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09-1696
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff vs. CIVIL-LAW DAVID H. HEWIT, DOCKET NO. 4 4 - / L°14 Tw- Defendant ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Remit Corporation, Plaintiff, in the above captioned matter. Respectfully Submitted, THE REMIT CORPORATION LAURINDA J. VOEV Attorney No. 82706 36 W Main St Bloomsburg, PA 17815 (570) 387-1873 Fax: 570-387-6474 ESQUIRE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff vs. DAVID H. HEWIT, : CIVIL-LAW Defendant : DOCKET NO. O Y.- 14,91 Tom,, NOTICE TO DEFENDANT TO THE DEFENDANT: YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. 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. Pennsylvania Lawyer Referral Service 100 South Street, PO Box 186 Harrisburg, PA 17108 800-692-7375 717-238-6807 Cumberland County Bar Association 2-Bibe? e 3-? s. B eA ?,A Sri Carlisle, PA 17013 717-249-3166 0 'f jaw LA A J. V L KER, ESQUIRE Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff VS. CIVIL-LAW DAVID H. HEWIT, : DOCKETNO. a 4- l(.q Defendant COMPLAINT The Plaintiff, Remit Corporation, by and through its attorney Laurinda J. Voelcker, Esquire, hereby files this Complaint of which the following is a statement: 1. The Plaintiff, the Remit Corporation is a Pennsylvania Corporation doing business at 36 West Main Street, P.O. Box 7, Bloomsburg, Columbia County, Pennsylvania 17815. 2. The Defendant, David H. Hewit, is an adult individual residing at 4600 Linden Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055-4329. 3. Defendant obtained a Washington Mutual visa credit card on or about August 13, 2002, from Washington Mutual, Inc., (hereinafter "original creditor"), Account number 4559 9069 0599 9426. 4. Defendant used the extended credit leaving an unpaid balance of $1,343.45 with interest continuing to accrue at 31.49% per annum. 5. Defendant defaulted on the payments due and the last payment on this account was made on or about November 10, 2006. 6. On or about March 21, 2008 Remit Corporation purchased the account of David H. Hewit from Bureaus Investment Group No. 11, LLC, who purchased the account from Washington Mutual, Inc., on August 28, 2007. The sale includes the transfer of all right, title, and interest in the account to Remit Corporation. 7. To date the charge-off balance is $889.97 and $453.48 post-charge off interest for a total of $1,343.45. COUNTI BREACH OF EXPRESS CONTRACT 8. The above paragraphs are incorporated herein as though more fully set forth at length. 9. In consideration of the extension of credit provided by original creditor through a credit card, Defendant agreed to pay for all charges for purchases, balance transfers, cash advances, fees and interest on his account. 10. The reasonable charges and expenses owing for the credit card purchases, cash advances, balance transfers, fees and interest is $1,343.45. 11. Defendant accepted the extension of credit and utilized the credit card without complaint, objection or dispute as to credit services provided, the prices charged for the same or the costs incurred. 12. Defendant is indebted to the Plaintiff in the amount of $1,343.45. Defendant has failed and refused to pay the aforesaid sum despite frequent demand to do so and the same is now due and owing. 13. Defendant's failure to pay is a breach of the express written agreement between the Defendant and original creditor. Pursuant to Pa.R.C.P. No. 1019(i), a copy of this writing is attached hereto, incorporated herein and referred to hereafter as Exhibit A. WHEREFORE, Plaintiff, Remit Corporation, demands judgment against Defendant in the amount of $1,343.45 together with interest, costs, attorney fees and such further and additional relief as this Honorable Court deems just and equitable. COUNT II BREACH OF IMPLIED CONTRACT 14. The preceding paragraphs are incorporated herein by reference and made a part thereof as if fully set forth herein. 15. It is averred, in the alternative, in the paragraphs set forth above, if an express contract between original creditor and Defendant did not exist, that a contract implied by fact or implied by law exists. 