J. S10038/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

A.N. :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

A.L., : No. 1699 MDA 2019

:

 Appellant :

Appeal from the Order Entered September 11, 2019,

in the Court of Common Pleas of Lackawanna County

Civil Division at No. 2012-FC-40570

BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 11, 2020

A.L. (“Father”) appeals from the final protection from abuse (“PFA”) 

order entered against him on September 11, 2019, in the Court of Common 

Pleas of Lackwanna County, pursuant to 23 Pa.C.S.A. § 6102(a)(5). After 

careful review, we reverse and remand.

The trial court set forth the following:

This case involves a custody dispute and request for 

[a PFA order] as a result of allegations of sexual abuse 

by [Father] against the parties’ three (3) minor 

children, J.L., R.L. and D.L., (hereinafter 

“minor children”). By way of background, [] A.N. 

(hereinafter “Mother”), filed an Emergency Petition for 

Special Relief on April 24, 2019, wherein she alleges 

the minor child, J.L., disclosed that she was sexually 

molested by Father for over a period of two (2) years, 

and the Lackawanna County Office of Youth and 

Family Services (hereinafter “OYFS”) were 

investigating the allegations. As a result, Mother was 

granted temporary sole legal and physical custody of 
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the minor children until further Order of Court. On 

May 3, 2019, Mother filed a [PFA petition] on behalf 

of the minor children against Father wherein she 

alleges Father sexually molested the minor child, J.L., 

on multiple occasions, exhibiting grooming behavior 

towards the minor children, R.L. and D.L., and 

stalking the minor child, J.L., on social media and 

through therapy. As a result, Mother was granted a 

[t]emporary [PFA o]rder on behalf of the minor 

children against Father. The hearings on Mother’s 

Petition for Emergency Special Relief and Petition for 

Protection from Abuse were consolidated and 

continued on numerous occasions as a result of the 

pending investigations. A hearing commenced before 

[the trial court] on September 11, 2019. The 

Guardian ad Litem, Elizabeth Munley, Esquire 

(hereinafter “GAL”), provided her memorandums 

dated July 11, 2019 and September 9, 2019 wherein 

she recommended that th[e trial c]ourt’s [o]rder 

dated July 12, 2019 granting Mother sole legal and 

physical custody of the minor children remain in full 

force and effect. 

Trial court opinion, 11/7/19 at 1-2 (record citations omitted).

During the hearing, th[e trial c]ourt heard 

uncontroverted testimony from the GAL, Mother and 

Maternal Grandfather, [L.N.] (hereinafter 

“Maternal Grandfather”). The GAL testified as to the 

information collected during her investigation which 

impacted her report and recommendation to th[e trial 

c]ourt. Specifically, the GAL testified that, “The oldest 

child, J.L., who’s 11 years old, made a disclosure to 

her counselor, Ms. Simona Gavern at the 

Aaron Center. As a result, the [OYFS was] contacted 

and scheduled a [Children’s Advocacy Center (“CAC”)]

interview.” J.L. had undergone multiple interviews at 

the [CAC] and submitted to a physical examination by 

Ms. Cheryl Friedman on April 30, 2019. The GAL

stated, “As noted in Cheryl Friedman’s report, which

has been provided to counsel, she suspected that 

sexual assault as evidence[d] by [J.L.’s] disclosure of 

an object or finger being introduced past the labia 

majora. After a conversation with Ms. Friedman —
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which I had with Ms. Friedman, she indicated that J.L.

was referring to [F]ather as being the individual who

introduced the object into J.L.” At the conclusion of 

the CAC interviews, OYFS unfounded the allegations 

of abuse against Father.

The GAL indicated that, “She (Ms. Gavern) explained 

in her July 3rd, 2019 letter that [J.L.] is also 

diagnosed[with] PTSD. She (J.L.) had commenced 

some self-harming behaviors and expressed suicidal 

ideation at the time that she had commenced therapy 

when she was residing in [F]ather’s home.” “She 

voluntarily disclosed that she wanted to -- did not 

want to go and visit [F]ather because he quote, ‘Did 

stuff to her’.” Then, J.L. drew on a diagram where 

Father touched her being the breast and genital area. 

