M.A. v. J.H.

258 A.3d 490 (Table)

M.A., Appellant

v.J.H.

No. 1191 MDA 2020

Superior Court of Pennsylvania.

Filed June 02, 2021

MEMORANDUM BY MURRAY, J.:

M.A. (Mother) appeals from two orders in her protection from abuse (PFA) action, one finding statements alleged to have been made by her minor child, Ma.A. (Child), inadmissible under the Tender Years Hearsay Act, and the other finding Child incompetent to testify. We affirm.

Mother and J.H. (Father) are the parents of Child, who was born in January 2016.¹ On July 15, 2020, Mother filed a PFA petition in which she alleged Father sexually abused Child. Mother averred that on July 10, 2020, Child sat on her older brother's face; "[Child] said she learned it from [Father]. [Child] reported to [Mother] that it's a game she plays with [Father] all the time." Petition for Protection From Abuse, 7/15/20, at 1, ¶11. The trial court granted Mother's petition on a temporary basis and scheduled an evidentiary hearing.

On July 29, 2020, the parties appeared for the hearing. Prior to offering testimony, Mother sought admission, pursuant to the Tender Years Hearsay Act (the Act), 42 Pa.C.S.A. § 5985.1, of several statements allegedly made by Child. The trial court noted there was insufficient time to explore the admissibility of these statements and continued the hearing to August 31, 2020. Thereafter, Mother filed a motion pursuant to 42 Pa.C.S.A. § 5985.1(a)(1)(iii)(B), in which she stated her intention to introduce six statements Child allegedly made describing the abuse.

The trial court explained:

At the conclusion of the [August 31, 2020] hearing, [the trial court] determined that statements 2 through 6 were not admissible statements under the statute. However, the [c]ourt found that statement 1 fell within the hearsay exception but in order for the statement to be introduced as evidence, the child must testify at the hearing or the [c]ourt must deem the child unavailable pursuant to 42 Pa.C.S.A. § 5985.1(a)(1)(ii)(B).] 4 At the time of the August 31, 2020 hearing, an expert regarding forensic interviewing of children in relation to sexual abuse allegations testified that, in her opinion, her interview with [Child] did not cause any emotional distress to [Child]. Based upon this testimony as well as the testimony of Mother and CYS Assessment Caseworker, Sarah Neff, the [c]ourt did not find that [Child] was unavailable to testify as a witness at the [PFA] hearing. Neither party requested that the [c]ourt conduct an in camera interview with the child at that time.

4 In order to find the child "unavailable," the court must determine that "testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child's ability to reasonably communicate." 42 Pa.C.S.A. § 5985.1(a.1). Pursuant to the statute, the [c]ourt is given latitude on the evidence it uses to make this determination. 42 Pa.C.S.A. § 5985.1(a.1).

On September 3, 2020, the parties appeared in person with their [c]ounsel for the [s]econd Abuse Hearing. Prior to the hearing, the [c]ourt interviewed [Child] with only [c]ounsel present.] 5 The purpose of the interview was to determine if [Child] was competent to testify under the Pennsylvania Rules of Evidence. Based upon the child's responses to the [c]ourt's questioning, the [c]ourt found that the child was incompetent to testify under Pa.R.E. 601. Because the [c]ourt found that the child was available to testify pursuant to 42 Pa.C.S.A. § 5985.1(a)(1)(ii)(B) but incompetent to testify pursuant to Pa.R.E. 601, the child did not testify at the [PFA] hearing and therefore, the child's statement could not be admitted into evidence as an exception to the hearsay rule.

⁵

Defendant Father requested to be present for the child's interview but the [c]ourt denied his request pursuant to 42 Pa.C.S.A. § 5985.1(a.2)(2) ("If the court observes or questions the child, the court shall not permit the defendant to be present"). However, the interview with the child was transcribed.

Trial Court Opinion, 9/11/20, at 1-2 (unnumbered).

The trial court ultimately denied Mother's request for a final PFA order, and Mother timely appealed.² Both Mother and the trial court have complied with Rule of Appellate Procedure 1925.

On appeal, Mother presents seven issues:

1. Whether the court erred in finding the Appellant must address the actual crime or crimes attributed to the child under 42 Pa.C.S. [§] 6981. et seq. (The "Act").

2. Whether the court erred in requiring [Mother] to "notify the court" of which crimes the statements in questions applied to.

