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Home My WebLink About01-2419 FX ~~ " O~ ,~ '" :J- ~,' .' " "', ~'<'-', ", , <-' -Li__ JUDY FRY and THOMAS FRY, Plaintiffs v, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, OJ- .LVI Cj C~ /~ BETSY COlliCK and CHESTER COHICK, Defendants CIVIL ACTION - LAW CUSTODY COMPLAINT FOR CUSTODY 1. The Plaintiffs are Judy Fry and Thomas Fry, who currently reside at 528 West Cumberland Road, Enola, Cumberland County, Pennsylvania 17025, 2, The Defendants are Betsy Cohick and Chester Cohick, who currently reside at 115 Main Street, Palmyra, Lebanon County, Pennsylvania 17078, 3, Plaintiffs seek custody of the minor child, Alex Cohick, born March 2, 1990, who is currently in the custody of Melmark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania 19312. 4, The child was born during wedlock, 5, During the child's lifetime the child has resided with the following persons and at the following addresses: Chester & Betsy Cohick, parents, and Amanda Cohick, sister 115 Main Street Nov. 25, 2000 to present Palmyra, PA 17078 (Child is currently residing in a residential facility, known as Melmark, Berwyn, P A Chester & Betsy Cohick, parents, and Amanda Cohick, sister 530 West Cumberland April 1996 to Nov, 2000 Enola, PA 17025 "1 " 'I ",'.'~o'" 6, The relationship of Plaintiffs to the child is that of paternal grandmother and her husband, 7, The relationship of Defendants to the child is that of natural mother and father, 8, Plaintiffs have not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court, 9. Plaintiffs have no information of a custody proceeding concerning the child pending in a court of this Commonwealth, 10, Plaintiffs do not know of a person not a party to the proceedings that have physical custody of the child or claims to have custody or visitation rights with respect to the child, 11. The Plaintiffs seeks primary physical and legal custody for the following reasons: a, The child is autistic and in need of special attention, education, and nutrition, which the plaintiffs are willing and able to provide the necessary treatment; b, The child currently lives in a residential facility isolated from his extended family except for alternating weekends; c, The natural parents have vacillated in the past as to signing over custody to the plaintiffs; d, Plaintiffs feel it is in the child's best interest to be in a more stable environment with committed parental role models, 12, Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named as parties to this action, - ,; 'I J"_~ ~L~-" ,,_., - , "~"Di'; WHEREFORE, the Plaintiffs, Judy and Thomas Fry, respectfully requests this Honorable Court to award the Plaintiffs primary physical and legal custody of the child and award partial custody to the natural parents as deemed appropriate by the Court taking into consideration the child's autism, Respectfu1ly submitted, Austin F. Grog , Es ire Attorney for Plainti 24 North 3200 Street Camp Hill, PA 17011 (717) 737-1956 ill # 59020 >, I, ~>, ",-:0,---" iIl--l:!lt' VERIFICATION We, Judy Fry and Thomas Fry, verify that the statements made in the foregoing Custody Complaint are true and correct to the best of our knowledge, information, and belief. We understand that false statements herein are made subject to the penalties of 18 Pa, C,S, ~ 4904, relating to unsworn falsification to authorities. Date (;;Il.l,!cP5J do(] / JUg~ tl. ./~ Date dt.{- ;L.'7~ 0 / ,P~ t!:; THOMAS FRY , I ",:~ '- ~l ~ '. ";,' ~ ".Iii;;; JUDY FRY AND THOMAS FRY PLAINTIFF V, BETSY COHICK AND CHESTER COHICK DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2419 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Friday, April 27, 2001 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. , the conciliator, at 214 Senate Avenue, Suite 105, Camp Hill, FA 17011 on Monday, May 07, 2001 at 1:00 p.m. for a Pre-Hearing Custody Conference, At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference, Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Melissa P. Greevy. Esq,fj/J Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990, For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office, All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing, YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HA VB AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ! ~Mf&~jg",,~'1:i!f~(/jIA11l';!~i"~":Hd"\j;'1~~~~i?-1:\WF.i&!>k"'N~i!i","'''''',d,,","""\'ill"";~'.'>', !&~~-*Ji>:~lf_"-'~'">'~'1't4ffi'iI!i!l!Ili~illllIliiIil~ii.'r~~"'~'~~ !im '[Ii] ~fr$~~l --*~ #P ~ ~ ~tL, ~ p ~ ,-P?~:V4/-/'V k),t.fj; /11- <.. 't'-It / CJ ."CO/? VlNVAlASNN3d }JNn08 CJi\!V1Hj8!AlnO SS:I ~!d LZ tld~ 10 ~ AtIvl0i'JUH.i;~;;:,~~; ~..;;.U, .:10 3Jl:LJ.O'{J31i:l -:JIUJ1])llL, "~"~""",=""""=",,,,""".",,,,,,,, __ "'U""_"',~'_"" . ,~'A,."J",;X_'_,,,$,,_, -",-,j'_',' ,,__ ~,. r.. ~"_'"'" ,.." __A_ .. .. ""." --' ~ -~ " ,--,~- -,~ "", ".' ," '""C..;.' o,A';,h_\"; -- :"'--';;&f1:\:i ruDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY PRELIMINARY OBJECTIONS AND NOW, come the Defendants, Betsy Cohick and Chester Cohick, by their attorneys, Buzgon Davis Law Offices, and file these Preliminary Objections, pursuant to Pa,R.C,P, 1028(a)(1) and (4), to the Complaint for Custody: 1. Plaintiffs, Judy Fry and Thomas Fry, to this action are the child's paternal grandmother and step-grandfather and are requesting legal and physical custody of the child, Alex Sean Cochick, age 11 years, 2, Plaintiffs reside at 528 West Cumberland Road, Enola, Cumberland County, Pennsylvania 17025, 3, Defendants reside at 115 Main Street, Palmyra, Lebanon County, Pennsylvania 17078, 4. The minor child's residence is the same as Defendants, 5, The minor child is emolled in the Palmyra Area School District, however, he lives at the Melmark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania 19312, A true and correct copy of the Lancaster-Lebanon Intermediate Unit's April 26, 2001 report on Alex is attached hereto and designated Exhibit "A", JEe ~'---,"' - --'~" ~,- -- ,_,"~' - 'x..",- 'e>. - '~',,, " ,,__ _ _ ""'"""-~'""" ',{ 6, Plaintiffs lack standing to pursue legal and primary physical custody of the child, pursuant to 23 Pa, C,S, 95311 et seq. 7, This Honorable Court lacks jurisdiction over the Defendants and minor child to hear the foregoing Custody Complaint, due to Plaintiffs' lack of standing. 8, In the alternative, if this Honorable Court finds that the Plaintiffs have standing and jurisdiction to hear this matter, venue in Cumberland County is improper and this case should be transferred to Lebanon County, where the Defendants and minor child reside, WHEREFORE, Defendants respectfully request your Honorable Court to dismiss the Complaint for Custody filed on April 25, 2001. In the alternative, if your Honorable Court finds that Plaintiffs have standing to bring this Custody Action, Defendants respectfully request that venue be transferred to Lebanon County. BUZGON DAVIS LAW OFFICES BY: . LLEY ,GILL TE, Esquire Attorney ,D, #85766 525 South Eighth Street Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Attorneys for Defendants -2- JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS I. STATEMENT OF THE CASE Plaintiffs, Judy Fry and Thomas Fry, are the paternal grandmother and step- grandfather of Alex Cohick, The Plaintiffs reside at 528 West Cumberland Road, Enola, Cumberland County, Pennsylvania, Defendants are Betsy Cohick and Chester Cohick, who resides at 115 Main Street, Palmyra, Lebanon County, Pennsylvania, The minor child, Alex, has a primary residence at the Defendants' address and is enrolled in the Palmyra Area School District. (See Exhibit A), However, Alex lives at the Me1mark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania, Defendants are the biological parents of the child, In their Complaint, Plaintiffs seek legal and primary physical custody of the child, Plaintiffs aver that the child has resided with both biological parents, Defendants in this action, Nowhere in the Complaint do Plaintiffs aver that the child has ever resided with them, The only other averment relating to why Plaintiffs are seeking primary physical and legal custody of the child can be found in paragraph l1(a) through (d), Defendants file these Preliminary Objection requesting that this Court dismiss the Complaint for Custody, because Plaintiffs fail to possess the obligatory standing under 23 Pa.C,S,A, S5311 et seq" and therefore, this Honorable Court lacks jurisdiction over the ,',. , .--~, -- . """'",,.',"' ,--, _'':';>A~''''~'';'"'''''-'''''' ' ' , '.' ,~-..' ''''i: Defendants and minor child pursuant to Pa,R.C.P. 1915,5, In the alternative, if this Honorable Court finds that Plaintiffs have standing to pursue this Custody Action, the Defendants file these Preliminary Objections requesting that this Court transfer venue from Cumberland County to Lebanon County, Defendants file this Brief in support thereof, II. ARGUMENT Pennsylvania Courts have an established scope of review regarding Preliminary Objections, The Pennsylvania Superior Court has stated: Preliminary Objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Baker v, Brennan, 419 Pa, 222, 225, 213 A.2d 362, 364 (1965). The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief, Firing v, Kephart, 466 Pa, 560, 563, 353 A.2d 833, 835 (1976), To determine whether preliminary objections have been properly sustained, this Court must consider as true all of the well-pleaded material facts set forth in appellant's complaint and all reasonable inferences that may be drawn from those facts, Feingold v, Bell ofPennsvlvania, 477 Pa, 1,4,383 A,2d 791, 792 (1977); Pennsvlvania Liquor Control Board v, Rapistan, Inc" 472 Pa. 36, 371 A.2d 178,181 (1976), Martinez v, Baxter, 725 A.2d 775, 776-777 (Pa,Super. 1999) (quoting Bower v, Bower, 531 Pa, 54,56-57,611 A.2d 181, 182 (1992)). A.PLAINTIFFS LACK STANDING TO PURSUE THIS CUSTODY ACTION While it is true that grandparents may have standing to pursue a custody action, the grandparents must be within the purview of one of the following: 1. 23 Pa,C,S,A. ~531l; 2, 23 Pa,C,S.A. ~5312; or ~' - ,,"'" ',~;, ,,~>- -',,','''' F{,; ';"''';'''';'''-'-''~;'.''''''''~''-''''--:C-''",'' "M~i!i.}jf;,'t 3. 23 Pa.C,S,A, g5313, 23 Pa.C.S.A. g5311 applies when one of the parents of the child is deceased, It reads as follows: ~5311. When parent deceased If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custodv or visitation rights. or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interests of the child and would not interfere with the parent-child relationship, The court shall consider the arnount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application, 23 Pa.C.S,A. g5311 (emphasis added) Pa.C.S.A. g5312 reads as follows: ~5312. When parents' marriage is dissolved or parents are separated In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparents of a party, grant reasonable partial custodv or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody,. or both, would be in the best interests of the child and would not interfere with the parent-child relationship, The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application, 23 Pa.C.S,A. g5312 (emphasis added) Finally, Pa,C,S.A. g5313 reads as follows: ~5313. When grandparents may petition (a) Partial custody and visitation,-If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child, The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship. (b) Physical and legal custody,-A grandparent has standing to bring a petition for physical and legal custody of a grandchild, If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent. This subsection applies to a grandparent: (1) who has genuine care and concern for the child; (2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and (3) who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C,S, Ch, 63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness, The court may issue a temporary order pursuant to this section, 23 Pa,C,S.A. g5313 In their pleading, Plaintiffs request that this Honorable Court grant them legal and primary custody of Alex, the child in question. When reviewing 23 Pa,C,S.A. gg531l, 5312 and 5313(a), it is evident that they are not applicable to this case, Those sections only apply to grandparents who petition the court for partial custody and/or visitation rights, 23 Pa.C.S,A, g5313(b) provides recourse for grandparents who are seeking physical and legal custody, When reviewing the necessary elements for a grandparent to have standing in g5313(b), it is apparent that Plaintiffs do not possess standing pursuant to the averments in their Complaint. Nowhere in their Complaint do they aver that the child has lived /]; with them for 12 months and that they have assumed the role and responsibility of the child's parent, providing for the physical, emotional and social needs of the child, Nor has the child been determined to be a dependent pursuant to 42 Pa.C,S,A. S63, Finally, nowhere in their Complaint do they aver that this child is substantially at risk due to any parental abuse, neglect, drug or alcohol abuse or mental illness, In fact, Defendants believe that Plaintiffs have alleged quite the opposite. Plaintiffs have alleged in their Custody Complaint that the subject child, Alex, is living at the Melmark Residential Facility, Plaintiffs further allege that the minor child is autistic and in need of special education and attention, The minor child is receiving this kind of attention and education at Melmark, a facility that is specifically designed to give Alex special attention and education, something that not even the Palmyra Area School District could do, (See Exhibit A), Thus, Plaintiffs clearly lack standing in this Custody Action, Further, because the Plaintiffs lack standing in this Custody Action, this Honorable Court subsequently lacks subject matter jurisdiction to hear this case, B. VENUE IN CUMBERLAND COUNTY IS IMPROPER Defendants assert that if this Honorable Court fmds that Plaintiffs have standing to pursue this Custody Action, venue should be transferred to Lebanon County, Pursuant to Pa.R.C,P.1915.2 (a) An action may be brought in any county (1)(i) which is the home county of the child at the time of commencement of the proceedings, or (ii) which had been the child's home county within six months before commencement of the proceeding and the child is absent from the county because of the child's removal or retention by a person claiming the child's custody or for other reasons and a parent or person acting as parent continues to live in the county; or (2) in which it is in the best interest of the child that the court decide the matter because the child and the child's parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships; or (3) in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse and is otherwise neglected or dependent; or (4) in which it appears that venue would not be proper in any other county under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another court has declined to decide the mater on the ground that the court before which the action is pending is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that the court decide the matter. (b) Except under paragraphs (3) and (4) of subdivision (a), physical presence of the child within a county, or of the child and one of the parties, is not alone sufficient to establish venue. (c) Physical presence of the child, while desirable, is not a prerequisite to venue. (d) For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could have originally have been brought or could be brought at the time of filing the petition to transfer. It shall be the duty of the prothonotary of the court in which the action is pending to forward to the prothonotary of the county to which the action is transferred certified copies of the docket entries, process, pleadings and other papers filed in the action. The costs and fees of the petition for transfer and the removal ofthe record shall be paid by the petitioner in the first instance to be taxable as costs in the case. Pa. R.C.P. 1915.2. The Defendants are entitled to a transfer of venue under subsections (a)(I), (2), (4) and (d) ofPa.R.C.P. 1915.2. Both the minor child and Defendants' home county is Lebanon. - ~ ,./ -__ jV.- . -~- - .'_ _ - ",,"v!~-," ,-,,'!.,,"" _",~ ' ."~_, , "', The Defendants and minor child have resided in Lebanon County since November of 2000. Although the minor child lives at Melmark in Berwyn, he is enrolled in the Palmyra Area School District and is monitored by the Lancaster-Lebanon Intermediate Unit 13. (See Exhibit A). Further, the Defendants assert that Lebanon County would be a more convenient forum to decide this Custody Action. Therefore, the Defendants respectfully request that if this Honorable Court finds that Plaintiffs have standing, venue of this matter be transferred from Cumberland County to Lebanon County. III. CONCLUSION WHEREFORE, Defendants, Betsy Cohick and Chester Cohick, respectfully request your Honorable Court dismiss Plaintiffs' Petition for Custody of their son, Alex Cohick. In the alternative, Defendants respectfully request that if this Honorable Court fmds that Plaintiffs have standing to bring this Custody Action, venue be transferred from Cumberland County to Lebanon County. Respectfully submitted, BUZGON DAVIS LAW OFFICES . BY:~ ~'rM LE S. OIL TE, EsqUIre Attorney J.D. #85766 525 South Eighth Street-Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Attorneys for Defendants ,.. --,"" - -,', ,.-. '-~_'-_":L','> ',. "_"-_"~_ '^ '._ ,~___~;___'^'_-~,,=,,l.d,,,'_,~__-""j.~,,,__'C~_,; 7"_' VERIFICATION I, KELLEY S. GILLETTE, Esquire, do hereby verify that I am the attorney for Betsy Cohick and Chester Cohick, Defendants in the within action. The facts set forth in the foregoing PRELIMINARY OBJECTIONS are true and correct to the best of my knowledge, information and belief, as conveyed to me by my clients. My knowledge in this matter is based entirely on what has been passed to me by my clients, pursuant to Rule 1024(c) of the Pennsylvania Rules of Civil Procedure, because my clients are unavailable to timely file this Verification within the time allowed for filing a pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. 'iF'~ k ij!b#t- LLEY . GILL TE DATE: May 3, 2001 ": - . 1,'''<;1'1 .....' .'i''',," L .'~. '1liIll~~ MAY. 1.2001 1:17PM IU-13 2ND FLOOR NO. 379 P.2/7 LANCASTER~LEBANON lNTERME.DIATE UNIT 13 1110 Enterprise Road Eas~ Petersburg, PA 17520.16.96 . Phone: (717) 569.7331 COMPREm;NSlVE EVALUATION REPORT (CER) .......~~.~.........*.,#...-.......*.....~..*.*~*........~~~...*.....,.*.*..***..~...~.........*...* Original: fOI'lliatrllD Clinical Sor<ril:cs Signed copW to: (Chb:Ic below:) Di,lriet Coord. Linda Bare (palmyra) Pmmt3 MIM Chesler Cohick. Jr. Teacher(cum lilc) 10ey Dziamba Supervisor NC Lebanon W Office NC Psycholagist M;ny Barnell Others (list) April 26. 2001 (Check:) Initial Refemd Re-evohr.uion Psychiatric DislriCl Program (Palmyra) ill ProgI1ln1 05-04-01 05-10-01 AgllIlCi$S <=h Parental release for each) Date of Report: T Chairperson: Mary Barnett COHICK, ALEX Student Name (1.a$t, First, MJ.) MIM CheslCt Cohick. Jr. P3rentName Social Security Number Melmnrk CAPS Residential) Present Class Location 03-02-90 Birthdate Palmyra District of Residence 115 West Main Street Street Address Palmyra, PA 17078 City, State. ZIP 11.2 Grado Age 717/832-3601 ToltlphoDe Autistic Support Cmrent1lduca1ion:l! Program Joey Dziomba Teacb8t eme 1. REASON(S) FOR REFERRAL: To re-evaluate his cu:rrent progress and programming and to make recommendations for further programming. 2. INFORMATION FROM PARENTS OR PERSONS WITH WHOM THE STUDENT LIVES: Mrs. Cohick participated in the MOE meeting via phone conference. She indicates that they continue to have a difficult time with Alex when he is at home, He still needs constant EHXIBIT A Alex. Cohick 1.PDEIB~ FOlU\UT A - COMl'REII\i:NSIVE EVALUATION REPORT - APRIL 1994 f_- . .-;1 'C~fl;f.:~ MAY. 1.2001 1:17PM IU-13 2ND FLOOR NO. 379 P.3/7 supervision. They have had to secure all windows and doors so that he is safe in their home. He has JUS.t ~ent1y been ~le to SI~n\.hiS be~oom withJ.ecure4",w~dq~s and doors rather than sleepmg m his parents room ~ ne;;so 'iharttre'y cdU:rcrmonitolE?lrl~s levels of activity are very high. He will occasionally pull his sister's hair but other than that there is very little aggression or threat to harm others. 