The GAL further testified that, “Ms. Gavern explained 

in her letter also that J.L. had experienced symptoms 

such as headaches, nightmares, and voices, hearing 

voices. As a result of this disclosure, that’s when one 

of the CAC interviews was scheduled. And also J.L.

was -- felt very guilty at that time she was concerned

about her brother being in the care of [F]ather 

because originally [F]ather still had the two boys.”

The GAL went on to testify regarding disclosures made 

by the other minor children, D.L. and R.L., to their 

therapist, Ms. Justine Andrews. The GAL stated that, 

“D.L. disclosed to Ms. Andrews that [F]ather tried to 

touch his penis on a few occasions. He was able to

push him away on all occasions with the exception of 

one time and he also indicated to Ms. Andrews that 

after that time that he touched his penis it hurt after 

that. Additionally, the GAL indicated, “There was also 

concern that D.L. had that he disclosed to 

Ms. Andrews regarding witnessing [F]ather hit J.L. 

with a badminton racket as well.” Such disclosure was 

reported to OYFS and the minor children submitted to 

another CAC interview. The minor children’s 

disclosures at the CAC did not corroborate each other 

and, as a result, OYFS closed the case.

The GAL also testified that, “I spoke with her 

(Ms. Andrews) on September 9, 2019 in order to 
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clarify her report and asked her some questions 

regarding her report and she clarified that R.L. is not 

ready to meet with [F]ather yet, as he still has some 

issues that he needs to work through.” The GAL went 

on to state, “Regarding D.L., he not only made the 

disclosures to Ms. Andrews, which precipitated a third 

CAC interview, but he also continues to experience 

nightmares, has separation anxiety with [M]other, 

and continues to have difficultly expressing and 

processing his emotions regarding [F]ather. As part 

of our phone conversation, Ms. Andrews told me that 

D.L. is not ready at this time to reunite with [F]ather.”

The GAL confirmed that both D.L. and R.L. have also 

been diagnosed with PTSD as a result of the trauma 

from Father and being separated from their sister for 

a period of time. The GAL testified that, as a result of 

the PTSD, “He (D.L.) has anxiety, irritability, hyper 

vigilance, negative outlook, and intrusive thoughts 

and nightmares.” “He was working on decreasing the 

severity of symptoms. He continues to report

nightmares, nervousness regarding [F]ather, along 

with difficulty processing and expressing emotions 

regarding [F]ather.” The GAL testified further that, 

“He (R.L.) is working on decreasing his symptoms. 

However, he continues to report anger towards 

[F]ather and his difficulty managing his emotions and 

using coping skills when he is angry.

Additionally, the GAL stated that during her 

investigation she spoke with Detective Tim Mackerel 

of [the] Carbondale Police Department. 

Detective Mackerel indicated that the criminal 

investigation against Father is still ongoing and the 

counselors continue to be in contact with him 

regarding further disclosures by the minor children.

The GAL had an opportunity to interview the minor 

children. The GAL stated the minor children 

expressed fear and concerns with Father. Specifically, 

R.L. stated to the GAL that Father did not really take 

care of him. J.L. indicated to the GAL that she would 

take care of her brothers when she lived with Father 

and would ask Father for help, but she did not get the 
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help she needed. J.L. continued to express how 

worried she was for brother living with Father and her 

concerns that Father drinks a lot. Further, J.L. said 

that she was scared when she talked to Father and 

was afraid that he would try to pick her up.

Furthermore, during the hearing, Mother testified 

that, “She (J.L.) had approximately 40 cuts on her 

forearms. She disclosed to me that due to the fact of 

[F]ather hurting her she thought that that was going 

to be an easier way out of his house.” Mother went 

on to testify that, “She’s (J.L.) just disclosed her fear 

of [F]ather.” Mother stated that, “I have not seen fear 

in my child’s eye like this ever before . . . , I mean, 

J.L., she has nervous breakdowns even talking about 

him (Father). Both my boys experience nightmares. 

Even after the CAC interview last week they were just 

so emotionally distraught.”

During Maternal Grandfather’s testimony, he 

indicated that D.L. told him that he saw Father hitting 

J.L. with a badminton racket. Further, Maternal 

Grandfather testified that, “He (D.L.) did tell me that 

[R.L.] had told him that [Father] had touched him 

where you’re not supposed to be touched and I asked 

if [Father] touched you and he said, ‘He tried, but not, 

I smacked him.’”

