author: BLACK, J.,

text:
    In re Involuntary Termination of Parental Rights to K.M.C.T., M.J.T. and S.L.C.S.

      C.P. of Lehigh County,
    nos. [ AXXXX-XXXX ], [ AXXXX-XXXX ], [ AXXXX-XXXX ].

      Valerie Cammarene, for petitioner OCYS.

      David M. Roth, for biological Mother.

      Teresa I. Resendez, for Minors.
    September 14, 2006
   BLACK, J.,

Before the court for disposition are (a) the petition filed by Office of Children and Youth Services (OCYS) for the involuntary termination of the parental rights of the biological mother M.L.T., to her minor children, K.M.C.T., M.J.T. and S.L.C.S., and (b) the petition of OCYS for the involuntary termination of the parental rights of the biological father J.R.B., to his minor daughter K.M.C.T. A hearing was held on these petitions on June 8 and 9,2006. From this hearing we make the following findings of fact and conclusions of law:

FINDINGS OF FACT

I. General Findings

(1) K.M.C.T. is a female child born May 22, 1997, in Lehigh County, Pennsylvania.

(2) M.J.T. is a male child bom June 12,2000, in Lehigh County, Pennsylvania.

(3) S.L.C.S. is a female child born February 1, 1993, in Lehigh County, Pennsylvania.

(4) M.L.T. (Mother) is 32 years old, single, and the biological mother of K.M.C.T., M.J.T. and S.L.C.S.

(5) J.R.B. is 51 years old, single, and the biological father of K.M.C.T. J.RB.’s paternity was confirmed by a paternity test.

(6) The biological father of M.J.T. has only been identified as “B.”

(7) B. was not present for the hearing on June 8,2006. B. was provided notice of the hearing through publication.

(8) A.V.E. is the biological father of S.L.C.S.

(9) A.V.E. was not present for the hearing on June 8, 2006. His last known whereabouts are in Georgia.

(10) OCYS unsuccessfully attempted to serve A.V.E. in Georgia regarding the termination hearing. A.V.E. has not been present for any of the juvenile proceedings, nor has he contacted OCYS.

II. Findings As to Mother

(11) Mother was present for the hearing on the petition to terminate her parental rights on June 8,2006, and was represented by legal counsel.

(12) Mother admits that on May 15 or 16, 2004, S.L.C.S. told her that she was being sexually abused by a man living in their home, C.L.W. Mother allowed C.L.W. to continue residing in the home for at least another 12 days.

(13) OCYS received a referral regarding Mother on or about May 28,2004. The referral consisted of a report of sexual abuse against S.L.C.S.

(14) OCYS had previously been involved with the family for issues of hygiene and truancy.

(15) On May 28, 2004, OCYS obtained emergency custody of K.M.C.T., M.J.T. and S.L.C.S. and they were placed into foster care.

(16) The report of sexual abuse was given a founded status, naming C.L.W., Mother’s paramour, as a perpetrator of sexual abuse with permission, and Mother as a perpetrator of sexual abuse by omission.

(17) At the time OCYS received the referral C.L.W. was residing with Mother as her boyfriend.

(18) A perpetrator of sexual abuse by omission means that Mother was aware that the abuse was occurring, and failed to take any steps to report the abuse or protect her child.

(19) On July 9, 2004, K.M.C.T., M.J.T. and S.L.C.S. were adjudicated dependent. Mother was present at the hearing.

(20) Mother was court-ordered to cooperate with recommendations of S.L.C.S.’s treatment provider, cooperate with criminal and child protective services investigations, insure that the children have no contact with the perpetrator, undergo an evaluation and assessment with Forensic Treatment Services and cooperate with recommendations, cooperate with OCYS, and attend biweekly supervised visits with the children.

(21) The juvenile court order of July 9, 2004, for K.M.C.T. stated that

“(d) On May 27, this juvenile was taken into emergency custody. At the time of the placement Mother’s home was dirty and cluttered and smelled. The juvenile’s hygiene upon placement was not satisfactory. And the home also smelled heavily of cigarette smoke.

“(e)...

“(f) Juvenile’s older sister has been the victim of sexual abuse by C.L.W. C.L.W. also assaulted juvenile’s older subbing [sic] while this juvenile was present.”

(22) Forensic treatment services is an agency that provides treatment to sexual offenders, nonoffending parents, and victims of sexual and physical abuse.

(23) In July of2004, Mother began individual counseling at Confront.

(24) On August 17,2004, C.L.W. was arrested due to his abuse of S.L.C.S. and charged with aggravated indecent assault without consent, aggravated indecent assault forcible compulsion, aggravated indecent assault on a person less than 13 years of age, aggravated indecent assault of a child, indecent assault without consent of others, indecent assault mental disease defect, indecent assault of a person less than 13 years of age, and corruption of minors.

(25) On August 19, 2004, as a result of the sexual abuse, Mother was arrested and charged with endangering the welfare of a child, being S.L.C.S.

(26) In September 2004, Mother began attending group therapy sessions at Confront.

(27) A permanency review hearing was held on September 14, 2004. Mother was present for the hearing.

(28) The September 14, 2004, court order noted that Mother was cooperating with services. At the time of the review hearing Mother had started individual counseling and nonoffending parent treatment group counseling, both through Confront.

(29) Ann Friedenheim M.A., C.A.C.D., Mother’s counselor at Confront submitted a report dated September 7, 2004, stating that Mother was participating in treatment.

(30) At the time of the review hearing Mother continued to have supervised visitation with the children.

(31) On October 12, 2004, Mother entered a plea of guilty to endangering the welfare of a child.

(32) A permanency review hearing was held on March 8,2005. The court determined that Mother was complying with services. Mother was present for this hearing.

(33) Ms. Friedenheim, M.A., C.A.C.D., submitted another status report dated March 7, 2005, disclosing that Mother’s attendance at therapy was excellent. Mother was doing well in individual counseling, but was struggling to adjust to group therapy. In group therapy Mother had a detached relationship with the other women. Mother also had requested therapy with her daughter, and family therapy sessions were therefore being instituted.

(34) On March 14, 2005, C.L.W. entered a plea of guilty to indecent assault on a person less than 13 years of age, for his assault on S.L.C.S.

(35) On March 21, 2005, Mother was sentenced on the charge of endangering the welfare of a child to pay the costs of prosecution and to be on probation for a period of 18 months. The conditions of probation were that she have no contact with C.L.W. and that she comply with the requirements established by OCYS.

(36) On May 25, 2005, Mother was discharged from Confront due to nonattendance.

(37) On June 28,2005, a permanency review hearing was held.

(38) During the review period Mother did schedule a psychological evaluation in September 2005, did attend visitation with the children, and did complete a parenting class.

(39) Mother was court-ordered to attend counseling at Confront, attend visitation with the children, resolve criminal charges, comply with probation, obtain and maintain suitable housing, and cooperate with OCYS. She was also prohibited from allowing contact between C.L.W. and S.L.C.S.

(40) On July 1, 2005, C.L.W. was sentenced on the charge of indecent assault to pay the cost of prosecution, undergo imprisonment in Lehigh County Prison for a period of not less than 9 months, nor more than 23 months. C.L.W. was also instructed to have no contact with S.L.C.S. or with her immediate family and to engage in counseling services.

(41) At the time of the hearing on Mother’s petition, C.L.W. remained incarcerated.

(42) In or around August 2005, Mother suffered a mental health crisis. As a result, Mother resided at the Salisbury House, a mental health treatment home, until approximately September 2005.

(43) A change of goal hearing was conducted on November 29,2005. The permanency goal was changed to a dual goal of reunification and termination of parental rights.

(44) Mother received notice of the change of goal hearing, but she did not attend.

(45) During the review period Mother failed to consistently attend counseling at Confront. She also failed to appear for her appointment to have a psychological evaluation.

(46) On November 29, 2005, Mother was ordered to attend counseling at Confront, comply with parenting classes, continue visiting the juveniles, allow no contact between the children and C.L.W., resolve all criminal charges and comply with probation, obtain and maintain stable housing, and cooperate with OCYS.

(47) On February 20, 2006, Mother was discharged from treatment by Confront for lack of compliance.

(48) Mother contacted OCYS by telephone on March 6,2006. She left a message indicating who she was and that she would call back. Mother left no contact information for OCYS to reach her

(49) OCYS attempted to contact Mother by mailing letters to 519 North Franklin Street, 121 South Blank Street, and 1215 South Blank Street. All three letters were returned to OCYS without being delivered to Mother.

(50) Mother did not successfully complete her probation due to a failure to cooperate with OCYS and a failure to maintain contact with her probation officer. By order of April 27, 2006, Mother was resentenced to six to 18 months in Lehigh County Prison

(51) On May 2, 2006, a permanency review hearing was held. Mother was present for the hearing.

(52) The court summary provides that Mother was discharged from Confront for noncompliance, and she had not completed her psychological evaluation.

(53) The court determined that visitation with the juveniles had become inconsistent. Mother had missed one visit in December 2005, one in February 2006, two in March 2006, and two in April 2006.

(54) On May 8,2006, Mother left a message at OCYS indicating that she was in the work release program.

(55) Ms. Dunn contacted Mother’s counselor, Laura Petty, in the work release program, to establish visitation.

(56) Mother telephoned Ms. Dunn on May 11,16,17, 22 and 24,2006. Mother was unable to reach Ms. Dunn until May 24, at which time they discussed Mother’s pretrial hearing.

(57) Mother has not contacted OCYS since May 24, 2006.

(58) At the time of the June 8, 2006 hearing, Mother remained in the work release facility.

III. Findings As to J.R.B.

(59) J. R. B. was not present on June 8, 2006, for the hearing on the petition to terminate his parental rights.