3. EDUCATIONAL, SOCIAL, AND PHYSICAL HISTORY: Alex currently receives educational and residential services at Melmark. an approved private school and residential facility. Alex began attending Melmarlc in July, 1999. Prior to his admission there, Alex. received programming in Autistic Support with a one-to-one staff member operated by Capitol Area Intermediate Unit. Prior to that placement, he was supported in an MDS classroom. Records indicate that in kindergarten with a one-to-one he did participate in half-day inclusion. Alex's first school experience was preschool at the United Cerebr8J. Palsy Center where he received developmental instruction and speech language support services. Looking at developmental history, Alex was bom as a result of a fuI1-t= pregnancy weighing 6 lbs., 5 ozs. No complications were noted at birth and he was in eJ[ceDent condition. He walked at the age of 15 months. There is no history of sustaining verbal co=unication nor has he been toilet trained. Alex has made minimal progress throughout school. He has a history of gaining skills and then going through a period of regression. Earliest assessments found in the records were in 1992 and 1993. He was seen by a Dr. Barron at Hershey Medical Center in 1993 for a neurological workup. At that time he was diagnosed with mild Mental Retardation and Attention DeficitIHyperactivity Disorder. An evaluation was then conducted in September of 1994 by Dr. Lusser in Allentown, PA. At that time, Alex was apparently using 10 to 26 functional signs but his attention span was short and he showed extreme frustration when demands were placed on him. Alex has been on multiple medications since 1994 to address his high level of activity as well as other behavioral concerns. Medications that have been utilized include: Ritalin, Cylert, Clonidine, RisperadaI, Prozac, HaIdol, Trazadone, Secretin shots, and Depalcote. While at Melmark, he has been taken off all medications with success. Alex is diagnoses include: Pervasive Developmental Disorder, Autistic-type; Moderate to Severe Mental Retardation; Attention Deficit Hyperactivity Disorder; Oppositional Defiant Disorder; and rule out Bipolar. He does have a history ofnnmllnageable behavior that presents a danger to himself and others including: aggression (hitting and biting), destruction of property, screaming, extreme impulsive behavior and history of PICA, darting and running away, and self- stimulatory behavior. Currently, Alex is exhibiting no form of aggression. His self-slimming and darting continues to be a significant issue as well as his level of activity. 4. SUMMARY OF FINDINGSIINTERPRETATION OF ASSESSMENT RESULTS: A. Instructioual Evaluation Results (Instructional Level, Rates of Acquisition and Retention): _ Alex. Cohick 2- PDEIIISE-41101lMAT A - COMl'REBENS1Vl!:IlVALUATION 1ll!1'01l.T-APRIL 1994 .0 -~- -,,- '-J" ',' "_', ~"-"L MAY. 1.2001 1:18PM IU-13 2ND FLOOR NO. 379 P.4/7 COGNITIVE A records review finds documentation of IQ and neurological testing done across the past years. Earlier assessments done in 1993 indicated mild to moderate mental retardation. As time passed, the diagnosis changed to moderate/severe mental retardation. Alex has presented with delays in all areas (except gross motor) since the age of two. ~ent observations as well as informal measures of adaptive behavior and lack of progress in other domains indicate that Alex currently functions in the severe range of mental retardation. Formal testing is not possible due to severe a speech and language disability. difficulty with froe-motor skills, and lack of behavioral control. CURRENT LEVELS OF FUNCTIONlNG Pre. Vocational SldIl, Alex has made some progress towards his IEP objectives in this area. He cUIrentIy matches the colors red, blue, and green. He has matched two colors correctly for four consecutive sessions. Regarding his progress from the beginning of this year: Alex correctly matched two shapes on three consecutive occasions. Alex was able to insert lO/lD objects with verbal direction on five consecutive sessions. With verbal directions, he could remove 10/10 clothes pins from a can on five consecutive sessions. Alex will pick up beads and attempt to string them on a pipe cleaner 1/10 occasions. He continues to struggle with this skill due to froe-motor difficulties. Alex will individually remain in seat during a one-to-one activity for up to 5 minutes on four consecutive trials. He continues to requite a reinforcer for appropriate sitting and for working. When given the verbal direction. "ready" Alex does continue to require physical hand-over-hand prompting to put his hands in his lap and sit with his eyes on the instructor. AIl of these pre-vocational skills are taught through discrete trial format and high levels of edible reinforcers are used throughout sessions. Communication Alex is currently being !:aught to use a Picture ~change Communication System (PECS) for functional communication. At this point, he is given a choice of two PECS and is being taught to discriminate. The speechl1anguage therapist successfully used a field of 6 PECS. However, this has not generalized into the classroom. Using PEeS is much more successful with the use of reinforcement. He has correctly removed the bathroom PEC from his schedule and walked to the bathroom an two occasions. Given a choice of two objects (one desirable and one undesirable), Alex will choose the appropriate icon from his communication book with 80% accuracy or higher on 4/S trials. Alex is able to follow simple verbal commands that consist of one to two words with visual cues at 70% accuracy. He has made some progress with imitating simple actions such as "pick up" at 45% accuracy, "calm" with 40% accuracy, and "sit down" with 55% accuracy. He is responding to a verbal prompt to "touch head" with 65% accuracy, "touch nose" with 40- 55% accuracy, and the prompt to "clap hands" with 40-55% accuracy. Adaptive Behavior Alex is dependent on staff for support for all toileting needs. He does cUIrently wear diapers and does not consistently use the toilet. A schedule has been utilized in the past Alex Cobick :>-PllEIDsE. 4 FOllMAT A. COMP1IEIIENSIVII EVALUATIONREl'OR'l'. APlUL J.994 -- 'I -,"",'-''-" " :~4~ MAY. 1.2001 1:19PM IU-13 2ND FLOOR NO. 379 P.5/7 to pullltis pants down with one to two verbal prompts and wil(sit on the toilet with continual prompting. Staff indicate that they will soon be implementing a "Wet Stop" program coupled with a toilet chaining sequence that brealcs down the steps of toileting and taught individually through discrete trial. Alex eats his meals with minimal prompting using a fork or spoon but requires one-to-one attention at meal time because he tends to use his fingers or steal food. Alex independently holds a cup and drinks from it. Alex is dependent on staff assistance for all dressing needs. He will offer assistance to staff holding the shirt as weIl as finishing the dressing process when the head is put through the hole of the shirt. he will independently find the arm holes and complete the shirt process. Alex needs help initially putting his pants on the correct way hut can independently pullltis pants up. He does not appear to understand how to button or use zippers nor tie his shoes. He is dependent for all dental care as well as personal grooming. Staff attempt Alex to be involved and cooperate with hand-over-hand washing but he is not always cooperative. Alex must have one-to-one supervision during all walting hours because of the continued need to monitor his high level of activity and his PICA. Constant supervision is also necessary due to his unawareness of dangers and his desire to touch objects. Alex does benefit from his age-appropriate peer group and is involved in community outings including trips to the park, local historical sights, amusement paries, restaurants, and swimming. In his free time he enjoys jumping on his trampoline, running. and watching videos. He will initiate engaging in these activities independently and will even attempt to put videos in the VCR independently. His parents also suggest that Alex enjoys riding horses. Alex does not like to be redirected when he becomes fixated on a certain activity or watching an object and may cry to express his unhappiness. He will also become frustrated with continuous physical prompting. When Alex is happy, he will smile and laugh. He is nonverbal and tends to like activities that he can do by himself and interact little with others. Alex can communicate by becoming physically and verbally agitated if he dislikes something although he can occasionally become agitated for apparently no reason at all so it is sometimes difficult to understand if he is communicating a desire or a dislike. Alex's teacher completed the Vineland Adaptive Behavior Scales Classroom Edition. His ratings yielded scores in the communication domain. daily living skills domain, and the socialization domain that fell in the range of profound deficits. Motor Alex is ambulatory and able to walk to and from different areas with one-to-one staff presence for guidance and protection as he sometimes gets excited and will run away. He does need assistance on the stairs for his protection. His occupational therapist indicates that therapy wiIl be taking more of a sensory approach with Alex. He does continue to present with difficulties in participating in classroom activities due to increased self- stimulatory behaviors and darting. He just does not Sllem to benefit from proprioceptive input from lap weights and he continues to require hand-aver-hand assistance to initiate and complete many activities. Aiel\. still presents with poor visual regard to tasks at-hand. Staff will continue hypotberapy sessions. B. Ecological Evaluation Results (If appropriate): Alex CohiCk 4- PDEJBSlt .4l1'OllMA T A - COMPREBmISIVlIllVALUA TION REl'ORT . Al'lUL 1994 .l ib , . ,. '"'' "~'- ",,-,..," '"'1 MAY. 1.2001 1:19PM rU--13 2ND FLOOR NO. 379 P.6/7 C. Vocational Technical Education Assessment Results (If appropriate): 5. STRENGTHS: . Beginning to perfonn simple vocational tasks . Improved communication with PECS · Discriminates between desirable and undesirable objects · Independently drinks from cup · Ambulates independently with staff supervision · Desires to be active and involved in activities far a short period of time . Enjoys trampoline, ronning, watching videos, swimming, and horseback riding · Eats independently with spoon . Extremely motivated by edible reinforcers . Adapts to f~ding and will complete multi-step activities for a reward 6. DEGREE OF NEED: · Continue to develop pre-vocational skills · Enhance safety awareness . Improve self-care skills and daily living skills (especially toilet training) . Continue to improve functional co=unication skills through the use of PEeS . Decrease maladaptive behaviors (self-stimulatory behaviors. darting) . Improve attention to task . Enhance fme-motor skills . Continue to develop independent skills . Continues to need one-to-one assistance and supervision because of his limited understanding of safety issues and has difficulty with high levels of activity and low levels of focu,c; and attention . Continues to need tangible (edible) reinforcements in small ratios 7. INFORMATION FROM OBSERVATIONS IN THE CLASSROOM AND OTHER SETTINGS: The school psychologist conducted an extensive observation of Alex in his classroom. It was evident that Alex depended on prompting, both verbal and physical, to be successful with the task at-hand. He needed edible reinforcers after almost every response to continue to be motivated. During a 5 to lO-minute session, he needed multiple physical prompts to remain seated. Alex exhibited nearly constant .self-stimulatory behaviors with his hands and legs even with physical and verbal prompts to stop. Although he has made progress with his use ofPECS, he did demonstrate inconsistent performance during an activity where he was choosing between a desirable and an undesirable PEeS card. Alex needed physical prompts with all transitions. It was apparent that keeping edibles in constant view also served as a motivator. Alex had a very difficult time in a group session with two other students and did not seem to benefit He was then observed during individual work time. He was following a visual (color-matching) work system. He needed some prompting but was able to do some independently. If Alex is left alone far any period of time, his self-stimulatory behaviar increases and he quickly becomes over-excited, exhibiting high levels of activity and loud vocalizations. Alex Cohick s.m_ . 4 FORMAT A - COM!'lUtlmNB1VE 1'lV ALUATlON REl'OllT . APIUL 1994 -, = -,i.....-' ',,",""_ - ft MAY. 1.2001 1:20PM IU-13 2ND FLOOR NO. 379 P.7/7 So' CONCLUSIONS AND RECOMMENDATIONS TO IEP TEAM: (Including eligibility, speclally-designed instruction, current program, .,h"nge in programs, and other issues based on the student's individuals needs.) AIel[ continues to be eligible for special education services as a student with Mental Retardation, Autism, and SpeechJLanguage Impairment. FOR REEVALUATION: 9. RECOMMENDATION REGARDING CONTINUED NEED FOR SPECIAL EDUCATION: Alex would continue to benefit from specially-designed instruction in a small, highly structured setting that provides visual aides as well as one-to-one support to meet his needs in the area of adaptive behavior, communication. motor skills, and pre-vocational skills. Continue speecb/language services. Continue occupational therapy. Continue one-to-one staff assistance. 10. REVIEW OF THE STUDENT'S 1EP Instructional activities which have been successful: . Individualized instruction . Use of PEeS for communication . Visual schedule and visual prompting . High levels of edible reinfomers for motivation Recommendations for revision of the IEP: Alex Cohick .6-l'DFJBsE.4 FORMAT A. COMPllEBENSIVEEVALUAnONllEPOB.T -APIllL U!l4 .~ ~ ~ ~ -~ -. , . ,.-,-'< : - ~- t;...- -'--, ,..' ~'. - -- '::'i";""- .-p -"-""'_~'_ ___,'-~.~.i.}:~ JUDY FRY and, THOMAS FRY, Plaintiff: :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYL VANIA :01-2419 CIVIL ACTION LAW vs. :IN CUSTODY BETSY COHICK and CHESTER COHICK, Defendant AFFIDAVIT OF SERVICE BY MAIL COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNTY OF LEBANON ) I, ANGELA JEAN BINGAMAN, an employee of the law firm of Buzgon Davis, 525 South Eighth Street, Lebanon, Pennsylvania, 17042, Attorneys for Defendants, being duly sworn according to law, depose and say that I mailed on May 3, 2001, by regular mail, in a postpaid envelope, a true and correct copy of DEFENDANTS' PRELIMINARY OBJECTIONS, the original of which was filed on May 3, 2001, in the Office of the Prothonotary of Cumberland County, Pennsylvania, to: Austin F. Grogan, Esquire, 24 North 32nd Street, Camp HilI, Pennsylvania 1701 I, Attorney for Plaintiffs, Judy Fry and Thomas Fry; and Melissa P. Greevy, Esquire, 214 Senate Avenue, Suite 105, Camp HilI, Pennsylvania 17011, Custody Conciliator. ~~~ \f3~~ NG f\ JEAN B AMAN Sworn and subscribed to before me this 3rd day of May 2001. ~ ~. fv,1 tf-Jlo~i Notary Public Notarial Seal Joyce E. Brightbill, Notary Public Bern Twp., Berks County My Commission Expires Apr. 12, 2004 Member PennsylvanlaAssocialionOfNotartes ~~~~,~~(l;!~)"';!0[-i1iI~~mo~&la~;;~#i.gi;1f'ii'.i:~,~m,~:r."*"'~~t t\~ "' ,_ ~ N'~~ O",,'=<:""n'_'_' , _' ~ I ~"'~" ,-,~- ~U..lli:!","'lIDij,t; m.wlli , -hj@IIZ'l'IU n- 't' ',OJ ~' ~'~- 0 ~ 0 C ~n S: ~j: I ,,] If..: 3::!" IT' t2.: " -"'- ;::: -;..' Z l: ,.._~ ~j) - ., ') r~ r_:.\ -0 }i , , :iG , , (-~) ~ {-:~ (.~J CJ :-n .;:-:; .., " :fj :=J -< (.0 -< " If _~ "N_ " "~-'" <." - ,., - , 1.. :i JUDY FRY and THOMAS FRY, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY , PENNSYLVANIA NO. 01-2419 BETSY COHICK and CHESTER COHICK, Defendants CIVIL ACTION - LAW CUSTODY PETITION FOR SPECIAL RELffiF AND NOW, this 11- day of 2001, the plaintiffs Thomas Fry and Judy Fry, by and through their attorney, Austin F. Grogan, Esq., aver the following: 1. The plaintiff, Judy Fry is the paternal grandmother of the minor child, Alex Cohick, born March 2, 1990, who is currently in the custody of Meimark Residential Facility in Berwyn, Pennsylvania; 2. The plaintiff, Thomas Fry, is the husband of the plaintiff, Judy Fry, thus creating a step-grandfather relationship between Alex Cohick and Thomas Fry; 3. The defendants, Betsy and Chester Cohick, are the natural parents of the child; 4. On or about April 25, 2001 the plaintiffs initiated a custody action seeking primary physical and legal custody of the child; 5. The defendants, by and through their attorney, fIled preliminary objections raising standing and venue as to the authority of the plaintiffs to seek primary custody and the venue of Cumberland County on the custody matter; 6. The plaintiff, Judy Fry, has had regular partial custody since the child's birth. 7. The plaintiffs have had regular and frequent contact with the child since 1996 and [ '-- , ,~ ~~ . : ". -~L '--"":'---:-"'""~i partial custody on alternating weekends; 8. The child, for approximately twenty-two months since July 1999, has resided at the residential facility for emotionally challenged children called Melmark; 9. The plaintiffs have had partial custody with the full knowledge and support of the natural parents up until May 9, 2001; 10. By a letter dated May 9, 2001 the defendants' attorney notified the undersigned counsel that the plaintiffs were no longer allowed to visit and/or exercise custody of Alex Cohick commencing the weekend of May 11, 2001 (letter attached); 11. The weekend of May 11, 2001 is the normally scheduled alternating weekend that the grandparents have enjoyed partial custody with their grandson; 12. The plaintiffs feel that this unilateral termination of the partial custody is done in retaliation to the parties seeking primary physical and legal custody of the child. WHEREFORE, the plaintiffs respectfully request this Honorable Court to schedule an emergency Hearing to reestablish the status quo as it relates to the custody schedule for the parties with the minor child and to schedule an evidentiary hearing as to the preliminary objections of standing and venue. Respectfully submitted, .'. "" , , -~~'> -Jlt h- BERNERD A. BUZGON HARRY W. REED, JR TIMOTHY J. t1UBER EDWARD J. COYLE MARY H. BURCHIK SCOTT L. GRENOBLE CHAD M. TEMPLIN JOHN W. DITZLER KELLEY S. GILLETTE BUZGON D'A VIS LAW OFfiCES A PROFESSIONALCORPORA.TION 525 SOUTH EIGHTH STREET POST OFFICE BOX 49 LEBANON, P A 17042 PHILIP S. DAVIS (1942.1995) RICHARD W. DAVIS (1964 -1997) PHONE: (717) 274-1421 FAX: (717) 274.1752 E-MAIL:buzgon@sunlink.net May 9, 2001 Austin F. Grogan, Esquire 24 North 32iid Street Camp Hill, PA 17011 Re: Judy Fry and Thomas Fry v. Betsy Cohick and Chester Cohick Dear Mr. Grogan: Please be advised that my clients wish to withdraw Mr. and Mrs. Fry's visitation privileges with Alex until this matter has been concluded. This withdrawal is effective immediately, therefore, your clients should not plan on visiting Alex this weekend, May 11-13. Should you have any questions, please do not hesitate to contact me. Thank you for your cooperation. Very truly yours, . ~A.~ Kelley S. Gillette KSG/!\ib cc: Mr. and Mrs. Cohick n ~ ?lIDJ!?JjD u 11' ~.. . ~~..l ~ 2\~~:~j!.l ! \.... -,...t..::JIT ,..; -.....1..,,/ ~..J ..,... .....----~- .- - - - ~ . - --. . - J. _ ~d . ~;, - -' J" .,. ,~.~. '--":~~r VERIFICATION We, Judy Fry and Thomas Fry, verify that the statements made in the foregoing Petition for Special Relief are true and correct to the best of our knowledge, information, and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. Date 7l7~ /<4 Q)001 JUDY FRy9~ !l.j'j Date rn'*( IV, <<6", I g~~ THOMAS FRY ~ -, ~ .,.-, ., t~ll)lt -....,"-'~---.-~: JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-2419 BETSY COmCK and CHESTER COHICK, Defendants CIVIL ACTION - LAW CUSTODY ORDER AND NOW, this /1#-- day of /'4~., , 2001, upon consideration of the attached Petition for Special Relief it is hereby Ordered that a Hearing on the matter be scheduled for the :z. 'I" day of I"IIl+y , 2001 at '1:JJ Ii- .M. in Courtroom # if of the Cumberland County Courthouse, Carlisle, Pennsylvania 17013. fi;v..rA pt..,pl"j / ...... ob.i. u''''$ f'A- .:",~ \ v~ By the Court, JJfWD .5'18~OJ Judge ~M>!li;\.ilM!Il;W:iijl,uol!N,fr~';N~llllif'.ffiiil~~,j.~o,,^.;s-";j~>'-', H'!..i\:F..Ji1ji{"&-;:-.i"\"J!'"',;hli;:~N,",-~~:.~~~~n,".."",,,'~',,",~ \;/i;\\V/t\l\Sf,IN::1d , ,,,).:.,;._, I.' -'l_y::',q:,;\~fYJ l\.;J'~i ,;J ,r 9'1: II 8 ~ l\\\J\(y-.,i' ,- --, /.,0,' ,1.'.,' \~ - '.,,_.'.\~,,":;.:~~-6..t 'j': '..~ :l~,/ - ~ . __~. ,w, ,".., I., '''~"> ~__, c "<,___~,,.,~_ ;\'~ t l o ':~Il1I!II!il~ -'I .~ I ~,~ ,.1,'. ~"- "~ ~ -t )'.' --,~!:'i .. DEfENDANT'S EXHIBIT PALMYRA AREA SCHOOL DISTRICT SPECIAL EDUCATION DEPARTMENT 400 South Forge Road Palmyra, PA 17078 NOTICE OF RECOMMENDED ASSIGNMENT *****************************************~~~~~~~~~~~************************************************************************ Student Cohick, Alex Date of Birth 03/02/86 Parent Name Mr. & Mrs. Chester Cohick Address 115 West Main Street City-State-Zip Palmyra, PA 17078 Dear Mr. & Mrs. Cohick: Date May 23, 2001 District of Residence Palmyra This letter summarizes recently developed recommendations or proposed changes for your child's education program and/or assignment. 1. [ ] Your child should begin to receive special education services. The school district will not proceed without your approval of this recommendation (the IEP is attached). 2. [X] Your child's special education placement or services should be changed as noted in the IEP. The school district will proceed with this change unless you notify us within ten days of your written disapproval (the IEP is attached). 3. [ ] Your child is no longer in need of special education. We recommend current special education services be discontinued. The school district will proceed with this change unless you notify us within ten days of your written disapproval. 4. [ ] Your child is gradllating from high school. All special education services will cease at the end of the current school term. 5. D Your child is not in need of special education and should continue in his/her present assignment. 