Therefore, based upon the uncontroverted testimony, 

th[e trial c]ourt found that the preponderance of the 

evidence indicated the minor children were entitled to 

a [PFA o]rder against Father. Thus, th[e trial c]ourt 

granted a [PFA o]rder on behalf of the three (3) minor 

children against Father for a period of three (3) years.

Id. at 4-7 (record citations omitted).

Father filed a timely notice of appeal “from an [o]rder entered [at 

No. 2012 FC 40570] on the 11th day of September 2019.” (Father’s notice of 

appeal, 10/9/19.) Attached to Father’s notice of appeal is the trial court’s 

September 11, 2019 order that deemed Mother’s emergency petition for 
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special relief moot. Father contemporaneously filed a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) wherein 

he raised 13 issues challenging the September 11, 2019 PFA order.

On November 22, 2019, this court entered a rule to show cause order

directing Father to explain whether he intended to appeal the order deeming 

Mother’s emergency petition for special relief moot or whether he intended to 

appeal the PFA order. (Order of court, 11/22/19.) Father filed a timely 

response wherein he states that he “intended to appeal the [trial] court’s 

granting of a three (3) year PFA on behalf of the minor children.” (Father’s 

“answer to this court’s order of November 22, 2019,” 12/2/19 at 2, ¶ 7 (full 

capitalization omitted).)

On December 13, 2019, this court entered an order acknowledging 

Father’s response to the show-cause order and Father’s intent to seek review 

of the PFA order. (Order of court, 12/13/19.) The order also removed this

appeal from the Children’s Fast Track designation because it is not an appeal 

from a child custody order but, rather, an appeal from a PFA order, which is 

not a permissible Children’s Fast Track designation. See Superior Court 

I.O.P. 212(A)(1) (designating dependency, termination of parental rights, 

adoption, custody, and paternity as Children’s Fast Track cases).

Appellant raises the following issues for our review:

[1.] Whether the trial court erred in law and/or 

abused its discretion in awarding sole custody of 

the minor children to [Mother?]
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[2.] Whether the trial court erred in law and/or 

abused its discretion in granting a three (3) year 

[PFA o]rder naming the minor children as 

protected parties[?]

[3.] Whether the trial court erred in law and/or 

abused its discretion in failing to allow the 

[Father] to call the minor children as 

witnesses[?]

[4.] Whether the trial court erred in law and/or 

abused its discretion in failing to allow [Father] 

to call the minor children as witnesses when 

neither [Mother] nor the [GAL] filed a Motion to 

Quash the Subpoena[?]

[5.] Whether the trial court erred in law and/or 

abused its discretion in admitting hearsay 

statements of the minor children[?]

[6.] Whether the trial court erred in law and/or 

abused its discretion in failing to afford [Father] 

his right to confront witnesses under the United 

States Constitution and the Commonwealth 

Constitution[?]

[7.] Whether the trial court erred in law and/or 

abused its discretion in admitting hearsay 

statements of the minor children’s therapists[?]

[8.] Whether the trial court erred in law and/or 

abused its discretion in admitting a drawing 

purportedly drawn by [] one of the minor 

children which was hearsay[?]

[9.] Whether the trial court erred in law and/or 

abused its discretion in admitting a drawing 

purportedly drawn by [] one of the minor 

children which was not properly 

authenticated[?]

[10.] Whether the trial court erred in law and/or 

abused its discretion in failing to allow [Father] 

to question [Mother] regarding the death of her 
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child while the child was in the custody of 

[Mother’s] then paramour[?]

[11.] Whether the trial court erred in law and/or 

abused its discretion in failing to allow [Father] 

to question [Mother] relative to broken bones 

suffered by a child in her care[?]

[12.] Whether the trial court erred in law and/or 

abused its discretion in accepting the 

recommendation of the GAL when the GAL 

never made an inspection of the minor 

children’s residence and could not testify to the 

minor children’s school attendance[?]

[13.] Whether the trial court erred in law and/or 

abused its discretion when the GAL admitted the

minor children never made a disclosure of 

sexual abuse to her[?]