(60) OCYS provided notice to J.R.B. by publication regarding the involuntary termination hearing. He did participate in the juvenile proceedings regarding K.M.C.T. for a period of time.

(61) J.R.B. currently has an outstanding warrant for his arrest.

(62) J.R.B. was present at the July 9, 2004 hearing where K.M.C.T. was adjudicated dependant.

(63) At the adjudication hearing J.R.B. presented himself as a placement resource for K.M.C.T. The court order reflected that J.R.B. had not cared for or had any significant contact with K.M.C.T. prior to her adjudication. J.R.B. was unable to obtain custody of K.M.C.T. because he had inadequate housing.

(64) A permanency review hearing was held on September 14, 2004. J.R.B. was present for the hearing.

(65) J.R.B.’s visits with K.M.C.T. were increased, and J.R.B. was court-ordered to have weekly supervised visits for 90 minutes. Within 45 days, the visitations were to be changed to unsupervised in the community. J.R.B. was also ordered to continue to cooperate with visiting nurses and OCYS.

(66) At the time of the September 14 hearing J.R.B. was still unable to take custody of K.M.C.T. because of inadequate housing.

(67) J.R.B. was present for the permanency review hearing on March 8, 2005.

(68) A permanency review hearing was held on June 28, 2005. The court order permitted OCYS to place K.M.C.T. in the custody of J.R.B. upon approval of his residence.

(69) J.R.B. did attend the change of goal hearing on November 29, 2005.

(70) J.R.B. had not obtained custody of K.M.C.T. between the June and November hearings. J.R.B. did not have suitable housing or childcare available to him. OCYS was also concerned that J.R.B. had a second daughter already residing with him, whose mother had a history with OCYS. J.R.B. indicated that the mother to his other child did not reside with him, but that he did utilize her as a caretaker.

(71) As of the November hearing, J.R.B. continued to have visitation with K.M.C.T. The visits were occurring at his home. K.M.C.T. suffers from asthma and allergies and had reactions to J.R.B.’s cat during her visits.

(72) By letter of January 13, 2006, OCYS informed J.R.B. of K.M.C.T.’s allergic and asthmatic conditions and suggested that he find another home for his cat. J.R.B. did not get rid of his cat.

(73) OCYS Caseworker, Sharon Dunn, spoke with J.R.B. by telephone on February 7, 2006. During that conversation J.R.B. revealed that he had a relapse after being clean for 15 years, and was going in for a weekend of treatment.

(74) J.R.B.’s last visit with K.M.C.T. occurred on March 3, 2006. At this time OCYS was informed that J.R.B. had acquired a second cat.

(75) J.R.B. has not contacted OCYS since March 3, 2006.

(76) On March 9,2006, OCYS mailed a letter to J.R.B. requesting a meeting to discuss reunification services. The letter also informed J.R.B. that the visits were being moved to OCYS due to K.M.C.T.’s health issues and his inconsistency in visitation.

(77) A second letter was mailed to J.R.B. on March 29,2006. The letter was not delivered and was returned to OCYS.

(78) Between November 29, 2005 and May 2, 2006, J.R.B. stopped attending visits withK.M.C.T. There were 16 visits scheduled during this time period. He failed to visit with K.M.C.T. on 11 of these occasions. J.R.B.’s home was located almost across the street from K.M.C.T.’s foster family.

(79) J.R.B. was not present for the permanency review hearing held on May 2, 2006.

IV. Findings As to the Juveniles

(80) All three children have remained in the continuous custody of OCYS since their placement on May 28, 2004.

(81) S.L.C.S. has had a difficult time in foster care. She has been in six different placements since she was adjudicated dependent. Her difficulties involve stealing, aggression, poor peer interactions and self-harming behaviors.

(82) On February 23, 2006, S.L.C.S. was placed at Ashley Manor, a residential treatment facility for girls. Ashley Manor specializes in treating children who have been sexually abused. S.L.C.S. receives around-the-clock supervision, individual therapy, group therapy and behavioral modification.

(83) It is anticipated that S.L.C.S. will be discharged in the fall of 2006, at which time she would be returned to her foster home.

(84) It is important for S.L.C.S. to feel safe and secure in the custody of her caregivers.

(85) S.L.C.S. does have an attachment to Mother, but it is not healthy. S.L.C.S. says that she loves Mother, but that it would be okay for her to be adopted. S.L.C.S. lacks an emotional bond with Mother and S.L.C.S. does not believe that Mother will protect her or nurture her.

(86) S.L.C.S. is an adoptable child.

(87) K.M.C.T. is in third grade and has been in her current foster home since June 3, 2004. K.M.C.T. was previously receiving specialized education services to improve her reading and math skills. She has now transferred to regular education classes, with some summer education assistance to help maintain her grade level.

(88) When K.M.C.T. entered placement she had difficulty with rules and structure, temper tantrums and hygiene problems. She has made significant progress in these areas.

(89) K.M.C.T. does attend weekly counseling and receives psychiatric medication monitoring through Florence Child Guidance Center.

(90) K.M.C.T. has an unhealthy attachment to Mother. K.M.C.T. states that she loves her mother, but that she is scared by the idea of living with her.

(91) M.J.T. attends kindergarten. He does well academically and behaviorally, but struggles with peer interactions. He has been verbally and physically aggressive.

(92) M.J.T. receives weekly therapy and medication management through Florence Child Guidance Center.

(93) M.J.T. has been in his current foster home for approximately two years.

(94) M.J.T. previously had a diagnosis of reactive attachment disorder, which indicates that he does not have an attachment to Mother. Reactive attachment, disorder occurs when a child does not form a healthy emotional bond with their birth parents at a young age.

(95) S.L.C.S., K.M.C.T. and M.J.T. are each residing in different placements.

(96) Severing the bond between Mother and the juveniles would not cause any harm to S.L.C.S., K.M.C.T. or M.J.T.

CONCLUSIONS OF LAW

I. Mother

(1) For more than six months prior to the filing of this petition for involuntary termination of parental rights, and thereafter, Mother’s failure to comply with court-ordered services constitutes a failure to perform parental duties sufficient to warrant the involuntary termination of her parental rights pursuant to 23 Pa.C.S. §2511 (a)(1).

(2) Mother has demonstrated an unwillingness or inability to provide the juveniles with the essential parental care necessary for their physical or mental well-being, which is grounds for the involuntary termination of her parental rights pursuant to 23 Pa.C.S. §2511(a)(2).

(3) While the juveniles have been in the continuous care of OCYS since May 28,2004, Mother has failed to address the issues that led to placement of the juveniles, thereby warranting the involuntary termination of her parental rights pursuant to 23 Pa.C.S. §2511(a)(5).

(4) Mother’s failure to avail herself of the proffered services designed to address the issues that led to placement of the juveniles on May 28, 2004, constitutes grounds for the involuntary termination of her parental rights pursuant to 23 Pa.C.S. §2511(a)(8).

(5) The termination of Mother’s parental rights will serve the developmental, physical and emotional needs and welfare of the juveniles. 23 Pa.C.S. §2511(b).

II. J.R.B.

(1) For more than six months prior to the filing of this petition for involuntary termination of parental rights, and thereafter, J.R.B.’s failure to comply with court-ordered services constitutes a failure to perform parental duties sufficient to warrant the involuntary termination of his parental rights to K.M.C.T. pursuant to 23 Pa.C.S. §2511(a)(1).

(2) J.R.B. has demonstrated an unwillingness or inability to provide K.M.C.T. with the essential parental care necessary for her physical or mental well-being, which is grounds for the involuntary termination of his parental rights to K.M.C.T. pursuant to 23 Pa.C.S. §2511 (a)(2).

(3) The termination of J.R.B.’s parental rights will serve the developmental, physical and emotional needs and welfare of K.M.C.T. 23 Pa.C.S. §2511(b).

DISCUSSION

The grounds for involuntary termination of parental rights are set forth in the Domestic Relations Code at 23 Pa.C.S. §2511. OCYS has alleged grounds for termination pursuant to section 2511(a)(1), (a)(2), (a)(5), (a)(8) and (b), which provide, in pertinent part, as follows:

“Section 2511. Grounds for involuntary termination

“(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

“(1) The parent by conduct continuing for a period of six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

“(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

“(6) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

“(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child....

“(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.”

I. Involuntary Termination of Mother’s Parental Rights

It is settled law that the petitioner has the burden of proving the alleged grounds for termination by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745 (1982). The Pennsylvania Superior Court has stated that “the witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue .... It is not necessary that the evidence be uncontradicted, provided it carries ‘conviction to the mind’ or carries ‘a clear conviction of its truth.’ ” In re Adoption of J.J., 511 Pa. 590, 595-96, 515 A.2d 883, 886 (1986), citing La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963). The burden of proof is high because Pennsylvania law recognizes that the family unit is an important one, and the bonds of family should not be lightly or easily severed. In re Bowman, 436 Pa. Super. 10, 647 A.2d 217 (1994).

Nevertheless, Pennsylvania law also recognizes that the rights of parenthood are accompanied by responsibilities. In re Adoption of J. J., 511 Pa. at 602, 515 A.2d at 890. Where a parent fails or refuses to perform parental duties for a period of six months immediately prior to the filing of the petition for termination, then grounds for termination of parental rights exist. 23 Pa.C.S. §2511(a)(1).

The record in this case demonstrates that Mother has not met her responsibilities to K.M.C.T., M.J.T. and S.L.C.S. Since the juveniles’ placement, Mother has failed to comply with court-ordered services. Specifically, Mother has failed to successfully complete non-offending parent treatment or a psychological evaluation. Mother made early attempts to attend therapy at Confront, but on May 25, 2005, she was discharged for nonattendance. Mother attempted to reinitiate therapy, but was again discharged on February 20,2006, for lack of compliance. Mother has also failed to maintain housing and is presently incarcerated. Thus, it is clear that Mother has failed to perform her parental duties.