6. [ ] The school district is refusing your request to initiate or change your child's: [ ] Identification [] Evaluation [ ] Educational placement [] Provision of education The reason and basis for this refusal are: The assignment recommended for your child is: Appropriate Grouping Autustic SunDor! Level Full-Time SDecial Education Class Outside the Rel!ular School Location ADD roved Private School on a Residential Basis Other Elil!ible for ESY This assignment was recommended after a review of the attached options, which were used to assist in identifying the services and programs that will meet your child's needs. "'!"---- , _., - IJ,-,-" - 'rN ""~'jii, ... J OPTIONS CONSIDERED *~********************************************************************************** Student's Name Cohick. Alex The options considered when recommending placement for your child fall into three categories, as listed on the chart below: · Appropriate grouping of students who have learning needs similar to your child, and who are able to benefit from this assignment, given the rate, level, and manner of the instruction to be provided. . Level of intervention is the type and amount of special education instruction your child will receive. · Location of intervention is the type of building or facility where special education services will be provided. In discussing the appropriate program for your child, the options checked below were considered. APPROPRIATE GROUPING (Class or Type of Service): [XI Autistic Support [ I Blind or Visually Impaired Support [] Deaf or Hearing Impaired Support [I Emotional Support [] Gifted Support [ I Learning Support [] Speech and Language Support LEVEL OF INTERVENTION: I Part-time Special Education Class in the Regular School I Supportive Intervention in the Regular Instructional Environment ] Supplemental Intervention in the Regular Instructional Environment (Itinerant) [I Supplemental Intervention in the Resource Instructional Environment [I Full-time Special Education Class in the Regular School [XI Full-time Special Education Class Outside of the Regular School LOCATION OF INTERVENTION: [ I [ I [ I Life Skills Support Physical Support Multiple Disabilities Support [ ] I I qUl~ [ I [ I I ] lJ?, 1'X'J Regular school which student would attend if not a child with a disability Alternate regular school as close to the student's borne as possible Alternate regular school in a neighboring school district Special education public school, such as a special education center Instruction in the home Approved Private School on a day basis Approved Private School on a residential basis Reasons for the recommendations (Include evaluation procedures, reports, and other factors used in making the recommendations): Based on information private school, . obtained from reports from the CER and current IEP, the district supports an approved _, to meet Alex Cohick's needs {j.-~\tI\ Reasons why the above recommendation is appropriate and why it represents the least restrictive environment in which your child's needs can be met: Alex's needs can best be met in an autistic support program Reasons why the options that were considered but not recommended are inappropriate or do not represent the least restrictive environment in which your child's needs can be met: The other options are not appropriate at this time Option rev 8/00 White - IV Central Office Canary - District Pink - Parent f' .1- ',"-',. " '"~'''--' ""-k'U'~ , 7. [ ] Other: 'iJJa.(), M~JhM.' School District Superintendent Signature Date You have certain rights which are described in the attached Procedural Safeguards Notice. Please carefully read the information. If you need more information, you may contact: Linda S. Bare Name Director of Special Education Position 717-838-8835 Phone Number DIRECTIONS FOR PARENTS: Please check one of the options, sign this form, and return it within 10 days to the person listed above. t><f I approve this recommendation [] I do not approve this recommendation My reason for disapproval is: I req uest: [] A Prehearing Conference* [] Mediation* [] Due-process Hearing* I will need the following accommodations to be made so that I may attend the above. ~ {~/(7-- / Parent's Signature SJ';/.3JOI Date t)38 S''iO~ Daytime Phone .The enclosed Procedural Safeguards Notice provides information on the options listed above. NORA rev 8100 While -IU Central Oflice Canary - District Pink - Parent _.~fi.l,"!I!I!, ' 0' ~ 1< ~ ' " ,", -, ~ '. , , {1.1~,1 DEfENDANT'S EXHiBIT d-- LANCASTER-LEBANON, INTERMEDIATE UNIT 13 1110 Enterprise Road East Petersburg, PA 17520-1696 Phone: (717) 569.7331 COMPREHENSIVE EVALUATION REPORT (CER) **************************************************************************************************** Original: forward to Clinical Services Signed copies to: (Check below:) District Coord. Linda Bare (Palmyta) Parents M1M Chester Cohick, Jr. Teacher(cum file) Joey Dziomba Supervisor NC Lebanon IV Office NC Psychologist Mary Barnett Others (list) (Check:) Initial Referral " Re-evaluation Psychiatric v District Program (palmyta) IV Program 6 days post MDE: 10 days post MDE: 05-04-0 I 05-10-01 Agencies (attach Parental release for each) Date of Report: April 26, 2001 MDT Chairperson: Mary Barnett COHICK, ALEX ' Student Name (Last, First, M.l.) MIM Chester Cohick. Jr. Parent Nome Social Security Number Melmark (APS Residential) Present Class Location 03-02-90 Birthdate Palmyra District of Residence 115 West Main Street Street Address Palmyra, PA 17078 City, State, ZIP Grade 11-2 Age Autistic Support Current Educational Program 717/832-3601 Telephone Joey Dziomba Teacher erne 1. REASON(S) FOR REFERRAL: To re-evaluate his current progress and programming and to make recommendations for further programming. 2. INFORMATION FROM PARENTS OR PERSONS WITH WHOM THE STUDENT LIVES: Mrs. Cohick participated in the MDE meeting via phone conference. She indicates that they continue to have a difficult time with Alex when he is at home. He still needs constant Alex Cohick I-PDElBSE-4 FORMAT A - COMPREHENSIVE EV ALUA nON REPORT - APRIL 1994 "' : 1- =, -';" -""'. ":: r~'d'~-"'i;- supervision. For Alex's safety, his bedroom-window is secured by a bookshelf that can be easily pushed into his bedroom if needed but cannot be pushed out by Alex. His parents continue to use a mattress on the floor of their bedroom or his bedroom so that they can sleep in the same room with Alex in case he wakes up and needs assistance. His levels of activity are very high. He will occasionally pull his sister's hair but other than that there is very little aggression or threat to harm others. 3. EDUCATIONAL, SOCIAL, AND PHYSICAL mSTORY: Alex currently receives educational and residential services at Melmark, an approved private school and residential facility. Alex began attending Melmark in July, 1999. Prior to his admission there, Alex received programming in Autistic Support with a one-to-one staff member operated by Capitol Area Intermediate Unit. Prior to that placement, he was supported in an MDS classroom. Records indicate that in kindergarten with a one-to-one he did participate in half-day inclusion. Alex's first school experience was preschool at the United Cerebral Palsy Center where he received developmental instruction and speech language support services. Looking at developmental history, Alex was born as a result of a full-term pregnancy weighing 6 lbs., 5 ozs. No complications were noted at birth and he was in excellent condition. He walked at the age of 15 months. There is no history of sustaining verbal communication nor has he been toilet trained. Alex has made minimal progress throughout school. He has a history of gaining skills and then going through a period of regression. Earliest assessments found in the records were in 1992 and 1993. He was seen by a Dr. Barron at Hershey Medical Center in 1993 for a neurological workup. At that time he was diagnosed with mild Mental Retardation and Attention DeficitlHyperactivity Disorder. An evaluation Was then conducted in September of 1994 by Dr. Lusser in Allentown, P A. At that time, Alex was apparently using 10 to 26 functional signs but his attention span was short and he showed extreme frustration when demands were placed on him. Alex has been on multiple medications since 1994 to address his high level of activity as well as other behavioral concerns. Medications that have been utilized include: Ritalin, Cylert, Clonidine, Risperadal, Prozac, Haldol, Trazadone, Secretin shots, and Depakote. While at Melmark, he has been taken off all medications with success. Alex is diagnoses include: Pervasive Developmental Disorder, Autistic-type; Moderate to Severe Mental Retardation; Attention Deficit Hyperactivity Disorder; Oppositional Defiant Disorder; and rule out Bipolar. He does have a history of unmanageable behavior that presents a danger to himself and others including: aggression (hitting and biting), destruction of property. screaming, extreme impulsive behavior and history of PICA, darting and running away, and self- stimulatory behavior. Currently, Alex is exhibiting no form of aggression. His self-stimming and darting continues to be a significant issue as well as his level of activity. 4. SUMMARY OF FINDINGSIINTERPRETATION OF ASSESSlVffiNT RESULTS: A. Instructional Evaluation Results (Instructional Level, Rates of Acquisition and Retention): Alex Cohick 2- PDElBSE. 4 FORMAT A. COMPREHENSIVE EVALUATION REPORT. APRIL 1994 -~~~ ~ - k ~I ,= C~ .- ~ n'lilji~~~1:' COGNITIVE A records review finds documentation of IQ and neurological testing done across the past years. Earlier assessments done in 1993 indicated mild to moderate mental retardation. As time passed, the diagnosis changed to moderate/severe mental retardation. Alex has presented with delays in all areas (except gross motor) since the age of two. Current observations as well as informal measures of adaptive behavior and lack of progress in other domains indicate that Alex currently functions in the severe range of mental retardation. Formal testing is not possible due to severe a speech and language disability, difficulty with fine-motor skills, and lack of behavioral control. CURRENT LEVELS OF FUNCTIONING Pre- Vocational Skills Alex has made some progress towards his IEP objectives in this area. He currently matches the colors red, blue, and green. He has matched two colors correctly for four consecutive sessions. Regarding his progress from the beginning of this year: Alex correctly matched two shapes on three consecutive occasions. Alex was able to insert 10/10 objects with verbal direction on five consecutive sessions. With verbal directions, he. could remove 10/10 clothes pins from a can on five consecutive sessions. Alex will pick up beads and attempt to string them on a pipe cleaner 1/10 occasions. He continues to struggle with this skill due to fine-motor difficulties. Alex will individually remain in seat during aone-to-one activity for up to 5 minutes on four consecutive trials. He continues to require a reinforcer for appropriate sitting and for working. When given the verbal direction, "ready" Alex does continue to require physical hand-over-hand promptiag to put his hands in his lap and sit with his eyes on the instructor. All of these pre-vocational skills are taught through discrete trial format and high levels of edible reinforcers are used throughout sessions. Communication Alex is currently being taught to use a Picture Exchange Communication System (PECS) for functional communication (upon entering Melmark, he was using object based communication). At this point, he is given a choice of two PECS and is being taught to discriminate. The speechllanguage therapist successfully used a field of 6 PECS. However, this has not generalized into the classroom. Using PECS is much more successful with the use of reinforcement. He has correctly removed the bathroom PEC from his schedule and walked to the bathroom on two occasions. Given a choice of two objects (one desirable and one undesirable), Alex will choose the appropriate icon from his communication book with 80% accuracy or higher on 4/5 trials. Alex is able to follow simple verbal commands that consist of one to two words with visual cues at 70% accuracy. He has made some progress with imitating simple actions such as "pick up" at 45% accuracy. "calm" with 40% accuracy, and "sit down" with 55% accuracy. He is responding to a verbal prompt to "touch head" with 65% accuracy, "touch nose" with 40- 55% accuracy, and the prompt to "clap hands" with 40-55% accuracy. Adaptive Behavior Alex is dependent on staff for support for all toiIeting needs. He does currently wear diapers and does not consistently use the toilet. A schedule has been utilized in the past Alex Cohick 3- PDElBSE . 4 FORMAT A . COMPREHENSIVE EV ALUA nON REPORT. APRIL 1994 , , ." :;-,-~ ~ "~ .--~--,.-\#! to pull his pants down with one to two verbal prompts and will sit on the toilet with continual prompting. Staff indicate that they will soon be implementing a "Wet Stop" program coupled with a toilet chaining sequence that breaks down the steps of toileting and taught individually through discrete trial. Alex eats his meals with minimal prompting using a fork or spoon but requires one-to-one attention at meal time because he tends to use his fingers or steal food. Alex independently holds a cup and drinks from it. Alex is dependent on staff assistance for all dressing needs. He will offer assistance to staff holding the shirt as well as finishing the dressing process when the head is put through the hole of the shirt, he will independently find the arm holes and complete the shirt process. Alex needs help initially putting his pants on the correct way but can independently pull his pants up. He does not appear to understand how to button or use zippers nor tie his shoes. He is dependent for all dental care as well as personal grooming. Staff attempt Alex to be involved and cooperate with hand-over-hand washing but he is not always cooperative. Alex must have one-to-one supervision during all waking hours because of the continued need to monitor his high level of activity and his PICA. Constant supervision is also necessary due to his unawareness of dangers and his desire to touch objects. Alex does benefit from his age-appropriate peer group and is involved in community outings including trips to the park, local historical sights, amusement parks, restaurants, and swimming. In his free time he enjoys jumping on his trampoline, running, and watching videos. He will initiate engaging in these activities independently and will even attempt to put videos in the VCR independently. His parents also suggest that Alex enjoys riding horses. Alex does not like to be redirected when he becomes fixated on a certain activity or watching an object and may cry to express his unhappiness. He will also become frustrated with continuous physical prompting. When Alex is happy, he will smile and laugh. He is nonverbal and tends to like activities that he can do by himself and interact little with others. Alex can communicate by becoming physically and verbally agitated if he dislikes something although he can occasionally become agitated for apparently no reason at all so it is sometimes difficult to understand if he is communicating a desire or a dislike. Alex's teacher completed the Vineland Adaptive Behavior Scales. Classroom Edition. His ratings yielded scores in the communication domain, daily living skills domain, and the socialization domain that fell in the range of profound deficits. Motor Alex is ambulatory and able to walk to and from different areas with one-to-one staff presence for guidance and protection as he sometimes gets excited and will run away. He does need assistance on the stairs for his protection. His occupational therapist indicates that therapy will be taking more of a sensory approach with Alex. He does continue to present with difficulties in participating in classroom activities due to increased self- stimulatory behaviors and darting. He just does not seem to benefit from proprioceptive input from lap weights and he continues to require hand-over-hand assistance to initiate and complete many activities. Alex still presents with poor visual regard to tasks at-hand. Staff will continue hypotherapy sessions. AIel( Cohick 4- PDFJBSE . 4 FORMAT A . COMPREHENSIVE EV ALUA nON REPORT. APRIL 1994 .E ~ 0 "-~ " ~,- L ~ ,_, '0-0.,.:; "ru';;""'-<- B. Ecological Evaluation Results (If appropriate): C. Vocational Technical Education Assessment Results (If appropriate): 5. STRENGTHS: · Beginning to perform simple vocational tasks · Improved communication with PECS · Discriminates between desirable and undesirable objects · Independently drinks from cup · Ambulates independently with staff supervision · Desires to be active and involved in activities for a short period of time · Enjoys trampoline, running, watching videos, swimming, and horseback riding · Eats independently with spoon · Extremely motivated by edible reinforcers · Adapts to fading and will complete multi-step activities for a reward 6. DEGREE OF NEED: · Continue to develop pre-vocational skills · Enhance safety awareness · Improve self-care skills and daily living skills (especially toilet training) · Continue to improve functional communication skills through the use of PECS · Decrease maladaptive behaviors (self-stimulatory behaviors, darting) . Improve attention to task · Enhance fine-motor skills · Continue to develop independent skills . Continues to need one-to-one assistance and supervision because of his limited understanding of safety issues and has difficulty with high levels of activity and low levels of focus and attention . Continues to need tangible (edible) reinforcements in small ratios 7. INFORMATION FROM OBSERVATIONS IN THE CLASSROOM AND OTHER SETTINGS: The school psychologist conducted an extensive observation of Alex in his classroom. It was evident that Alex depended on prompting, both verbal and physical, to be successful with the task at-hand. He needed edible reinforcers after almost every response to continue to be motivated. During a 5 to 10-minute session, he needed multiple physical prompts to remain seated. Alex exhibited nearly constant self-stimulatory behaviors with his hands and legs even with physical and verbal prompts to stop. Although he has made progress with his use of PECS, he did demonstrate inconsistent performance during an activity where he was choosing between a desirable and an undesirable PECS card. Alex needed physical prompts with all transitions. It was apparent that keeping edibles in constant view also served as a motivator. Alex had a very difficult time in a group session with two other students and did not seem to benefit. He was then observed during individual work time. He was following a visual (color-matching) work system. He needed some prompting but was able to do some independently. If Alex is left alone for any period of time, his self-stimulatory behavior increases and he quickly becomes over-excited, exhibiting high levels of activity and loud vocalizations. Alex Cohick 5- PDElBSE. 4 FORMAT A. COMPREHENSIVE EVALUATION REPORT. APRIL 1994 J . h " .," ">1 8. CONCLUSIONS AND RECOMMENDATIONS TO IEP TEAM: (Including eligibility, specially-designed instruction, current program, change in programs, and other issues based on the student's individuals needs.) Alex continues to be eligible for special education services as a student with Mental Retardation, Autism, and SpeechlLanguage Impairment. FOR REEVALUATION: 9. RECOMMENDATION REGARDING CONTINUED NEED FOR SPECIAL EDUCATION: Alex would continue to benefit from specially-designed instruction in a small, highly structured setting that provides visual aides as well as one-to-one support to meet his needs in the area of adaptive behavior, communication, motor skills, and pre-vocational skills. Continue speechlIanguage services. Continue occupational therapy. Continue one-to-one staff assistance. 10. REVIEW OF THE STUDENT'S IEP Instructional activities which have been successful: . Individualized instruction . Use of PECS for communication . Visual schedule and visual prompting . High levels of edible reinforcers for motivation Recommendations for revision of the IEP: Alex Cohick 6- PDFJBSE - 4 FORMAT A - COMPREHENSIVE EVALUATION REPORT. APRIL 1994 --'" , .; ~J N. ;,~ ':...., ,~."..~ .,' , - -r~'iiiii"lHiffi~! Student Name: LANCASTER-LEBANON INTERMEDIATE UNIT 13 NO GJ~G~"<+ 3-POEIBSE-4 FORMAT A. COMPREHENSIVE EVALUATION REPORT. APRIL 1994 Ale)C tObb.k COMPREHENSIVE EVALUATION REPORT SIGNATURES DIRECTIONS TO TEAM MEMBERS: Check YES if you agree with this report; check NO if you do not agree. If you db not agree, please write the reason for the disagreement, and it will be attached to the report. YES ._AlJ,LB aD. ~ dP ~ -M'i ~.. cJ~~(' ~l4/L tJ:iP:, .. ML. d I # 'fJ~-;&r- PoJ~~lMffi 4>. Eel LtIl- ?4~~~ ItI/3 AfS h<a)sdJ'! TITLE ChairpersonJ School Psychologist Parent Parent Teacher Office Use rate _arent t,;Qpy ~entl MAY. 2.2001 3:39PM IU-13 2ND FLOOR "" . - '-,..