Father’s brief at 4-6.

“In the context of a PFA order, we review the trial court’s legal 

conclusions for an error of law or abuse of discretion.” Drew v. Drew, 870 

A.2d 377, 378 (Pa.Super. 2005) (citation omitted).

At the outset, we note that Father’s brief may be characterized as 

inartfully drafted. Nevertheless, Issues 5, 7, and 8 of Father’s statement of 

questions presented raise hearsay challenges. A reading of Father’s brief 

demonstrates that he repeatedly and consistently, albeit inartfully, raises 

these hearsay challenges and essentially contends that because the hearsay 

testimony of the GAL did not qualify for any exception to the hearsay rule, 

that hearsay testimony alone constituted an insufficient basis for entry of a 

final PFA order. We agree.
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In reviewing the admissibility of evidence, “an appellate court may only 

reverse upon a showing that the trial court abused its discretion. An abuse of 

discretion is not a mere error in judgment but, rather, involves bias, ill will, 

partiality, prejudice, manifest unreasonableness, or misapplication of law.” 

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (citations 

omitted).

The Pennsylvania Rules of Evidence define hearsay as “a statement that 

(1) the declarant does not make while testifying at the current trial or hearing; 

and (2) a party offers into evidence to prove the truth of the matter asserted 

in the statement.” Pa.R.E. 801(c). “Hearsay is not admissible except as 

provided by [the Pennsylvania Rules of Evidence], by other rules prescribed 

by the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802. The 

Tender Years Act, 42 Pa.C.S.A. § 5985.1, creates an exception to the hearsay 

rule for victims of childhood sexual abuse. See Commonwealth v. 

G.D.M., Sr., 926 A.2d 984, 988 (Pa.Super. 2007). “The tender years 

exception allows for the admission of a child’s out-of-court statement because 

of the fragile nature of young victims of sexual abuse.” Commonwealth v. 

Lukowich, 875 A.2d 1169, 1172 (Pa.Super. 2005), appeal denied, 885 A.2d 

41 (Pa. 2005). The tender years exception provides:

(a) General rule.--

(1) 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 
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[18 Pa.C.S.A. Chapter 31 (relating to sexual 

offenses)], not otherwise admissible by statute 

or rule of evidence, is admissible in evidence in

any criminal or civil proceeding if:

(i) 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

(ii) the child either:

(A) testifies at the 

proceeding; or

(B) is unavailable as a 

witness.

42 Pa.C.S.A. § 5985.1(a).

(a.1) Emotional distress.--In order to make a 

finding under subsection (a)(1)(ii)(B) that the 

child is unavailable as a witness, the court must 

determine, based on evidence presented to it, 

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. In 

making this determination, the court may do all 

of the following:

(1) Observe and question the child, 

either inside or outside the 

courtroom.

(2) Hear testimony of a parent or 

custodian or any other person, 

such as a person who has dealt 

with the child in a medical or 

therapeutic setting.

42 Pa.C.S.A. § 5985.1(a.1).
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“Any statement admitted under the [tender years hearsay exception] 

must possess sufficient indicia of reliability, as determined from the time, 

content, and circumstances of its making.” Commonwealth v. O’Drain, 829 

A.2d 316, 320 (Pa.Super. 2003), citing 42 Pa.C.S.A. § 5985.1(a). “The main 

consideration for determining when hearsay statements made by a child 

witness are sufficiently reliable is whether the child declarant was particularly 

likely to be telling the truth when the statement was made.”

Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa.Super. 2003). Factors the 

court may consider when determining reliability include, but are not limited 

to, “the spontaneity of the statements, consistency in repetition, the mental 

state of the declarant, use of terms unexpected in children of that age and the 

lack of a motive to fabricate.” Commonwealth v. Delbridge, 855 A.2d 27, 

47 (Pa. 2003); see also Lyons, 833 A.2d at 255.

“[P]rior to concluding a child witness is unavailable, a court must 

determine whether forcing the child to testify will result in such serious 

emotional distress to the child that [the child] will not be able to reasonably 

communicate.” Lyons, 833 at 254, citing 42 Pa.C.S.A. § 5985(a.1). “To 

reach this determination, the court ‘may’ either question the child witness or 

hear testimony of a parent or person who has dealt with the child in a 

therapeutic setting.” Id. at 254-255, citing 42 Pa.C.S.A. § 5985(a.1)(1)-(2). 