The statute for terminating parental rights outlines certain minimum requirements that must be satisfied. In re Diaz, 447 Pa. Super. 327, 334, 669 A.2d 372, 375 (1995). “Grounds for termination can consist of lack of capacity and not just affirmative misconduct.” In re E.M., 533 Pa. 115, 120, 620 A.2d 481, 484 (1993). If a parent fails to cooperate, or appears incapable of benefiting from the reasonable efforts supplied by the agency over a realistic period of time, the agency has fulfilled its obligations and termination of parental rights is warranted. In re Lilley, 719 A.2d 327, 332 (Pa. Super. 1998).

The evidence in this case establishes that Mother does not have the capacity to parent the juveniles. Prior to being taken into custody by OCYS on May 28, 2004, Mother failed to protect her children from C.L.W., a sexual predator that she allowed to reside with her and juveniles. After May 28,2004, Mother has continued to demonstrate a lack of responsibility. When given opportunities to visit with S.L.C.S., K.M.C.T. and M.J.T., Mother has failed to show up a large part of the time. She missed one visit in December 2005, one in Februaiy 2006, two in March 2006, and two in April 2006. A parent has an affirmative duty to work toward reunification.

Once the court has determined that one or more of the statutory grounds for involuntary termination have been satisfied, the court must further determine whether termination will serve the needs and welfare of the child. 23 Pa.C.S. §2511(b); In re E.S.M., 424 Pa. Super. 296, 304, 622 A.2d 388, 392 (1992). The court must give “primary consideration” to this issue. Id. In making this determination the court must consider the emotional bonds between the parent and child. In re Involuntary Termination of C.W.S.M. and K.A.L.M.-S., 839 A.2d 398, 403 (Pa. Super. 2003).

S.L.C.S. and K.M.C.T. have an attachment to Mother, but it is an unhealthy attachment. S.L.C.S. says that she loves Mother, but that it would be okay for her to be adopted. S.L.C.S. lacks an emotional bond with Mother and S.L.C.S. does not believe that Mother will protect her or nurture her. K.M.C.T. states that she loves Mother, but that she is scared by the idea of living with her. From this evidence we conclude that S.L.C.S. and K.M.C.T. are not emotionally bonded to Mother.

M.J.T. also lacks an emotional bond with Mother. M.J.T. was diagnosed with reactive attachment disorder, which indicates that he does not have an attachment to Mother. Reactive attachment disorder occurs when a child does not form a healthy emotional bond with his birth parents at a young age.

We conclude that severing the bond between Mother and the juveniles would not cause any harm to S.L.C.S., K.M.C.T. or M.J.T. It is important for the juveniles to feel safe and secure in the custody of their caregivers.

The record provides clear and convincing evidence that the juveniles have been in the care of OCYS since May 28,2004, over two years, and that Mother has failed to comply with court-ordered services. The juveniles’ needs will be best served by terminating Mother’s parental rights.

Mother raises several evidentiary issues. She first contends that the court erred in admitting reports from Confront, a drug rehabilitation agency, that are physically attached to, but not incorporated into, court orders promulgated after permanency review hearings on March 8, 2005, and November 29, 2005. Mother makes a similar argument regarding a court summary provided by OCYS, which she asserts is attached to the November 29, 2005 order. However, these objections have been waived. Pennsylvania Rule of Evidence 103 provides that no judicial error may be found in the admission of evidence unless there has been a timely objection stating the specific ground for the objection or unless the ground for the objection is apparent from the context. Mother’s counsel made only a general objection to the admissibility of petitioner’s exhibit 6, the juvenile court orders. He did not specify any ground for the objection at the time of trial, and the grounds are not apparent from the context.

Mother also objected to testimony from Sharon Dunn, the caseworker, regarding M.J.T.’s lack of attachment to Mother and the diagnosis of reactive attachment disorder. Again, however, Mother’s counsel made only a general objection without any indication as to the grounds. Several grounds are now advanced in Mother’s brief, but it is impossible to determine which of these grounds, if any, counsel had in mind at trial. Therefore, this objection also has been waived.

II. Involuntary Termination of J.R.B.’s Parental Rights

The grounds for involuntary termination of parental rights are set forth in the Domestic Relations Code at 23 Pa.C.S. §2511. OCYS has alleged grounds for termination of the rights of J.R.B. pursuant to section 2511(a) (1), (a)(2), (a)(5), (a)(8) and (b), supra.

As noted above, the petitioner has the burden of proving all alleged grounds for termination by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745 (1982). The record in this case demonstrates that J.R.B. has not met his responsibilities to K.M.C.T. He has not made consistent and meaningful efforts to remain in her life and find stable housing. More recently J.R.B. has also relapsed into drug addiction. He has not modified his lifestyle in order to parent his daughter.

The statute for terminating parental rights outlines certain minimum requirements that must be satisfied. In re Diaz, 447 Pa. Super. 327, 334, 669 A.2d 372, 375 (1995). “Grounds for termination can consist of lack of capacity and not just affirmative misconduct.” In re E.M., 533 Pa. 115, 120, 620 A.2d 481, 484 (1993). If aparent fails to cooperate, or appears incapable of benefiting from the reasonable efforts supplied by the agency over a realistic period of time, the agency has fulfilled its obligations and termination of parental rights is warranted. In re Lilley, 719 A.2d 327, 332 (Pa. Super. 1998).

J.R.B. continues to demonstrate lack of responsibility for K.M.C.T. It is evident that J.R.B. does not have the capacity to parent his child due to his lack of adequate housing and inconsistent visitation with K.M.C.T. Between November 29, 2005 and May 2, 2006, J.R.B. missed 11 out of 16 scheduled visits. A parent has an affirmative duty to work toward reunification. The record provides clear and convincing evidence that K.M.C.T. has been in the care of OCYS since May 28,2004, over two years ago, that J.R.B. has failed to overcome his obstacles.

Once the court has determined that the statutory requirements for involuntary termination have been satisfied, the court must further determine whether termination will serve the needs and welfare of the child. 23 Pa.C.S. §2511(b); In re E.S.M., 424 Pa. Super. 296, 304, 622 A.2d 388, 392 (1993). In such situations, parental rights must be terminated to give way to the child’s rights.

In this case, the attorney for K.M.C.T. supports the petition for termination of J.R.B.’s parental rights. She asserts that J.R.B. cannot take on the responsibility of caring for K.M.C.T. She recommends terminating Father’s parental rights in order to benefit the welfare of the juvenile.

Accordingly, we find that grounds for termination of J.R.B.’s parental rights under 23 Pa.C.S. §2511(a)(1) and (2) have been satisfied. The juvenile’s needs will be best served by terminating J.R.B.’s parental rights. For the reasons stated, the parental rights of J.R.B. are terminated as to his daughter K.M.C.T.

OCYS has not proven the grounds for termination of J.RJB.’s parental rights pursuant to 23 Pa.C.S. §2511(5) and (8). These sections require that the juvenile be removed from the care of J.R.B. when taken into custody by OCYS. In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000). In this case, K.M.C.T. was removed from the care of Mother, not J.R.B.

FINAL DECREE

Now, September 12, 2006, upon consideration of the petitions filed by the Office of Children and Youth Services, and after a hearing held on June 8 and 9,2006, this court finds that the petitioner has, by clear and convincing evidence, proven grounds for the involuntary termination of the parental rights of the father of M.J.T.

Therefore, it is ordered, pursuant to 23 Pa.C.S. §2511(a)(1), (2), (5), (8) and (b), that the parental rights of B. in and to M.J.T., minor, be and are terminated herewith.

It is additionally ordered that custody of M.J.T., minor, shall remain with the Office of Children and Youth Services, which agency shall have the right to proceed with the adoption of the minor without further notice to or consent of B.

FINAL DECREE

Now, September 14, 2006, upon consideration of the petitions filed by the Office of Children and Youth Services, and after a hearing held on June 8, and 9,2006, and for the reasons expressed in the accompanying opinion, this court finds that the petitioner has, by clear and convincing evidence, proven:

(1) grounds for the involuntary termination of the parental rights of the mother of the above-captioned minors; and

(2) grounds for the involuntary termination of the parental rights of the father of K.M.C.T.

Therefore, it is ordered, pursuant to 23 Pa.C.S. §2511(a)(1), (2), (5), (8) and (b), that the parental rights of M.L.T. in and to K.M.C.T., minor, M.J.T., minor, and S.L.C.S., minor, be and are terminated herewith.

It is further ordered, pursuant to 23 Pa.C.S. §2511(a) (1) and (2) and (b) that the parental rights of J.R.B., in and to K.M.C.T., minor, be and are terminated herewith.

It is additionally ordered that custody of K.M.C.T., minor, M.J.T., minor, and S.L.C.S., minor, shall remain with the Office of Children and Youth Services, which agency shall have the right to proceed with the adoption of the minors without further notice to or consent of M.L.T. or J.R.B.

      . Notes of Testimony 6/9/06 (N.T.), 7.

      . N.T. 8.

      . Id.

        . N.T. 5.

        . Id.

        . N.T. 6.

      . Notes of Testimony 6/8/06, 55.

      . N.T. 6/8/06, 56.

      . N.T. 9.

      . N.T. 6/8/06, 56.

        . Id.

      . Id.

      . N.T. 10.

      . Id.

      . N.T. 11.

      . N.T. 12.

      . Petitioner’s exhibit 2; N.T. 12-13.

      . N.T. 13.

      . N.T. 6/8/06,25.