- - <if' , '--"~"11: n., "~i- NO.44ci f'.c/c LANCASTER-LEBANON INTERMEDIATE UNIT 13 Stlldent Name: Alet tokk COMPREHENSIVE EVALUATION REPORT SIGNATURES DIRECTIONS TO TEAM MEMBERS: Check YES if you agree with this report; check NO if you do not agree. If you do not agree, please write the reason for the disagreement, and it will be attached to the report. YES ~e> (jt) ~ a ~'i ;pK. NO .' AJ/~G~",f c..,~~H.~........ , -tn*ct!..>><:: '~. ~<J ;::\<-., . . .?t?' c..t:J - 't- ?~~-~-~~ 3-PDElBSE-4 FORMAT A _ COMPREHENSIVE EVALUAilON RePORT - APRIL 1994 TITLE Chairperson! School Psychologist Parent Parent Teacher I. Pa,l~~_Ed. LtII LtlI3 ;tIS ..4o/sdJ'7 Office Use IU'" _.r"'" ""py senti ~ . I ~ <_ '.~ J~.:Co~-" ': bJ; "' ,- PALMYRA AREA SCHOOL DISTRICT SPECIAL EDUCATION DEPARTMENT 400 South Forge Road Palmyra, PA 17078 PERMISSION TO REEVALUATE ************************************************************************* Mr. & Mrs. Chester Cohick. Jr. 115 West Main Street PalmYra. P A 17078 (Name and Address of Parent) Date: January 30. 2001 Student: Cohick. Alex :: 03/02/90.. Melmark Dear Mr. & :Mrs. Cuhick: The school district is planning to reevaluate your child for the following reason(s): Re-evaluation of IntellectuallEducationaUSociaUEmotional Functioning The school district requests your consent to conduct this Reevaluation. We must have your consent before we can begin. However, please be aware that after reasonable attempts if we have not received your response we are permitted by law to proceed with the reevaluation. In the reevaluation, we will review your child's educational needs and strengths as shown by educational performance levels, assessment results, classroom observations, and information from you. Specific types of tests and procedures which will be used in the reevaluation include the following: Individually administered test of intellectual or academic ability: Individually administered tests of achievement in one or more academic areas: Curriculum based assessmenL BehavioraIlSociallEmotional funcitoning. The reevaluation is proposed for the following date(s): within 45 days of receipt of Dermission The school district will form a multidisciplinary team to conduct the reevaluation. As parent(s), you are a member of the team. If a team meeting is held you will be invited. Information from you is to be considered by the team as part of the reevaluation process. If you want to send written comments, please do so. You are entided to participate in any meetings with respect to the identification and evaluation of your child. Tne multidisciplinary team will prepare recommendations regarding your child's educational program, and whether your child continues to be in need of and eligible for special education and related services. This information will be outlined in a Comprehensive Evaluation Report (CER) and will be given to the Individualized Education Program (mp) Team. The Reevaluation is to be completed and the Report is to be disseminated to you within 60 school days of receipt of your consent to reevaluate. Please call me at the number listed below to discuss information which you feel is important to include in the evaluation. Please read the enclosed Procedural Safeguards Notice which includes parent resources such as state or local advocacy organizations. If you have any questions, or if you need the services of a translator or an interpreter, please contact me. --- . Linda S. Bare Name Director of Special Education Position -*17-838-8835 ITB Phone n:. 20011., ~fCflVfO 1M r~- , "~ - -"", ":if '-' .,c'" '('k.:: Cohick, Alex 03/02/90 Melmark DIRECTIONS FOR PARENTS: Please check the appropriate item(s), sign and return this form to the person below. fxf I give consent to begin a re-evaluation as you propose. r ] Please contact me. I am not ready to give consent for the re-evaluation at this time and would like to talk about this. [ ] I object to the proposed reevaluation. Please do not begin the re-evaluation process at this time. r ] I object to the proposed re-evaluation; however. I would like to schedule:. r ] An informal meeting r ] A pre-hearing conference* r ] Mediation* r ] Due Process Hearing* 6~ G-lI0/'Z- Parent(s) Signature ~ Date 7/1 8317 8~O I Daytime Phone *The enclosed Notice of Parents' Rights provides information on the options listed above. ate Received reevaluation rev.8IOO "~ ~ . . ~, ,,--"'~ ~.' ~.I - - -" ~. '. "~_ ;::," ';'''-~_'._. ,',-<L',-f?i;~'~J;;,,)-i:~--__~,,__~; -14~- .... ." JUDY FRY and, THOMAS FRY, Plaintiff: :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYL VANIA :01-2419 CIVIL ACTION LAW vs. :IN CUSTODY BETSY COHICK and CHESTER COHICK, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Kelley S. Gillette, Esquire, ofBUZGON DAVIS LAW OFFICES, 525 South Eighth Street, Lebanon, P A, 17042-0049, for jurisdictional purposes only, as attorney for Betsy Cohick and Chester Cohick, the Defendants in the above captioned action. BUZGON DAVIS LAW OFFICES By: >~ ,'_,_ I " :;ih;d.-.~~[:iili4,fi~~t!!lil!1llf.il\liilt~iMi-~i~:'-jilil~~~If,,~~~!iN;iO~~;;ii$f<M~tWi.,<-!l;~""f ,~-., -~-, 8iiL S 'i'''f~ .. ,~ -~ " 1.[' ... "'iii '~~'i.-- "'"~ 1lI If' > 'ffl~ ~,"",,' 'J .1 I :1 I I , , (') G-:J- " , c: ;'1 ~': :1: ""Om :~ ~g:. --< ZC ) SQ::i:.. .~ !'-//1 !<c _.--,~ 'V -~- ~.~, ~o -""~ -;~:~t 0 _,I,. 5'>2 . , :;.~rn ..._~J \~~) -l :z: "1:> =< :0 W -< " '-'- - .1->0 ,".' < ,- "'",_ ;,,'J - _-_ ~'"c'<~.;';-d!",!'b_'",:-_=-" "J'\! JUDY FRY and THOMAS FRY, Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2419 CIVIL BETSY COHICK and CHESTER COHICK, Defendants CIVIL ACTION - LAW IN CUSTODY ORDER AND NOW, this '17 day of June, 2001, after hearing, the preliminary objections of the defendants with regard to venue are DENIED. The court, fmding no statutory basis upon which to grant the plaintiffs standing, the preliminary objection of the defendants on this basis is SUSTAINED and the custody complaint DISMISSED. BY THE COURT, Austin F. Grogan, Esquire For the Plaintiffs :rlm :,,9 ,0\ << \j 6Q Kelley S. Gillette, Esquire For the Defendants iliitll'lill.L~rif ""'~iI!o~>1",~~:t><.)@;I,!lh~~~~~~""~ ~" IfIN'V?ilASNN3d AlNnm OtNlt!:J8\^1n::J i l :8 Hd L - Nfl[' ! 0 l' '\-,'l'")t-.,1(-,;-i: (r.~,,,: ^OV v, \\'';1 .,,_V'.,.....:' ..r j:Jlj:jo-4G~Jl;:J ct-"SiV -~~.- ~,~~. O,"~_ _<m.~, ",,~ ... _" , ,,~, .' ,~,>",O ..~, ~. ," -~ :10 ~' k-......lIilIlIlIl~l ~'lIll. ..' ..!- \ ., , I I i i I I I i I l ! ~ , " " ~. '. I,' ,_ ',', ..;'"' ~'''"'-;;:;.~",,,,. '-0-_'~ - " ';'-C~";J;~J . . MAY 0 82001 tJ/7 ~ JUDY FRY and THOMAS FRY, : IN THE COURT OF COMMON PLEAS Plaintiffs, : OF CUMBERLAND COUNTY, PENNSYL VANIA v. BETSY COHICK and CHESTER: COHICK, No. 01-2419 Civil action - Law Defendants In Custody ORDER OF COURT AND NOW, this 7th day of May, 2001, counsel for the Defendants having filed Preliminary Objections, the presently scheduled Pre-hearing Custody Conciliation Conference, the Conference scheduled for May 7, 2001 at 1 :00 p.m. is continued for three months. Following resolution of the Preliminary Objections, counsel for the parties will notify the conciliator who will either re-schedule the conciliation or relinquish jurisdiction ofthe matter based on this court's disposition of the Preliminary Objections. FOR THE COURT, B~~.8u " Custody Conciliator I cc: Austin F. Grogan, Esquire 24 N. 32nd Street, Camp Hill, PA 17011 Kelley S. Gillette, Esquire P. O. Box 49, Lebanon, PA 17042 )~ ~ 5- I/lf.o( ~" ~iUIUi~~I!!I;i.i;?&i:-"'Jl&~i;<!'-_';;":<1f~~~j"'~~i~,,;'l>t;&~,,",li>1I~$;'~~~- ~-. -~, -~ ~l . I/IfWI\lASNN3d J.JJ'inn'l rJ.\l..rIUY""'l" -',--- '_J,." '; .'..I't'::1t ~I ...; "'C' . I' Ij" " H\~ f I ".,l ,e. i, ,j ~'... '. l ~ t', \_, AdVl'- (;:,' " j '" ., ~,', I j~)!3:<O. ,J i __ fl """ - ~"- --'l......~~_iii- . ~~r.....- . ~.. ~" ~~ I l [ , l I I l . ~ \ !P ,J ! . . . .-', -~' - ".;, .,,--,- '-'J~'"-',,,,- , - J;;;,' >~~ ~ ~ JUDY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. No. 00-5674 Civil Action - Law BETSY COHICK and CHESTER: COHICK IN CUSTODY DefendantS. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Alex Cohick March 2, 1990 1. A Conciliation Conference was scheduled for May 7,2001. Defense counsel filed Preliminary Objections but attended the Conference. A telephone conference was held with both counsel. Defense counsel did not waive Preliminary Objections. The matter was continued for three months so that counsel could have depositions, file briefs and have a hearing to address the objections to jurisdiction, venue and standing. Counsel are to inform the conciliator of the outcome of the preliminary objections. If the matter remains in Cumberland County, the matter will be promptly rescheduled. If the matter is dismissed to be re-filed elsewhere, the conciliator will relinquish jurisdiction. 2. An Order is attached. Da..$/N ~~---- Melissa Peel Greevy Custody Conciliator " ~ " .- ^ >'.' . ~.h.~:- '-, -" ~' I,;"'" "-,.- r: '--\,-i:Mt:~ , JUDY FRY and THOMAS FRY, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 0 I - 2Vf9 BETSY COHICK and CHESTER COHICK, Defendants CIVIL ACTION - LAW CUSTODY ORDER OF COURT AND NOW, this day of 2001, upon consideration of the attached complaint, it is hereby directed that the parties and their respective counsel appear before , the conciliator, at on the day of , 2001, at .M., for a Pre-hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this carmot be accomplished, to defme and narrow the issues to be heard by the court and to enter in to a temporary order. Either party may bring the child/children who is/are the subject of the custody action to the conference, but the chiId's/chiIdren's attendance is not mandatory. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. For the Court, By: Custody Conciliator YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LmERTY AVENUE CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 ,_','c__J', . o~>'''''_ _. .' b- - "-; j'",,"";,-,.\c'''-,;"-.. -"", JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY ORDER AND NOW, this day of , 200 I, it is hereby ORDERED and DECREED that Defendants, Betsy Cohick's and Chester Cohick's Preliminary Objections are SUSTAINED. Plaintiffs, Judy Fry and Thomas Fry, do not have standing to pursue the within Custody Action for Alex Cohick. Plaintiffs Custody Complaint is hereby DISMISSED with prejudice. BY THE COURT: 1. ';; JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY ORDER AND NOW, this day of , 2001, it is hereby ORDERED and DECREED that Defendants, Betsy Cohick's and Chester Cohick's Preliminary Objections are SUSTAINED with regard to venue. Venue shall immediately be transferred to Lebanon County. The Cumberland County Prothonotary is hereby directed to immediately transfer all documents in Cumberland County Docket No. 01-2419 to the Lebanon County Prothonotary. BY THE COURT: 1. . ~~ .~ , Illt'cl?~ JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY ORDER AND NOW, this day of , 200 I, it is hereby ORDERED and DECREED that Defendants, Betsy Cohick's and Chester Cohick's Preliminary Objections are SUSTAINED. Plaintiffs, Judy Fry and Thomas Fry, do not have standing to pursue the within Custody Action for Alex Cohick. Plaintiffs Custody Complaint is hereby DISMISSED with prejudice. BY THE COURT: J. Fi~" "'" , ;1 .. ,- "< ] ,- -, ~,~- '- ,"'~ - w,:; JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY ORDER AND NOW, this day of , 200 I, it is hereby ORDERED and DECREED that Defendants, Betsy Cohick's and Chester Cohick's Preliminary Objections are SUSTAINED with regard to venue. Venue shall immediately be transferred to Lebanon County. The Cumberland County Prothonotary is hereby directed to immediately transfer all documents in Cumberland County Docket No. 01-2419 to the Lebanon County Prothonotary. BY THE COURT: J. {~'~ " ~. ,~". " '" ,,---~' ~'1 JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY PRELIMINARY OBJECTIONS AND NOW, come the Defendants, Betsy Cohick and Chester Cohick, by their attorneys, Buzgon Davis Law Offices, and file these Preliminary Objections, pursuant to Pa.R.C.P. 1028(a)(1) and (4), to the Complaint for Custody: 1. Plaintiffs, Judy Fry and Thomas Fry, to this action are the child's paternal grandmother and step-grandfather and are requesting legal and physical custody of the child, Alex Sean Cochick, age 11 years. 2. Plaintiffs reside at 528 West Cumberland Road, Enola, Cumberland County, Pennsylvania 17025. 3. Defendants reside at 115 Main Street, Palmyra, Lebanon County, Pennsylvania 17078. 4. The minor child's residence is the same as Defendants. 5. The minor child is enrolled in the Palmyra Area School District, however, he lives at the Melmark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania 19312. A true and correct copy of the Lancaster-Lebanon Intermediate Unit's April 26, 2001 report on Alex is attached hereto and designated Exhibit "A". ~ ,,' "' "-, .. ~ ~~ ~ .:> ~.~ ." . 'i. ~' . .~'ct 6. Plaintiffs lack standing to pursue legal and primary physical custody of the child, pursuant to 23 Pa. C.S. 95311 et seq. 7. This Honorable Court lacks jurisdiction over the Defendants and minor child to hear the foregoing Custody Complaint, due to Plaintiffs' lack of standing. 8. In the alternative, if this Honorable Court finds that the Plaintiffs have standing and jurisdiction to hear this matter, venue in Cumberland County is improper and this case should be transferred to Lebanon County, where the Defendants and minor child reside. WHEREFORE, Defendants respectfully request your Honorable Court to dismiss the Complaint for Custody filed on April 25, 2001. In the alternative, if your Honorable Court finds that Plaintiffs have standing to bring this Custody Action, Defendants respectfully request that venue be transferred to Lebanon County. BUZGON DAVIS LAW OFFICES BY: LLEY! . GILL. TE, Esquire Attorney .D. #85766 525 South Eighth Street Post Office Box 49 Lebanon, PA 17042-0049 (717) 274-1421 Attorneys for Defendants -2- R L" ~~ ~ ~ ~. ~~ ';'. -,~. . Ji) JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS I. STATEMENT OF THE CASE Plaintiffs, Judy Fry and Thomas Fry, are the paternal grandmother and step- grandfather of Alex Cohick. The Plaintiffs reside at 528 West Cumberland Road, Enola, Cumberland County, Pennsylvania. Defendants are Betsy Cohick and Chester Cohick, who resides at 115 Main Street, Palmyra, Lebanon County, Pennsylvania. The minor child, Alex, has a primary residence at the Defendants' address and is enrolled in the Palmyra Area School District. (See Exhibit A). However, Alex lives at the Melmark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania. Defendants are the biological parents of the child. In their Complaint, Plaintiffs seek legal and primary physical custody of the child. Plaintiffs aver that the child has resided with both biological parents, Defendants in this action. Nowhere in the Complaint do Plaintiffs aver that the child has ever resided with them. The only other averment relating to why Plaintiffs are seeking primary physical and legal custody of the child can be found in paragraph 11 (a) through (d). Defendants file these Preliminary Objection requesting that this Court dismiss the Complaint for Custody, because Plaintiffs fail to possess the obligatory standing under 23 Pa.C.S.A. 95311 et seq., and therefore, this Honorable Court lacks jurisdiction over the ~J ._~_ - , ~, - - u_ ",' "Ie,", ,-, ;., -d'~"Jl Defendants and minor child pursuant to Pa.R.C.P. 1915.5. In the alternative, if this Honorable Court finds that Plaintiffs have standing to pursue this Custody Action, the Defendants file these Preliminary Objections requesting that this Court transfer venue from Cumberland County to Lebanon County. Defendants file this Brief in support thereof. II. ARGUMENT Pennsylvania Courts have an established scope of review regarding Preliminary Objections. The Pennsylvania Superior Court has stated: Preliminary Obiections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Baker v.Brennan, 419 Pa. 222, 225, 213 A.2d 362, 364 (1965). The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove faGts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa.. 560, 563, 353 A.2d 833, 835 (1976). To determine whether preliminary objections have been properly sustained, this Court must co~sider as true all of the well-pleaded material facts set forth in appellanfs complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell ofPennsvlvania, 477 Pa. 1,4,383 A.2d 791, 792 (1977); Pennsvlvania Liquor Control Board v. Rapistan. Inc., 472 Pa. 36, 371 A.2d 178, 181 (1976). Martinez v. Baxter, 725 A.2d 775, 776-777 (Pa.Super. 1999) (quoting Bower v. Bower, 531 Pa. 54,56-57,611 A.2d 181,182 (1992)). A. PLAINTIFFS LACK STANDING TO PURSUE THIS CUSTODY ACTION While it is true that grandparents may have standing to pursue a Gustody action, the grandparents must be within the purview of one of the following: 1. 23 Pa.C.SA 95311; 2. 23 Pa.C.SA !l5312; or "~ ...... ,., ;,"';.."" 'I' ; [j "~: 3. 23 Pa.C.S.A. 95313. 23 Pa.C.S.A. g5311 applies when one of the parents of the child is deceased. It reads as follows: ~5311. When parent deceased If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights. or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interests of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application. 23 Pa.C.S.A. 95311 (emphasis added) Pa.C.S.A. 95312 reads as follows: ~5312. When parents' marriage is dissolyed or parents are separated In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparents of a party, grant reasonable Partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody,. or both, would be in the best interests of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application. 23 Pa.C.S.A. g5312 (emphasis added) Finally, Pa.C.S.A. g5313 reads as follows: ~5313. When grandparents may petition (a) Partial custody and visitation.-If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or Im L _ "~ ..,1',,'">_! 0 , ~~ '-'~, visitation rights, or both, to the child. The court shall grant the petition! if it fmds that visitation rights would be in the best interest of the' child and would not interfere with the parent-child relationship. (b) Physical and legal custody.-A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in th~ best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custQdy of the grandparent, the court may award physical and legal custody to the grandparent. This subsection applies to a grandparent: (1) who has genuine care and concern for the child; (2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and (3) who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dep~ndent child pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters) or who assumes or deems it necessary to assume resp\msibility for a child who is substantially at risk due to parental abu~e, neglect, drug or alcohol abuse or mental illness. The court may issue a temporary order pursuant to this section. 23 PaC.S.A. ~5313 In their pleading, Plaintiffs request that this Honorable Court grant them legal and primary custody of Alex, the child in question. When reviewing 23 Pa.C.S.A. 995311, 5312 and 5313(a), it is evident that they are not applicable to this case. Those sections only apply to grandparents who petition the court for partial custody and/or visitation rights. 23 Pa.C.S.A. ~5313(b) provides recourse for grandparents who are seeking physical and legal custody. When reviewing the necessary elements for a grandparent to have standing in ~5313(b), it is apparent that Plaintiffs do not possess standing pursuant to the averments in their Complaint. Nowhere in their Complaint do they aver that the child has lived ... _Ji ~, " _t, ..l' , ~.ill' with them for 12 months and that they have assumed the role and responsibility of the child's parent, providing for the physical, emotional and social needs of the child. Nor has the child been determined to be a dependent pursuant to 42 Pa.C.S.A. S63. Finally, nowhere in their Complaint do they aver that this child is substantially at risk due to any parental abuse, neglect, drug or alcohol abuse or mental illness. In fact, Defendants believe that Plaintiffs have alleged quite the opposite. Plaintiffs have alleged in their Custody Complaint that the subject child, Alex, is living at the MelmarkResidential Facility. Plaintiffs further allege that the minor child is autistic and in need of special education and attention. The minor child is receiving this kind of attention and education at Melmark, a facility that is specifically designed to give Alex special attention and education, something that not even the Palmyra Area School District could do. (See Exhibit A). Thus, Plaintiffs clearly lack standing in this Custody Action. Further, because the Plaintiffs lack standing in this Custody Action, this Honorable Court subsequently lacks subject matter jurisdiction to hear this case. B. VENUE IN CUMBERLAND COUNTY IS IMPROPER Defendants assert that if this Honorable Court finds that Plaintiffs have standing to pursue this Custody Action, venue should be transferred to Lebanon County. Pursuant to Pa.R.C.P. 1915.2 (a) An action may be brought in any county (l)(i) which is the home county of the child at the time of commencement of the proceedings, or (ii) which had been the child's home county within six months before commencement ofthe proceeding and the child is absent from the county because of the child's removal or retention by a person claiming the child's custody or for other reasons and a parent or person acting as parent continues to live in the county; or .If, . ~ ~ .