16. At all times relevant hereto, Defendant was aware that the original creditor was extending credit services to him and that the original creditor expected to be paid for the Defendant's use of this credit. 17. Defendant used the credit card to purchase items, and/or transfer balances, and/or obtain cash advances and he received the same to his benefit. 18. The total reasonable value of the Defendant's use of the credit extended by original creditor is $1,343.45. 19. In breach of the implied contract, Defendant has failed and refused to pay the outstanding sum for the credit card use and the same is now due and owing. 20. The Defendant has failed and refused to pay the aforementioned sum despite frequent demand to do so. 21. By virtue of Plaintiff s purchase of this account and the assignment of all rights to the Plaintiff, Defendant is indebted to the Plaintiff in the amount of $1,343.45. WHEREFORE, Plaintiff, Remit Corporation, demands judgment against Defendant in the amount of $1,343.45, together with interest, costs and such further and additional relief as this Honorable Court deems just and equitable. COUNT III QUANTUM MERIUT/UNJUST ENRICHMENT 22. The preceding paragraphs are incorporated herein by reference and made a part thereof as if fully set forth herein. 23. Original creditor provided the extension of credit as set forth above with the expectation of receiving payment for all use of this credit including, but not limited to, purchases, cash advances, balance transfers, fees and interest. 24. The credit extended by original creditor benefited Defendant. 25. The Defendant will be unjustly enriched if he is allowed to retain the benefit resulting from his use of the credit card provided by original creditor without having to make reasonable payment for the value of the benefits received from the original creditor's provision of credit. 26. The original creditor was not a volunteer in providing the credit services set forth above and the Defendant understood that original creditor was entitled to compensation based upon her use of the credit card. 27. The reasonable value of the Defendant's use of the credit card including purchases, balances transfers, cash advances, fees and interest is $1,343.45. 28. By virtue of the Plaintiff s purchase of this account along with the assignment of all relevant rights thereto, Plaintiff, Remit Corporation is entitled to $1,343.45 from the Defendant and frequent demand for said sums has been made and the Defendant has failed and refused to pay the same. WHEREFORE, Plaintiff, Remit Corporation, demands judgment against Defendant in the amount of $1,343.45, together with interest, costs and such further and additional relief as this Honorable Court deems just and equitable. Respectfully submitted, Arv aurin J. Voelck , squire Attorney for Plain iff PA ID #82706 Remit Corporation 36 West Main Street Bloomsburg, PA 17815 570-387-1873 Fax: 570-387-6474 b It i bill I it s b SAi ! s lit lit a Jill rA- ?a as x S i? ._ MIM'S d ?.r t 7 lit It) III x 3 b e its Ali 61 S ?s 6 ; HUM I I b i a ?a HIM ad a is S were not elgble for On Account at the time it was opened; (2) you fail to pay any amount due to us under this Agreement or any other agmement; (9) any ft Agreement le(5)?any yinformation ; (yyougigive fall to us proves m beiinoa ?pkta or tales; (8) Your W&WtW, er lOoKrtoy or legal Incompetence; (7) a banWuptcy petition is fled by or against you; or (8) we below in good faith that you may not pay or perform your obligation under this Agmerne t R you dekuit, ors may (unless prohibited by law), without further dwwjd or notice: (1) cancel your credit privileges; (2) declare your Account balance im moddely due and palpable; (9) charge you for our reasonable coleation costs; and (4) pursue any a WWA *0 mmrady. In addition, in the avant of certain Account d"Its (for example, Isle ,your ApRs may iraeaes autornalloaly up to the Default APR (see section 4). R you default, the unpaid Account balance will continue to sooruskUerost