridays before Father's weekend, Child would ask Mother to give her a bath before she went to New Jersey to see Father. N.T. at 67.
Ms. Esterly, the licensed therapist who has been treating Child, confirmed that Child does not like talking about her father. When given the opportunity to draw family pictures, Child omits Father from the pictures. Based on her conversation with Child, [Ms. Esterly] concluded that Child does not want to see Father. Further, Ms. Esterly was not under the impression that Mother was coaching Child or telling her what to say. Ms. Esterly described the words used by Child as appropriate words for a child. N.T. at 95-97.
During her sessions with Ms. Esterly, Child told Ms. Esterly that her father had touched her private parts. Child was unable to use words, but she pointed at her vagina. N.T. at 99. Child also said Father comes into her room, gets in the bed with her and touches her. Child said she doesn't like it. N.T. at 100. Child also said that Father touched her privates while in the bath and pointed down. N.T. at 101.
Rachel Palm, a kindergarten teacher in the Wilson School District where Child attends school, described Child as a child who was "excited, bubbly, running into the classroom . . . ." N.T. at 121. She did notice, however, that there were times when Child's demeanor changed. Specifically, she noticed that prior to some weekends and after some weekends, Child was not excited about sharing what she would be doing or had done that weekend. Specifically, Ms. Palm said,
And some weekends, [Child] would be really excited to share about what she was doing and then other weekends, she would not be too excited to share about what she was doing. And then the same would happen on Mondays . . . then it got more and more prevalent as it got later into the school year, probably around October-ish time is when I really noticed that she would start talking on Monday morning about how she didn't like what she did not the weekend. And if you would ask her questions, she wouldn't answer anything else. Or on Fridays that she was going
somewhere, she wouldn't want to talk about it at all, and she would just kind of stop talking and move on. That is what I noticed.
N.T. at 121-22. A few weeks prior to the hearing, Ms. Palm talked [to Child] about giving a paper to her mom or dad and Child said she did not have a dad. N.T. at 122.
Ms. Palm felt the changes she described were significant enough to bring up at parent teacher conferences. N.T. at 122. Upon looking at Child's writing journal, Ms. Palm found that this behavior by Child occurred when Child was spending time with Father on the weekends. N.T. at 123. Prior to December 19, 2021, Child was spending time with her father every other weekend. N.T. at 44. After Child stopped seeing Father, Ms. Palm noticed that Child's demeanor returned to that of the bubbly child she had seen at the beginning of the school year. N.T. At 126-28.
At the hearing in July of 2023, Father again attempted to modify the custody provisions of the PFA issued in May of 2022. At this hearing, the only witness called to testify was Timothy Ring, Ed.D.[, a licensed psychologist]. Dr. Ring's testimony was limited to his psychological testing of Father and the conclusions he reached.
Dr. Ring testified that Father was referred to him by [Father's] counsel for a psychological evaluation. N.T., 7/24/23, at 10. As a result of his testing, [Dr. Ring] was of the opinion that Father did not have the psychological make up to commit the acts he was accused of committing. Dr. Ring's opinion, however, was based exclusively upon his testing of Father and information he received directly from Father. Dr. Ring considered no other information.
During Dr. Ring's testimony, he conceded he had not reviewed any portions of the record from the hearings in which [the trial court] granted the PFA. Further, he admitted that he did not interview Mother or [Child], N.T. at 10, and he did not ask to do so.
As a result of detailed cross-examination, Dr. Ring admitted that he did not perform numerous tests better designed to identify sexual offenders than the tests that he did perform. He
acknowledged that if he had performed a sex offender evaluation, he would have had access to other individuals in the family configuration in order to make the evaluation more complete. N.T. at 36. Explaining his choice to perform a psychological
evaluation as opposed to choosing to do a sexual offender evaluation in a case where there was a finding of a sexual offense, Dr. Ring testified he performed the test he was asked to perform. N.T. at 36.
Following Dr. Ring's testimony, the Father presented no further testimony. Specifically, no evidence was presented as to what reunification therapy is, what Father was proposing would be involved, and what steps would be put in place to ensure the Minor Child's safety.
After all the evidence was presented, the [trial court] denied [Father's] 2023 Petition to Modify PFA.TCO, 9/12/23, at 1, 6-12. This timely appeal followed.
Father's Statement of Questions Involved is as follows:
A. The lower court erred as a matter of law, abused its discretion, and otherwise acted contrary to the purpose and spirit of the Protection from Abuse Act in denying Appellant/Father's Petition to Modify the Protection from Abuse Order where:
i. the petition sought reunification therapy/supervised custody, the result of which would not counteract the purpose of the PFA nor subject the minor child to any risk of abuse; and/or
ii. the petition sought reunification therapy/supervised custody based on new evidence presented in the form of testimony by Timothy Ring, Ed.D. which was based on his psychological evaluation of Appellant/Father, and established that Appellant/Father does not possess the psychopathology in his personality indicative of a current or ongoing risk to the minor child, therefore the requested modification would not counteract the purpose of the PFA nor subject the minor child to any risk of abuse.Brief of Appellant at 4.
In a PFA action, this Court reviews the trial court's legal conclusions for an error of law or an abuse of discretion. Custer v. Cochran, 933 A.2d 1050, 1053-54 (Pa.Super. 2007) (en banc). A trial court does not abuse its discretion for a mere error of judgment; rather, an abuse of discretion occurs "where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias, or ill will." Mescanti v. Mescanti, 956 A.2d 1017, 1019 (Pa. Super. 2008) (citation omitted). The purpose of the PFA Act, furthermore, is to protect victims of domestic violence from those who perpetrate such abuse, with the primary goal of advance prevention of physical and sexual abuse. K.B. v. Tinsley, 208 A.3d 123, 127 (Pa.Super. 2019) (internal citations and quotation marks omitted); see also C.H.L. v. W.D.L., 214 A.3d 1272, 1276 (Pa. Super. 2019); Custer, supra.
When this Court conducts appellate review of a PFA order, we defer to the trial court's determinations regarding the credibility of the witnesses, because the trial court, as fact-finder, observes the witnesses first-hand. See C.H.L. 214 A.3d at 1276-77. The weight accorded to such testimony is also within the exclusive province of the trial court, as fact-finder. Id. at 1276. Moreover, when reviewing an order granting PFA relief, this Court must view the evidence in the light most favorable to the petitioner, granting that party the benefit of all reasonable inferences. Id. at 1276-77.