      . N.T. 18-19; petitioner’s exhibit 4.

      . N.T. 10.

      . N.T. 6/8/06,25.

      . N.T. 23.

      . N.T. 24,27.

      . N.T. 25-27.

      . N.T. 28-29.

      . N.T. 22; petitioner’s exhibit 5.

      . N.T. 34-35.

      . N.T. 32.

      . N.T. 33.

      . N.T. 34.

      . N.T. 20.

      . N.T. 22.

      . N.T. 36-38.

      . N.T. 45-46.

      . N.T. 20.

      . N.T. 20-21.

      . N.T. 21.

      . N.T. 95.

      . N.T. 46.

      . N.T. 47.

      . N.T. 54.

      . N.T. 55.

      . N.T. 59.

      . N.T. 57.

      . N.T. 57-58.

      . N.T. 22-23.

      . N.T. 55-56.

      . N.T. 56.

      . N.T. 56.

      . N.T. 61-62.

      . N.T. 62.

      . N.T. 23.

      . Id.

      . Id.

      . N.T. 11.

      . N.T. 16.

      . N.T. 23.

      . N.T. 29-30.

      . N.T. 29.

      . N.T. 34-35.

      . N.T. 44.

      . N.T. 47.

      . Id.

      . N.T. 48.

      . Id.

      . N.T. 52.

      . N.T. 51.

      . N.T. 52.

      . N.T. 49, 50.

      . N.T. 51.

      . N.T. 50.

      . N.T. 55-56.

      . N.T. 10.

      . N.T. 63.

      . N.T. 63.

      . N.T. 66.

      . N.T. 64.

      . N.T. 66.

      . N.T. 67.

      . N.T. 84.

      . N.T. 68.

      . N.T. 68-69.

      . N.T. 69.

      . N.T. 69.

      . N.T. 70.

      . N.T. 70.

      . N.T. 71.

      . N.T. 72-73.

      . N.T. 71.

      . N.T. by Lenore Wagner, 73.

      . The only information on the identity of the biological father of M.J.T. is that his first name is “B.” For this reason, he was served notice of the hearing to terminate his parental rights by publication in The Morning Call on May 19 and 26, 2006.

      . N.T. 21.


source: Caselaw Access Project

author: YATRON, J,

license: Public Domain

text:
    Commonwealth v. Huntington

      C.P. of Berks County,
    no. CP-06-CR-0673-2006.

      Alisa R. Hobart, for Commonwealth.

      John T. Adams, for defendant.
    August 16, 2006
   YATRON, J,

On June 20, 2006, we entered an order suppressing evidence and granting a petition for writ of habeas corpus on motion of defendant, Thomas Lee Huntington. On or about July 13,2006, the Commonwealth filed a notice of appeal of this court’s June 20, 2006 order. By order dated July 21, 2006, the Commonwealth was directed to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On or about July 25,2006, the Commonwealth filed its concise statement asserting two errors in this court’s June 20, 2006 opinion and order. They are:

“(1) The trial court erred in granting defendant’s motion to suppress evidence based upon the four corners of a search warrant.

“(2) The trial court erred in granting defendant’s petition for a writ of habeas corpus and dismissing the charges.”

For the reasons that follow, we respectfully urge the court to deny the Commonwealth’s appeal.

We hereby adopt our opinion and order dated June 20, 2006, in its entirety as setting forth the court’s findings of fact and conclusions of law with regard to the defendant’s omnibus pretrial motion. A copy of our opinion and order is attached hereto. While we believe that our June 20 opinion, although narrative in format, satisfies the requirements of Pa.R.Crim.P. 581(1), we write to further explain our analysis and reasoning with regard to the defendant’s motion to suppress.

At the outset, we note that once the determination was made that the evidence had to be suppressed, the granting of the petition for writ of habeas corpus was inevitable. This matter was set for hearing on the defendant’s omnibus pretrial motion on May 16, 2006. At that time, counsel for the Commonwealth and the defendant indicated that no testimony would be offered and that the matter was being submitted to the court for determination based entirely on the information contained within the four corners of the search warrant. It was not even suggested by the Commonwealth that it was in possession of evidence against the defendant other than that seized by virtue of the search warrant. That being the case, it is clear that the only evidence against the defendant was that obtained by the seizure of the defendant’s computer. This being the case, the determination to grant the writ of habeas corpus follows the order of suppression as the night follows the day.

The deficiencies of the warrant in this case with regard to the failure to provide sufficient background information and definition of terms which would permit an understanding of the complicated technical averments contained in the brief affidavit are apparent when the instant warrant is compared to the usual warrant application in narcotics cases. Virtually every such warrant that comes before this court contains three to four pages of background information setting forth the affiant’s training and experience and containing an extensive overview of the drug trafficking business. Upon reviewing such a warrant, there is a temptation to dismiss such information as mere “boilerplate,” especially since computer word processing equipment makes virtually all such warrants startlingly similar. To reach that conclusion, however, is a mistake. The information contained in those averments is vital for an understanding of how drug traffickers operate, and is important to an understanding of the specific factual averments that relate to the particular requested search and seizure.

The search warrant sub judice fails to either describe or define numerous terms such as “e-mail addresses, screen names, IP addresses, Yahoo groups, cybertip, and IP tracker logs.” Without explanations or definitions of these terms, it is impossible to discern whether the information set forth in the page-and-a-half affidavit establishes probable cause to believe that contraband would be found on the defendant’s computer.

Nor does the affidavit provide any information from which the court can assess the reliability of the information. Despite reference, for example, to another law enforcement officer’s report, it is impossible to discern whether information from that report, upon which the affiant purportedly relied, is contained in the affidavit for the search warrant.

While the Commonwealth may attempt to justify the failure to provide sufficient background information by claiming exigent circumstances, such claim must fail. Paragraph 12 of the warrant affidavit contains the following averment, “Even if evidence of the existence of child pornography collection is several years old, chances are he/she still has the collection, now, only it’s larger.” This averment was apparently included in order to avoid an anticipated staleness attack on the affidavit, considering that paragraph 2 of the affidavit sets forth a claimed violation of the relevant statute on November 30, 2004. (The affidavit was sworn by the affiant on May 27,2005.) Thus, the Commonwealth had all the time it could possibly need to prepare an adequate affidavit in support of its request to seize the defendant’s computer. We believe the affidavit in question grossly fails the tests set forth in Commonwealth v. Ryerson, 817 A.2d 510 (Pa. Super. 2003). For these reasons, as well as those set forth in our June 20,2006 opinion, we respectfully request the Commonwealth’s appeal be denied.

June 20, 2006

MEMORANDUM OPINION

YATRON, J,

Thomas Lee Huntington is charged in a one-count information with sexual abuse of children pursuant to 18 Pa.C.S. §6312(d). This matter is before the court on defendant’s omnibus pretrial motion seeking a motion to suppress evidence and an adjunct writ of habeas corpus based upon evidence seized from defendant’s home following a search warrant. Upon the agreement of counsel, the search warrant and affidavit of probable cause were admitted into evidence and neither testimony nor oral arguments were heard; rather, counsel for the Commonwealth and counsel for the defendant submitted memoranda in support of their respective positions. The sole issue is whether the facts contained within the search warrant’s affidavit of probable cause sufficiently establish probable cause for the issuance of the warrant.

On May 27, 2005, Detective W. Douglas Weaver of the Berks County District Attorney’s Office applied for a warrant to search the residence at 101 Hickory Drive, Bethel Township, Berks County, Pennsylvania. District Justice Carol A. Stoudt authorized the warrant to search the residence at 101 Plickory Drive and to search and/or seize personal property that included, inter alia, electronically-stored and paper files, data, materials, and records pertaining to child pornography; computer hardware and software used to store, view, display, and disseminate child pornography; and information pertaining to internet service providers (ISPs). See Commw. exhibit 1, appl. for search warn

DISCUSSION

“In determining whether the warrant is supported by probable cause, the magistrate may not consider any evidence outside the four comers of the affidavit.” Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003) (quoting Commonwealth v. Sharp, 453 Pa. Super. 349, 357, 683 A.2d 1218, 1223 (1996)). Thus, the Pennsylvania Supreme Court has articulated that the starting point for evaluating the underlying probable cause of a warrant is the “totality of the circumstances” test. Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). In order to do this, “[t]he information offered to establish probable cause must be viewed in a commonsense, nontechnical manner.” Ryerson, 817 A.2d at 514.

The warrant’s underlying affidavit of probable cause contains 13 individually numbered paragraphs. See exhibit 1, aff. prob. cause. Contained within the probable cause’s paragraphs are averments alleging, inter alia, that Detective Weaver began an investigation on May 16,2005 because Yahoo Inc. reported a possible use of an e-mail account on November 30, 2004, for the purpose of “uploading] images of children, who appeared to be under the age of 18, and were exposing their gentitals [sic] while in sexually explicit poses” via “cybertip 288696.” Exhibit 1, aff. prob. cause at para. 2. While not stated explicitly, one can infer that Yahoo Inc. is somehow involved with the internet. However, this inference teeters on the cusp of reading the affidavit non-technically and going impermissibly outside the four comers of the affidavit. Yet, the affidavit does not even begin with the basics of explaining who or what “Yahoo Inc.” is or does. Likewise, the affidavit leaves open to speculation what the definitions and explanations of “cybertip” and “e-mail address” are. However, even more problematic is the reliability of the information provided by Yahoo Inc. See exhibit 1 at para. 2. Citing Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelliv. United States, 393 U. S. 410 (1969), the Superior Court stated that in order establish probable cause for a search warrant based upon information given to the affiant by an informant, “[fjirst, the affidavit must include the underlying circumstances supporting the informant’s conclusion that the [items] to be seized will be found at the place to be searched. Second, the affidavit must present the circumstances justifying the affiant’s belief in the reliability of the informant.” Commonwealth v. Forster, 253 Pa. Super. 433, 436, 385 A.2d 416, 417-18 (1978).

