Z.P. v. K.P.

269 A.3d 578

Z.P.

v.K.P.

Appeal of: Commonwealth of Pennsylvania

No. 547 MDA 2021

Superior Court of Pennsylvania.

Argued October 26, 2021

Filed January 06, 2022

Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellant.

James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellant.

Gail G. Souders, Harrisburg, for appellee.

Michael A. Trimmer, Camp Hill, for appellee.

Lori A. Yost, York, Gaurdian Ad Litem, for appellee.

BEFORE: BOWES, J., OLSON, J., and KING, J.

OPINION BY KING, J.:

Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the York County Court of Common Pleas, which placed limitations on the manner in which the Commonwealth was permitted to interview R.P. (d.o.b. June 2014) and A.P. (d.o.b. January 2016) ("Children") as part of its investigation into child abuse allegations against Z.P. ("Father"). For the following reasons, we reverse and remand for further proceedings.¹

In its opinion, the trial court accurately set forth some of the relevant facts and procedural history of this case as follows:

In December 2019, K.P. (Mother) alleged that an incident occurred while Z.P. (Father) was putting cream on his son, R.P., who was 5 years old at that time. Mother and/or Maternal Grandmother then later alleged that something happened with his daughter, A.P., then age 3. York County Office of Children Youth and Families (CYF) became involved. Both children underwent forensic medical exams and interviews with a [Sexual Assault Forensic Examination ("SAFE")] nurse in December 2019. They then underwent separate forensic interviews at the Children's Advocacy Center (CAC) on multiple occasions. R.P. was interviewed in December 2019, January 2020, and June 2020. A.P. was interviewed in December 2019 and June 2020. [CYF] initially indicated the report for both children[.] Father, who was a teacher, was suspended without pay from his job. No criminal charges were ever filed, and Father appealed the CYF determinations.

On December 9, 2019, Mother filed for a Protection from Abuse (PFA) Order for herself and both children in action 2019-FC-002270-12. Father's parental rights were effectively suspended as of December 9, 2019 by Temporary Order based on the...allegations made by Mother in her PFA Petition. On April 6, 2020, Father filed a Complaint for Custody seeking physical and legal custody of the children. Some delays occurred in both cases due to the ongoing investigation. An Interim Order for Custody was entered by the court on May 26, 2020, granting Mother sole legal and primary physical custody of the children due to the ongoing CYF investigation into the allegations made by Mother. The Order directed that Father would have no rights of partial physical custody or visitation unless and until ordered by the [c]ourt. The parties agreed to entry of a final PFA Order on behalf of the children against Father on May 28, 2020. The order was entered without admissions to the allegations contained in the petition and provided that Mother was to have temporary physical custody of the [children] with Father permitted supervised contact with the children as the parties could agree.

From December 2019 through June 2020, Father had no contact with the children. A Pre-Trial Custody Conference was held on June 30, 2020. The resulting Order permitted Zoom calls in a therapeutic setting and scheduled a custody settlement conference for September 23, 2020. At the Settlement Conference, issues were raised that required...a Threat of Harm hearing, which was scheduled for December 3, 2020. Additionally, the resulting Order gave counsel access to the CAC interviews, and counsel agreed that the court should view the CYF file in camera . The Threat of Harm hearing commenced on December 3, 2020, but it was not completed in the time allotted. The court did issue an order on December 3, 2020 expanding Father's rights from Zoom calls and therapeutic sessions to [supervised] visits....

The hearing was continued to February 19, 2021. The court heard from Dr. Casey Shienvold, who had evaluated Father for a threat of harm in accordance with 23 Pa.C.S.A. § 5329. Dr. Casey Shienvold opined that Father did not fit the profile for a perpetrator and did not pose a threat of harm. Dr. Arnold Shienvold performed psychological evaluations of both parents. He did not raise any significant issues with Father and notably opined that "Mother's religious beliefs appear to set the foundation for what she perceives as ‘right’ and ‘wrong’ and how she interprets it. She forms her opinions secondary to emotional reactions. After forming her opinion, Mother may then obsessively search for ‘facts,’ which again may be more emotionally then tangibly based, to prove her perceptions are ‘true.’ " (Father's Ex. E).