Father's two issues coalesce in the argument section of his brief to contend that the trial court abused its discretion when it failed to adopt Dr. Ring's opinion in favor of modifying the PFA order to allow supervised visitation and reunification therapy between Father and Child. Initially, we find Father has mischaracterized Dr. Ring's opinion to the extent his argument states, "Dr. Ring's ultimate conclusion was that Father posed no threat to the minor child and that supervised visitation and reunification therapy was advised." Brief of Appellant at 16. In fact, Dr. Ring refrained from opining whether Father posed a risk to Child:
COUNSEL FOR FATHER: Is [Father] a threat to his daughter?
DR. RING: Counsel, that's a tough question because, again, I haven't talked to the child's mother. I haven't talked to the child. I asked him some questions about his relationship with his daughter. Those are really important questions because it's an important part of his life, and he reported a good relationship.
COUNSEL FOR MOTHER: The sexual history that you took was, also, all self-reporting by [Father], no collateral information to back up any of that?
Dr. RING: That's correct.
Q: Okay. You're not offering an opinion today as far as any risk that may befall the child in this case if reunification occurs, right?
DR. RING: Correct.
Q: Because you've never met the child?
A: That's correct.N.T., 7/24/23, at 21, 35.
The doctor's reticence to render an opinion regarding whether Father posed a threat to Child stemmed from the inherent limitations to the psychopathology evaluation he performed, as Father was the only person he interviewed and served as the primary source of information available to him. N.T. at 10-11, 21, 35-39., In contrast, the trial court considered not only Father's testimony and history but also the testimonies of other witnesses- Mother, Child's therapist, Child's schoolteacher, and Dr. Ring-and conducted an in camera, in-person hearing with Child prior to making the determination at issue.
Dr. Ring cautioned in his evaluation that "possible under-reporting is indicated by the test taker [(Father)] presenting himself in a positive light, possibly denying minor faults and shortcomings." Similarly, his evaluation stated elsewhere that Father's "Treatment Rejection Scale was elevated, suggesting that he does not easily admit to problems or faults within himself and that he may be initially resistant to treatment." Psychological Evaluation, 2/28/23, at 3, 4; N.T. at 31.
Notably, when asked by the trial court why he did not reference notes of testimony from the PFA hearing, Dr. Ring explained that Father and his counsel did not supply them to him despite his request for "as much collateral information as possible" to assist him in his evaluation. N.T. at 38-39.
As this Court noted in our decision Loose v. Schonewolf, (unpublished memorandum) 290 A.3d 652 (Pa. Super. filed December 2, 2022), the trial court conveyed that during the in camera hearing with Child, Child clearly stated that she does not want to see him. Id. at *4.
While Dr. Ring did opine to a reasonable degree of professional certainty that Father and Daughter should "be reunified under therapeutically supervised circumstances", N.T., 7/24/23, at 23, his concession that he could not say what effects a reunification between Father and Child may have on Child was significant. Appellant argues that "supervised visits" would not undermine the purpose of the PFA order presumably because third party supervision would keep Child safe and free from the risk of physical harm. His argument, however, ignores the psychological and emotional trauma Child has suffered because of the sexual abuse that the court found Appellant committed against her.
Specifically, the evidentiary record shows that during the trial court's May 4, 2022, in camera interview of Child, it witnessed the distress the nearly six-year-old Child exhibited at the mere reference of her Father. "With regard to her father", the trial court observed, "she clearly stated that she does not want to see him. . . . I asked her if she wanted to see him again, and she said, "no." During the court's interview of Child, she was pained to speak of her time spent with Father, and she eventually withdrew altogether from the interview, turning her head away and downward while stating that she no longer wished to talk about Father. N.T., 5/4/22, at 114. Furthermore, as noted, supra, both Mother and Child's licensed therapist recounted Child's distress when she was asked about Father.
The trauma at issue in the underlying PFA action thus concerned not only the sexual abuse that the trial court found had occurred based on the evidence presented to it but also Child's prospective physical and emotional well-being, both of which, the trial court determined, were implicated by Father's actions. The three-year term of the PFA order reflected the court's concerns in this regard by giving Child ample time to recover in all respects.
Furthermore, although the licensed psychologist prepared a written report in which he opined to a reasonable degree of psychological certainty that Father did not exhibit a diagnosable psychological condition at the time of his psychological evaluation, he cautioned that his report is based on limited information and that Appellant exhibits a concerning lack of self-awareness, an inflated level of confidence and lack of objectivity about his own limitations and faults, and continues to drink socially despite his history of alcohol-related behavioral problems.
In this regard, Dr. Ring summarized his findings in the "Conclusions and Recommendations" section of his report:
With regard to the specific charges and allegations of [Father] sexually abusing his daughter, this clinician cannot assert a definitive opinion as to whether or not this abuse has occurred given the limited amount of information provided to this clinician concerning these circumstances. However, the results of this evaluation support the notion that [Father] does not have substantial levels of psychopathology in his personality that might predispose him to act out in aberrant ways.Psychological Evaluation, 2/28/23, at 5.
In viewing this evidence in a light most favorable to Mother as the original petitioner, we find it was within the trial court's sound discretion to conclude that Dr. Ring's report and testimony failed to present grounds upon which to modify the PFA order in effect. In reaching this conclusion, we rely on the trial court's cogent opinion of September 12, 2023, in support of its decision to deny Father's petition in favor of preserving the terms of the standing PFA order.
Finally, we address Wife's counterclaim asking this Court to direct that Father pay reasonable appellate counsel fees pursuant to Pa.R.A.P. 2744 "because his appeal is frivolous and because his conduct in filing a third appellate action is obdurate and vexatious." Brief for Appellee, at 58. This Court has the authority to award counsel fees under Rule 2744 if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate, or vexatious.
Rule 2744 provides:
In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per annum in addition to legal interest, if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule.Pa.R.A.P. 2744.
By the rule's plain language, fees awarded on appeal pertain only to conduct on appeal. The rule does not provide for the awarding of fees for conduct that occurred in the lower court from which the appeal is taken. See Pennsylvania Turnpike Commission v. Electronic Transaction Consultants Corporation, 230 A.3d 548, 562 (Pa. Cmwlth. 2020) (under Rule 2744, "an appellate court has no power to award counsel fees for matters pertaining to the conduct in the proceedings below but may only award them for frivolous appeals or dilatory, obdurate, or vexatious conduct of a party on appeal") (emphasis in original; citations omitted). See Grady v. Nelson, 2115 EDA 2021 (Pa. Super. filed November 20, 2023) (unpublished memorandum).