and otherfees and charges se provided in this Agreement, even Iwo have sued you to coiled the amount you owe. I vie am you or you acre us for breath of ft AWemw#, or for any other claim arming out of lids Ageemark the prevailing aide may recover reww1d ne att=Ws fee and court waft b the exlent not prohibited by la v, irrcJMrdirg alloway's fees and cart coats In any action or proceeding to enforce a judgment based on a oWm arising out of this Agreement I a" you or we sucoseafi* Swart a sabff, oounwdein, or partW dekme to a auk, the court may withhold from the prewTirg pwV all or any portion of the attorWs tees that the court considers equitable. 1Z Now WO Aoa+senNm1 Applies. This Agraw ent is the complete and ertis elalemerrt of the contract between you end us and wit not be Wboted by ww " swearnent We may dNtf? or w o - ordovssn"M of ow providw of We AOnststsra6 wllho u losing our risM to in ,- R or arty of bus proMsbn later. You waive the right to pmennime t, demand, protest, or notice of diefanor, any statute d imitations; and any right you may have to require to to proceed against anyone bebne we a#Wo to moover from YOLL R any term In this Agreement is made unenforceable through law, mg*gon, a court dwkiat, al arhw provisions will rernahn in efibot. 18. Aeftame t. Mb may tmwfar or assign our rights and duties under this A9mwwd to a third party. I sate law requires fiat you mc&W notice of Much an anowart to proleot the purdwer or weignee, we may ratify you by Ming a financing statement %0 dw eWs Secretary of Stata you may not assign your rights and duties under this Agreement. IL Appdeable law. No nwttm whme you IWe, this AaeMaaalt and dto o euttfnt not prewr4ftd by fadarat W% the SAb Ne seft This Agreement tells anted wham we accept it in Nstrada. lMs wdmd cesdIt to you frmn Nawada pe"WWss of where you M or us* your Accoaaat 2L Takehorn Ilk I Ang and Rseoadit Ws treat d customer salts conlidentially. with our rapmear"em mr, be moriad wAlor Your telephone ?w for qft m eaeuanos purposes, the beginningdeachtaiepinorneowwwaalour,youUtusrattor wfteraccordthecd 21, IMtpltoae Coeurnunloatlon& You autlarize us to oat you or aend a lext i me age to you at any number you provide or at any number at v#doh we reasonably bsileve we can contact you, including able to mobils, wkAw, or Similar dwAoss, and 14 AV cote using automatic telephone disiirg syewng and/or Pwwwdsd messages, for any lawful purpose, Including but not brat - to: (1) suspected head or identity thaft; (2) obtaining information neoaaesy tar deniable; (8) your account transactions or servicing; and (4) collecting on you' Account Numbers you provide Include renumbers you On us and/or riumbers from which you ail us. You agree to pay any fse(e) or charge(s) that you may incur for inoanig alts from u% artdfor outgoing calls to us, to tar them any Mich number, vvkhort reimbursement from ua MARYLAND RESIDENTS: You have do right to receive an answer to a written inquiry concerning the status of your Account. NEW JERSEY RESIDENTS: Applicable law does not b* our rights under this Agreement, except that we must send you prior notice of any increase in the mance charge. NEW YORK RESIDENTS: This Agreement begins on On first day we extend credit to you on your Account, se evidenced by a signed Was slip, memorandun, or otherwise. OHIO RESIDENTS: The Ohio Yw against discrimination mqu rw that all creditors make auk equrNj available to d orW vro* customers and the credit mportig agencka mnaitain separate credit histories on each w divWud up request. The Ohio Civil Rights Commission adminlelere compliance with Your RbINt- Keap Thk Nodes for Future Use This notice oontains important wdormstion about your rights and our responsibitles under the fair Credit Biting Act Notify Us In Cass of Brom or Questions About Your Bill If you think bill is wrong, or ifOatreed more Marmration about an entry on your e s to an a us as am as at our address for dispute listed on your possible. VA must bill. you no War than 60 days afar we sent you the first bill on whioh the amour or problem appeared. You can telephone