“The Tender Years Statute requires that an in camera hearing take place to 
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determine whether a child witness is unavailable to testify.” Lyons, 833 A.2d 

at 254, citing 42 Pa.C.S.A. § 5985(a).

Here, the trial court permitted the GAL to testify on the basis of reports 

prepared by Simona Gavern, Cheryl Friedman, and Justine Andrews. (Notes 

of testimony, 9/11/19 at 5-12.) Ms. Gavern and Ms. Friedman provided 

counseling to J.L. Their reports contained alleged disclosures of sexual abuse 

by Father made by J.L. Ms. Andrews worked with D.L. and J.L. as their 

therapist. Ms. Andrews’s report contained alleged disclosures of sexual abuse 

by Father made by D.L. and J.L. The trial court also permitted the GAL to 

testify about a conversation that she had with Ms. Andrews that served to 

clarify the sexual abuse disclosures contained in Ms. Andrews’s report. See 

id. We note that neither Ms. Gavern, Ms. Friedman, nor Ms. Andrews testified 

at the hearing.1

 

1 We note that Father’s counsel repeatedly placed hearsay objections on the 

record.

We further note that “[a]n out-of-court declaration containing another 

out-of-court declaration is double hearsay.” Commonwelath v. Laich, 777 

A.2d 1057, 1061 (Pa. 2001) (citation omitted). "In order for double hearsay 

to be admissible, the reliability and trustworthiness of each declarant must be 

independently established. This requirement is satisfied when each statement 

comes within an exception to the hearsay rule." Id. (citation omitted). Father 

did not raise the issue of whether the GAL’s testimony contained double 

hearsay because it relayed the minor children’s alleged sexual abuse 

disclosures through the reports of Ms. Gavern, Ms. Friedman, and 

Ms. Andrews, as well as the GAL’s conversation with Ms. Andrews. Therefore, 

the issue is not before us.
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In its Rule 1925(a) opinion, the trial court set forth the tender years 

exception to the hearsay rule and then concluded that it permitted the GAL to 

testify after determining that the minor children were unavailable as 

witnesses. Nothing in the certified record before us, however, indicates that 

the trial court conducted an in camera tender years hearing to determine the 

reliability of the minor children’s statements or the unavailability of the minor 

children. We note that at the PFA hearing, Mother’s counsel stated that he 

“believe[d] it was the [trial c]ourt and the [GAL’s] recommendation that after 

multiple interviews with the [minor] children through CAC and ongoing 

therapy,” that “it would not be in the [minor] children’s best interest to 

testify.” (Notes of testimony, 9/11/19 at 5.) Counsel for Mother then stated 

that “if the [trial c]ourt wishes to interview them[,] that’s certainly possible 

and [Mother] has no objection to bringing them here. But it’s not in their best 

interest and actually very risky for them to be here.” (Id.) Clearly, the trial 

court did not conduct an in camera tender years hearing. Consequently, the 

GAL’s testimony of the minor children’s alleged sexual abuse disclosures 

constituted inadmissible hearsay and the trial court abused its discretion by 

misapplying the law when it permitting those hearsay statements to come into 

evidence through the testimony of the GAL. In the absence of the hearsay 

testimony of the GAL, the evidence of record is insufficient to support a finding 

that Father sexually abused the minor children by a preponderance of the 
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evidence.2 See K.D., by K.H.D. v. J.D., 696 A.2d 232 (Pa.Super. 1997) 

(reversing PFA order based on inadmissible hearsay testimony).

We, therefore, reverse the final PFA order entered by the trial court. 

Based on our disposition, we need not address Father’s remaining issues.

Order reversed and case remanded for a new hearing in compliance with 

this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/11/2020

 

2 The two other witnesses who testified were Mother and Maternal 

Grandfather. Mother testified that none of the minor children made 

disclosures of sexual abuse to her. (Notes of testimony, 9/11/19 at 33.) 

Maternal Grandfather testified that D.L. told him that he saw Father hit J.L. 

with a badminton racket, but he did not testify as to any sexual abuse 

disclosures. (Id. at 49-50.)