Decisions of the Commonwealth Court are not binding upon this Court but may serve as persuasive authority. See Pa.R.A.P. 126(b)(1)-(2) (unreported memorandum opinions of the Commonwealth Court filed after January 15, 2008, may be cited as persuasive authority); Commonwealth v. Bowers, 185 A.3d 358, 362 n.4 (Pa. Super. 2018) (Commonwealth Court decisions are not binding on this Court but may be used as persuasive authority).
See Pa.R.A.P. 126(b) (non-precedential decisions filed after May 1, 2019, may be cited for persuasive value); see also Operating Procedure 65.37 (same).
After careful review of the record, we conclude that Father's appeal from the trial court's order of July 26, 2023, is frivolous. In reaching this conclusion, we deem persuasive the trial court's observations made in both its order and subsequent Pa.R.A.P. 1925(a) opinion that the issues raised at the hearing below and, again, in the present appeal go to the trial court's prior credibility determinations that Child's Mother, therapist, and schoolteacher offered testimony establishing that Father sexually abused Child. In contrast, the trial court deemed Father's testimony incredible.
It follows, therefore, that Dr. Ring's testimony, which derived solely from Father's self-reporting without reference to other court documentation of record and could not, consequently, address whether Father posed a threat to Child, would prove inadequate to obtaining a modification to the PFA order.As the trial court noted in its Rule 1925(a) opinion,
In the trial court's July 26, 2023, order, it opined:
Most recently, on May 23, 2023, [after the trial court had denied two previous petitions to modify filed by Father], [Father] filed another Petition to Modify the PFA. With the May 23, 2023, petition, [Father] called Dr. Timothy Ring to testify. Dr. Ring conceded that the core of his opinion was the [Father] did not do what he was accused of doing and therefore, protection is not necessary. The [trial court] rejects Dr. Ring's opinion as an improper attempt to relitigate an issue previously decided by the [trial court]. Even if the issue had not been decided previously, the [trial court] would still reject Dr. Ring's opinion because he did not perform tests he could have performed, did not review records he could have reviewed and relied exclusively on [Father] who the Court had found was not credible.
The consistent theme through all three filings following the entry of the PFA in May of 2022 is that [Father] contends he did not sexually abuse his daughter and wants reunification therapy.
Although 23 Pa.C.S.A. § 6108(d) allow a party to request that the PFA be amended, it does not authorize the relitigation of issues that have been finally resolved. To be clear, [the trial court] has previously addressed and rejected [Father's] denials. His continued efforts to re-litigate that issue has caused [Mother] to incur needless attorney fees that she is entitled to recover.Trial Court Order, 7/26/23, at fn. 1.
Although the PFA allows for modification of an existing protection from abuse order, 23 Pa.C.S. § 6108(d) is not intended to be a means to relitigate a final judgment. Under the guise of presenting new evidence, it appears that Father is attempting to relitigate the case by using the testimony of a psychologist to bolster and validate his testimony that he did not commit the acts that he is accused of committing. [The trial court] has found, and continues to find, Father's testimony was not credible. It also finds that Dr. Ring's testimony did not bolster Father's credibility.Trial Court Pa.R.A.P. 1925(a) Opinion, at 21.
Accordingly, the request for an award of fees under Rule 2744 is granted, and we remand the case to the trial court to determine the amount of damages authorized by this rule.
Order affirmed. Case remanded to the trial court for further proceedings consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
CIVIL ACTION - PROTECTION FROM ABUSE
Andrew D. Taylor, Esquire, Attorney for Plaintiff, Erica Marie Loose
Kristen L. Doleva-Lecher, Esquire, Attorney for Defendant, Eric M. Schonewolf
MEMORANDUM OPINION
ASSIGNED TO: JAMES E. GAVIN, J.
Introduction
This case presents the third attempt by Eric M. Schonewolf (hereinafter referred to as "Father"), to alter the custody provisions of a protection from abuse order obtained by Erica Marie Loose (hereinafter referred to as "Mother"), on behalf of her daughter, E.S. (hereinafter referred to as "E.S." or the "Minor Child"). The protection from abuse order was issued as a result of Father's sexual abuse of the Minor Child.
In each attempt to alter the custody provisions of the protection from abuse order, Father's goal has been the same. Specifically, Father wants this Court to order reunification therapy with the Minor Child and supervised physical custody. If the Court granted Father's request, the result would be the issuance of a court order forcing a very young, abused child to begin reuniting with her abuser.
For the reasons outlined hereinafter in detail, we respectfully request that this Court's decision to deny the petition to modify a protection from abuse order be affirmed.
Appellant's Statement of Errors Complained of on Appeal
On August 24, 2023, with the filing of the Notice of Appeal, Father identified the following issues in a Concise Statement of Errors Complained of on Appeal:
1. Whether the lower court erred as a matter of law, abused its discretion, and otherwise acted contrary to the purpose and spirit of the Protection from Abuse Act in denying Father's Petition to Modify the Protection from Abuse Order where the petition sought reunification therapy/supervised custody, the result of which would not counteract the purpose of the Protection from Abuse Order nor subject the Minor Child to any risk of abuse?
2. Whether the lower court erred as a matter of law, abused its discretion, and otherwise acted contrary to the purpose and spirit of the Protection from Abuse Act in denying Father's Petition to Modify the Protection from Abuse Order where the petition sought reunification therapy/supervised custody based on new evidence presented in the form of testimony by Timothy Ring, Ed.D. which was based on his psychological evaluation of Father, and established that Father does not possess the psychopathology in his personality indicative of a current or ongoing risk to the Minor Child, therefore the requested modification would not counteract the purpose of the Protection from Abuse Order nor subject the Minor Child to any risk of abuse?
Summary of Procedural History
On December 23, 2021, Mother filed a Petition for Protection from Abuse pursuant to the Protection from Abuse Act, 23 Pa.C.S. §6101, et. seq. (hereinafter referred to as the "PFA Act"). The Petition sought the protection of the PFA Act on behalf of Mother and on behalf of the Minor Child. Of importance for this appeal, the Petition states, "Our child [E.S.] is saying that her father is sexually abusing her." (See Paragraph 9 of the Petition for Protection from Abuse). Upon consideration of all the evidence presented, the Court granted the Protection from Abuse Order (hereinafter referred to as the "PFA"), which contained a provision giving custody to Mother.