us, but doing so wit not preen your rights. In your letter, give us the following: - Your name and Account number: The dollar amount of the suspected error. - Describe the error and expl* to the extent you can, wiry you balm there is an error R you read more Momw* n, describe the item you are not sure abort R you hays aultorbed us to pay your oredlt cad bill aubrnafo* from your T aooant, you an stop the payment an arty amount you think Is marg. o sbp the paimmt, your letter must reach us three business days bebre the automatic pwjmwt a scheduled to occur. Mail your letter to us d the address for bililng daputes shown on your billing statement. Your tilatte end Our RMpomibsides AfterIIYisRecsheMbarYAlthm Notice adge ro letter within 30 dam unless we have consoled the anon by diem. VAin p days, we must either correct the error or arpWn why vve below the bill was correct After we receive your letter, me cannot try b atileot cry amour you question or spat you as delntpent. We can continue to bill you for the amount you question, kwkrdig firnanoe charges. We can apply any unpaid amount against your Q edit line. You do not have to pay any quselored amount vMb vve acs inveetigetlng, but you erest# abilgeled to pay the parts of your bill that are not in question. R we And that we made a mistake on your bill, you will not haw to pay any finance cdaape Mkbd to any questioned anent I vve didn't rake a rrnisake, you my have to par fiance charges, and you will haw to make up the missed pWmw is on do questioned snout. In either are, we will sand you a satemnent of the croon you owe and the date that it is duo I you fail to pay the amount we think you owe, we may report you as dailnque t. Howwvar, R our akpleaWion dose not w iafy you and you writs to to within j o days tairg us that you *A refuse to pay, we must td wryoe we report you to that you question your bill. And we must tail you the new of anyone we reported you to. Wb mud tail anyone we report you to that the reamer has been settled between us when it frslly is. I we dont follow these rules, we ant ookot the fiat $50 of the questioned amount, even if your bd was correct. EA411 211, 1 l P?E 1112 4 lie I 1 11 iij ills tbs. ell b Coo EPP LAJ o ? , .. go o, Fj ? Z ? Hail z t ar, All 151'.r all -gs INV* g ?? I If -20 M11 12 5 i? r t? d s Nit Jim 4 I lot Administrator's Rules. You can select the Administrator if you gore us written nodoe of your selection with your notice that you are eleoting to erbilmte any CWm or wkNn 20 days after we give you noUoe that we are electing to arbilmille ary Claim. 0 you do not select the Administrator an time, we will select ons. ff for any reason the Administrator you or we select is unable or unwilling to serve or oDrdnue to save as AdmurhtraW, or implements or rnaintaire a poky that refuses to enforce wry part of this Provision, you will have 20 days to sushsat a diifkrent A&*mdmtm 31arting an ArbkrWm: You or we can give written notice of an intention to begin arbitration of a Clain or Chime or to require arbitration of the other party's Claim or Cleins. This notios oan be given by ens party even If the other porgy has begun a IewvA N such a notice is giwm, any Claim will be resolved by arbitration under this Provieioru and the Admitishators Rubs that are in efhct at the Urns the Clain is tiled with the Adminisimitor. The arbitrator must be a kwyer with the Ckwn form ? than 10 years' espe hams or a retired judge. A copy of may be obtained from the Administrator or from us. A party who has asserted a Claim in a hwouit may still elect arbitration with moped to arty Claim flat is Isla asserted in tie sane lawsuit by any other party: AN doubts abort whether to arbitrate a Clain shad be rseolred in favor of arbitration. We will not elect to arbitrdo an individual Claim that you bring spind us in'arnall clsime° cart. Hwo wr, we, may slot to arbitrate a'and claims" aoort Claim that is later removed, sent, or appealed to any dillerord oourL 11nRot1a0L1ilod?m IF YOU OR WE ELECT TO ARBITRATE A CAM, YOU WILL. NCT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM. ALSO, YOUR