In the case at bar, there has been no mention of the circumstances justifying a belief that Yahoo’s “cybertip” was reliable. In addition, nowhere in the affidavit does it describe or explain the connection between the alleged November 30, 2004 violation and the defendant, the defendant’s family, or the defendant’s residence and/or personal property.

Paragraph 3 of the affidavit also contains further technical usage of e-mail addresses, “screen name[s],” an IP address of “63.214.197.252,” and “a Yahoo group titled ‘the_future_shines_bright.’ ” See exhibit 1 at para. 3. The connections among this “IP address,” the alleged crime, and the defendant are also not explained either in this paragraph or any subsequent paragraphs. Also contained within this paragraph is an assertion that Detective Weaver relied upon the investigative report compiled by Detective Lieutenant David C. Peifer of the Delaware County District Attorney’s Office that “comprehensively documented several facts and circumstances.” See exhibit 1 at para. 3. It is unclear from the affidavit’s face whether the totality of the facts in the report are set forth in the affidavit or not, and if they are, they fail to appear “comprehensive.” Moreover, “the underlying circumstances justifying ... the reliability” of the information contained in this paragraph as provided by the Yahoo legal department are not set forth. See Forster, 253 Pa. Super. at 436, 385 A.2d at 418.

Further hearsay information averred to by Detective Weaver as relayed to him via Detective Peifer from Yahoo states that the “thom682000” screen name was created on January 17, 2001, from the IP address previously mentioned (63.214.197.252). Yet, the affidavit further states information concerning the registrant’s name, location of the registrant, and birth date. However, these details are not even verified by Yahoo (not to mention the underlying reasons for reliability of believing Yahoo). In this respect, the affidavit attempts to connect inferentially, but not explicitly, the defendant to the computer and internet and the alleged crime by use of his initials in the screen name. There is neither any explanation of the relationship between the registrant’s alleged Delaware address and the defendant’s Pennsylvania address, nor any passing reference to the defendant’s birth date in the affidavit. However, the affidavit continues by stating that the “thom682000” screen name was accessed at a second IP address (68.82.123.219) on December 20,2004. Exhibit 1 at para. 6. This is “known” because of “IP tracker logs,” which, like the IP addresses, are not explained, defined, or demonstrated as being connected to the defendant, the alleged crime, or each other. See exhibit 1 at para. 6. Despite not knowing what an IP address is, it appears to be connected to the Huntington residence (but to some unknown degree) as proven through subsequent paragraphs. See exhibit 1 at paras. 7-11. As the affidavit explains, on December 20, 2004, Comcast Cable Communications owned the 68.82.123.219 IP address, which was registered to an account belonging to Sheila Huntington, the defendant’s wife. This account was still active on April 18, 2005. However, despite this information, it is unclear what Comcast is, what the Comcast account is, or how it is connected to the alleged crime and the defendant. What appear in the affidavit are conclusive statements, with insufficient facts to support them.

Based upon the foregoing recitation of facts, it appears to this court that even a non-technical, commonsense approach to understanding and reading of the affidavit of probable cause leaves much to be desired. Instead, the intertwined relationship between the unexplained technological jargon, (seemingly) factual averments, and alleged crime are left to the imagination, providing no meaning as to what the affidavit contains. Rather, the task of making a practical, commonsense decision, when viewing the totality of the circumstances surrounding the affidavit, is difficult under these particular facts, even if the reviewing magistrate is extraordinarily technologically savvy. Instead, the representations set forth in the affidavit in question are analogous to someone presenting to a magistrate a “connect-the-dots” puzzle that has neither numbers nor instructions for giving guidance on how to connect the dots into a properly formed picture.

“[Tjhis court is to ensure that the magistrate had a ‘ substantial basis for concluding that probable cause existed.’ ” Commonwealth v. Days, 718 A.2d 797, 800 (Pa. Super. 1998) (quoting Commonwealth v. Sharp, 453 Pa. Super. 349, 357, 683 A.2d 1219, 1223 (1996)). This court is extremely hard-pressed to conclude that there was even a basis, let alone a substantial basis, for concluding probable cause existed to issue the search warrant sub judice. Based upon the above, we conclude that the magistrate either lacked “substantial basis” for concluding probable cause existed or considered information outside the affidavit in reaching the conclusion that probable cause existed. The Superior Court has further stated that “ ‘ [pjrobable cause to issue a search warrant has been defined as those facts reasonably necessary to show (1) that the items sought are connected with criminal activity, and (2) that the items will be found in the place to be searched. ’ Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980); Commonwealth v. Ryan, 300 Pa. Super. 156, 446 A.2d 277 (1982). The facts stated in an affidavit will support a search warrant only when they would persuade a reasonable person that there is probable cause for a search; mere suspicion or conjecture is insufficient. Commonwealth v. Mazzochetti, 299 Pa. Super. 447, 445 A.2d 1214 (1982).” Commonwealth v. Kanouff, 315 Pa. Super. 392, 394-95, 462 A.2d 251, 252 (1983).

Thus, “[t]he validity of the warrant is dependent upon the facts shown at the time of its issuance. A warrant issued without probable cause, as this warrant was, violated the Fourth Amendment’s mandate that ‘no warrants shall issue, but upon probable cause.’... ‘[W]e are not now concerned with that which happened after the search warrant was issued. We are concerned only with the search warrant itself and with the authority it gave the officer to whom it was directed. It gave him authority to search the house of an innocent person without any attempt to show probable cause, which the Constitution of the United States (Amend. 4) intended to prevent.’ ” Commonwealth v. Kelly, 2001 WL 34315475, at *2 (Columbia Cty. 2001) (quoting Commonwealth v. Copertino, 209 Pa. Super. 63, 69-70, 224 A.2d 228, 230-31 (1966) (citations omitted)).

Therefore, because the search warrant in the case at bar has been found to be lacking in probable cause, the defendant’s home was searched pursuant to an illegal and unconstitutional search warrant. Consequently, the defendant’s property was seized illegally. In accordance with our findings, the defendant’s motion to suppress the evidence seized pursuant to warrant control no. DA-05-002692 and for writ of habeas corpus is granted.

ORDER

And now, June 20, 2006, after consideration of the defendant’s omnibus pretrial motion and the arguments and memoranda of counsel, the defendant’s motion to suppress evidence is granted and further the defendant’s petition for writ of habeas corpus is granted and the charge and information against him is dismissed.

COMMONWEALTH EXHIBIT 1

      . The e-mail address is listed in the affidavit as “thom682000@ yahoo.” Exhibit 1 at para. 3.

      . The Yahoo screen name is listed as “thom682000.” Exhibit 1 at para. 3.

      . The registrant of the account is allegedly from “Mr. t. h. of Bridgeville, DE, 19933” whose birth date is supposedly December 4, 1968. Exhibit 1 at para. 5.

      . Inferentially, this information provided by Comcast is assumed reliable as it was provided under court order. See exhibit 1 at paras. 7-9.


author: McGINLEY, J.,

text:
    Gallagher v. Dalsania
    C.P. of Lehigh County,
    no. 2005-C-1938.

      David J. Selingo, for plaintiff.

      John W. Ashley, for defendants.
    August 23, 2006
   McGINLEY, J.,

Before the court is the plaintiff’s motion for post-trial relief alleging an error of law in the court’s granting of the defendants’ motion for nonsuit at trial. The plaintiff argues that the trial court improperly considered unfavorable evidence to the plaintiff.

FACTUALBACKGROUND

The plaintiff, Marigrace Gallagher, sustained injuries when she fell in the home of the defendants, Harilal and Nayantara Dalsania on December 19,2003.

At the time of the fall, the plaintiff was at the defendants ’ home for the purpose of dog-sitting the defendants’ dog, Daisy, while the defendants went out for the evening. The plaintiff had been at the defendants’ home many times prior to the incident, and on occasion the plaintiff even took the time to clean the Dalsanias’ home, including around the area where the fall occurred.

In the Dalsanias’ house, the kitchen/dinette area is connected to the front foyer. An archway separates the foyer and the kitchen/dinette area. There is also a metal transition strip on the floor that divides the two rooms. Although the foyer and the kitchen areas have the same beige flooring, there is a slight elevation difference between the kitchen/dinette area and the foyer.

On the day of her fall, the plaintiff entered the defendants’ home and had a conversation with Mrs. Dalsania about the icicle lights outside the Dalsanias’ home. They walked from the dinette area through the foyer and to the front doorway to look at the icicle lights. The plaintiff and Mrs. Dalsania then went back into the kitchen. The plaintiff then decided to go to the front of the house to once again admire the lights hanging outside. As the plaintiff proceeded from the kitchen to the foyer, the plaintiff testified that her foot stayed in one place but her body went forward and she fell to the ground, causing extensive injuries. Mrs. Dalsania did not see the plaintiff fall.

Testimony adduced at trial relating to the facts of this case will be discussed in detail below.

PROCEDURALHISTORY

The plaintiff filed a complaint in this matter on March 30,2005, in Luzerne County. By a court order dated June 8, 2005, this matter was transferred to Lehigh County.

Trial commenced on May 3, 2006. The plaintiff completed the presentation of evidence on May 4, 2006. At this point, the defendants motioned the court for a compulsory nonsuit. The court granted the defendants’ motion for nonsuit on May 4,2006.

The plaintiff filed its motion for post-trial relief to remove the nonsuit on May 9,2006. On May 10,2006, the defendants filed their answer to plaintiff’s motion for post-trial relief to remove a nonsuit. The plaintiff filed a brief in support of the motion for post-trial relief on June 28, 2006. The defendants filed their brief in support of their opposition to the plaintiff’s post-trial motion on July 5, 2006. Argument was heard on August 2, 2006.