On May 17, 2022, thirteen (13) days after the granting of the PFA, Father filed a Petition to Modify Custody in a related custody proceeding involving the same parties and the same child. See Erica M. Schonewolf v. Eric M. Schonewolf, Berks County Court of Common Pleas Docket No. 19-16898 (hereinafter referred to as the "Custody Action"). In the Petition to Modify Custody in the Custody Action, Father was attempting to alter the custody provisions of the PFA. He alleged that due to the protection from abuse proceedings, he had not seen the Minor Child in over five (5) months. The Petition to Modify Custody farther stated that, "Father is seeking reunification therapy and partial physical custody as based on recommendation of the therapist." On July 22, 2022, this Court issued an order staying the Custody Action until the PFA expired.
On May 23, 2022, the Father appealed the order granting the PFA to the Superior Court of Pennsylvania at Docket No. 830 MDA 2022.
On July 22, 2022, upon consideration of the Petition to Modify Custody filed in the Custody Action, this Court issued an order staying the Custody Action until the PFA expired.
On August 19, 2022, Father appealed this Court's order staying the Custody Action until the PFA expired to Superior Court Docket No. 1152 MDA 2022. On November 16, 2022, the Superior Court quashed the appeal filed in the Custody Action.
On December 2, 2022, the Pennsylvania Superior Court affirmed this Court's decision to issue the PFA at Superior Court Docket No. 830 MDA 2022.
On December 7, 2022, the Father filed a Petition to Modify the Protection from Abuse Order (hereinafter referred to as the "2022 Petition to Modify PFA") seeking court ordered reunification therapy. Paragraph No. 6 of the 2022 Petition to Modify PFA says, "[Father] is requesting Paragraph 5 in the [PFA] be modified to begin reunification with Andrea Karlunas." Paragraph No. 6 of the 2022 Petition to Modify PFA says, "Supervised custodial time and therapy between [Father] and the Minor Child shall be by recommendation of Ms. Karlunas." On January 23, 2023, after a hearing held, this Court denied the 2022 Petition to Modify PFA. Father did not appeal the order denying the 2022 Petition to Modify PFA.
On May 23, 2023, Father filed another Petition to Modify the Protection from Abuse Order (hereinafter referred to as the "2023 Petition to Modify PFA") seeking reunification therapy. Paragraph Nos. 9 and 10 of the 2023 Petition to Modify PFA are substantially similar to Paragraph Nos. 6 and 7 in the 2022 Petition to Modify PFA. On July 25, 2023, after a hearing held, this Court denied the 2023 Petition to Modify PFA. This appeal follows the denial of the 2023 Petition to Modify PFA.
Summary of Facts
In order to provide context to this opinion, the Court will be dividing this Summary of Facts into two parts. In the first part, the Court will summarize the evidence presented at the time of the hearings on the Petition for a Protection from Abuse Order presented in 2022. In the second part, the Court will review the evidence presented in July of 2023 at the hearing on the 2023 Petition to Modify the PFA.
A.
The Minor Child is the natural child of Father and Mother, who had been husband and wife. (N.T. 1/6/2022, p. 4). She was born in May of 2016 and was five (5) years old at the PFA was granted. (N.T. 1/6/2022, p. 5).
The last time E.S. had been with the Father was at a dance recital. (N.T. 5/4/2022, p. 67). When E.S saw Father, she was visibly upset, saying she did not want to go with him. According to Mother, the desire of E.S. to not go with Father was a common occurrence. (N.T. 5/4/2022, p. 65).
Prior to any of the disclosures that are salient to this case, Mother consulted with a licensed therapist because of outbursts by E.S., her behavior and being unable to console E.S. (N.T. 5/4/2022, pp. 116-117). Due to these concerns about E.S.'s behavior, Mother made an appointment for E.S. to meet with a licensed therapist. Kailey Esterly, the licensed therapist, described the concerns at the time of intake as being that E.S. was having emotional outbursts, struggling with regulating emotions, calming down on her own, and verbalizing her feelings. (N.T. 5/4/2022, p. 106). Based upon disclosures made by E.S., Ms. Esterly, being a mandatory reporter, made a report to children protective services.
Joan Quinn is employed by the Division of Child Protection and Permanency in New Jersey. In her position, she had received a report of an allegation of sexual abuse against Father regarding E.S. At the time, Father lived in
the State of New Jersey. As a result of the report, a safety plan was put in place that provided Father was not permitted to be alone with the Minor Child. (N.T. 1/6/2022, pp. 19 = 21).
Mother was notified by Berks County Children and Youth Services that a report had been filed on behalf of her daughter, E.S. (N.T. 1/6/2022, p. 5). Mother subsequently learned that a safety plan for E.S. had been put in place to protect E.S.
On Monday, December 20, 2021, Mother was requested to bring E.S. to New Jersey and meet with Ms. Quinn together with a detective from the Camden County Prosecutor's Office. (N.T. 1/6/2022, p. 6). At all times, the Minor Child's allegations of sexual abuse were consistent with all who interviewed her. (N.T. 1/6/2022, p. 25).
The last time that E.S. was with her father prior to Mother receiving the call to bring E.S. to New Jersey was on Sunday, December 19, 2021. According to Mother, when E.S. returned home from being with the Father, "she was extremely tired, she was crying, which happens every time she comes home. She's extremely hungry, and she just is in a not-so-great mood when she comes back from visitation with her father." (N.T. 1/6/2022, p. 12).
The allegations against Father included that while bathing E.S., Mother was putting soap on a loofah and was getting ready to hand it to E.S. At that time E.S.
said, "Mommy, don't put it in me like daddy does." E.S. proceeded to get very upset. (N.T. 5/4/2022, p. 115). Father admitted giving E.S. baths when she was in his custody. (N.T. 5/4/2022, p. 54).
A few days later, E.S. asked Mother, "Did daddy do those things to you, mommy?" According to Mother, E.S. was asking her whether Father did similar things to Mother and E.S. told Mother that the Father was touching her vagina inappropriately. E.S. also told Mother that she doesn't want to see Father again. (N.T. 5/4/2022, p. 116).