~ ." "~ (2) in which it is in the best interest of the child that the court decide the matter because the child and the child's parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships; or (3) in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subj ected to or threatened with mistreatment or abuse and is otherwise neglected or dependent; or (4) in which it appears that venue would not be proper in any other county under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another court has declined to decide the mater on the ground that the court before which the action is pending is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that the court decide the matter. (b) Except under paragraphs (3) and (4) of subdivision (a), physical presence ofthe child within a county, or of the child and one of the parties, is not alone sufficient to establish venue. (c) Physical presence of the child, while desirable, is not a prerequisite to venue. (d) For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could have originally have been brought or could be brought at the time of filing the petition to transfer. It shall be the duty of the prothonotary of the court in which the action is pending to forward to the prothonotary of the county to which the action is transferred certified copies of the docket entries, process, pleadings and other papers filed in the action. The costs and fees of the petition for transfer and the removal of the record shall be paid by the petitioner in the first instance to be taxable as costs in the case. Pa. R.C.P. 1915.2. The Defendants are entitled to a transfer of venue under subsections (a)(1), (2), (4) and (d) ofPa.R.C.P. 1915.2. Both the minor child and Defendants' home county is Lebanon. . ~ ~ " '" \.....- "- ,"",-,,,,"L ~ "-<-" -.k-.,,,,-- -_', ,-- ,,,- ,h~""-,~,, The Defendants and minor child have resided in Lebanon County since November of2000. Although the minor child lives at Melmark in Berwyn, he is enrolled in the Palmyra Area School District and is monitored by the Lancaster-Lebanon Intermediate Unit 13. (See Exhibit A). Further, the Defendants assert that Lebanon County would be a more convenient forum to decide this Custody Action. Therefore, the Defendants respectfully request that if this Honorable Court finds that Plaintiffs have standing, venue of this matter be transferred from Cumberland County to Lebanon County. III. CONCLUSION WHEREFORE, Defendants, Betsy Cohick and Chester Cohick, respectfully request your Honorable Court dismiss Plaintiffs' Petition for Custody of their son, Alex Cohick. In the alternative, Defendants respectfully request that if this Honorable Court fmds that Plaintiffs have standing to bring this Custody Action, venue be transferred from Cumberland County to Lebanon County. Respectfully submitted, BUZGON DAVIS LAW OFFICES . BY:~ ~.m LE S. OIL TE, Esquire Attorney I.D. #85766 525 South Eighth Street-Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Attorneys for Defendants ,. ~ ", "'< , - ~ ~ . .'. ~ ., ; '~ VERIFICATION I, KELLEY S. GILLETTE, Esquire, do hereby verify that I am the attorney for Betsy Cohick and Chester Cohick, Defendants in the within action. The facts set forth in the foregoing PRELIMINARY OBJECTIONS are true and correct to the best of my knowledge, information and belief, as conveyed to me by my clients. My knowledge in this matter is based entirely on what has been passed to me by my clients, pursuant to Rule 1024(c) of the Pennsylvania Rules of Civil Procedure, because my clients are unavailable to timely file this Verification within the time allowed for filing a pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. ,~j~ k ijlhJlt LLEY . GILL TE DATE: May 3, 2001 "~ ~~,== .L~"~ ,- ~ -, MAY. 1.2001 1:17PM rU-13 2ND FLOOR NO. 379 P.2/7 LANCASTER.LEBANON lNTERME.DIATE UNIT 13 1110 Enterprise Road East Petersburg, PA 17520.16.96 Phone: (717) 569.7331 COMPREHENSIVE EVALUATION REPORT (CER) ...........~......*.**.~...~.....-..........*..**.*.*.....~..~........*..*..*.._.~...f.............* Original: fCltWatrllD Clini<:al Sor<ril:cs Signed copW to: (Cl1ecIc below:) Dismet Coanl. LiDda Ram (Palmyn) Parents MIM o..,llSr CofDclt, Jt T=bor(cum file) 10ey DziDmba Supmvisor NC LebanOll ru Office NC Psychologist Moly Barnell Othem (llit) April 26, 2001 (Check:) Initial Rcfemd Re-evalualion Psycbi2tric Di~trict Pxogmn (Palmyra) ru Pxograxn OS..Q4.01 05-10-01 AgonQes (=h Parental toleasc for each) Date of Report: T CltaJrpenon: Mary Barnett COHICK, ALEX Stutknt Name (Last, First, M.I.) MIM Chester Cohick. Jr. P3reDtName Soci31 Security Number Melmark (APS Residential) Present Clus Location 03-02-90 Birthdale Palmyra District of Residence 115 West Main Street Street Address Palmyra. P A 17078 City, Srate. ZIP 11-2 Grado Age 717/832-3601 Telephone Autistic Support CUnent F<VI,..pnnal Pxognun roey Dziamba Teacher emc 1. REASON(S) FOR REFERRAL: To re-evaluate his current progress and programming and to make recOlIlIlleIldations for further programming. 2. INFORMATION FROM PARENTS OR PERSONS WITH WHOM THE STUDENT LIVES: Mrs. Cohick participated in the MOE meeting via phone conference. She indicates that they continue to have a difficult time with Alex when he is at home. He still needs constant EHXIBIT A Alex Cohick 1.PDEIB~ FORMAT A - COMPREBENSIVE EV ALUATIONllEPORT - APRIL 1994 !..:- O.ri " " , ..,J,- l, ;1 MAY. 1.2001 1:17PM IU-13 2ND FLOOR NO. 379 P.3/7 supervision. They have had to secure all windows and doors so that he is safe in their home. He has jus.t re:en~y been a~le to sl~n his be~oom withJ~!J!.e4",~Ao~S and doors rather than sleepmg m his parents room p~;; so 'ihaffiie'y cOMamonito~'s levels of activity llIll very high. He will occasionally pull his sister's hair but other than that there is very little aggression or threat to harm others. 3. EDUCATIONAL, SOqAL, AND PHYSICAL HISTORY: Alex currently receives educational and residential services at Melmark. an approved pri vate school and residential facility. Alex began attending Melmark in July, 1999. Prior to his adjnis~ion there, Alex received programming in Autistic Support with a one-to-one staff member operated by Capitol Area Intermediate Unit. Prior to that placement, he was supported in an MDS claSsroom. Records indicate that in kindergarten with a one-to-one he did participate in half-day inclusion. Alex's first school experience was preschool at the United CerebraJ Palsy Center where he received developmental instrUCtion and speech language support services. Looking at developmental history, Alex was bomas a result of a full-t= pregnancy weighing 61bs., 5 OZS. No complications were noted at birth and he was in eltCeIlent condition. He walked at the age of 15 months. Th~e is no history of sustaining verbal co=umcation nor has he been toilet trained. Alex has made minimal progress throughout school. He has a history of gaining skills and then going through a period of regression. Earliest assessments found in the rec6r~ were in 1992 and 1993. He was seen by a Dr. Barron at Hershey Medical Center in 1993 for a neurological worlrup. At that time he was diagnosed with mild Mental Retardation and Attention Deficit/Hyperactivity Disorder. An evaluation was then conducted in SepteD;1ber of 1994 by Dr. Lusser in Allentown, P A. At that time, Alex was apparently using 10 to 26 functional signs but his attention span was short and he showed extreme frustration when demands were placed on him. Alex has been on multiple medicllliqns since 1994 to address his high level of activity as well as other behavioralconcems. Medic~tions that luj:ve been utilized include: Ritalin, Cylett, Clonidine, Risperadal, PtoZllC, Haldet, Trazadone, Secretin shots, and Depalcote. While at Melmark, he has been taken off all ~diclllions with success. Alex is diagnoses include: Pervasive Developmental Disorder, Autistic-typl;; Moderate to Severe Mental Retardation; Attention Deficit Hyperactivity Diserder. Oppos~tional Defiant Disorder; and rule out Bipolar. He does have a history of nnmanageable behavior that presents a danger to himself and others including: aggression (hitting and biting), destruction of property, screaming, extreme impulsive behavior and history of PlCA, darting and running away, and self- stimulatory behavior. Currently, Alex is exhibiting no form of aggression. His self-stimming and daning continues to be a significant issue as well as his level of activity. 4. SUMMARY OF FINDINGSlINTERPRETATION OF ASSESS:MEl'll RESULTS: A. Instructional Evaluation Results (Instructional Level, Rates of Acquisition and Retention): _ . ~ Cohick 2- PDE/BSE _ 4110IlMAT A - COMPREBENSlVE I!VALUA'l'IOl'llU!l'OR.T. APRIL 1994 - ~ ~ "",,",-",-'11 " - t"'-. - L MAY. 1.2001 1: 18PM IU-13 2ND FLOOR NO. 379 P.4/7 COGNITIVE A .l'CCords re-ne~ finds documentation of IQ and neurological testing done across the past y~. Earlierjas~esslDe11ts done in 1993 indicated mild to moderate mental retardation. As time passed, the diagnosis changed to moderate/severe mental retardation. Alex has presented with delays in all areas (except gross motor) since the age of two. Qment observations as well as infonnal measures of adaptive behavior and lack of progress in other domains indicate that Alex c\ln'ently functions in the severe range of mental retard,1tipn. FOrmal testing is not possible due to severe a speech and language disability. difficulty with fine-motor skills, and lack of behavioral control. CURRENT LE~ OF FUNCTIONING Pre. Vocatio~ iSki1ls Alex has made!~omeprogress towards his IEP objectives in this area. He currently matches the 90~lilrs re,d, blue, and green. He has matched two colors correctly for four consecutive ~e$$ions, Regarding his progress from the beginning of this year: Alex cOITectIy matc~ed two shapes on three consecutive occasions. Alex was able to insert 10110 objects ~th verbal direction on five consecutive sessions. With verba! directions, he couId renlo'te 10/10 clothes pins from a can on five consecutive sessions. Alex will pick up beads ~d attempt to string them on a pipe cleaner 1/10 occasions. He continues to struggle witli: this skill due to fme-motor difficulties. Alex will individually remain in seat during a o~e-to-one activity for up to 5 minutes on four consecutive trials. He continues to require a reinforcer for appropriate sitting and for worlting. When given the verbal directio&. "ready" Alex does continue to require physical hand-over-hand prompting to pUt his hands in his lap and sit with his eyes on the instructor. All of these pre-vocational;skills are taUght through discrete tria! format and high levels of edible reinforcers are used throughout sessions. Communica#IJn Alex is currently being taught to use a Picture Exchange Co=unication System (PEeS) for functional ponununic;ation. At this point, he is given a choice of tWo PECS and is being taught 10 discriminate. The speech11anguage therapist successfully used a field of 6 PECS. However, this has not generalized into the classroom. Using PECS is much more successful wi$ the use of reinforcement. He has correctly removed the bathroom PEe from his schedule and walked to the bathroom on two occasions. Given a choice of two objects (one desirable and one undesirable), Alex will choose the appropriate icon from his communication book with 80% accuracy or higher on 415 trials. Alex is able to follow simple verbal commands that consist of one to tWo words with visual cues at 70% accuracy. He has made some progress with imitating simple actions such as "pick up" at 45% accuracy, "calm" with 40% accuracy, and "sit down" with 55% accuracy. He is responding to a verbal prompt to "touch head" with 65% accuracy, "touch nose" with 40- 55% accuracy, and the prompt to "clap hands" with 40-55% accuracy. Adaptive Behavior Alex is dependent on staff for support for all toileting needs. He does currently wear diapers and does not conSistently use the toilet A sohedule has been utilized in the past AI." Cohick 3- P!lEJDSE - 4 FORMAT A - COMPREllliN&m ]!vALUATION llEl'OR'l' - APRIL 19!14 n ltlil' I . , ~-'>.. , i' ~.' - -L..~._ I MAY. 1.2001 1:19PM IU-13 2ND FlOOR NO. 379 P.5/7 to pull his pants down with one to two verbal prompts and will sit on the toilet with continual prompting. Staff indicate that they will soon be implementing a "Wet Stop" program coupled with a toilet chaining sequence that breaks down the steps of toileting and taught individually through discrete trial. Alex eats his meals with minimal prompting using a fork or spoon but requires one-to-one attention at meal time because be tends to use his fingers or steal food. Alex independently holds a cup and drinks from it. Alex is dependent on staff assistance for all dressing needs. He will offer assistance to staff holding the shirt as well as finishing the dressing process when the head is put through the hole of the shirt, he will independently find the ann holes and complete the shirt process. Alex needs help initially putting his pants On the correct way but can independently pull his pants np. He does not appear to understand how to button or use zippers nor tie his shoes. He is dependent for all dental care as well as personal grooming. Sraft attempt Alex to be involved and cooperate with hand-over-hand washing but he is not always' cooperative. Alex must have one-to-one supervision during all walting hours because of the continued need to monitor his high level of activity and his PICA. Constant supervision is also necessary due to his unawareness of dangers and his desire to touch objects. Alex does benefit from his age-appropriate peer group and is involved in community outings including trips to the park. local historical sights, amusement parI,s, restaurants, and swimming. In his free time he enjoys jumping on his trampoline, running, and watching videos. He will initiate engaging in these activities independently and will even attempt to put videos in the VCR independently. His parents also suggest that Alex enjoys riding horses. Alex does not like to be redirected when he becomes fixated on a certain activity or watching an object and may cry to express his unhappiness. He will also become frustrated with continuous physiclll prompting. When Alex is happy, he will smile and laugh. He is nonverbal and tends to like activities that he can do by himself and interact little with others. Alex can communicate by becoming physiclllly and verbally agitated if he dislikes something although he can occasionally become agitated for apparently no reason at all so it is sometimes difficult to understand if he is communicating a desire or a dislike. Alex's teacher completed the ViTlelaTld Adaptive Behavior Scales Classroom Edition. His ratings yielded scores in tho commuTlication domain, daily living sItills domain, and the socialization domain that fell in the range of profound deficits. MotOT Alex is ambulatory and able to walk to and from different areas with one-to-one staff presence for guidance and protection as he sometimes.,gets excited and wiIllUn away. He does need assistance on the stairs for his protection. His occupational therapist indicates that therapy will be taking more of a sensory approach with Alex. He does continue to present with difficulties in participating in classroom activities due to increased self- stimulatory behaviors and darting. He just does not seem to benefit from proprioceptive input from lap weights and he continues to require hand-over-hand assistance to initiate and complete many activities. Alex still presents with poor visual regard to tasics at-hand. Staff will continue hypotherapy sessions. B. Ecological Evaluation Results (Ihppropriate): Alex Cohick 4- mrwBSI- 4 JIODlAT A - coMl'JlElml'lStW llV ALUA TION IWrORT - Al'lUL 1994 - " 1 ~- " - L -' ","- 0- ~Y. 1.2001 1:19PM IU-13 2ND FLOOR NO. 379 P.6/7 C. Vocational Tedmical Education Assessment Results (If appropriate): S. STt1ENGTHS: - il3eginning to perform simpltr vocational tasks -Improved communication with PEeS -Discriminates between desirilble and undesirable objects - Independently drinks from cup - .Ambulates independently with staff supervision - Desires to be active and involved in activities far a. short period of time - Enjoys ttampoline, ronning, watching videos, swimming, and horseback riding -Eats independently with spoon -Extremely motivated by edible reinforcers - Adapts to f~ding and will complete multi-step activities for a reward 6. DEGREE OF NEED: - Continue to develop pre-vocational skills - Enhance safety awareness · Improve self-care skills and daily living skills (especially toilet training) · Continue to improve functional communication skills through the use of PECS · Decrease maladaptive behaviors (self-stimulatory behaviors, darting) . Improve attention to task . Rnhance fine-motor skills - Continue to develop independent skills · Continues to need one,to-one assistance and supervision because of his limited understanding of safety issUes and has difficulty with high levels of activity and low levels of fOCllS and attention - Continues to need tangible (edible) reinfon:ements in small ratios 7. INFORMATION FROM OBSERV ATlONS IN THE CLASSROOM AND OTHER SETTINGS: The school psychologist cOl!ducted an exumsive observation of Alex in his classroom. It was evident that Alex depended .on prompting, bbth ver"al and physical, to be successful with the task at-hand. He needed edible reinfotcers after almost every response to continue to be motivated. During a 5 to ID,minute session.!he n~d multiple physical prompts to remain seated. Alex exhibited nearly COU5tAnt lielf-~timuIatoty behaviors with his hands and legs even with physical and verb.al prompts to . stop. Although he has made progress with hill Ulle ofPECS, he did demonstra.te inconsistentperfartllllnce during an activity where he was choosing between a desitable and anundesU:able PECS card. Alex needed physical prompts with all transitions. It was apparent that keeping edibles in conStant view also served as a motivator. Alex had a. very difficult time in;a. group session wi~ two other students and did not seem to benefit He was then observed qurlng indivi!lual work time. He was fallowing a visual (color-matching) work. system. He needed some prompting but was able to do some independently. If Alex is left alone for any period of time, his self-stimulatory behavior increases and he quickly becomes over-excited, exhibiting high levels of activity and loud vocalizations. _ Alex Cohick S-l'l)llJJS1j: - 4 FOIlMAT A- - COMP1llBllNS1VE EV liUA-TION Ril'OllT . APIUL 1994 . ~ .L i ,,- "J~ I ,~=-- .- '" - ~ ~ - ~,. - "~ iI~rt; MAY. 1.2001 1:20PM IU-13 2ND FLOOR NO. 379 P.7/7 8. CONCLUSIONS AND RECOMMENDATIONS TO lEP TEAM: (Including eJigr"bility, speciaUy-designed instruetioo, c:urreut program, ..h"'llge in programs, and other issues based on the student's individuals needs.) Alex continues to be eligible for special education services as a student with Mental Retardation, Autism, and Speecl1lLanguage Impairment. FOR REEVALUATION: 9. RECOMMF..'IDATlON REGARDING CONTINUED NEED FOR SPECIAL EDUCATION: Alex would continue to benefit from specially-designed instruction in a small, highly structured setting that provides visual aides as well as one-to-one support to meet his needs in the area of adaptive behavior, communication, motor skills, and pre-vocational skills. Continue speech/language services. Continue occupational therapy. Continue one-to-one staff assistance. 10. REVIEW OF THE STUDENT'S 1EP Instructional activities which have been successful: . Individualized instruction . Use of PEeS for communication . Visual schedule and visual prompting . High levels of edible reinforcers for motivation Recommendations for revision of the IEP: IJex Cohick .6-l'DFJBSE _ 4 FOllMAT A - COMPIlEBENS1VE EVALUA'lION'Illl1'OB.T. APlUL 1.!l!l4 - " ~ '~ 0'- I " , " , "" . , -,-.. :l~> JUDY FRY and, THOMAS FRY, Plaintiff: :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA :01-2419 CML ACTION LAW vs. :IN CUSTODY BETSY COHICK and CHESTER COHICK, Defendant AFFIDAVIT OF SERVICE BY MAIL COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNTY OF LEBANON ) I, ANGELA JEAN BINGAMAN, an employee of the law firm of Buzgon Davis, 525 South Eighth Street, Lebanon, Pennsylvania; 17042, Attorneys for Defendants, being duly sworn according to law, depose and say that I mailed on May 3, 2001, by regular mail, in a postpaid envelope, a true and correct copy of DEFENDANTS' PRELIMINARY OBJECTIONS, the original of which was filed on May 3, 2001, in the Office of the Prothonotary of Cumberland County, Pennsylvania, to: Austin F. Grogan, Esquire, 24 North 32nd Street, Camp HilI, Pennsylvania 17011, Attorney for Plaintiffs, Judy Fry and Thomas Fry; and Melissa P. Greevy, Esquire, 214 Senate Avenue, Suite 105, Camp HilI, Pennsylvania 17011, Custody Conciliator. ~ ? f3 ~ rJA:~ \ 1{lJ~~ D\NG A JEAN B . AMAN Sworn and subscribed to before me this 3rd day of May 2001. ~ ~.~,#fbill Notary Public Notarial Seal Joyce E. Brightbill, Notary PubUc Bern Twp., Berks County My Commission Expires Apr. 12, 2004 Member. Penllsyl\lall/sAssociationo/NoIaries --- ~~.i<;'~".jc<j< ~ ~...'.,", ~., ~ '" " o. ::.)":.~ ;:; c:j '\t "' \Ii c::::; Q.': ::j rn W r" .. '-:-.,'~\ ] L!J' :Ni\~. .