DISCUSSION

In its motion for post-trial relief, the plaintiff argues that the court committed an error of law in granting the defendants’ motion for nonsuit because in so doing, the court relied upon testimony introduced by the defendants that was unfavorable to the plaintiff. The plaintiff argues that had the trial court limited its scrutiny to evidence produced by the plaintiff and evidence favoring the plaintiff produced by the defendants, the trial court would have concluded that the plaintiff established a prima facie showing against the defendants in this negligence action.

Pursuant to Pa.R.C.P. 230.1(a), a motion for nonsuit may be granted on oral motion of the defendant, if at the close of the plaintiff’s case on liability, the plaintiff has failed to establish a right to relief. Pa.R.C.P. 230.1(a)(1). Furthermore, “the court in deciding the motion shall consider only evidence which was introduced by the plaintiff and any evidence favorable to the plaintiff introduced by the defendant prior to the close of the plaintiff’s case.” Pa.R.C.P. 230.1(a)(2).

“A motion for compulsory nonsuit allows a defendant to test the sufficiency of a plaintiffs’ [sic] evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action; in making this determination, the plaintiff must be given the benefit of all reasonable inferences arising from the evidence. When so viewed, a nonsuit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action; it is the duty of the trial court to make this determination prior to the submission of the case to the jury. When this court reviews the grant of a nonsuit, we must resolve all conflicts in the evidence in favor of the party against whom the nonsuit was entered. A compulsory nonsuit is proper only where the facts and circumstances compel the conclusion that the defendants are not liable upon the cause of action pleaded by the plaintiff.” Shay v. Flight C Helicopter Services Inc., 822 A.2d 1, 13 (Pa. Super. 2003) (quoting Parker v. Freilich, 803 A.2d 738, 744-45 (Pa. Super. 2002)).

“It is hornbook law that, as stated in Lanni v. Pennsylvania Railroad Company, 371 Pa. 106, 109, 110, 88 A.2d 887, 888: ‘the mere happening of an accident is no evidence of negligence. . . . The plaintiff has the two-fold burden of proving that the defendant was negligent and that his negligence was the proximate cause of her accident----’A jury is not permitted, however, to speculate or guess; conjecture, guess or suspicion do not amount to proof.” Freund v. Hyman, 377 Pa. 35, 37, 103 A.2d 658, 659 (1954).

The plaintiff is pursuing a claim of negligence against the defendants in this lawsuit.

“The requisite elements of negligence are well established: They include:

“a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; a failure to conform to the standard required; a causal connection between the conduct and the resulting injury; and the actual loss or damage resulting to the interest of another.” Orner v. Mallick, 432 Pa. Super. 580, 583, 639 A.2d 491, 492 (1994).

During direct examination, the plaintiff testified as follows regarding her fall:

“Q: Can you tell us, you said you never made it towards the front. Can you tell us what happened?

“A: All I can remember is my feet stayed here, my body went forward, and I’m going oh, no, and the first thing that scared me was my heart. I thought something had happened to my heart. Then — I didn’t pass out. I asked Nayan, I said — I did, I said, what the hell just happened?

“Because I didn’t pass out, but I said to her, did I pass out? And I know in my heart that I didn’t. But I thought instantaneously, I know that didn’t happen. But it may have. She said, no, everything’s fine. I said, what happened? And my ankles were out like this.

“Q: You know your feet got caught?

“A: My feet didn’t go anywhere, and I screamed, don’t touch my feet. I screamed that. The horrible pain that I had, and then Daisy was running around, and I said get Daisy away from my feet.

“Q: Marigrace, can you tell us what foot got caught?

“A: You know, to be honest with, I don’t know. I think it was my right one. But I don’t know because they were both — this—my right one was broken, and my left one was fractured.” (Trial tr. vol. 1, 90:3-91:4, May 3, 2006.)

On redirect examination the plaintiff gave the following testimony pertaining to the cause of her fall:

“Q: Now, between the kitchen table area and where you ended up against the closets, where did your foot get caught?

“A: At the little strip there on the floor.

“Q: You know that?

“A: Yeah, it’s there. And there is no other place to get caught on it.” (Trial tr. vol. 1, 117:21-118:2, May 3, 2006.)

The plaintiff contends that based upon this testimony, the plaintiff has provided sufficient evidence for a jury to conclude that the metal transition strip in the defendants’ home caused the plaintiff to fall.

“However, [in appraising a nonsuit,] the court may consider testimony elicited upon cross-examination, as long as that cross-examination does not exceed the scope of direct examination.” In re McCune, 705 A.2d 861, 866 (Pa. Super. 1997) (citing Bowser v. Lee Hospital, 399 Pa. Super. 332, 582 A.2d 369 (1990)); see also, Strother v. Binkele, 256 Pa. Super. 404, 389 A.2d 1186 (1978). During cross-examination, the plaintiff gave the following testimony as to the cause of her fall:

“Q: Ma’am, that night when you were walking back and forth to see the icicle lights, were you watching where you were walking?

“A: I was just looking at the lights.

“Q: Well, the lights—

“A: I mean, I don’t walk and look at the floor if that’s what you mean. I walk straight ahead. I don’t walk and look down.

“Q: So you didn’t look down at all as you were walking?

“A: I never do.

“Q: And you don’t know what your foot caught on, correct?

“A: No, I don’t, to be honest with you.

“Q: You have no idea?

“A: I have no idea. No I don’t. But something made me fall.” (Trial tr. vol. 1,116:12-117:3, May 3,2006.)

Shortly thereafter, the following testimony was elicited on recross-examination:

“Q: Ma’am, you weren’t watching where you were walking, you testified to that, correct?

“A: Yeah, I was just walking towards the front door.

“Q: So you don’t know what your foot got caught on, correct?

“A: No, I don’t.

“Q: And you don’t know if you were stepping on that transition strip when your foot got caught, do you?

“A: It could have been caught on Daisy’s carpet.

“Q: You don’t know what your foot got caught on? (Whereupon, the witness shook her head.)

“Mr. Ashley: That’s all I have.

“Witness: And they always had their flip flops too, it could have got caught on their shoes.” (Trial tr. vol. 1, 118:23-119:16, May 3,2006.)

The Pennsylvania Supreme Court’s decision in Freund v. Hyman, 377 Pa. 35, 103 A.2d 658 (1954) is controlling in this case. In Freund, the plaintiff testified that she fell on a raised step while walking outdoors. There were no witnesses available to testify as to how, if at all, the step caused the plaintiff to fall. In Freund, the plaintiff was able to offer testimony only that a raised step was involved in her fall. The Supreme Court upheld the trial court’s granting of the nonsuit because there was no evidence introduced that the step caused the fall.

Here, the plaintiff was uncertain what caused her feet to stay put while her body continued forward. In the first instance, the plaintiff believed that her fall was caused by a problem with her heart. Then, the plaintiff testified that she believed that she caught her feet on “the little strip there on the floor,” (trial tr. vol. 1, 117:24, May 3, 2006) because “it’s there. And there is no other place to get caught on it.” (Trial tr. vol. 1,118:1-2, May 3,2006.) The plaintiff’s testimony on recross-examination is further Alustralive of the speculative nature of what caused the plaintiff’s fall:

“Q: So you don’t know what your foot got caught on, correct?

“A: No, I don’t.

“Q: And you don’t know if you were stepping on that transition strip when your foot got caught, do you?

“A: It could have been caught on Daisy’s carpet.

“Q: You don’t know what your foot got caught on? (Whereupon, the witness shook her head.)

“Mr. Ashley: That’s all I have.

“Witness: And they always had their flip flops too, it could have got caught on their shoes.” (Trial tr. vol. 1, 119:2-16, May 3,2006.)

It is clear that the plaintiff was merely speculating as to what caused her fall. There was no eyewitness testimony as to what condition on the floor, if any, actually caused the fall. The plaintiff argues that she tripped over the transition strip merely because it was there, but she gave equal billing to her heart, the dog’s carpet and the Dalsanias’ flip flops. We are left with a situation akin to that of Freund, where there was insufficient evidence elicited connecting an alleged defective condition with the plaintiff’s fall. There simply was no evidence introduced beyond mere speculation that the transition strip made contact with the plaintiff’s feet. Even when examining the evidence in such a light that all reasonable inferences are given to the plaintiff, it is clear that the plaintiff has failed to meet its burden of demonstrating that the allegedly negligently installed and/or defective transition strip was the proximate cause of the plaintiff’s injuries.

The closest case favoring the plaintiff’s position is the Superior Court’s decision in Strother v. Binkele, 256 Pa. Super. 404, 389 A.2d 1186 (1978). Strother, however, is inapposite to this matter. In Strother, testimony was adduced showing that the plaintiff had stepped onto a sidewalk covered with snow and ice ridges. Although the Strother plaintiff was not watching where he was walking, he testified that he knew that a snow ridge caused his fall because he felt something underfoot that made his foot slide off and go down into a hole. See Strother, 256 Pa. Super. at 413-14, 389 A.2d at 1190-91. In concluding that a nonsuit was improper, the court reasoned:

“[the plaintiff’s] admission that he did not see his foot slip was not an admission that (in the lower court’s words) he ‘actually had no idea what caused his fall.’

“A plaintiff may recover though the evidence of proximate cause is wholly circumstantial, when the fact is ‘deducible as a reasonable inference from the facts and conditions directly proved, and it cannot justly be classed as a mere conjecture or surmise or guess....The conclusions and tests of every day experience must control the standards of legal logic.’ Mars v. Philadelphia Rapid Transit Co., 303 Pa. 80, 154 A. 290 (1931). Silberman v. Dubin, 155 Pa. Super. 3, 6-7, 36 A.2d 854, 856 (1944).