On one occasion, while Mother and E.S. were playing Monopoly, without being prompted, E.S. started talking about Father going into her room and touching her vagina. (N.T. 5/4/2022, p. 117). E.S. has also told Mother that she is afraid of Father. (N.T. 5/4/2022, p. 118). E.S. has said she is scared to go back to Father's out of fear of a recurrence. (N.T. 5/4/2022, p. 119).
In the time leading up to December of 2021, E.S. began asking Mother to bathe her prior to going to see Father on weekends. On the Fridays before Father's weekend, E.S. would ask Mother to give her a bath before she went to New Jersey to see Father. (N.T. 5/4/2022, p. 67).
Ms. Esterly, the licensed therapist who has been treating E.S., confirmed that E.S. does not like talking about her father. When given the opportunity to draw family pictures, E.S. omits Father from the pictures. Based on her conversation
with E.S., the therapist concluded that E.S. does not want to see Father. Further, Ms. Esterly was not under the impression that the Mother was coaching E.S. or telling her what to say. Ms. Esterly described the words used by E.S. as appropriate words for a child. (N.T. 5/4/2022, pp. 95 - 97).
During her sessions with Ms. Esterly, E.S. told Ms. Esterly that her father had touched her private parts. E.S. was unable to use words but she pointed at her vagina. (N.T. 5/4/2022, p. 99). E.S. also said Father comes into her room, gets in the bed with her and touches her. E.S. said she doesn't like it. (N.T. 5/4/2022 p. 100). E.S. also said that Father touched her privates while in the bath and pointed down. (N.T. 5/4/2022, p. 101).
Rachel Palm, a kindergarten teacher in the Wilson School District where E.S. attends school, described E.S. as a child who was, "excited, bubbly, running into the classroom ...." (N.T. 5/4/2022, p. 121). She did notice, however, that there were times when E.S.'s demeanor changed. Specifically, she noticed that prior to some weekends and after some weekends, E.S. was not excited about sharing what she would be doing or had done that weekend. Specifically, Ms. Palm said,
And some weekends, [E.S,] would be really excited to share about what she was doing; and then other weekends, she would not be too excited to share about what she was doing. And then the same would happen on Mondays ... then it got more and more prevalent as it got later into the school year, probably around October-ish time is when I really noticed that she would start talking on Monday morning about how she didn't like what she did on the weekend. And if you would ask her questions, she wouldn't answer anything else. Or on Fridays that
she was going somewhere, she wouldn't want to talk about it at all, and she would just kind of stop talking and move on. That is what I noticed.(N.T. 5/4/2022, pp. 121-122). A few weeks prior to the hearing, Ms. Palm talked about giving a paper to her mom or dad and E.S. said she did not have a dad. (N.T. 5/4/2022, p. 122).
Ms. Palm felt the changes she described were significant enough to bring up at parent teacher conferences. (N.T. 5/4/2022, p. 122). Upon looking at E.S.'s writing journal, Ms. Palm found that this behavior by E.S. occurred when E.S. was spending time with Father on the weekends. (N.T. 5/4/2022, p. 123). Prior to December 19, 2021, E.S. was spending time with her father every other weekend. (N.T. 5/4/2022, p. 44).
After E.S. stopped seeing her father, Ms. Palm noticed that E.S.'s demeanor returned to that of the bubbly child she had seen at the beginning of the school year. (N.T. 5/4/2022, pp. 126-128).
B.
At the hearing in July of 2023, Father again attempted to modify the custody provisions of the PFA issued in May of 2022. At this hearing, the only witness called to testify by Father was Timothy Ring, Ed.D. Dr. Ring's testimony was limited to his psychological testing of Father and the conclusions he reached.
Dr. Ring testified that Father was referred to him by counsel for a psychological evaluation. (N.T. 7/24/2023, p. 10). As a result of his testing, he was of the opinion that Father did not have the psychological make up to commit the acts he was accused of committing. Dr. Ring's opinion, however, was based exclusively upon his testing of the Father and information he received directly from the Father. Dr. Ring considered no other information.
During Dr. Ring's testimony, he conceded he had not reviewed any portions of the record from the hearings in which this Court granted the PFA. Further, he admitted that he did not interview Mother or the Minor Child (N.T. 7/24/2023, p. 10), and he did not ask to do so.
As a result of detailed cross examination, Dr. Ring admitted that he did not perform numerous tests better designed to identify sexual offenders than the tests that he did perform. He acknowledged that if he had performed a sex offender evaluation, he would have had access to other individuals in the family configuration in order to make the evaluation more complete. (N.T. 7/24/2023, p. 36). Explaining his choice to perform a psychological evaluation as opposed to choosing to do a sexual offender evaluation in a case where there was a finding of a sexual offense, Dr. Ring testified he performed the test he was asked to perform. Id.
Following Dr. Ring's testimony, the Father presented no further testimony. Specifically, no evidence was presented as to what reunification therapy is, what Father was proposing would be involved, and what steps would be put in place to ensure the Minor Child's safety.
After all of the evidence was presented, the Court denied the 2023 Petition to Modify PFA.
Discussion
I.
In recognition of the fact that circumstances may change over time, the Pennsylvania Legislature added a mechanism within the PFA Act to modify protection from abuse orders. The PFA Act says, "A protection order or approved consent agreement shall be for a fixed period of time not to exceed three years. The court may amend its order or agreement at any time upon subsequent petition filed by either party." 23 Pa.C.S. §6108(d). (Emphasis added). See also Dye for McCoy v. McCoy, 423 Pa.Super. 334, 337-338, 621 A.2d 144,145-146 (Pa.Super. 1993) (... "either party may petition the court to amend the [Protection from Abuse] Order at any time. 23 Pa.C.S. § 6108(b) .... It is this amendment process which may be utilized to determine whether a more liberal custody/visitation Order may become operative."). A party may seek modification of a protection from abuse order at any time during the pendency of the protection from abuse order. Modification, however, may only be ordered after the filing of a petition for modification, service of the petition and a hearing on the petition. 23 Pa.C.S.A. §6117(a).
In an effort to determine what standards a court should use when considering a modification of a protection from abuse order, a court may look to the provisions of the Statutory Construction Act, 1 Pa.C.S.A. §1901, et.seq. for guidance in construing 23 Pa.C.S. §6108(d) and 23 Pa.C.S.A. §6117(a). When considering a statute, statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things; and statutes in pari materia shall be construed together, if possible, as one statute. 1 Pa.C.S.A. §1932.