3. Whether the court erred in failing to find all the statements made by the child applied to Corruption of Minors, 18 Pa.C.S. 6301 [§] (a)(i).

4. Whether the court erred in requiring [Mother] to proffer statements at the initial hearing on the PFA on August 31, 2020.

5. Whether the court erred in failing to find the statements by the child were made under reliable circumstance and therefore admissible under the Act.

6. Whether the court erred in failing to find the child "unavailable" under the Act.

7. Whether the court abused discretion in finding the child incompetent to testify pursuant to Rule 601.

Mother's Brief at 5.

Preliminarily, we note deficiencies in Mother's brief, which does not include (1) a copy of the order or other determination in question; (2) the Rule 1925(b) statement; (3) a copy of the trial court's opinion; and (4) a table of contents or a table of citations. See Pa.R.A.P. 2111(a) and 2174(a)-(b). Further, Mother does not reference the record in contravention of Pa.R.A.P. 2132. While it is well settled that we may dismiss an appeal when substantial defects in a brief impede meaningful review, see Pa.R.A.P. 2101, Mother's infractions do not impede review. Thus, we decline to dismiss the appeal. See, e.g., Morgan Guar. Trust Co. of New York v. Mowl , 705 A.2d 923, 924 n.1 (Pa. Super. 1998).

In her first issue, Mother asserts the trial court erred in requiring her to address "the crime or crimes attributed to the child" under the Act. Mother's Brief at 12. Mother contends she "can find no case that requires the proponent of the admissibility of the statements to produce evidence of the crimes the statements pertain to," and the court erred in requiring her to specifically identify crime or crimes. Id. at 13.

Under the Act, out-of-court statements are admissible in the following circumstances:

(a) General rule. —An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in [Title 18 (relating to crimes and offenses), Chapter 27 (relating to assault)], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2) the child either:

(i) testifies at the proceeding; or

(ii) is unavailable as a witness.

42 Pa.C.S.A. § 5985.1(a).

In rejecting this issue, the trial court accurately explained:

[Mother's] allegations that this [c]ourt "required" her to "notify" the [c]ourt of which crimes the statements in question applied or address the actual crimes that the statements described to is simply false. In its Order and Opinion docketed September 1, 2020, this [c]ourt merely mentioned that "neither counsel for the [Mother] nor counsel for [Father] at any time addressed this section of the statute." As [Mother's] counsel did not specify which offenses she believed applied to which statements, this [c]ourt independently reviewed each statement and each of the offenses enumerated in 42 Pa.C.S. § 5985.1(a)(2). As stated in the Opinion and Order docketed September 1, 2020, this [c]ourt found only one of the child's statements could potentially describe any of the enumerated offenses. There are thirteen different chapters and single sections under Title 18 that are enumerated in 42 Pa.C.S. § 5985.1(a)(2). [Mother's] counsel raises the specific offense of corruption of minors, and her belief that it applied to each of the child's six statements, for the first time on appeal. While she was certainly not required to "notify" the [c]ourt of which crimes she believed the child's statements applied to, this [c]ourt is not tasked with guessing which crimes [Mother] and her counsel intended to argue applied to the statements. ... Given that there was no mention by [Mother] of any specific enumerated offense to which she believed the child's statements applied, this [c]ourt rendered a decision based on an independent review of the child's statements and found that none of them rose to the level or describing the crime of corruption of minors.

Trial Court Opinion, 10/28/20, at 3-4.

We agree with the trial court's rationale. It is clear from the record — and the two block-quoted trial court commentaries excerpted above at pages 2-3 and 3-4 — that the court did not preclude the admission of Child's statements because Mother failed to identify a specific offense in the Crimes Code. Rather, to the extent Mother failed to identify which offenses she believed Child's statements implicated, the court was left guessing, but never imposed on Mother a requirement not authorized by statute or otherwise. Mother's first issue lacks merit.

Mother's second, third and fourth issues, although they overlap with her other issues, are waived. This Court will address only issues properly presented and developed in an appellant's brief as required by our rules of appellate procedure. See Pa.R.A.P. 2101 – 2119. "Appellate arguments which fail to adhere to these rules may be considered waived, and arguments which are not appropriately developed are waived." Coulter v. Ramsden , 94 A.3d 1080, 1088 (Pa. 2014) (citation and quotation omitted). Issues raised in a brief's Statement of Questions...