N.C. F. v. S.H.F.

1

N.C. F. v. S.H.F. Appellant K.A.F. v. S.H.F. Appellant

Nos. 122 MDA 2023, 123 MDA 2023

No. J-S24027-23

Superior Court of Pennsylvania

August 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Order Entered December 20, 2022 In the Court of Common Pleas of York County Civil Division at No(s) 2022-FC-000452-12C

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

LAZARUS, J.

S.H.F. (Father) appeals from the orders,^[1] entered in the Court of Common Pleas of York County, issued pursuant to the Protection from Abuse (PFA) Act, 23 Pa.C.S.A. §§ 6101-6122. After careful review, we vacate and remand.^[2]

On May 25, 2022, N.A.F. (Mother) filed a PFA petition against Father on behalf of the parties three minor children, M.F. (born Nov 2017), K.F. (born Jan. 2018), and N.F. (born Sept. 2019).^[3] The petition alleged that Father, during a trip alone with K.F., had refused to allow K.F. to wear pajamas or under garments to bed and that Father had K.F. had taken a shower together. The petition also alleged that Father had had inappropriate contact with M.F. at hotels, in RV campers and at home. See Protection from Abuse Petition, 5/25/22, at 2. On the same day, temporary PFA orders were entered against Father with regard to Mother and all three children. On December 19, 2022, the court held a final PFA order hearing at which Mother, M.F.,^[4] and Arnold Shienvold, Ph.D., a qualified expert in psychology, testified.

Mother testified that on March 6, 2022, K.F. returned home from a weekend trip in Connecticut with Father and disclosed to Mother that she had suffered "sexual abuse" by Father. N.T. Final PFA Hearing, 12/19/22, at 20. At this point in Mother's testimony, defense counsel objected to any hearsay statements regarding K.F. See id. at 22 (Defense counsel stating "[Mother] didn't really testify about any specifics, but I am going to have a continuing objection if [the court] is going to allow [Mother] to testify about specifics.") Thereafter, the trial court conducted a Tender Years analysis on the record to determine whether it would permit hearsay statements of K.F. See 42 Pa.C.S.A. § 5985.1 (Admissibility of certain statements).^[5] The court stated that the notice requirement of the Tender Years statute was satisfied due to the "fairly lengthy description [] of [K.F.]'s comments [] within the language of the PFA itself. . . . [The] PFA complaint [] contains statements that can only really come from the child[.]" N.T. Final PFA Hearing, supra at 26. The trial court considered the statement's relevance concluding, "[t]here's no question to me at all about [relevance]. It's relevant. Daddy is sleeping with me naked. That's pretty relevant to what's going on here today." Id. Regarding reliability, the court stated, "[T]his is a conversation between a four-year-old and her mother in a family home without any third-party present." Id. at 30-42. The court then requested that both parties' attorneys question Mother regarding whether testifying would cause K.F. emotional distress which would prevent her from clearly communicating to the court. See 42 Pa.C.S.A. § 5958.1(a.1) (listing factors court may use to determine whether child victim would suffer serious emotional distress to testify by alternative method).

Mother explained that K.F. is lively, energetic, outgoing, has the attention span of a four-year-old, "occasion[ally]" has emotional regulation difficulties, and has issues related to defiance of authority, which became more apparent after her trip to Connecticut. N.T. Final PFA Hearing, supra at 29-30. Mother testified that if K.F. were to testify it would cause her emotional distress "because it would bring up things that [K.F.] has been trying to work on in counseling." Id. at 34; id. at 29-30 (Mother testifying K.F. attends trauma counseling with Counselor Ott because K.F.'s defiance of authority became more apparent after March 6, 2022 trip with Father; K.F. had been acting out); id. at 29 (Mother testifying K.F.'s school called Mother on "several occasions . . . [regarding K.F.'s] defiance of authority).

Mother stated that "[t]hree days after [K.F.] had [] supervised visitation with [F]ather, [K.F.] had nightmares three nights in a row about a monster." Id. at 32; id. at 36 (Mother conceded that K.F. stated she had so much fun seeing Father after supervised visitation"). K.F. used to draw pictures, in all black, of a "monster with fireworks, a monster on a roller coaster, all things that she did with [F]ather [and] . . . now all of her pictures are rainbows and suns and flowers and houses." Id. at 34. Mother also testified,

K.F. is easily distracted. I think [K.F.] would probably [] get up here [] and want to ask the judge all sorts of questions like what's that, why is that, and [I don't believe] she [has] the focusing ability to [] sit and answer questions about something that happened nine months ago.