ABILITY TO OBTAIN INFORMATION FROM US AND TO APPEAL. IS MORE LIMITED IN AN ARBITRATION THAN IN A IAWSUM OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. THE PEES CHARGED BY THE ADMINISFRATOR MAY BE HIGHER THAN THE FEES CHARGED BY A COURT. THE SAME LIMITATIONS ALSO APPLY M US. IN ADDITION, IF YOU OR WE ELECT TO ARBITRATE A i CLAIM: (1) NEITHER YOU NOR ANYONE ELSE ON YOUR BEHALF CAN PURSUE THAT CLAM IN COURT IN A CLASS OR REPRESENTATIVE ACTION (SUCH AS A PRIVATE ATTORNEY GENERA. ACTION); (2) NEITHER YOU NOR ANYONE ELSE ON YOUR BEHALF CAN PURSUE THAT CLAIM IN THE ARBITRATION ON A CLASS-WIDE OR WIVE 0RNEY AF (SEA CLAIMS B OUGHT BY OR PRIVAAGATE ONE ACCOUPR HOER; (OR JOINT ACCOUNT HOLDERS) MAY NOT BE JOINED TOGETHER WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER ACCOUNT HOLDER THESE THREE LIMITATIONS ARE HEREINAFTER REFERRED TO AS THE "CLASS ACTION WAIVER' at a IooaYon Any arbitration hearing that you attend will take platy place reasoriol* convenient to where you We. If you oonrot offord to pay the o chorged by the Admirnsbator and the arbitrator or IF you believe that such fees we too high, we will omneider in good isilh any reasonable wf thn request by you for us to pay the less. We will pay ay fees or sponess we are required to pay by law. You will never be required to pay ua j any lees we haw previously paid to the Administrator and the arbitrator. Each party mist beer the spew of thud party's attmw^ o pwis, and witnesses, mgwdees of who wire the arbitration, swept to the euterd that applicable law or the Admi istrator'e Rules provide otherwise, QnKokIg Liao: This Agresmsnt involves Interstate oomrneroe and this Provision is governed by the Federal Arbitration Ant PFAAI, Unlad States Code, Title 0, Sec tiom I and the fodowiro The arbitrator must fallow: (1) the FAA; (2) the substwtive his, ooraistad with the FAA, related to any Claim; (3) statutes of dmitations; and (4) claims of pdviegs recognized at his. Upon the Ilnely request of aiher party, the arbitrator must provide a brief written explanation of the basis ton the award The arbitrator will determine the rules of pmoedure and evidence to apply, consistent wih the FAA, the Admiritndor's Rules, and this Provision. The arbitrator shall not apply federal, state, or local rules of procedure and evidence or state or local laws concerning arbitration P• ?iog.loiuunalhOn: After an arbitration has been started, in addition to a pady's right to obhla information from the other party under the Administrators Runes, either party may request On arbitrator in writing to allow that party to obtain more riomrdion from the other party. A copy of such request mutt be provided to the other party. That party will flan We the anov t ob In wftV withen 90 days. The objection mart be sent to the w d1w party. The arbitrator will decide the issue, in his or her sob discretion, within 20 days after any objection to pmvidirug expanded information is submitted. Efoot of , Any appropriate ooW may order judgment upon the wbbaW%award. The arbitrators decision will be fetal and bkx&q. woept for any appeal 40 under the FAA and moepi for Claims Involving more than $100,000. For thsss large, Claim, any party ray appeal the swat to a three- wbilmlor panel appoided by the Adrdniatrata: That peel will consider all over again any part of tie ff" ? be OW ony by ==only vote and will to decided ed The decision of the *W and binding, woepd for any appeal right wider the FAA. Unless applicable law provides oMawiss, ill foss charged by the Administ aim and the arbitrators for suoh an appeal will be, paid by the eppeadrta party, regardless of who wira the appog However, we will consider In good faith any reasonable wriMn request by you for us to pay such fees. Ali other provisions of thin Ptovielon shall apply to any appeal to a throsombilmtor pall, and aq reference in tine Provision to a single arbitrator shall apply to the tines-arblwtor parcel. _ : This From= will Ismain in force no hapsm to d or your Aocourk For example, it will remain in faros even If. 1) yoar cxeprivisga sm ended or put