The PFA Act, 23 Pa.C.S. §6101, et.seq. is a statute in pari materia and must be construed as if it is a single statute. Therefore, 23 Pa.C.S. §6108(d) and 23 Pa.C.S.A. §6117(a) must be construed as being part of the overall goal of the PFA Act being the "protection and prevention offurther abuse by removing the perpetrator of the abuse from the household and/or from the victim for a period of time." B.R.S. v. J.L., 236 A.3d 1167, 1168 (Pa.Super.2020), quoting McCance v. McCance, 908 A.2d 905,908 (Pa.Super.2006) (Emphasis added). Accordingly, a modification of a protection from abuse order must conform to the goal of protecting against and preventing further abuse.
Substantively, there is little caselaw of precedential value relating to modifying a protection from abuse order. In the case of Rishel v. Fuller, 285 A.3d 950 (Pa.Super. 2022) (Non-precedential), the Superior Court was presented with an appeal of a denial of a petition to modify a protection from abuse order. In rendering its decision, the Superior Court specifically noted the trial court was not required to perform a "best interests" analysis using the statutory custody factors. To the contrary, the trial court only needs to consider the risk the defendant poses to the protected party.
Pursuant to §65.37(B) of the Operating Procedures of the Superior Court, non-precedential decisions filed after May 1, 2019 may be cited for the persuasive value. See also Pa.R.A.P. 126(b).
From a procedural perspective, the Pennsylvania Rules of Civil Procedure outline the manner in which a protection from abuse order may be modified. Specifically, Rule 1901.8(c) of the Pennsylvania Rules of Civil Procedure provides:
If either party seeks a modification after a final judgment has been entered in a protection from abuse action, the party shall petition the court to modify the final order. The court shall enter an order granting or denying the petition following an appearance by the petitioner before the court.Pa.R.Civ.P. 1901.8(c). The Explanatory Comment from 2013 further clarifies:
Jurisdictions across the Commonwealth have adopted varying procedures and processes for the withdrawal, discontinuance and modification of protection from abuse actions. This rule provides a uniform process that comports with the requirements of 23 Pa.C.S. §§ 6107(b)(2) (related to hearings), 6117 (related to procedure and other remedies) and Commonwealth v. Charnik, 921 A.2d 1214 (Pa. Super. 2007). These requirements, when read together, require a different
procedure for withdrawal, discontinuance and modification at various stages in a protection from abuse proceeding.
After a final protection order is entered, and no motion to reconsider or appeal is filed, the court no longer retains jurisdiction to vacate that order. Charnik, 921 A.2d at 1217. The court does, however, have jurisdiction to modify a protection from abuse order at any time after the filing of a petition for modification, service of the petition and a hearing on the petition. 23 Pa.C.S. § 6117. Thus, a party may request that the court modify the order to expire at an earlier date if the party does not want the order to remain in effect.Pa.R.Civ.P. 1901.8 Explanatory Note-2013. Therefore, from a procedural perspective, upon filing a petition to modify a protection from abuse order, the court should give the petitioner a hearing.
The foregoing requires the trial court to convene a hearing on the petition to modify which was done in this case. When deciding the request to modify in the case of the custody of a child, the court is not required to perform a best interest analysis using the statutory custody factors. Rather the court needs to consider the risk the defendant poses to the child.
Through the remainder of this Memorandum Opinion, this Court will address the Father's issues complained of on appeal with the foregoing as background.
II.
A.
Father predicates his arguments by suggesting the Court erred as a matter of law, abused its discretion, and otherwise acted contrary to the purpose and spirit of the PFA Act. This portion of both issues raised by the Father is without merit.
It is well settled that the grant or denial of a petition for protection from abuse is subject to the sound discretion of the trial court. C.H.L. v. W.D.L., 214 A.3d 1272, 1276 (Pa.Super. 2019). When ruling upon a request for a protection from abuse, a trial court does not abuse its discretion through a mere error of judgment. To the contrary, discretion is abused where the judgment is manifestly unreasonable, where the law is misapplied, or where the record shows that the judgment is a result of partiality, prejudice, bias, or ill-will. Kaur v. Singh, 259 A.3d 505, 509 (Pa.Super. 2021). Credibility determinations, however, are left to the trial court that saw and heard the testimony. The trial court is free to believe all, part, or none of any witness's testimony. Id.
Turning to Father's argument about the purpose of the PFA Act "[t]he purpose of Pennsylvania's Protection from Abuse Act is to protect victims of domestic violence from those who perpetrate such abuse; its primary goal is to 'advance prevention of physical and sexual abuse.'" Lawrence v. Bordner, 907 A.2d 1109, 1112 (Pa.Super.2006), quoting Fonner v. Fonner, 731 A.2d 160, 161-62 (Pa.Super. 1999). (Emphasis added). On the subject of the spirit of the PFA Act, "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. §1921(b).
In accordance with the purpose of the PFA Act, when this Court entered the PFA it was with the intent of protecting the Minor Child from Father, over the course of the next three years.
Within an order for protection from abuse, a court may, and in some cases is required to, add custody provisions. See 23 Pa.C.S §6108(aX4). The custody provisions added to a protection from abuse order will impact an existing custody order and may impact future changes to an existing custody order. As the Superior Court observed,
It appears, however, that section 6108(a)(4) precludes a custody award, pre-existing or following the PFA Order, from nullifying the PFA Order as its purpose is to assure the safety of a child or children above and beyond any other Orders or relationships involving the children. To hold otherwise would have the effect of emasculating the central and extraordinary feature of the PFA which is to prospectively control and prevent domestic violence.Dye for McCoy v. McCoy, 423 Pa.Super. at 337, 621 A.2d at 145 (1993). (Emphasis added).
Thus, the Court's decision to deny the request to modify the PFA is thoroughly consistent with the purpose of the PFA Act. The decision was not manifestly unreasonable, nor was the law misapplied. Further, the grant of the PFA and the denial of the modification were not the result of partiality, prejudice, bias, or ill-will. To the contrary, they were both the direct result of the analysis of the evidence the Court found to be credible. As such, maintaining the Minor Child's safety and keeping her separate from Father fall well within the purpose of the PFA Act.
B.
Moving to Father's contention that the Court erred by not ordering reunification therapy and supervised custody, this issue has no merit. Father presented no detailed and credible evidence on this issue.