Id. at 33.

The court ultimately precluded K.F.'s hearsay statements from being admitted as evidence because she was "available." See 42 Pa.C.S.A. § 5985.1(1)(ii)(B). The trial court concluded that "[K.F.] was able to communicate these [incidents] without much regard to whether or not they were actually sources of trauma." N.T. Final PFA Hearing, 12/19/22, at 40.

Mother then continued to testify. Mother testified that she asked M.F. speak to K.F. about the incident. See N.T. In Camera Proceeding, 12/19/22, at 4; id. at 16 (M.F. testifying Mother stated, "[K.F.] just told me that dad had her sleep without her underwear on, can you go in and ask her more about that"); id. (M.F. testifying she had never heard Mother so concerned before). M.F. obliged, asking K.F. "what happened when you were on your trip with daddy[?]" K.F. responded that "daddy had me sleep without my underwear on." Id. (M.F. testifying "[K.F.] told me very innocently. . . like, factual[ly] but also [] she was kind of confused").

Mother then asked M.F. if anything similar occurred between her and Father. M.F. testified, "I told mom that on some trips that I had gone with dad that he had put his fingers inside my vagina and touched me inappropriately, the bottom half, and that it happened multiple times." Id. at 15 (M.F. testifying abuse occurred on four separate occasions); id. at 39 (M.F. testifying she and Father traveled alone at least ten times per year; trips sometimes lasted longer than one week); id. at 22 (M.F. testifying Father inserted his fingers inside of her vagina for a few minutes).

M.F. testified that the first incident occurred when she was between the ages of seven and nine in a bed above the cab of a Palomino camper. Id. at 10.^[6] Father had told M.F. that "he was just kind of checking [her] out" and M.F. "let it go because I thought that it was a normal thing." Id. (emphasis added); id. at 7 (M.F. testifying after first incident she did not ask for any medical assistance or evaluation). M.F. testified that she knew about protecting her "privacy," id. at 30, "but he was my dad, so I trusted him." Id. The second incident occurred in the bed of a Lance camper, and she did not recall her age at the time. Id. at 10-11. The third incident occurred in a hotel room when she was between ten and eleven years old. Id. at 11. The fourth incident occurred in the living room of the family's Shaw Road, Windsor Township residence, when M.F. was between the ages of ten and twelve. Id. (M.F. testifying family moved to Shaw Road when she was 10 years old). M.F. also testified that although she only remembers these four times, "[she] has a much better memory of things that happened in [her] life after the age of five, so that makes [her] believe that things might have possibly happened, [before then] but . . . there's no evidence for it." Id. at 27-28.

When M.F. was 12 years old, she learned Father's conduct "wasn't [normal], so [she] just stopped trying to be around [Father] and going places overnight with him." Id. at 12; see id. (M.F. testifying she does not recall how she learned it was not normal); id. at 9 (M.F. testifying she stopped traveling alone with Father because "[she] didn't want [the abuse] to keep happening").^[7] M.F. testified that once she stopped traveling alone with Father, he started to travel alone with K.F. Id. at 9; id. at 8-9 (M.F. testifying Father and K.F. have been traveling alone more within past year). M.F. is not afraid Father would do this to her again because she would be able to prevent it, but she is "scared for [K.F.] and possibly [N.F.] because I don't know what he would do [to them]." Id. at 17.

Doctor Arnold Shienvold testified that he was asked to render an opinion regarding the best interest of the children with respect to Mother and Father's custody dispute and parenting plan. Id. at 88. As part of this analysis he considered the sexual abuse allegations against Father. Id. Doctor Shienvold testified that he did not complete an in-depth interview with K.F. regarding the allegations because he "spoke to [Counselor Alyssa] Ott, the therapist who has been working with K.F., and felt that [Counselor] Ott was able to give [him] a more in-depth view of factors she was looking at[, including] issues related to the therapy." Id. at 89-90. Rather he observed a visit between Father and K.F. Doctor Shienvold explained that as the visit progressed, K.F.'s interaction with Father increased and Father showed good parenting techniques, including the use of age-appropriate language. Id. at 93-94; id. at 93 (Doctor Shienvold testifying "there was no negative component . . . both were enjoying [playing]"). Doctor Shienvold testified that at the end of the session, K.F. hugged Father's arm and said good-bye. K.F. then ran to Mother and ...