on hold; (2) your dose your Aooow*, (3) you repay your entire Aocount balance; (4) we be* a lawait to ccileot amounts we, think you own,; or (5) you beoome barnoupt or iraotrorrt or a bw*RV4W or inookenoy proose ft is begun, to to aslant ooraislent with applicable 6arnaupby low. If wry portion of this Provision (amp for the Class Action V Wvm) cannot be onioroed for any reason, to rest of tuna Provision will continue to apply. If the Class Action Waiver owmot be anfaad for any reason In a Chin between you and us, then the entire Provision shad be, null and void for parpoass of to Claim. (Howava; this dose not preclude a pp?arr?gry from oppoft to a oourt whether the Class Action Waiver is aroroba6isJ M the evert of any conll;t or inoo memo y between this Pmvkk n, on the one hand, and the Adminlobstors Rules or other pmvWww of finis Agrsernerd, on tho other hand, this Provision will govern. This Provision will supwoods and mpkm wry other Arbitration PrWelon between you and us. Pam now This Arbitration Provhhon does not apply to your Account if you have prw*us(y opted out If you taw a gL*dkm about the arbitration companies who may serve as Adnins6stm, wofd lie to obtain a copy of their wbilmdm nubs or fee sdedurlss, or would 1e a Claim form, you oon contact them as follows: National Arbitration Forum, P.O. Bca 50191, Minneapolis, MN 66405, wwwm b-I mm own; Am" = ArbW dion Association, SS6 Madison Avenue, New Yak, NY 1001% wwwA*"py. You may also obtain copbs of the rules and Gain forma of the Administrators by contacting Customer Swvioe, 7100 oxkae VAwNnarun MuMrt Ira. NMA0200 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. sec. 4904 relating to unsworn falsification to authorities. Harry A. seer, orporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff VS. : CIVIL-LAW DAVID H. HEWIT, DOCKET NO. Defendant AFFIDAVIT OF NON-MILITARY SERVICE The Defendant is not now in the Military Service, as defined in the Soldier's and Sailor's Civil Relief Act of 1940 with amendments, not has been in such service within thirty days hereof. 'O^ Dated this/0 day of 140_6A 2009 L urm J. Voel er, Esquire Attorney For Remit Corporation Attorney ID 82706 36 West Main Street Bloomsburg, PA 17815 (570) 387-1873 Fax: 570-387-6474 Request for Military Status Department of Defense Manpower Data Center 40 Military Status Report Pursuant to the Servicemembers Civil Relief Act Page 1 of 1 MAR-12-2009 05:26:00 < Last Name First/Middle Begin Date Active Duty Status ServWAgency HEWIT DAVID H Based on the information you have furnished, the DMDC does not possess any information indicating that the individual is currently on active duty. Upon searching the information data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the current status of the individual as to all branches of the Military. nay ? ,?..?,-a?. Mary M. Snavely-Dixon, Director Department of Defense - Manpower Data Center 1600 Wilson Blvd., Suite 400 Arlington, VA 22209-2593 The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems. The Department of Defense strongly supports the enforcement of the Servicemembers Civil Relief Act [50 USCS Appx. §§ 501 et seq) (SCRA) (formerly the Soldiers' and Sailors' Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the individual is currently on active duty" responses, and has experienced a small error rate. In the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual is on active duty, or is otherwise entitled to the protections of the SCRA, you are strongly encouraged to obtain further verification of the person's active duty status by contacting that person's Military Service via the "defenselink.mil" URL provided below. If you have evidence the person is on active-duty and you fail to obtain this additional Military Service verification, provisions of the SCRA may be invoked against you. If you obtain further information about the person ( e.g., an SSN, improved accuracy of DOB, a middle name), you can submit your request again at this Web site and we will provide a new certificate for that query. This response reflects current active duty status