While CYF originally indicated a report on Father based on the alleged abuse, Father appealed the determination. CYF then declined to pursue the case, and on December 30, 2020, DHS ordered that the reports be expunged. At the time of the February 19, 2021 hearing, the PFA was vacated by agreement of the parties. Additionally, there did not appear to be a pending criminal investigation, and no criminal action had been taken. Therefore, the court modified the interim order to provide some custody for Father to be supervised by Paternal Grandmother. The threat of harm hearing was continued until April 5, 2021, which was supposed to have been in person with the court talking to the children. However, just prior to April 5, Mother's counsel informed the court and counsel that Mother and the children had been exposed to COVID. Even though no supporting documentation was provided, the court rescheduled the testimony of the children to an in-person interview on April 14, 2021, and proceeded with other testimony via Zoom on April 5. In accordance with the prior agreement of counsel (N.T. 2/19/21 at page 218), the court watched the five CAC interviews of the children during the weekend prior to the April 5^th hearing.

During the hearing on April 5, 2021, the [c]ourt was made aware that another referral was made against Father following his weekend of supervised custody. Counsel for CYF and the caseworker assigned were able to Zoom into court and report the status. The [c]ourt had the discussion off the record with all counsel and the caseworker present; but no parties [were] present as the discussion concerned an ongoing investigation. The caseworker was new to the case and was not [the caseworker] who had testified previously with regard to the other allegations. The court was informed that another CAC interview was scheduled on April 13, the day before the children's rescheduled testimony to the court. Additionally, there was some confusion as to whether Mother had contact with the children immediately following Father's weekend, and the caseworker may not have been aware that Mother taught at the school that the children attended. While the [c]ourt did not issue a separate Order, the court indicated that no one was to talk to the children, including the CAC, prior to the children's scheduled testimony nine days later. The CYF solicitor...was present and did not object.

The court then received a call from the District Attorney's office requesting an emergency meeting. As a courtesy, an Emergency Status Hearing was scheduled and held at 8:30 a.m. [on April 9, 2021] before other scheduled court business.

(Trial Court Opinion, filed May 11, 2021, at 2-7).

On the morning of April 9, 2021, the court informed the Commonwealth that it would be canceling the CAC interview scheduled with the Children for April 13th as part of the Commonwealth's child abuse investigation. The court stated that Children were "CAC'd out." (N.T. Hearing, 4/9/21, at 2; R.R. at 2a). The court expressed its concern that Children had already been interviewed multiple times and Father had no unsupervised time with Children in over a year. The court explained that Children were "burned out from going over the same information over and over again." (Id. at 5; R.R. at 5a). Further, the court said it had "serious coaching concerns." (Id. )

The Commonwealth responded that the trial court lacked standing in the child abuse investigation to dictate if future interviews would occur. The Commonwealth maintained that there was a new allegation of abuse against Father, and the Commonwealth had a duty to investigate that allegation. Further, to the extent Mother or Maternal Grandmother might be coaching Children, the Commonwealth would investigate that as well because that could be a criminal issue.

In response, the trial court emphasized that it had jurisdiction over Children regarding the underlying custody matter and needed to act in Children's best interests.

The court wanted any interviewers to familiarize themselves with the history of this case and watch any previous CAC interviews. Accordingly, the court issued the following verbal order:

And now, this 9^th day of April 2021, the [c]ourt is issuing an Order that no one will interview these children about any allegations involving sexual misconduct by Father unless he or she has read both of the reports by Dr. Shienvold, the transcript of all custody proceedings to date, and watched all of the prior CAC interviews.

The [c]ourt is extremely concerned about coaching in this case of these children and CAC burnout. It was clear watching the interviews of the children in order that their descriptions of events became more specific rather than less specific over the time involved and that they made extremely disparaging comments regarding Father and his family that were clearly coming from Mother and her family.

It was also clear that Father has undergone an extensive threat of harm assessment and that there has been a separate report where the psychologist concluded that Mother, rather than changing her view to fit the facts, changes her facts to fit her view.

The [c]ourt will be interviewing these

...