~ :; W("\~I ". ~o~ '~JQ' ," ") . ...I - <C :IE tn tn <C ...I o ... tn a: - u. en ~ - 0 >(1)0)..... <(UJ<t~ CQx< "-00. Z"-mz 00 '0 CJsqz N:5o.;a ~ UJ lD ..J - - o t-- - <l) ... .~ ~ ~ <l) . ::> ~!3 <l) ;> 0":: . Q) ;::::::: ~"'Cd trl._ -~o~ ~ iU....... p,.. ~ CI) <l) d .- -+-> ~ - -q-.- ~ <l)-::>U ~N<Zl oj .~ ~ @ <l) ~ te x~ ~ i,- ~ . " .- - ~~,-~ " " - ~ ~- ..J .c~ l!M; JUDY FRY imd THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY ORDER AND NOW, this day of , 2001, it is hereby ORDERED and DECREED that Defendants, Betsy Cohick's and Chester Cohick's Preliminary Objections are SUSTAINED. Plaintiffs, Judy Fry and Thomas Fry, do not have standing to pursue the within Custody Action for Akx Cohick. Plaintiffs Custody Complaint is hereby DISMISSED with prejudice. BY THE COURT: J. ~" ~ ".'~ . , ...._""""-"-~ """''',;,,[ JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY ORDER AND NOW, this day of , 2001, it is hereby ORDERED and DECREED that Defendants, Betsy Cohick's and Chester Cohick's Preliminary Objections are SUSTAINED with regard to venue. Venue shall immediately be transferred to Lebanon County. The Cumberland County Prothonotary is hereby directed to immediately transfer all documents in Cumberland County Docket No. 01-2419 to the Lebanon County Prothonotary. BY THE COURT: 1. -- ]." ,,~~, '" ~i -,.' '" JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY PRELIMINARY OBJECTIONS AND NOW, come the Defendants, Betsy Cohick and Chester Cohick, by their attorneys, Buzgon Davis Law Offices, and file these Preliminary Objections, pursuant to Pa.R.C.P. 1028(a)(1) and (4), to the Complaint for Custody: l. Plaintiffs, Judy Fry and Thomas Fry, to this action are the child's paternal grandmother and step-grandfather and are requesting legal and physical custody of the child, Alex Sean Cochick, age 11 years. 2. Plaintiffs reside at 528 West Cumberland Road, En01a, Cumberland County, Pennsylvania 17025. 3. Defendants reside at 115 Main Street, Palmyra, Lebanon County, Pennsylvania 17078. 4. The minor child's residence is the same as Defendants. 5. The minor child is enrolled in the Palmyra Area School District, however, he lives at the Mehnark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania 19312. A true and correct copy of the Lancaster-Lebanon Intermediate Unit's April 26, 2001 report on Alex is attached hereto and designated Exhibit "A". - - 1"- - "'. " --!~J;: 6. Plaintiffs lack standing to pursue legal and primary physical custody of the child, pursuant to 23 Pa. C.S. 95311 et seq. 7. This Honorable Court lacks jurisdiction over the Defendants and minor child to hear the foregoing Custody Complaint, due to Plaintiffs' lack of standing. 8. In the alternative, if this Honorable Court finds that the Plaintiffs have standing and jurisdiction to hear this matter, venue in Cumberland County is improper and this case should be transferred to Lebanon County, where the Defendants and minor child reside. WHEREFORE, Defendants respectfully request your Honorable Court to dismiss the Complaint for Custody filed on April 25, 2001. In the alternative, if your Honorable Court finds that Plaintiffs have standing to bring this Custody Action, Defendants respectfully request that venue be transferred to Lebanon County. BUZGON DAVIS LAW OFFICES BY: LEY . GILL. Attorney .D.#85766 525 South Eighth Street Post Office Box 49 . Lebanon, P A 17042-0049 (717) 274-1421 Attorneys for Defendants -2- ~ -~ -........... . ~-, ".(f,; JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA. vs. 01-2419 CNIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS I. STATEMENT OF THE CASE Plaintiffs, Judy Fry and Thomas Fry, are the paternal grandmother and step- grandfather of Alex Cohick. The Plaintiffs reside at 528 West Cumberland Road, Enola, Cumberland County, Pennsylvania. Defendants are Betsy Cohick and Chester Cohick, who resides at 115 Main Street, Palmyra, Lebanon County, Pennsylvania. The minor child, Alex, has a primary residence at the Defendants' address and is enrolled in the Palmyra Area School District. (See Exhibit A). However, Alex lives at the Melmark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania. Defendants are the biological parents of the child. In their Complaint, Plaintiffs seek legal and primary physical custody of the child. Plaintiffs aver that the child has resided with both biological parents, Defendants in this action. Nowhere in the Complaint do Plaintiffs aver that the child has ever resided with them. The only other averment relating to why Plaintiffs are seeking primary physical and legal custody of the child can be found in paragraph II(a) through (d). Defendants file these Preliminary Objection requesting that this Court dismiss the Complaint for Custody, because Plaintiffs fail to possess the obligatory standing under 23 Pa.C.S.A. 95311 et seq., and therefore, this Honorable Court lacks jurisdiction over the . ~~ . ~~ '.' .~""- .....b , i.~. 't!~miv:. Defendants and minor child pursuant to Pa.R.C.P. 1915.5. In the alternative, if this Honorable Court finds that Plaintiffs have standing to pursue this Custody Action, the Defendants file these Preliminary Objections requesting that this Court transfer venue from Cumberland County to Lebanon County. Defendants file this Brief in support thereof. II. ARGUMENT Pennsylvania Courts have an established scope of review regarding Preliminary Objections. The Pennsylvania Superior Court has stated: Preliminary Objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Baker v. Brennan, 419 Pa. 222, 225, 213 A.2d 362, 364 (1965). The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976). To determine whether preliminary objections have been properly sustained, this Court must consider as true all of the well-pleaded material facts set forth in appellant's complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell ofPennsvlvania, 477 Pa. 1,4,383 A.2d 791, 792 (1977); Pennsylvania Liquor Control Board v. Rapistan. Inc., 472 Pa. 36, 371 A.2d 178, 181 (1976). Martinez v. Baxter, 725 A.2d 775, 776-777 (Pa.Super. 1999) (quoting Bower v. Bower, 531 Pa. 54,56-57,611 A.2d 181, 182 (1992)). A. PLAINTIFFS LACK STANDING TO PURSUE THIS CUSTODY ACTION While it is true that grandparents may have standing to pursue a custody action, the grandparents must be within the purview of one of the following: 1. 23 Pa.C.S.A. g53 I]; 2. 23 Pa.C.S.A. 953]2; or - ~ ~ " ."~,-~ "~~ " -f,--' ," " ~ _ .._-,:.:'-'", (1.;~ 3. 23 Pa.C.S.A. g5313. 23 Pa.C.S.A. g531I applies when one of the parents of the child is deceased. It reads as follows: ~531l. When parent deceased If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights. or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interests of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application. 23 Pa.C.S.A. g5311 (emphasis added) Pa.C.S.A. g53l2 reads as follows: ~5312. When parents' marriage is dissolved or parents are separated In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparents of a party, grant reasonable ~artial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody,. or both, would be in the best interests of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application. 23 Pa.C.S.A. g5312 (emphasis added) Finally, Pa.C.S.A. g5313 reads as follows: ~5313. When grandparents may petition (a) Partial custody and visitation.-If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or ".- .-' -- ,~.- ~ ~~." '.~" - =,-~ '." visitation rights, or both, to the child. The court shall grant the petition if it fmds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship. (b) Physical and legal custody.-A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent. This subsection applies to a grandparent: (1) who has genuine care and concern for the child; (2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and (3) who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. The court may issue a temporary order pursuant to this section. 23 Pa.C.S.A. 95313 In their pleading, Plaintiffs request that this Honorable Court grant them legal and primary custody of Alex, the child in question. When reviewing 23 Pa.C.S.A. 995311, 5312 and 5313(a), it is evident that they are not applicable to this case. Those sections only apply to grandparents who petition the court for partial custody and/or visitation rights. 23 Pa.C.S.A. 95313(b) provides recourse for grandparents who are seeking physical and legal custody. When reviewing the necessary elements for a grandparent to have standing in 95313(b), it is apparent that Plaintiffs do not possess standing pursuant to the averments in their Complaint. Nowhere in their Complaint do they aver that the child has lived .~. ~, 1 --b .-~- .-~'" with them for 12 months and that they have assumed the role and responsibility of the child's parent, providing for the physical, emotional and social needs of the child. Nor has the child been determined to be a dependent pursuant to 42 Pa.C.S.A. 963. Finally, nowhere in their Complaint do they aver that this child is substantially at risk due to any parental abuse, neglect, drug or alcohol abuse or mental illness. In fact, Defendants believe that Plaintiffs have alleged quite the opposite. Plaintiffs have alleged in their Custody Complaint that the subject child, Alex, is living at the Melmark Residential Facility. Plaintiffs further allege that the minor child is autistic and in need of special education and attention. The minor child is receiving this kind of attention and education at Melmark, a facility that is specifically designed to give Alex special attention and education, something that not even the Palmyra Area School District could do. (See Exhibit A). Thus, Plaintiffs clearly lack standing in this Custody Action. Further, because the Plaintiffs lack standing in this Custody Action, this Honorable Court subsequently lacks subject matter jurisdiction to hear this case. B. VENUE IN CUMBERLAND COUNTY IS IMPROPER Defendants assert that if this Honorable Court finds that Plaintiffs have standing to pursue this Custody Action, venue should be transferred to Lebanon County. Pursuant to Pa.R.C.P. 1915.2 (a) An action may be brought in any county (1 )(i) which is the home county of the child at the time of commencement of the proceedings, or (ii) which had been the child's home county within six months before commencement of the proceeding and the child is absent from the county because of the child's removal or retention by a person claiming the child's custody or for other reasons and a parent or person acting as parent continues to live in the county; or ~~ "" , ~- "~ _<;h"~~~ ~ ""'1 (2) in which it is in the best interest of the child that the court decide the matter because the child and the child's parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships; or (3) in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse and is otherwise neglected or dependent; or (4) in which it appears that venue would not be proper in any other county under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another court has declined to decide the mater on the ground that the court before which the action is pending is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that the court decide the matter. , (b) Except under paragraphs (3) and (4) of subdivision (a), physical presence of the child within a county, or of the child and one of the parties, is not alone sufficient to establish venue. ( c) Physical presence of the child, while desirable, is not a prerequisite to venue. (d) For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could have originally have been brought or could be brought at the time of filing the petition to transfer. It shall be the duty of the prothonotary of the court in which the action is pending to forward to the prothonotary of the county to which the action is transferred certified copies of the docket entries, process, pleadings and other papers filed in the action. The costs and fees of the petition for transfer and the removal of the record shall be paid by the petitioner in the first instance to be taxable as costs in the case. Pa. R.C.P. 1915.2. The Defendants are entitled to a transfer of venue under subsections (a)(I), (2), (4) and (d) ofPa.R.C.P. 1915.2. Both the minor child and Defendants' home county is Lebanon. ....w~~ '",,0 ~ ,. . . ~.~ ~"M-~h_ The Defendants and minor child have resided in Lebanon County since November of 2000. Although the minor child lives at Melmark in Berwyn, he is enrolled in the Palmyra Area School District and is monitored by the Lancaster-Lebanon Intermediate Unit 13. (See Exhibit A). Further, the Defendants assert that Lebanon County would be a more convenient forum to decide this Custody Action. Therefore, the Defendants respectfully request that if this Honorable Court finds that Plaintiffs have standing, venue of this matter be transferred from Cumberland County to Lebanon County. Ill. CONCLUSION WHEREFORE, Defendants, Betsy Cohick and Chester Cohick, respectfully request your Honorable Court dismiss Plaintiffs' Petition for Custody of their son, Alex Cohick. In the alternative, Defendants respectfully request that if this Honorable Court fmds that Plaintiffs have standing to bring this Custody Action, venue be transferred from Cumberland County to Lebanon County. Respectfully submitted, BUZGON DAVIS LAW OFFICES . BY:. ~.. LE S. OIL TTE, Esquire Attorney J.D. #85766 525 South Eighth Street-Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Attorneys for Defendants ~ ~,. VERIFICATION I, KELLEY S. GILLETTE, Esquire, do hereby verify that I am the attorney for Betsy Cohick and Chester Cohick, Defendants in the within action. The facts set forth in the foregoing PRELIMINARY OBJECTIONS are true and correct to the best of my knowledge, information and belief, as conveyed to me by my clients. My knowledge in this matter is based entirely on what has been passed to me by my clients, pursuant to Rule 1 024( c) of the Pennsylvania Rules of Civil Procedure, because my clients are unavailable to timely file this Verification within the time allowed for filing a pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. (~ k ~llli- LLEY . GILL TE DATE: May 3, 2001 '"'- ~. , --" , ~ hk cOMPllRJm.1ol'SIVE EVALUATION REPORT (CER) .......~...~........**....**.....*..........a.*~*.*....*.~~_..............~~*.A..~...~......*....... Original: flltlV8l1i to CIiIti!:al Sor<ril:cs Signed copW to: . (Checlc below:) District CoOrd. Linda Ban> (palmyra) Pmmts MIM ChsIi5r CchJck. k 'l'eacher(cum lile) Joey Dziamba Suporvisor NC Lebllllllll ru Office NC Psychologist MaIy DwClt 0tI= (list) ,.- MAY. 1.2001 1:17PM IU-13 2ND FlOOR LANCASTER.LEBANON INTERMEDIATE UNIT 13 1110 Enterprise Road East Petersburg, PA 17520.16.96 Phone: (717) 569.7331 AgllllCiss(lltlllCh ParenCll reloasc far each) Date of Report: T ChaIrperson: Mary Barnett A)U'il26, 2001 COIDCK, ALEX Student NIlD1l1 (Last, First, M.1.) M/M Chesu:r Cohick. Jr. Parent Name Soci31 Security Number Molmark CAPS Residential) l're$ent Class Location 115 West Main Street Street Address Palmyra. P A 17078 City, Srate. ZIP 11-2 Gtade Age 717/832-3601 Telephone - , J1!. '"~''''''''''' NO. 379 P.2/7 (Check:) Initial Refemd Re-evaluation Psycbiatric District Program (Palmyrn) ru ProgI3111 OS-ll4-01 05-10-01 03-02-90 Birtl1da!e Palmyra District of Residence Autistic Suppott Cum:nl."m''"''ti~'ll l'tcgI3111 Joey Dziomba Teacher = 1. REASON(S) FOR REFERRAL: To re-evaluate his =ot progress and programming and to make reco:mmendations for further programming. 2. INFORMATION FROM PARENTS OR PERSONS WITH WHOM THE STUDENT LIVES: Mrs. Cohick participated in the MOE meeting via phone conference. She indicates that they continue to have a difficult time with Alex when he is at home. He still needs constant EHXIBIT A Alex Cohick 1.PDE/lISlf4 FORMA'l' A - COMl'RElmNSlVE EV ALtrATlON lU!J>ORT - APRlJ. 1994 ,-- --. ~~ ~. =~~=-,-,;,'. - /-, "..!{ilim MAY. 1.2001 1:17PM IU-;13 2ND FLOOR NO. 379 P.3/7 stfpervision. They, have had to secure all windows and doors so that he is safe in their home. ~e has just recently been able to sIee~n his h1:droom with ~~~4 w~do~S..&1E do.ors rather tl\k sleeping in his patents' room el p~;,; so 'ffi"at!liey ~0U1'Q m'Onito~m":"Eis levels of a#ivity are very high. He will occasionally pull his sister's hair but other than that there is v~ little aggression or threat: to harm others. , 3. " ~UCATIONAL, SOCIAL, AND PHYSICAL HISTORY: Alex currently ~iveseducational and residential services at Meimark, an approved private sl1hool and residfjntial facility. Alex began attending Melmark in July, 1999. Prior to his ajFission there, Alex received programming in Autistic Support with a one-to-one staff ~ber operateqby Capitol Area Intermediate Unit. Prior to that placement, he was s/,lpponed in an MDS classroom. Records indicate that in kindergarten with a one-to-one he ~d participate in half-day inClusion. Alex's first school experience was preschool at the 1i!nited Cerebnil Palsy. Center where he received developmental instruction and speech l~nguage support services. !.poking at developp:Iental history, Alex was bam as a result of a fuIl-t= pregnancy ~eighing 6 lbs., 5 ozs. No complications were noted at birth and he was in excellent cpndition. He \;flllkedat the age of IS months. There is no history of sustaining verbal cb=unication not has he been toilet trained. Alex has made minimal progress throughout sJ:hool. He has a history of gaining skills and then going through a period of regression. Earliest assessments found. in the records were in 1992 and 1993. He was seen by a Dr. Barron at Hersh~y ~dical Center in 1993 for a neurological workup. At that time he was diagnosed with mild Mental Retardation and Attention Deficit/Hyperactivity Disorder. An evaluation was then conducted in September of 1994 by Dr. Lusser in Allentown, P A. At that time, Alex was apparentlytising 10 to 26 functional signs but his attention span was short and he showed extreme frustration when demands were placed on him. Alex has been on multiple medications since 1994 to address his high level of activity as well as ather behavioral COllCems. Medications that have been utilized include: Ritalin, Cylen, Clonidine, Risperadali Prozac, Haldol, Trazadone, Secretin shots. and Depalcote. While at Melmarlc, he has been taken off all medications with success. Alex is diagnoses includc: Pervasive Developmental Disorder. Autistic-type; Moderate to Severe Mental Retardation; Attention Deficit Hyperactivity Disorder; Oppositional Defiant Disorder; and rule aut Bipolar. ~ does have a histOry of nnm>lnageable behavior that presents a danger to himself and others including: ag~sion (hitting and biting), destruction of property, screaming, extreme impulsive behavior and history of PICA, darting and running away, and self- stimulatory behavior. Currently, Alex is exhibiting no form of aggression. His self-srimming and darting continues to be a significant issue as well as his level of activity. 4. SUMMARY OF FINDINGSIINTERPRETATION OF ASSESSME,NT RESULTS: A. Instructional Evaluation Results (Instructional Level, Rates of Acquisition and Retention): AlM Cohick 2-PDElJisE. 4110RMAT A. COMPREBENSlVEI!VALUA'l'IOllIlE1'OIl.T. AP1lIL 1994 - .'IIlt' ='r l- -,. MAY. 1.2001 1:18PM IU-1::) 2ND FLOOR NO. 379 P.4/7 COGNITIVE A records review finds documentation of IQ and neurological testing done across the past years. Earlier assessroents done in 1993 indicated mild to moderate mental retardation. As time passed, the diagnosis changed to moderate/severe mental retardation. Alex has presented with delays in all areas (except gross motor) since the age of two. Clurent observations as well as informal measures of adaptive behavior and lack of progress in other domains indicate that Alex currently functions in the severe range of mental retardation. Formal testing is not possible due to severe a speech and language disability. difficulty with fine-motor skills, and lack of behavioral control. CURRENT LEVELS OF E'llNCTIONING Pre. Voeatio1UiJSki11s Alex has made some progress towards his IEP objectives in this area. He currently matches the colors red, blue, and green. He has matched two colors correctly for four consecutive sessions. Regarding his progress from the beginning of this year: Alex correctly matched two shapes on three consecutive occasions. Alex was able to insert 10/10 objects with verbal direction on five consecutive sessions. With verbal directions, he could remove 10/10 clothes pins from a can on five consecutive sessions. Alex will pick up beads and attempt to string them on a pipe cleaner 1/10 occasions. He continues to struggle with this skill due to fine-motor difficulties. Alex will individually remain in seat during a one-to-one activity for up to 5 minutes on four consecutive trials. He continues to require a reinforcer for appropriate sitting and for working. When given the verbal direction. "ready" Alex does continue to require physical hand-over-hand prompting to put his hands in his lap and sit with his eyes on the instructor. All of these pre-vocational skills are taught through discrete trial format and high levels of edible reinforcers are used throughout sessions. CDmmunicDtion Alex is currently being taught to use a Picture E."tchange Co=unication System (PECS) for functional communication. At this point, he is given a choice of two PECS and is being taught to discriminate. The speechl1anguage therapist successfully used a field of 6 PECS. However. this has not generalized into the classroom. Using PECS is much more successful with the use of reinforcement. He has c=ctly removed the bathroom PEC from his schedule and walked to the bathroom on two occasions. Given a choice of two objects (one desirable and one undesirable), Alex will choose the appropriate icon from his communication book with 80% accuracy or higher on 4/5 trials. Alex is able to follow simple verbal commands that consist of one to two words with visual cues at 70% accuracy. He has made some progress with imitating simple actions such as "pick up" at 45% accuracy, "calm" with 40% accuracy, and "sit down" with 55% accuracy. He is responding to a verbal prompt to "touch head" with 65% accuracy. "touch nose" with 40- 55% accuracy, and the prompt to "clap hands" with 40-55% accuracy. Adaptive Behavior Alex is dependent on staff for support for all toiteting needs. He does cunently wear diapers and does not consistently use the toilet. A sohedule has been utilized in the past Alex Cohick 3-l'DFJJJSE. 