“It is a reasonable inference that if in falling one feels one’s foot slip on a 3- to 4-inch ridge of ice, it was the condition of the ice that caused the fall.” Strother, 256 Pa. Super. at 415, 389 A.2d at 1191.

In Strother, testimony indicated that the plaintiff’s foot slipped off a raised region and slid into a hole. The plaintiff in the matter at hand, however, testified that her feet simply stopped and that she did not know what caused her to fall. In short, the plaintiff did not testify that she tripped over the transition strip, she only testified that the transition strip was in the area of her fall. We are therefore lacking the tactile specificity as to the cause of the fall that was developed by the plaintiff in Strother. Moreover, unlike Strother, our plaintiff admitted on cross-examination and recross-examination that she did not know what caused her feet to stop. (See trial tr. vol. 1, 116:23-117:3, May 3, 2006; see also, trial tr. vol. 1,119:2-4, May 3,2006.)

Strother also stands for the proposition that “apparent conflicts in a witness’ testimony must on a motion for nonsuit be resolved in the plaintiff’s favor, it being left to the jury to make the final resolution.” Strother v. Binkele, 256 Pa. Super. 404, 414, 389 A.2d 1186, 1191 (1978). We are not presented with conflicting testimony, however. Instead, the plaintiff’s testimony was consistently speculative. The plaintiff did not present conflicting narratives as to what caused her to fall; she offered only vague supposition as to what could have caused the fall. Specifically, the plaintiff postulated that the cause of her fall could have been the transition strip, Daisy’s carpet, or the Dalsanias’sandals. (See trial tr. vol. 1,119:2-16, May 3,2006.) The plaintiff’s consistently speculative testimony should not have been presented to the jury.

Even after giving the plaintiff the benefit of all reasonable inferences arising from the evidence it is clear that the plaintiff has failed to establish a cause of action. The plaintiff’s motion for post-trial relief is denied.

      . However, unlike Freund, the plaintiff here was unable to definitively testify as to the exact cause of her fall. The plaintiff’s testimony as to the proximate cause of the fall in this case was speculative, whereas the plaintiff in Freund was certain that a raised step was involved in her fall. This matter has an added element of speculation with respect to proximate causation that was unseen in Freund.


author: HODGE, J.,

text:
    WM Specialty Mortgage LLC v. Shuttleworth
    C.P. of Lawrence County,
    no. 10802 of 2006, C.A.

      Sandhya M. Feltes, for plaintiff.

      Gregory S. Fox, for defendants.
    January 8, 2007
   HODGE, J.,

Before the court for consideration are the preliminary objections of plaintiff, WM Specialty Mortgage LLC, to defendants Shuttle-worth’s counterclaim, filed in response to the complaint in mortgage foreclosure filed by the plaintiff at the above term and number.

Plaintiff has filed an amended complaint in mortgage foreclosure, seeking judgment in rem in plaintiff’s favor and against the defendants for foreclosure and sale of the mortgage premises.

Defendants have filed an answer, new matter, and counterclaim to plaintiff’s amended complaint in mortgage foreclosure. The preliminary objections relate only to defendants’ counterclaim, as the plaintiff has filed a reply to the new matter of the defendants.

In defendants’ counterclaim, the defendants incorporate by reference the averments set forth in its answer and new matter. Defendants go on to more specifically allege that the plaintiff had violated the Unfair Trade Practices and Consumer Protection Law, 72 P.S. 102-2(4) (xxi), by engaging in fraudulent or deceptive conduct, which created the likelihood of confusion or misunderstanding, by promising to reduce the defendants’ interest rate and monthly payments and then refusing to do so; in utilizing an appraisal process that improperly inflated the value of the property; and in using high-pressure sales techniques to coerce the defendants into refinancing their property with Ameriquest.

Defendants’ counterclaim goes on to recite that as a result of the plaintiff’s violations of the Unfair Trade Practice and Consumer Protection Law, as outlined above, the defendants have suffered damages, relative to difficulty in paying their mortgage, damage to their credit rating, possibility of losing their home, and now, being obligated to a subsequent $10,000 obligation to benefit finance company.

Defendants’ counterclaim seeks monetary damages arising out of the alleged deceptive conduct of the original lender, Ameriquest Mortgage Company.

Plaintiff’s preliminary objections are in the nature of a demurrer to defendants’ counterclaim, seeking to strike the counterclaim as being violative of Pa.R.C.P. 1141, Pa.R.C.P. 1148, and the appellate court cases relative to counterclaims in mortgage foreclosure actions.

Plaintiff’s preliminary objections to defendants’ counterclaim, restates certain factual allegations which are set forth in plaintiff’s amended complaint in mortgage foreclosure. Briefly, the factual background is that on November 22, 2003, the defendants obtained a loan in the sum of $112,000 from Ameriquest Mortgage Company, a non-party to this action. As partial security for the loan, defendants provided Ameriquest Mortgage Company with a mortgage on defendants’ property located at 801 Todd Avenue, Ellwood City, Pennsylvania, 16117. This mortgage was assigned by Ameriquest Mortgage Company to the plaintiff, WM Specialty Mortgage LLC, in June of 2006. As a result of defendants’ failure to make mortgage payments since January 2006, plaintiff instituted a mortgage foreclosure action for the purpose of obtaining an in rem judgment against the mortgaged property.

Pennsylvania Rule of Civil Procedure 1141 (a) defines action “to mean an action to foreclose a mortgage upon any estate, leasehold, or interest in land, but shall not include an action to enforce a personal liability.”

Pa.R.C.P. 1148, “Counterclaim” for actions in mortgage foreclosures, provides that “A defendant may plead a counterclaim which arises from the same transaction or occurrence or series of transactions or occurrence from which the plaintiff’s cause of action arose.”

Upon review of the record, it is clear that the plaintiff, WM Specialty Mortgage LLC, is the assignee of the original mortgagee, Ameriquest Mortgage Company.

A defendant in an action of mortgage foreclosure may only plead counterclaims that arise from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff’s cause of action arose. Pa.R.C.P. 1148.

Plaintiff’s cause of action arose from the failure of the defendants to honor its mortgage transaction with Ameriquest Mortgage Company, which plaintiff now asserts by virtue of the assignment of the mortgage by and between Ameriquest Mortgage Corporation and the plaintiff, WM Specialty Mortgage LLC. Defendants’ counterclaim alleged in the mortgage foreclosure action relate to allegations of deceptive conduct or fraudulent loan practices by Ameriquest Mortgage Company, the original lender. Ameriquest Mortgage Company is simply not the plaintiff in this mortgage foreclosure action, thus, defendants ’ counterclaim must be stricken. See Chrysler First Business Credit Corp. v. Gourniak, 411 Pa. Super. 259, 601 A.2d 338 (1992); Cunningham v. McWilliams, 714 A.2d 1054 (Pa. Super. 1998); and Corestates Bank N.A. v. Cutillo, 723 A.2d 1053 (Pa. Super. 1999).

Accordingly, the court will enter the attached order granting the plaintiff’s preliminary objections to defendants’ counterclaim.

ORDER

And now, January 8, 2007, after review of the defendants’ counterclaim; plaintiff’s preliminary objections to defendants’ counterclaim; Pa. R.C.P. 1141 and 1148, and the appellate court cases cited in the attached opinion, it is the order of this court that the plaintiff’s preliminary objection to defendants’ counterclaim is granted, and defendants’ counterclaim is stricken from the record of this case.

The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record.


author: ALLEN, J,

text:
    Hall v. Episcopal Hospital Corp.

      C.P. of Philadelphia County,
    May Term 2005,
    no. 2414.

      Charles J. Galvin and Tammera R. Harrelson, for plaintiffs.

      Kurt J. Straub and Lori Emrick, for defendants Episcopal Long Term Care, Episcopal Hospital Corp., and Temple University Health Systems.

      Joseph Goldberg, for defendants Cross Country Health Care and Med-Staff.

      Richard W. Yost and Jessica F Cifaldi, for defendant Bames.

      David L. Gordon, for defendant Philadelphia Nursing Home.
    February 6, 2007
   ALLEN, J,

Appellants, Episcopal Hospital Corp., Episcopal Long Term Care and Temple University Health System Inc. (defendants), appeal an order dated August 4,2006 denying defendants’ motion for issue preclusion against Joan Wood Barnes.

FACTS

Plaintiff June Hall commenced this action against the named defendants on May 17, 2005. On September 22, 2004, defendant Joan Wood Barnes was an agency nurse employed by Med-Staff Inc. Defendants’ motion, ¶1. During Barnes’ shift, the feeding tubes of six residents were severed, including that of the decedent. Defendants’ motion, ¶5.

Barnes was accused of “knowingly, intentionally, recklessly caused/attempted to cause bodily injury to the complainant Sallie Hall, age 85, by cutting her feeding tube.” See criminal complaint (09/26/04). On March 8, 2005, Barnes was tried before the Honorable Felicia Rowley Stack and found guilty. See defendants’ motion, ¶14. Barnes response, ¶14. Findings of facts were not issued.

PROCEDURAL HISTORY

On July 7, 2006, defendants filed a motion for issue preclusion against Barnes. Defendants sought to have it conclusively determined that Barnes “intentionally and surreptitiously” cut the peg tube of decedent. Defendants failed to attach a complete copy of the transcripts of the criminal proceeding. The portion presented provided only that Judge Stack found Barnes “guilty as charged.”

