196 A.3d 224
Pa. Super. Ct.2018Background
- Child S.W.'s father filed a PFA petition on behalf of the minor after a January 9, 2018 phone incident in which Child alleged Mother threatened to beat her. Father sought emergency relief for Child.
- The trial court conducted an ex parte, in-camera interview of the ten‑year‑old Child on January 16, 2018 and entered a temporary PFA finding immediate danger.
- An evidentiary hearing was held January 23, 2018; testimony was taken from Father, Stepmother, Mother, and maternal grandmother. Child did not testify at that hearing.
- Trial court found Father and Stepmother more credible, relied on their testimony (including Stepmother’s observations of Child’s distress), and entered a three‑year final PFA against Mother.
- Mother appealed, arguing the court erred by conducting the ex parte interview, denying Child’s in‑court testimony and cross‑examination, relying on hearsay, and that these errors violated her due process and sufficiency‑of‑evidence rights.
- Trial court and Superior Court affirmed: the ex parte statutory procedure was proper, objections were waived for failure to timely preserve them, and the evidence—viewed in the light most favorable to petitioner—supported the PFA by a preponderance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion by conducting an ex parte in‑camera interview of Child and assessing credibility without allowing Mother to cross‑examine | Court improperly decided credibility in ex parte proceeding and denied Mother confrontation rights | Statute requires ex parte proceeding when minor alleges immediate danger; no right to confrontation in that temporary proceeding | Court: Ex parte interview was statutorily required and properly conducted; no error |
| Whether the court decided merits before hearing by relying on the ex parte interview | Final order based solely on ex parte interview, not live testimony | Final order was based on evidentiary hearing testimony; ex parte supported temporary relief only | Court: Final PFA rested on hearing testimony and credibility findings, not solely ex parte interview |
| Whether the court relied on inadmissible hearsay (including Father/Stepmother testimony and ex parte statements) to deny demurrer/motion to dismiss | Testimony and ex parte statements were hearsay and insufficient to meet preponderance standard | Testimony largely was admissible (observations, not offered for truth) and credible; demurrer waived or properly overruled | Court: Testimony (especially Stepmother’s observations) was admissible and sufficient to survive demurrer; no error |
| Whether Mother’s due process/right to confrontation was violated when Child was not allowed to testify at the hearing | Mother deprived of ability to cross‑examine Child, denying due process | Mother failed to timely and specifically object at trial; court permissibly limited Child testimony to avoid emotional distress and relied on other credible witnesses | Court: Issue waived for failure to object; even on merits exclusion was lawful given child’s welfare and trial court’s discretion |
Key Cases Cited
- R.G. v. T.D., 672 A.2d 341 (Pa. Super. 1996) (standard of review: evidence viewed in favor of petitioner and deference to trial court credibility findings)
- Drew v. Drew, 870 A.2d 377 (Pa. Super. 2005) (PFA hearing must afford opportunity to present witnesses, testify, and cross‑examine)
- Fonner v. Fonner, 731 A.2d 160 (Pa. Super. 1999) (reasonable fear suffices for PFA; standard of review instructions)
- Viruet ex rel. Velasquez v. Cancel, 727 A.2d 591 (Pa. Super. 1999) (PFA definitions broader than child protective services findings)
- Raker v. Raker, 847 A.2d 720 (Pa. Super. 2004) (definition and explanation of preponderance standard)
- Karch v. Karch, 885 A.2d 535 (Pa. Super. 2005) (credibility and weight of testimony are for the trial court)
- Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974) (requirement to make timely, specific objections to preserve issues for appeal)
- Hong v. Pelagatti, 765 A.2d 1117 (Pa. Super. 2000) (failure to timely object waives appellate review)