Most significantly, this issue fails because Father did not present any evidence about the proposed reunification therapy or the alleged supervised custody. Father did not present any testimony about what reunification therapy is and how it would be used in this case. Critically, no evidence was presented as to how ordering reunification therapy at this time would protect the Minor Child from further sexual abuse.
At the time of the hearing on the 2022 Petition to Modify PFA, Father's counsel argued the Court should be familiar with reunification therapy. The Court is unable to take judicial notice of what reunification therapy is pursuant to Rule 201 of the Pennsylvania Rules of Evidence. To the contrary, it is the subject of expert testimony in that it involves scientific, technical or other specialized knowledge that is beyond that possessed by the average lay person. See Pa.R.E. 702. "Expert testimony is necessary when a case presents questions beyond the ken of the average layperson." Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Management Co., LLC, 126 A.3d 1010, 1021 (Pa.Super.2015). '
Father's failure to produce evidence on this point is crucial and moving forward without it could hurt E.S. There was no evidence presented that reunification therapy is even appropriate in a setting where there has been sexual abuse. This Court's research has revealed that reunification therapy is most often used when there are allegations of parental alienation, which do not exist in this case. In the absence of a fully developed evidentiary record, ordering reunification therapy with an ultimate goal of reunification could prove to be very dangerous if used incorrectly.
Reunification therapy refers to a clinical intervention and treatment application intended to unite estranged parents and children and has become a frequent recommendation of family court judges as it continues to grow in popularity in mental health literature and practice in general. Courts will order therapy to facilitate relationships between children and alienated parents in the context of active and post-decree family court proceedings. The use of the term "reunification therapy" by judges and attorneys and in the literature addressing the application of reunification therapy is often too capacious. This implies a spurious precondition: that there was at some point in time, a cohesive family unit that existed prior to an occasion of separation. While literature supports the use of reunification therapy in various cases, particularly those where a unified family system once existed, the need for a tightly defined indication and definition of what is commonly referred to as reunification therapy is necessary to ensure the safety of children in a vulnerable position vis a vis potentially ill serving and even destructive parents.Jqffe, Alan M, et.al, Reunification Therapy Versus Family Integration Therapy: A Problem of Taxonomy. 12 Int.J.Psychol.Couns. 42 (April-June 2020).
[The] nightmare scenario is not difficult to imagine as reunification therapy offers no standards. Furthermore, mental health professionals may fail to adequately define objectives or goals in reunification therapy. Additionally, if the wrong evaluator is appointed to the case who has no knowledge of the often counterintuitive facts of parental alienation, a host of errors can be set in motion that will be extremely difficult to challenge or overcome.Vessel!, Hillary, Parental Alienation and Reconciliation Therapy: Moving Toward Healthy Families. 88 Pa.B.Q. 185, 187 (2017).
In the absence of a fully developed record and the presentation of any evidence by Father on reunification therapy, the Court has no evidentiary foundation to determine whether reunification therapy has any place in this case at all.
In summary, the evidence did not establish that Father was offering equal or greater protection to the Minor Child than what she already enjoys. Glaringly, during Dr. Ring's testimony, he conceded he was not offering an opinion as to the risk to the Minor Child if reunification occurs. (N.T. 7/24/2023, p. 35). Other than Father's continuous denials, all of which have been rejected as lacking credibility, there is no evidence of changed circumstances justifying a modification of the PFA.
The only person who benefits from a modification of the PFA is Father, whereas it could prove to be a grave risk to the Minor Child. Since no evidence was presented as to how the use of reunification therapy or supervised custody will protect the Minor Child, Father's appeal on this ground should be declined and the decision of this Court should be affirmed.
In rendering this decision, the Court was cognizant that at the time the PFA expires the Minor Child will still be young and Father may assert custodial rights. Assuming that time comes, the Court will be required to complete a full best interest analysis considering all of the sixteen (16) factors required by23 Pa.C.S.A. §5328. It will also be required to consider 23 Pa.C.S.A. §5232(e) which says:
(e) Safety conditions.-After considering the factors under section 5328(aX2), if the court finds that there is an ongoing risk of harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has a household member who committed the abuse, the court shall include in the custody order safety conditions designed to protect the child or the abused party.
C.
Father's last issue relating to allegedly "new" evidence presented in the form of the testimony of Timothy Ring, Ed.D. is without merit for two (2) reasons. First, there is no indication this evidence was not available at the time of the original hearing. Second, even if the evidence was truly unavailable at the time of the original hearing, it would not have resulted in a different outcome because the Court finds it lacked credibility and should be afforded no weight.
Although the PFA Act allows for the modification of an existing protection from abuse order, 23 Pa.C.S. §6108(d) is not intended to be a means to relitigate a final judgment. Under the guise of presenting new evidence, it appears that Father is attempting to relitigate the case by using the testimony of a psychologist to bolster and validate his testimony that he did not commit the acts that he is accused of committing. This Court has found, and continues to find, Father's testimony was not credible. It also finds that Dr. Ring's testimony did not bolster Father's credibility.
The case of Manning v. Manning, 293 A.3d 617 (Pa.Super. 2023) (Non-Precedential) is instructive in this action. Specifically, the defendant in Manning v. Manning contended the trial court erred in denying a petition to modify a protection from abuse order by not revisiting the original order and failing to consider after-discovered evidence. In explaining its decision, the trial court said that the alleged after-discovered evidence would not have changed its original decision. Affirming the trial court's decision to deny the modification, the Superior Court found that the trial court properly applied the standards for consideration of after-discovered evidence.
This issue on appeal is premised upon the argument that reunification therapy and supervised custody should be granted, "based on new evidence presented in the form of testimony by Timothy Ring, Ed.D." As was the situation in Manning v. Manning, Father is asserting that the existence of after-discovered evidence entitles him to relief.
Commonly, the issues relating to after-discovered evidence are encountered in the context of criminal cases. As the Pennsylvania Superior Court has said:
A criminal defendant seeking to assail a guilty verdict and retry a case with after-discovered evidence must clear four hurdles. He must convince the trial court "that the evidence (I) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted." Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010). "The test is conjunctive; the defendant must show by a preponderance of the evidence
that each of these factors has been met in order for a new trial to be warranted." Id.