4FOllMAT A. COMPKEBXNS1VllJIVAlllATIONlU1l'OR'I'.AP1UL 1994 -"~ ~~, .^ ',I, . --~. - -~ MAY. 1.2001 1: 19PM ru-1;3 2ND FlOOR NO. 379 P.5/7 to pullhis pants down with one to two verbal prompts and will sit on the toilet with coq.linuaI prompting. Staff indicate that they will soon be implementing a "Wet Stop" program coupled with a toilet chaining sequence that breaks down the steps of toileting and taught individually through discrete trial. Alex eats his meals with minimal prompting using a fork or spoon but requires one-to-one attention at meal time because betlmds to use his fingers or steal food. Alex independently holds a cup and drinks from it.. Alex. is dependent on staff assistance for all dressing needs. He will offer assistance to staff holding the shirt as well as finishing the dressing process when the head is put through the hole of the shirt. he will independently find the arm holes and complete the shirt process. Alex. needs help initially putting his pants on the correct way but can independently pull his pants up. He does not appear to understand how to button or use zippers nor tie his shoes. He is dependent for all dental care as well as personal grooming. Staff attempt Alex to be involved and cooperate with hand-oyer-hand washing but he is not always cooperative. Alex. must have one-to-one supervision during all walting hours because of the continued need to monitor his high level of activity and his PICA. Constant supervision is also necessary due to his unawareness of dangers and his desire to touch objects. Alex does benefit from his age-appropriate peer group and is involved in community outings including trips to the park, local historical sights, amusement parIes, restaurants, and swimming. In his free time he enjoys jumping on his trampoline. ronning, and watching videos. He will initiate engaging in these activities independently and will even attempt to put videos in the VCR independently. His parents also suggest that Alex enjoys riding horses. Alex does not like to be redirected when he becomes fixated on a certain activity or watching an object and may cry to express his unhappiness. He will also become frustrated with continuous physical prompting. When Alex is happy, he will smile and laugh. He is nonverbal and tends to like activities that he can do by himself and interact little with others. Alex Clln communicate by becoming physiCally and verbally agitated if he dislikes something although he can occasionally become agitated for apparently no reason at all so it is sometimes difficult to understand if he is communicating a desire or a dislike. Alex's teacher completed the Vineland Adaptive Behavior Scales. Classroom Edition. His ratings yielded scores in the commnnication domain, daily living slcills domain, and the socialization domain that fell in the range of profound deficits. MDtor Alex is ambulatory and able to walk to and from different areas with one-to-one staff presence for guidance and protection as he sometimes gets excited and willl11n away. He does need assistance on the stairs for his protection. His occupational therapist indicates that therapy will be taking more of a sensory approach with Alex. He does continue to present with difficulties in participating in classroom activities due to increased self- stimulatory behaviors and darting. He just does not seem to benefit from proprioceptive input from lap weights and he continues to require hand-aver-hand assistance to initiate and complete many activities. Alex. still presents with poor visual regard to tasl<s at-hand. Staff will continue hypotherapy sessions. B. Ecological Evaluation Results (If appropriate): Alex Cohick 4-l'DEiBSlt . 4 J'02.'lAT A - COMPJlBBllNStVllllVAWA TION IWI'ORT - hl'lUL 1994 , . , ;0, - ~ -- .,- "-. . ~ltiii --- t"'tlN~ my. 1.2001 1:19PM rU-13. 2ND FlOOR NO. 379 P.6/7 C.VoeatioaaJ Teclmical Education Assessmeut Results (If appropriate): S. S1i)mNGTBS: . · 'Beginning to perform simple vocational tasks . :: Improved cOlIlII1unicatian with PECS · Discriminates between desirable and undesirable objects · Independently drinksfrom cup · . Ambulates independently with staff supervision · Desires to be active and involved in activities for a short period of time . Enjoys trampoline, running, watching videos, swimming, and horseback riding · Eats independently with spoon . Extremely motivated by edible reinforcers . Adapts to f~ding and will complete multi-step activities for a reward 6. DEGREE OF NEED: . Continue to develop pre-vocational skills · Enhance safety awareness . Improve self-care skills and daily living skills (especially toilet training) . Continue to improve functional communication skills through the use of PECS . Decrease maladaptive behaviors (self-stimulatory behaviors, darting) . Improve attention to task . 'R"h~nce rme-motor skills . Continue to develop independent skills . Continues to need one-to-one assistance and supervision because of his limited understanding of safety issues and has difficulty with high levels of activity and low levels of focus and attention . Continues to need tangible ( edible) reinforcements in small ratios 7. INFORMATION FROM OBSERVATIONS IN THE CLASSROOM AND OTHER SETTINGS: The school psychologist conducted an extensive observation of Alex in his classroom. It was evident that Alex depended on prompting, both verbal and physical, to be successful with the task at-han,L He aeeded edible reinfoi'Cers after almost every response to continue to be motivated. puring a 5 to lO-minute session. he needed multiple physical prompts to remain seared. Alex exhibited nearly constant ~elf-stimulatory behaviors with his hands and legs even with physical and verbal prompts.to stop. Although he has made progress with his use ofPECS, hedid demonstrate inconsistent perfOIllllll1Ce during an activity where he was choosing between a desitable and an undesirable PEeS card. Alex needed physical prompts with all transitions. It was apparent that keeping edibles in constant view also served as a motivator. Alex had a very difficult time in a group ses.&on with two other students and did not seem to beaefit. He was then observed during individual work time. He was following a visual (color-matching) worksysrem. He needed some prompting but was able to do some independently. If Alex is left alone for any period of time, his self-stimulatory behavior increases and he quickly becomes over-excited. exhibiting high levels of activity and loud vocalizations. Alex Cohick S-l'Dl!I1ISB . 4 FORMAT A. COMl'l.l:&BllNSlV EVALUATION llEl"ORT - Al'lUL 1994 _0.- - - "".-' ib!i!!il ~ '. Y. 1.2001 1:20PM IU-13 2ND FLOOR NO. 379 P.7/7 . CONCLUSIONS AND RECOMMENDATIONS TO IEP TEAM: (lnduding eligibility, specially-designed instruction, current program, ~b..nge in progl'lllll9, and other issues based on the student's individuals needs.) Alex continues to be eligible for special education services as a student with Mental Retardation, Autism, and SpeechlLanguage Impairment- OR REEVALUATION: 9. RECOM1\1E,,~ATION REGARDING CONTINUED NEED FOR SPECIAL EDUCATION: Alex would continue to benefit from specially-designed instruction in a small. highly structured setting that provides visual aides as well as one-to-one support to meet his needs in the area of adaptive behavior, communication, motor skills, and pre-vocational skills. , Continue speechllanguage services. Continue occupational therapy. Continue one-to-one staff assistance. 10. REVIEW OF THE STUDENT'S 1EP Instructional activities which have been successful: . Individualized instruction . Use of PEeS for communication . Visual schedule and visual prompting . High levels of edible reinforcers for motivation Recommendations for re'llision of the IEP: . Alex Cohick .6-l'DFJBsE _ 4 FOaMA'!: A . COMl'1lEBENSlVE EV ALUAl10N llEPOB.T . APIIXL 1!194 .'}:' JUDY FRY and, THOMAS FRY, Plaintiff: :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA :01-2419 CIVIL ACTION LAW vs. :IN CUSTODY BETSY COHICK and CHESTER COHICK, Defendant AFFIDAVIT OF SERVICE BY MAIL COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNTY OF LEBANON ) I, ANGELA JEAN BINGAMAN, an employee of the law firm of Buzgon Davis, 525 South Eighth Street, Lebanon, Pennsylvania, 17042, Attorneys for Defendants, being duly sworn according to law, depose and say that I mailed on May 3, 2001, by regular mail, in a postpaid envelope, a true and correct copy of DEFENDANTS' PRELIMINARY OBJECTIONS, the original of which was filed on May 3, 2001, in the Office of the Prothonotary of Cumberland County, Pennsylvania, to: Austin F. Grogan, Esquire, 24 North 32Dd Street, Camp Hill, Pennsylvania 17011, Attorney for Plaintiffs, Judy Fry and Thomas Fry; and Melissa P. Greevy, Esquire, 214 Senate Avenue, Suite 105, Camp Hill, Pennsylvania 17011, Custody Conciliator. iliv~l~~ j3iJ/:Jl~~ L1\NG \<\ JEAN BI AMAN Sworn and subscribed to before me this 3rd day of May 2001. ~ ~. ~tf~.(pf Notary Public Nolartal Seal Joyce E. Brtghtbill, Nol!UY PubHo Bern lWp., Berks County My Commission Expires Apr. 12, 2004 Member. PennsylvaniaAssociationofNotarieS ",,",j~LL=":).;,W1"!-~,':;''''C'l''('''', J . ;'j f' :!- :1 "l'q\{I'1:{Hil'-{(~ ~;:; CC) g ;'! ".; ~ 'ft o <z~- v <c '" v: 1._01 0::: :0 I~ i':' I I'/": '<:'l '4 :! ~t~~ r (,?;;:~.. ~t C( 11 ($:I .. 'IP) ./ -- ~~ 'i ...I - <C :E U) U'J <C ...I o I- U'J a: - LL en * - 0 >"'0)"- <(UJ<I'~ Cl2x~ Ztl:o _ OlllZ OSOO CI<ca:~ N...J III ::l UJ lD -' - 0" O'e "'-N ~<Zl"" '..d 0 ""'t-- ~th~ :=:: o..-t...-f'l ...-t~ "" O.;;~ OO::l8 ~J5 @ 7]l/"){5 :'::~....:l ~ ~,~ i..._ ,.1 K~' '" . ~ ;.~ "'~'~t, - . JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY ORDER AND NOW, this day of ,2001, it is hereby ORDERED and DECREED that Defendants, Betsy Cohick's and Chester Cohick's Preliminary Objections are SUSTAINED. Plaintiffs, Judy Fry and Thomas Fry, do not have standing to pursue the within Custody Action for Alex Cohick. Plaintiffs Custody Complaint is hereby DISMISSED with prejudice. BY THE COURT: J. " J ,JJ ~. ,~,. '''''0'- '_ --;"{'.@, JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CML ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY ORDER AND NOW, this day of , 2001, it is hereby ORDERED and DECREED that Defendants, Betsy Cohick's and Chester Cohick's Preliminary Objections are SUSTAINED with regard to venue. Venue shall immediately be transferred to Lebanon County. The Cumberland County Prothonotary is hereby directed to immediately transfer all documents in Cumberland County Docket No. 01-2419 to the Lebanon County Prothonotary . BY THE COURT: 1. ~ ~~ l~ : ~I, ~ -" ~ ,,,^ ~ ." , 'u;~ JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY PRELIMINARY OBJECTIONS AND NOW, come the Defendants, Betsy Cohick and Chester Cohick, by their attorneys, Buzgon Davis Law Offices, and file these Preliminary Objections, pursuant to Pa.R.C.P. 1028(a)(1) and (4), to the Complaint for Custody: 1. Plaintiffs, Judy Fry and Thomas Fry, to this action are the child's paternal grandmother and step-grandfather and are requesting legal and physical custody of the child, Alex Sean Cochick, age 11 years. 2. Plaintiffs reside at 528 West Cumberland Road, Enola, Cumberland County, Pennsylvania 17025. 3. Defendants reside at 115 Main Street, Palmyra, Lebanon County, Pennsylvania 17078. 4. The minor child's residence is the same as Defendants. s. The minor child is enrolled in the Palmyra Area School District, however, he lives at the Melmark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania 19312. A true and correct copy of the Lancaster-Lebanon Intermediate Unit's April 26, 2001 report on Alex is attached hereto and designated Exhibit "A". ~ , ~ , .1 . JJ ~-' . ,~.;.-. :r ^- ::-} 6. Plaintiffs lack standing to pursue legal and primary physical custody of the child, pursuant to 23 Pa. C.S. 95311 et seq. 7. This Honorable Court lacks jurisdiction over the Defendants and minor child to hear the foregoing Custody Complaint, due to Plaintiffs' lack of standing. 8. In the alternative, if this Honorable Court finds that the Plaintiffs have standing and jurisdiction to hear this matter, venue in Cumberland County is improper and this case should be transferred to Lebanon County, where the Defendants and minor child reside. WHEREFORE, Defendants respectfully request your Honorable Court to dismiss the Complaint for Custody filed on April 25, 2001. In the alternative, if your Honorable Court finds that Plaintiffs have standing to bring this Custody Action, Defendants respectfully request that venue be transferred to Lebanon County. BUZGON DAVIS LAW OFFICES BY: LEY . GILL. Attorney .D. #85766 525 South Eighth Street Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Attorneys for Defendants -2- ,<.- "'L . ~ . i~J 'iw. '~" Uillll.'l_i:)i JUDY FRY and THOMAS FRY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2419 CIVIL ACTION LAW BETSY COHICK and CHESTER COHICK, Defendants IN CUSTODY BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS I. STATEMENT OF THE CASE Plaintiffs, Judy Fry and Thomas Fry, are the paternal grandmother and step- grandfather of Alex Cohick. The Plaintiffs reside at 528 West Cumberland Road, Enola, Cumberland County, Pennsylvania. Defendants are Betsy Cohick and Chester Cohick, who resides at 115 Main Street, Palmyra, Lebanon County, Pennsylvania. The minor child, Alex, has a primary residence at the Defendants' address and is enrolled in the Palmyra Area School District. (See Exhibit A). However, Alex lives at the Melmark Residential Facility, 2600 Wayland Road, Berwyn, Pennsylvania. Defendants are the biological parents of the child. In their Complaint, Plaintiffs seek legal and primary physical custody of the child. Plaintiffs aver that the child has resided with both biological parents, Defendants in this action. Nowhere in the Complaint do Plaintiffs aver that the child has ever resided with them. The only other averment relating to why Plaintiffs are seeking primary physical and legal custody of the child can be found in paragraph 1 1 (a) through (d). Defendants file these Preliminary Objection requesting that this Court dismiss the Complaint for Custody, because Plaintiffs fail to possess the obligatory standing under 23 Pa.C.S.A. 95311 et seq., and therefore, this Honorable Court lacks jurisdiction over the I'-.J; , .' . " ~ -' 1l1tIlli'Mf. Defendants and minor child pursuant to Pa.R.C.P. 1915.5. In the alternative, if this Honorable Court finds that Plaintiffs have standing to pursue this Custody Action, the Defendants file these Preliminary Objections requesting that this Court transfer venue from Cumberland County to Lebanon County. Defendants file this Brief in support thereof. II. ARGUMENT Pennsylvania Courts have an established scope of review regarding Preliminary Objections. The Pennsylvania Superior Court has stated: Preliminary Objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Baker v. Brennan, 419 Pa. 222, 225, 213 A.2d 362, 364 (1965). The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976). To determine whether preliminary objections have been properly sustained, this Court must consider as true all of the well-pleaded material facts set forth in appellant's complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell ofPennsylvani!!, 477 Pa. 1,4,383 A.2d 791, 792 (1977); Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 371 A.2d 178, 181 (1976). Martinez v. Baxter, 725 A.2d 775, 776-777 (Pa.Super. 1999) (quoting Bower v. Bower, 531 Pa. 54,56-57,611 A.2d 181, 182 (1992)). A. PLAINTIFFS LACK STANDING TO PURSUE THIS CUSTODY ACTION While it is true that grandparents may have standing to pursue a custody action, the grandparents must be within the purview of one of the following: 1. 23 Pa.C.SA 95311; 2. 23 Pa.C.S.A. 95312; or . - ~ ;..<J ....~ ~ ~ 'i'_ _ ._> ,,' ,:.;-~,: 3. 23 Pa.C.SA 95313. 23 Pa.C.SA 95311 applies when one of the parents of the child is deceased. It reads as follows: ~531l. When parent deceased If a parent of an unmarried child is deceased, the parents or grandpi/Tents of the . deceased parent may be granted reasonable partial custody or visitation rights. or both, to the unmarried child by the eourt upon a finding that partial custody or visitation rights, or both; would be in the best interests of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application. 23 Pa.C.S.A. S5311 (emphasis added) Pa.C.S.A. 95312 reads as follows: ~5312. When parents' marriage is dissolved or parents are separated In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparents of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody,. or both, would be in the best interests of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application. 23 Pa.C.SA 95312 (emphasis added) Finally, Pa.C.S.A. 95313 reads as follows: ~5313. When grandparents may petition (a) Partial custody and visitation.-If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or " ~ ~=,.~- ^'-~im- visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship. (b) Physical and legal custody.-A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent. This subsection applies to a grandparent: (1) who has genuine care and concern for the child; (2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and (3) who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. The court may issue a temporary order pursuant to this section. 23 Pa.C.S.A. 95313 In their pleading, Plaintiffs request that this Honorable Court grant them legal and primary custody of Alex, the child in q~estion. When reviewing 23 Pa.C.SA 995311,5312 and 5313(a), it is evident that they are not applicable to this case. Those sections only apply to grandparents who petition the court for partial custody and/or visitation rights. 23 Pa.C.S.A. 95313(b) provides recourse for grandparents who are seeking physical and legal custody. When reviewing the necessary elements for a grandparent to have standing in 95313(b), it is apparent that Plaintiffs do not possess standing pursuant to the averments in their Complaint. Nowhere in their Complaint do they aver that the child has lived ~ ~ , . .L-.! 'j - ---'-' til.!Iii!ir/.1il! with them for 12 months and that they have assumed the role and responsibility of the child's parent, providing for the physical, emotional and social needs of the child. Nor has the child been determined to be a dependent pursuant to 42 Pa.C.S.A. 963. Finally, nowhere in their Complaint do they aver that this child is substantially at risk due to any parental abuse, neglect, drug or alcohol abuse or mental illness. In fact, Defendants believe that Plaintiffs have alleged quite the opposite. Plaintiffs have alleged in their Custody Complaint that the subject child, Alex, is living at the Melmark Residential Facility. Plaintiffs further allege that the minor child is autistic and in need of special education and attention. The minor child is receiving this kind of attention and education at Melmark, a facility that is specifically designed to give Alex special attention and education, something that not even the Palmyra Area School District could do. (See Exhibit A). Thus, Plaintiffs clearly lack standing in this Custody Action. Further, because the Plaintiffs lack standing in this Custody Action, this Honorable Court subsequently lacks subject matter jurisdiction to hear this case. B. VENUE IN CUMBERLAND COUNTY IS IMPROPER Defendants assert that if this Honorable Court finds that Plaintiffs have standing to pursue this Custody Action, venue should be transferred to Lebanon County. Pursuant to Pa.R.C.P. 1915.2 (a) An action may be brought in any county (1)(i) which is the home county of the child at the time of commencement of the proceedings, or (ii) which had been the child's home county within six months before commencement of the proceeding and the child is absent from the county because of the child's removal or retention by a person claiming the child's custody or for other reasons and a parent or person acting as parent continues to live in the county; or ~' ~ '" -c-"" -',-, .