However, the charges are in dispute. Plaintiff and defendants assert that Barnes was convicted of simple assault and neglect of a care-dependent person. However, plaintiff submitted documents which provided that Barnes was only convicted of “neglect of person.” See plaintiff’s response, exhibit A. According to plaintiff’s documents, charges of possession of the instrument of crime, simple assault, and recklessly endangering another person were withdrawn. Defendants presented no evidence of a finding of surreptitious behavior. Accordingly, said motion was denied on August 4, 2006.

Defendants sought and were granted permission from the appellate court to appeal the court’s August 4 order. A statement of matters complained of on appeal was requested on November 21,2006 and properly tendered on November 29, 2006.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Based upon the criminal trial and guilty verdict, defendants contend that the court should have granted an order providing that, “it should be deemed established as a fact of record that on September 22,2004, Joan Wood Barnes intentionally and surreptitiously cut the peg tube of plaintiff’s decedent, resident Sallie Mae Hall.” Defendants’ proposed order, (emphasis added)

DISCUSSION

Litigants agree that Barnes was convicted of neglect of care-dependent person. 18 Pa.C.S. §2713. Pursuant to Pennsylvania statute, a person is guilty of neglect of care-dependent person if he or she “[i]ntentionally, knowingly or recklessly” causes injury to a care-dependent for whom he or she is responsible. 18 Pa.C.S. §2713(a) (1). (emphasis added) The Commonwealth needs only to prove, and a fact-finder find, beyond a reasonable doubt that Barnes acted with intent, knowledge or recklessness. The use of the disjunctive term “or” is not insignificant nor an unintended happenstance.

To do as defendants suggest, a court would have to speculate as to whether the fact-finder found intent, knowledge or reckless behavior and bind a litigant based upon that speculation rather than a specific finding by a competent court. The court is troubled by this endeavor and declines defendants’ invitation to broaden the doctrine of collateral estoppel/issue preclusion to include the circumstances at bar. Absent evidence of a judicial determination of the presence of intent, as opposed to knowledge or recklessness, the court rightfully declined defendants’ request.

Lastly it should be noted that surreptitious is not an element of the crime charged, nor the tort sued upon herein.

CONCLUSION

The order of August 4, 2006 should be affirmed as defendants’ failed to establish that another court found Barnes to have acted “intentionally and surreptitiously”.


text:
    Brightshue v. Carlson

      C.P. of Lawrence County,
    no. 10596 of 2000, C.A.

      Theodore A. Saad, for plaintiff.

      Norman J. Barilla, for defendant.
    January 22, 2007
   HODGE, J.,

This case is currently listed for a continuation of a custody hearing on January 23,2007. Previously, this court heard testimony in this case on two prior occasions.

It has been brought to the court’s attention that on January 19,2007, the defendant/father, Timothy R. Carlson, filed a motion in the Court of Common Pleas of Mahoning County, Ohio, Juvenile Division, case number 94 JI942, to return the case to Mahoning County Juvenile Court.

From review of the record in this case, it appears that initial child custody litigation involving these parties was initiated in Juvenile Court of Mahoning County, Ohio, at case number 94 JI942, on or about January 9, 1995.

On October 31, 2000, the Court of Common Pleas of Mahoning County transferred jurisdiction of the case to Pennsylvania, based upon the fact that the mother/custodial parent had moved to Pennsylvania with the minor child.

Thereafter, the mother fled with the minor child and was subsequently located in May of 2005 living in Columbus, Ohio. Proceedings instituted in Franklin County, Ohio (Columbus) resulted in the case being transferred back to Pennsylvania, which was the court of last proceedings involving the child.

Pursuant to order of the Court of Common Pleas of Lawrence County, Pennsylvania, dated August 10,2005, the father was awarded primary physical custody and legal custody of the child, and the child was placed in residence with her paternal grandparents in Youngstown, Mahoning County, Ohio.

Currently, the plaintiff/natural mother resides in Columbus, Ohio, the defendant/father resides in Mahoning County, Ohio, and the minor child resides in Mahoning County, Ohio.

The question for determination by the court is whether or not the Court of Common Pleas of Lawrence County, Pennsylvania has exclusive and continuing jurisdiction to proceed with hearing this matter pursuant to the Uniform Child Custody and Jurisdiction Act (U.C.C.J.A.), 23 Pa.C.S. §5401 et seq.

Section 5422 of the U.C.C. J. A. sets forth the following test to determine whether a trial court maintains “exclusive, continuing jurisdiction” over its initial child custody order:

“(a) General rule — except as otherwise provided in section 5424, a court of this Commonwealth which has made a child custody determination consistent with section 5421 or 5423 has exclusive, continuing jurisdiction over the determination until:

“(1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child’s care, protection, training, and personal relationships, or

“(2) a court of this Commonwealth or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this Commonwealth.”

Jurisdiction under the U.C.C.J.A. may be based on “home state jurisdiction,” “significant contact,” or “parens patriae” jurisdiction for those emergency situations where a child is abandoned, abused, or dependant.

“The home state is the preferred basis for jurisdiction pursuant to the U.C.C.J.A.” See McCoy v. Thresh, 862 A.2d 109, 113 (Pa. Super. 2004), citing Dincer v. Dincer, 549 Pa. 309, 701 A.2d 210 (1997). There is no question here that the “home state” is Ohio and not Pennsylvania.

After conducting a home state analysis a court must perform a “significant connection analysis,” pursuant to section 5344(a)(2) of the U.C.C.J.A. Clearly at this time, the child has no significant connection whatsoever to the Commonwealth of Pennsylvania. As a result, this court will enter the attached stay order pursuant to section 5426 and section 5427 of the U.C.C.J.A., staying the proceedings in this case pending acceptance of jurisdiction of this case by the Court of Common Pleas of Mahoning County, Ohio, Juvenile Court Division.

Upon the acceptance of jurisdiction of the case by the Court of Common Pleas of Mahoning County, Ohio, Juvenile Court Division, this court will enter an order dismissing this case and relieving the plaintiff of the appearance bond filed of record in the office of the prothonotary of Lawrence County, Pennsylvania.

ORDER

And now, January 22,2007, upon consideration of the matters and issues set forth in the attached opinion, further proceedings in this case are hereby stayed in accordance with the provisions of the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. §§5426(b) and 5437(c). See also, Wagner v. Wagner, 887 A.2d 282 (Pa. Super. 2005); Lucas v. Lucas, 882 A.2d 523 (Pa. Super. 2005).

Further proceedings in this case shall be only on motion of counsel for either party.

The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record.


author: CHESLOCK, J,

text:
    Deresky v. Hilliard

      C.P. of Monroe County,
    no. 9123 CIVIL 2004.

      Stephen Mowrey, for plaintiffs.

      Kenneth Paul Hilliard, pro se.
    February 5, 2007
   CHESLOCK, J,

I. FINDINGS OF FACT

(1) J.M.D. was bom on September 20,1990 and resides with her biological mother, Marie Deresky, at 145 Lower Lake View Drive, East Stroudsburg, Monroe County, Pennsylvania.

(2) Kenneth Paul Hilliard is an adult citizen of Pennsylvania and currently resides at Albion Correction Facility, Albion, Pennsylvania.

(3) Beginning in September 2001 and lasting through March 2004, Hilliard engaged in unwanted sexual activity with the minor J.M.D.

(4) On September 10,2004, Hilliard was convicted by a jury of his peers of rape by forcible compulsion, rape of a child, involuntary deviate sexual intercourse by forcible compulsion, involuntary deviate sexual intercourse with a child less than 16 years of age, statutory sexual assault, aggravated indecent assault without consent, aggravated indecent assault by forcible compulsion, aggravated indecent assault with a child less than 13 years of age, aggravated indecent assault with a child less than 16 years of age and corruption of minors.

(5) On January 3,2006 Hilliard was sentenced by this court to serve for a period of not less than 12 1/2 years nor more than 25 years.

(6) On November 4, 2004, plaintiffs, Marie Deresky, individually and as parent and natural guardian of minor, J.M.D., commenced this civil action for damages against Hilliard.

(7) A non-jury trial in this matter was held before the court on January 25, 2007.

(8) Hilliard did not attend the non-jury trial.

(9) The conduct of Hilliard was wanton, willful and outrageous.

(10) Hilliard’s liability in this matter was found on the basis of the transcripts dated September 9 and 10, 2004 as well as his failure to appear and defend at the non-jury trial.

(11) Marie Deresky testified regarding the physical and emotional distress suffered by her daughter at the hands of Hilliard.

(12) J.M.D. has suffered loss of enjoyment, public humiliation and loss of happiness and life’s pleasures as a result of Hilliard’s actions.

II. DISCUSSION

At trial, the testimony of Marie Deresky and J.M.D. was offered in support of their request for damages against Hilliard. We find that plaintiffs are entitled to damages against Hilliard in the amount of $250,000 for negligent infliction of emotional distress, battery and negligence.

III. CONCLUSIONS OF LAW

(1) Plaintiffs are entitled to an award of damages for negligent infliction of emotional distress, battery and negligence in the amount of $250,000 against Hilliard.

(2) Plaintiffs, having submitted evidence meeting the requirements articulated by the Pennsylvania Supreme Court in Martin v. Johns-Manville Corporation, 508 Pa. 154, 494 A.2d 1088 (1985) for the award of punitive damages, plaintiffs are entitled to an award of $500,000 in punitive damages against Hilliard.

VERDICT

And now, February 5, 2006, the court finds in favor of plaintiffs, Marie Deresky, individually and as parent and natural guardian of minor, J.M.D., and against defendant, Kenneth Paul Hilliard, for compensatory damages in the amount of $250,000 and for punitive damages in favor of plaintiff, Marie Deresky, individually and as parent and natural guardian of minor, J.M.D., in the amount of $500,000.