If the trial court does not grant a new trial, the four hurdles become even harder to clear on appeal due to our scope and deferential standard of review. Nearly a century ago, the Supreme Court of Pennsylvania stated that the implications of after-discovered evidence "are peculiarly within the discretion of the trial court." Simmons-Boardman Pub. Co. v. Am. Boron Prod. Co., 282 Pa. 521,128 A. 511, 511 (1925) (emphasis added). Hence, when reviewing such matters, our standard of review is "an abuse of discretion." Padillas at 361. "Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable; where the law is not applied; or where the record shows that the action is a result of partiality, prejudice, bias, or ill will." Id.Commonwealth v. Felder, 247 A.3d 14,17-18 (Pa.Super. 2021). As noted, the four standards are conjunctive and they all must be present. In this case they are not present.
The first hurdle Father did not overcome is there was no evidence offered that the information presented by Dr. Ring was not available at the time of the initial determination or could not be obtained through the exercise of reasonable diligence. Father had the ability to submit to a psychological evaluation at any time prior to the initial determination. He chose not to do so. For that reason, his claim of the existence of "new evidence" must fail. Moreover, having had the opportunity to hear Dr. Ring's testimony, this Court is satisfied it would not have reached a different result. There are many reasons that Dr. Ring's testimony carried no weight with this Court.
Inasmuch as this Court finds the testimony of Dr. Ring was offered solely for the purposes of bolstering Father's credibility, the Court is very skeptical as to whether it would have even been admissible in evidence at the hearing granting the PFA. As observed by the Pennsylvania Supreme Court,".. .under this Court's long decisional law, no expert testimony is to be employed to validate the credibility of other witnesses ...." Commonwealth v. Maconeghy, 642 Pa. 770, 777, 171 A.3d 707, 711 (2017) (Emphasis in original). See also Commonwealth v. Hairston, __ Pa. __, 249 A.3d 1046, 1069 (2021) ("Because issues of credibility are within the exclusive province of the [factfinder]..., expert testimony on the issue of a witness's credibility is prohibited.")
At the outset, the Court finds Dr. Ring's testimony was inconsistent and contradictory. In Dr. Ring's report issued prior to his testimony he stated, "With regard to the specific charges and allegations of [Father] sexually abusing his daughter, this clinician cannot assert a definitive opinion as to whether or not abuse occurred given the limited amount of information provided concerning these circumstances." See Report of Dr. Ring, Exhibit "A" to Petition to Modify PFA, p. 5. During his testimony, Dr. Ring repeated the assertion in his report, "I cannot opine as to whether or not this man perpetrated these acts." (N.T. 7/24/2023, p. 11).
Dr. Ring subsequently contradicted himself when he was asked whether it was his opinion that Father is not likely to offend again or whether it was his opinion that Father never offended. Without the benefit of all the evidence that was available to the Court, Dr. Ring said it was his opinion that Father never offended, thereby opining that he did not perpetrate the acts. (N.T. 7/24/2023, p. 27). This internal inconsistency renders the testimony untrustworthy.
As noted, Dr. Ring did not review all of the information that was reviewed by the Court when the case was originally decided. He did not review the testimony of the children protective services professional or the Minor Child's teacher. He did not review Mother's testimony. He did not even review Father's prior testimony.
It is very troubling to this Court that Dr. Ring said in his report, "However, this clinician was advised by [Father's] counsel that the record was sealed." See Report of Dr. Ring, Exhibit "A" to Petition to Modify PFA, p. 1. With one exception, this Court did not seal the hearing record and nothing in the docket reveals it has ever been sealed by the court. Had he been provided with the record, Dr. Ring contends he would have read it in its entirety, reading each and every word of what every witness said. (N.T. 7/24/2023, pp. 37-38). Although he asked for as much collateral information as possible, Dr. Ring was not given the transcript from the hearing in which the PFA was granted. (N.T. 7/24/2023, pp. 38-39). The lack of information given to Dr. Ring renders his opinions of little weight.
On January 20, 2022, records that were received by the Court for in-camera review were sealed. These were records received by the Court pursuant to a subpoena issued by Father to child protective services in New Jersey. At no time during the evidentiary hearings in this case did either party ask to review the records. As a result, they were sealed by the Court. Any party wanting to view those records was granted leave to petition the Court to do so. No petition to review the records was ever filed.
The evidence also established that Dr. Ring's testing was of minimal value. As the effective cross examination by Mother's counsel revealed, Dr. Ring had numerous tests available to him that could have dug deeper into whether Father was a sexual offender. For example, a Sex Offender Risk Appraisal Guide that is specifically designed to predict repeat offenses is among the tests that were not administered. (NT. 7/24/2023, pp. 28-29). Additionally, the test associated with Violence Risk Assessment Guide, which is used to predict violence in the future, was not administered. (N.T. 7/24/202, p. 29). Also tests associated with the Hare Psychopathy Checklist, which are designed to identify the presence of anti-social behavior, impaired empathy, and remorse, were not administered. (N.T. 7/24/2023, pp. 29-30).
Dr. Ring acknowledged that if he had performed a sex offender evaluation, he would have had access to other individuals in the family configuration in order to make the evaluation more complete. (N.T. 7/24/2023, p. 36). The Court finds that the very narrow scope of the evaluation performed by Dr. Ring resulted in it being very unreliable.
Explaining his choice to perform a psychological evaluation as opposed to choosing to do a sexual offender evaluation in a case where there was a finding of a sexual offense, Dr. Ring testified he performed the test he was asked to perform. Id. The apparent limitation on the scope of his assignment results in the value of his opinions being insignificant.
On the whole, even if Dr. Ring's testimony was truly unavailable at the time of the original issuance of the PFA, the Court finds it has no weight at all. As the sole and exclusive finder of the facts in this case, there was nothing in Dr. Ring's testimony that would have led this Court to reach a different result. In sum, the Court remains convinced Father sexually abused his daughter and she needs to be protected from him.
Conclusion
When this Court issued the PFA, it weighed the evidence and assessed credibility at the time. In doing so, the Court found the evidence that Father sexually abused E.S. to be extremely credible. The Court also found Father was not credible and rejected his denials. Consistent with this weighing of the evidence, the Court granted the requested protection from abuse order.
In the intervening year or more, there has been nothing presented that credibly suggests the Minor Child is no longer in need of protection. Quite to the contrary, the Court is convinced she still needs and is entitled to the benefit of the protection offered by the PFA Act. Thus, for all of the reasons set forth above, this Court respectfully requests the decision of this Court refusing to modify the PFA be affirmed.
[*] Former Justice specially assigned to the Superior Court.