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07/03/97 K. D. v. J. D.

July 3, 1997

K. D., A MINOR, BY K. H.-D., GUARDIAN
v.
J. D., APPELLANT



Appeal from the ORDER ENTERED June 4, 1996 In the Court of Common Pleas, Civil Division Lancaster County, No. 1587-1996. Before HUMMER, J.

Before: Cavanaugh, Beck, and Johnson, JJ. Opinion BY Cavanaugh, J. Beck, J., concurs in the result.

The opinion of the court was delivered by: Cavanaugh

Filed July 3, 1997

OPINION BY CAVANAUGH, J.:

This is an appeal from an order, entered pursuant to the Protection From Abuse Act, *fn1 which, based upon the finding that appellant-father abused one of his daughters, evicted father from the family residence and prohibited any contact or communication with the alleged victim, except for visitation authorized by court order. The primary question presented for our consideration is whether the trial court erred in permitting hearsay statements of the alleged victim, regarding the alleged abuse, to be admitted into evidence through the testimony of a case worker and a clinical therapist. We conclude that the court did err in admitting the hearsay statements of the alleged victim and vacate the trial court's order.

On April 4, 1996, mother petitioned for a temporary protection from abuse order against father, alleging that he had sexually abused their five year old daughter. *fn2 A temporary order was issued by the trial court, evicting father from the marital residence, giving temporary custody to mother and prohibiting any contact between father and the alleged victim. The court entered the permanent order following a hearing on June 4, 1996. The alleged victim did not testify at this hearing. In addition to testimony of mother regarding suspicious actions of father involving the alleged victim, a Children and Youth Agency ("CYA") case worker and a clinical therapist, both of whom had interviewed the alleged victim, testified regarding her description of the sexual abuse allegedly perpetrated by father. The court admitted these hearsay statements pursuant to 42 Pa.C.S.A. § 5985.1, which allows such evidence of sexual abuse in criminal proceedings, where the out-of-court statement was made by a child 12 years of age or younger.

Father testified at the hearing and denied the allegations of abuse. He maintained that there were reasonable explanations for his allegedly suspicious actions which mother had related; and he also alleged that mother had psychological problems which affected her perception of his actions. Father also brought out at the hearing, during cross-examination of the CYA caseworker, that CYA had initially determined that the case was "unfounded" because the alleged victim's consistency and credibility could not be established. Additionally, in discussing the alleged victim's statements to him, the clinical therapist who testified at the hearing described her demeanor as follows, "She was almost offhand about it. As if it was something she needed to do to get what she wanted, which was the cupcake." *fn3

At the Conclusion of the hearing, the court determined that the alleged victim had been sexually abused by father. The court entered a permanent order which evicted father from the family home and prohibited any contact or communication between father and the alleged victim. Father filed a motion for reconsideration which was denied. This appeal followed.

Appellant's primary contention on appeal is that the court erred in permitting the alleged victim's hearsay statements to be admitted into evidence under the Child Victims and Witnesses Act, specifically 42 Pa.C.S.A. § 5985.1, because this section only applies to criminal prosecutions and not protection from abuse proceedings.

§ 5985.1 provides:

(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 indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible evidence in any criminal 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.

(2) The child either:

(i) testifies at the ...


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