~ - - f~:~ (2) in which it is in the best interest of the child that the court decide the matter because the child and the child's parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence conceming the child's present or future care, protection, training and personal relationships; or (3) in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse and is otherwise neglected or dependent; or (4) in which it appears that venue would not be proper in any other county under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another court has declined to decide the mater on the ground that the court before which the action is pending is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that the court decide the matter. (b) Except under paragraphs (3) and (4) of subdivision (a), physical presence of the child within a county, or of the child and one of the parties, is not alone sufficient to establish venue. (c) Physical presence of the child, while desirable, is not a prerequisite to venue. (d) For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could have originally have been brought or could be brought at the time of filing the petition to transfer. It shall be the duty of the prothonotary of the court in which the action is pending to forward to the prothonotary of the county to which the action is transferred certified copies of the docket entries, process, pleadings and other papers filed in the action. The costs and fees of the petition for transfer and the removal of the record shall be paid by the petitioner in the first instance to be taxable as costs in the case. Pa. R.C.P. ]915.2. The Defendants are entitled to a transfer of venue under subsections (a)(1), (2), (4) and (d) ofPa.R.C.P. 1915.2. Both the minor child and Defendants' home county is Lebanon. -.;1;'- .- . . - :~J~.. ,i., " i1il~fi(';:i The Defendants and minor child have resided in Lebanon County since November of 2000. Although the minor child lives at Melmark in Berwyn, he is enrolled in the Palmyra Area School District and is monitored by the Lancaster-Lebanon Intermediate Unit 13. (See Exhibit A). Further, the Defendants assert that Lebanon County would be a more convenient forum to decide this Custody Action. Therefore, the Defendants respectfully request that if this Honorable Court finds that Plaintiffs have standing, venue of this matter be transferred from Cumberland County to Lebanon County. III. CONCLUSION WHEREFORE, Defendants, Betsy Cohick and Chester Cohick, respectfully request your Honorable Court dismiss Plaintiffs' Petition for Custody of their son, Alex Cohick. In the alternative, Defendants respectfully request that if this Honorable Court finds that Plaintiffs have standing to bring this Custody Action, venue be transferred from Cumberland County to Lebanon County. Respectfully submitted, BUZGON DAVIS LAW OFFICES . BY:. h.m LE S. OIL , Esquire Attorney J.D. #85766 525 South Eighth Street-Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Attorneys for Defendants At ",~.li ,~ I ;' , .~ ~ ~Ll-, ~ - "~ 'I" VERIFICATION I, KELLEY S. GILLETTE, Esquire, do hereby verify that I am the attorney for Betsy Cohick and Chester Cohick, Defendants in the within action. The facts set forth in the foregoing PRELIMINARY OBJECTIONS are true and correct to the best of my knowledge, information and belief, as conveyed to me by my clients. My knowledge in this matter is based entirely on what has been passed to me by my clients, pursuant to Rule 1024(c) of the Pennsylvania Rules ofCivij Procedure, because my clients are unavailable to timely file this Verification within the time allowed for filing a pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. (ll!JJj~ A.~ LLEY . GILL. DATE: May 3, 2001 _;"'c +-" ,_. --ltiiti'l,_~J_ ~ f. ... "~ ~." - ,,~" .J:1' . , 'l';a::: MAY. 1.2001 1:17PM IU-13 2ND .FLOOR NO.379 P.2/7 LANCASTER-LEBANON INTERMEDIATE UNIT 13 1110 Entet'prise Road East Petersburg, PA 17520.16.96 Phone: (717) 569.7331 . COMPREHENSIVE EVALUATION REPORT (CER) ...*...~......*;...~*..*~.._.....*...~......*...*.*.......~......_.....*.a*.*.a_.~....**....**.*.*.* Original: fCIWald tb dmica1 Sor<ril:cs SignedcopW to: (cheCicbelow:) Disrrict Coord. LiIlda B.... (pllImyza) l'lmm!3 MIM Cbester Call1clc. 1r Teacher(cum liIe) Joey Dziomba SllpeMsor NC lAbllllOll IU Office NC P~~~t M~B~~ Othm(lilt) April 26, 2001 (Chcck:) InitiallWezral Jre.evalu:1rion P~cbiatric District Pro8fllll1 (Palmyza) rn Program OS-04-01 05-10-01 AgllIlCi.es(llUllCh P=t:d nolo... for e:u:h) Date oflteporl: T ChaIrperson: Mary BarIll!tt ComcK, ALEX Student Name (Last, FIrst, M.I.) MIM Chesrer Cohick. Jr. P3tCIlt Name Socia! Security Number Ma\mark CAPS Residential) Present Class Location 03-02-90 Birthdate Palmyra District of Residence 115 West Main S1l'eet Street Address PallI1'jI1'8. PA 17078 City. State. ZIP 11-2 Grade Age 717/832-3601 Telephone Autistic Support Current !,dn...n=31 Prognun Joey Dziamba TeacbM cmc 1. REASON(S) FOR REFERRAL: To re-evaluate his current progress and programming and to make recommendations for further programming. 2. INFORMATION FROM PARENTS OR PERSONS WITH WHOM THE STUDENT LIVES: Mrs. Cohick participated in the MOB meeting via phone conference, She indicates that they continue to have a difficult time with Alex when he is at home. He still needs COnstant EHXIBIT A Alex Cohick 1.PDEI1l~ FORllUT A- COMP'REJDi;.VSlVE EV ALllATIONllEPORT - Al'RlL 1994 !_- - . . J.....L_~. ~..~. " "'" , , 'iIIltt~"-"__~ MAY. 1.2001 1:17PM IU-13 2ND FLOOR NO. 379 P.3/7 sppervision. They have had to secure all Windows and doors so that he is safe in their home. He has jus.t re::~y been a?le to sl~}is ~'!room with Jecure4",w~do~s and doors rather than sleepmg m his parents room ~ n6~ so 'ihaitfie'y c~ monitolE'fh1n.'5 levels of aptivity are very high. He will occasionally pull his sister' 5 hair but other than that there is very little aggression or threat to harm others. 3. EDUCATIONAL, SOCIAL, AND PHYSICAL HISTORY: Alex currently receives educational and residential services at Melmark. an approved pri van: sbhool and residential facility. Alex began attending Melmarlc in July, 1999. Prior to his admission there, Al~ received programming in Autistic Support with a one-to-one staff member operated by c::apitol Area Intermediate Unit. Prior to that placement, he was supported in an MIlS classroom. Records indicate that in kindergarten with a one-to-one he did participate in half-day inclusion. Alex's first school experience was preschool at the United Cen:bnil Palsy Center where he received developmental instrUction and speech language support services. Looking at developmental , history, Alex was born as a result ofa fuIl-t= pregnancy weighing 6 lbs., 5 oZ$. No complications were noted at birth and he was in excellent condition. He walked at th~ age of 15 months. There is no history of sustaining verbal communication nor !).as he' been toilet ttained. Alex has made minimal progress throughout school. He has a history of gaining skills and then going through a period of regression. Earliest assesstm:n!s fOUild in the records were in 1992 and 1993. He was seen by a Dr. Barron at Hershey Medical Center in 1993 for a neurological workup. At that time he was diagnosed with IDildiMen~ Retardation and Attention DeficitIHyperactivity Disorder. An evaluation was then condticted in September of 1994 by Dr. Lusser in Allentown, P A. At that time, Alex was apparently: using 10 to 26 functional signs but his attention span was short and he showed extteme frustration when demands were placed on him. Alex has been on multiple medications since 1994 to address his high level of activity as well as other behavioral concerns. Medications that have been utilized include: Ritalin, Cyler!, Clonidine, RisperadiU. Prozac, Haldol. Trazadone, Secretin shots, and Depakote. While at Melmarlc, he has been tak!:noff ail medications with success. Alex is diagnoses include: Pervasive DeveIOpmen!al:Disorder. Autistic-type; Moderate to Severe Mental Retardation; Attention Deficit Hyperactivity Disorder; Oppositional Defiant Disorder; and role out Bipolar. He.does !).aye a hlstory of unmanageable behavior that presents a danger to himself and others including: aggression (hitting and biting), destruction of property, screaming, extreme impulsive behavior and history of PICA, darting and running away. and self- stimulatory behavior. Currently, Alex is emibiting no form of aggression. His self-stimming and darting continues to be a significant issue as well as his level of activity. 4. SUMMARY OF FINDINGSIINTERPRETATION OF ASSESSME~'T RESULTS: A. Instructional EvaIuatiQJ1 Results (Instructional Level, Rates of Acquisition and Retention): _ Alex Cohick :l-PDF./tISE -410llMAT A. COMl'RllBENSIVEI!VALGd.'l'IOlillEPOIl.T - APIlIL 1994 COGNITlVE_ A records review finds documentatiol1 of IQ and neurological testing done across the past years. Earlier assessments done in 1993 indicated mild to moderate mental retardation. As time passed, the diagnosis changed to moderate/severe mental retardation. Alex has presented with delays in all areas (except gross motor) since the age of two. Current observations as well as informal measures of adaptive behavior and lack of progress in other domains indicate that Alex currently functions in the severe range of mental retardation. Formal testing is not possible due to severe a speech and language disability, difficulty with fine-motot skills, and lack of behavioral control. CURRENTLEVELSOFFUNCTIO~G Pre- Vocational Skills Alex has made some progress towards his IEP objectives in this area. He~currently matches the colors red, blue, and green. He has matched two colors correctly for four consecuti ve sessions. Regarding his progress from the beginning of this year: Alex correctly matched two shapes on three consecutive occasions. Alex was able to insert 10110 objects with verbal direction on five consecutive sessions. With verbal directions, he could remove 10/10 clothes pins from a can on five consecutive sessions. Alex will pick up beads and attempt to string them on a pipe cleaner 1110 occasiQn~. He continues to struggle with this skill due to fine-motor difficulties. Alex will individually remain in seat during a one-to-one actLvity for up to 5 mfriiltes on four consecuti ve_trials. He continues to require a reinforcer for appropriate sitting and for working. When given the verbal direction, "ready" Alex does continue to require physical hand-over-hand prompting to put his hands in his lap and sit with his eyes on the instructor. All of these pre-vocational skills are taught through discrete trial format and high levels of edible reinforcers are used throughout sessions. Communication Alex is currently being taught to use a Picture Exchange Communication System (PECS) for functional communication (upon-entenng Melmark, he was using object based communication). At this point, he is given a choice of two PECS and is being taught to discriminate. The speech/Ianguage therapist successfully used a field of 6 PECS. However, this has not generalized into the classroom. Using PECS is much more successful with the use of reinforcement. He has correctly removed the bathroom PEC from his schedule and walked to the bathroom on two occasions. Given a choice of two objects (one desirable and one undesirable). Alex will choose the appropriate icon from his communication book with 80% accuracy or higher on 4/5 trials. Alex is able to follow simple verbal commands that consist of one to two words with visual cues at 70% accuracy. He has made some progress with imitating simple actions such as "pick up" at 45% accuracy, "calm" with 40% accuracy, and "sit down" with 55% accuracy. He is responding to a verbal prompt to "touch head" with 65% accuracy, "touch nose" with 40- 55% accuracy, and the prompt to "clap hands" with 40-55% accuracy. Adaptive Behavior Alex is dependent on staff for support for all toileting needs. He does currently wear diapers and does not consistently use the toilet. A schedule has been utilized in the past Alex Cohick 3- PDElBSE - 4 FORMAT A . COMPREHENSIVE EVALUATION REPORT. APRIL 1994 -- -"" ";"'.~ MAY. 1.2001 1:19PM IU-13 2ND F1...00R NO. 379 P.S/7 to pull his pants down with one to two verbal prompts and will sit on the toilet with continual prompting. Staff indicate that they will soon be implementing a "Wet Stop" program coupled with a toilet chaining sequence that breaks down the steps of toileting and taught individually through discrete trial. Alex eats his meals with minimal prompting using a fork or spoon but requires one-to.one attention at meal time because be tends to use his fingers or steal food. Alex indllpendently holds a cup and drinks from it. Alex is dependent on staff assistance for all dressing needs. He will offer assistance to staff holding the shirt as well as finishing the dressing process when the head is put through the hole of the shirt. he will independently find the ann holes and complete the shirt process. Alex needs help iIlitially putting his pants on the correct way but can independently pull his pants up. He does not appear to understand how to button or use zippers nor tie his shoes. He is dependent for all dental care as well as personal grooming. Staff attempt Alex to be involved and cooperate with hand-over-hand washing but he is not always cooperative. Alex must have one-to-one supervision during all walting hours because of the continued need to monitor his high level of activity and his PICA. Constant supervision is also necessary due to his unawareness of dangers and his desire to touch objects. Alex does benefit from his age-appropriate peer group and is involved in community outings including trips to the park, local historical sights, amusement parIes, restaurants, and swimming. In his free time he enjoys jumping on his trampoline, running, and watching videos. He will initiate engaging in these activities independently and will even attempt to put videos in the VCR independently. His parents also suggest that Alex enjoys riding horses. Alex does not like to be redirected when he becomes fixated on a certain activity or watching an object and may cry to express his unhappiness. He will also become frustrated with continuous physical prompting. When Alex is happy, he will smile and laugh. He is nonverbal and tends to like activities that he can do by himself and interact little with others. Alex can communicate by becoming physically and verbally agitated if be dislikes something although he can occasionally become agitated for apparently no reason at all so it is sometimes difficult to understand if he is communicating a desire or a dislike. Alex's teacher completed the Vineland Adaptive Behavior Scales. Classroom Edition. His ratings yielded scores in the commnnication domain, daily living skills domain, and the socialization domain that fell in the range of profound deficits. Motor Alex is ambulatory and able to walk to and from different areas with one-to-one staff presence for guidance and protection as he sometimes gets excited and will ron away. He does need assistance on the stairs for his protection. His occupational therapist indicates that therapy will be taking more of a sensory approach with Alex. He does continue to present with difficulties in participating in classroom activities due to increased self- stimulatory behaviors and darting. He just does not Sllcm to benefit from proprioceptive input from lap weights and he continues to require hand-aver-hand assistance to initiate and complete many activities. Alex still presents with poor visual regard to ra.sJcs at-hand. Staff will continue hypotherapy Sllssions. B. Ecological Evaluation Results (If appropriate); Ale:< Cohick 4- PDBIBs& . 4 JIOllMAT A . coMPJlElDlNSIYE llVALUA TION REPORT. Al'lUL 1994 .~- - ~ -~" ~~ . . ,-< MAY. 1.2001 1:19PM IU-13 2ND FLOOR NO. 379 P.6/7 C. VoeatiooaJ Technical Education Assessment Results (If appropriate): 5. StRENGTHS: . ! Beginning to perform simple vocational tasks . Improved communication with PECS · Discriminates between desirable and undesirable objects · Independently drinks from cup · Ambulates independently with staff supervision · Desires to be active and involved in activities for a shan period of time · Enjoys trampoline, running, watching videos. swimming, and horseback riding · Eats independently with spoon · Extremely motivated by edible reinforcers · Adapts to f~ding and will complete multi-step activities for a reward 6. DEGREE OF NEED: . Continue to develop pre-vocational skills · Enhance safety awareness · Improve self-care skills and daily living skills (especially toilet training) . Continue to improve functional communication skills through the use of PECS · Decrease maladaptive behaviors (self-stimulatory behaviors, darting) . Improve attention to task . F.tlh,mce fme-motor skills . Continue to develop independent skills . Continues to need one-to-one assistance and supervision because of his limited understanding of safety issues and has difficulty with high levels of activity and low levels of focU$ and attention . Continues to need tangible (edible) reinforcements in small ratios 7. INFORMATION FROM OBSERVATIONS IN THE CLASSROOM AND OTHER SE'ITINGS: The school psychologist conducted an extensive observation. of Alelt in his classroom. It was evident that Alex depended on prompting, both verQal and physical, to be successful with the task at-hand. He needed edible reinforcers after almpst every response to continue to be motivated. During a 5 to lO-minute session. he needed multiple physical prompts to remain seated. Alex exhibited nearly c.onstant self-stimulatory behaviors with his hands and legs even with physical and verbal prompts to stop. Alth,ough he has made progress with his use of PECS, he did demonstrate inconsistent performance during an activity where he was choosing between a desirable and an undesirable PEes card. Alex needed physical prompts with all transitions. It was apparent that keeping edibles in constant view also served as a motivator. Alex had Ii very difficult time in a group session with two other students and did not seem to benefit. He was then observed during individual work time. He was following a visual (color-matching) work system. He needed some prompting but was able to do some independently. If Alex is left alone for any period of time, his self-stimulatory behavior increases and he quickly becomes over-excited, exhibiting high levels of activity and loud vocalizations. Alex Cohick S-l'DllilISE. 4 FOIlMAT A. COM1"ftllmNSJVE EVALUATION llEI'Oll'l' . APRIL 1994 . 8. CONCLUSIONS AND RECOMMENDATIONS TO IEP TEAM: (Including eligibility, specially-designed instruction, current program, change in progTams, and other issues based on the student's individuals needs.) Alex continues to be eligible for special education services as a student with Mental Retardation, Autism, and SpeechILanguage Impainnent. FOR REEVALUATION: 9. RECOMMENDATION REGARDING CONTINUED NEED FOR SPECIAL EDUCATION: Alex would continue to benefit from specially-designed instruction in a small, highly structured setting that provides visual aides as well as one-to-one support to meet his needs in the area of adaptive behavior, communication, motor skills, and pre-vocational skills. Continue speecManguage services. Continue occupational therapy. Continue one-to-one staff assistance. 10. REVIEW OF THE STUDENT'S IEP Instructional activities which have been successful: . Individualized instruction . Use of PECS for commuhication . Visual schedule and visual prompting . High levels of edible reinforcers for motivation Recommendations for revision of the IEP: Alex Cohick 6- PDE/BSE . 4 FORl\1A T A . COMPREHENSIVE EV ALUA nON REPORT. APRIL 1994 . . ~'&'~~. :r...tu ~, ~ .'''" ..~ . , ~rll'''~I&Bl1lii~- JUDY FRY and, THOMAS FRY, Plaintiff: :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYL VANIA :01-2419 CIVIL ACTION LAW vs. :IN CUSTODY BETSY COHICK and CHESTER COHICK, Defendant AFFIDAVIT OF SERVICE BY MAIL COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNTY OF LEBANON ) I, ANGELA JEAN BINGAMAN, an employee of the law firm of Buzgon Davis, 525 South Eighth Street, Lebanon, Pennsylvania, 17042, Attorneys for Defendants, being duly sworn according to law, depose and say that I mailed on May 3, 2001, by regular mail, in a postpaid envelope, a true and correct copy of DEFENDANTS' PRELIMINARY OBJECTIONS, the original of which was filed on May 3, 2001, in the Office of the Prothonotary of Cumberland County, Pennsylvania, to: Austin F. Grogan, Esquire, 24 North 32nd Street, Camp Hill, Pennsylvania 17011, Attorney for Plaintiffs, Judy Fry and Thomas Fry; and Melissa P. Greevy, Esquire, 214 Senate Avenue, Suite 105, Camp Hill, Pennsylvania 17011, Custody Conciliator. I. 1 f3 - UJV~f<~. \ i(;;f~ . NG ~JEANB . AMAN Sworn and subscribed to before me this 3rd day of May 2001. -k ~. -(2v" t1-Ji,ill Notary Public Notarial Seal Joyce E. Brightbill, Notary PooRe Bern Twp., Berks County My Commission Expires Apr. 12, 2004 Member. PennSIIIVanlaAssociationotNo1aries . , i , I I I~ '; "..,~...j!i<~ "j\, ('') u.) t-...... 0 cO) l'~ ~ C"Y'"i: N ,r, ~_...; '<t o ,.__....... w ~i (,...::J Q:: :5 m ~ !~, "' ~~'';!1 ::;: W"~ J: ...I - <C ::E UJ UJ <C ...I o I- en a: - II. l/) ~ - 0 :::CI)Cl~ ....W"'" cgX<( "'Oc.. Z~CDZ 0:;::00 "<I'a:~ N...l CD ::) ~ !XI - - o t- - ~ '" 'g. .@ '" ~ ;> ~Q)~ . " '" 1a ~ S 01)" 0) o. ~ ,\:; <'l . VM:::::: ~,€:E $:I 0 "" .~ Z ~ ~~U ~ >>;:.<;,.;,'- C:,<t~S~};'00_'.f"