only. For historical information, please contact the Military Service SCRA points-of-contact. See: http://www.defenselink.miUfaq/pis/PC09SLDR.html WARNING: This certificate was provided based on a name and Social Security number (SSN) provided by the requester. Providing an erroneous name or SSN will cause an erroneous certificate to be provided. Report ID: DHrlOKREFS https://www.dmdc.osd.mWscra/owa/wm.prc__Select 3/12/2009 C-) a r cc) r } Sheriffs Office of Cumberland County R Thomas Kline 4,0?8110 at CiimbrEdward L Schorpp Sher Solicitor r :''7 Ronny R Anderson Jody S Smith Chief Deputy sFJ:,e= vF '"E -,-ERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/06/2009 06:14 PM - Dennis Fry, De uty Sheriff, who being duly sworn according to law, states that on April 6, 200: at 1814 hours, he served a rue copy of the within Complaint and Notice upon the within named defendant to wit: David H. Hewit by making known unto David H. Hewit personally, at 4720 E. Trindle Road, Mechanicsburg, Cumberla d County, Pennsylvania, 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $49.60 April 07, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF Deputy Sheriff Docket No. 2009-1696 Remit Corporation v David. He itt FILM-Ct NCE OF T PRO "C'NOTARY 2009 APR -9 AM 9: 52 PENNSA-VANIA 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff VS. CIVIL-LAW DAVID H. HEWIT, DOCKET NO. 09-1696 CIVIL TERM Defendant PRAECIPE FOR JUDGMENT AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter judgment against. Defendant in the above captioned matter as follows: Real debt $ 1,343.45 Interest from March 18, 2009 $ 6.72 Total: $ 1,350.17 Kindly assess damages against Defendant in the sum of $ 1,350.17 plus continuing interest at the statutory rate of 6%. BY: Laurin& J. V cker, Esquire Attorney for P aintiff OF THE 2909 MAY 19 PH 2= 2 0 g 1 y .ltD P'?t. 19Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff VS. DAVID H. HEWIT, Defendant TO: David H. Hewit 4720 E. Trindle Road Mechanicsburg, PA 17055 CIVIL-LAW DOCKET NO. 09-1696 CIVIL TERM Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a Judgment has been entered against you in the above proceeding as indicated below. _X Judgment by Default Money Judgment Judgment in Replevin Judgment of Possession Judgment on Award on Arbitration Judgment on Verdict Judgment on Court findings IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL: ATTORNEY: LAURINDA J. VOELCKER, ESQUIRE AT THIS TELEPHONE NUMBER: 570-387-1873 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff VS. DAVID H. HEWIT, Defendant CIVIL-LAW DOCKET NO. 09-1696 CIVIL TERM CERTIFICATION OF TEN (10) DAY NOTICE COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: I, LAURINDA J. VOELCKER, ESQUIRE, hereby swear and certify that I served a copy of the Ten (10) Day Notice by regular mail to Defendant on May 1, 2009. 1W 1141 MY BY: L urinda J. Vi?Xkk Esq. Attorney for Plaintiff FILE' "'E VF THE ; ?i;r T; u Y 2099 MAY 19 PM 2: 21 in i C't ? ; ? ,ta ? `ty IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff VS. : CIVIL-LAW DAVID H. HEWIT, DOCKET NO. 09-1696 CIVIL TERM Defendant : NOTICE OF PRAECIPE TO ENTER JUDGMENT BY DEFAULT TO: David H. Hewit 4720 E. Trindle Road Mechanicsburg, PA 17055 DATE OF NOTICE: May 1, 2009 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Pennsylvania Lawyer Referral Service 100 South Street, PO Box 186 Harrisburg, PA 17108 800-692-7375 Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 717-238-6807 CORP T aurinda J. Voel er, squire 570-387-1873 Mailed to: David H. Hewit 4720 E. Trindle Road Mechanicsburg, PA 17055 OTNOY CF FIB 2- i5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff vs. : CIVIL-LAW DAVID H. HEWIT, DOCKET NO. 09-1696 CIVIL TERM Defendant AFFIDAVIT OF NON-MILITARY SERVICE The Defendant is not now in the Military Service, as defined in the Soldier's and Sailor's Civil Relief Act of 1940 with amendments, not has been in such service within thirty days hereof. Dated th' adUakyof / 'A 2049 n if Laurinda"J. Voelckgf, Esquire Attorney For Remit Corporation Attorney ID 82706 36 West Main Street Bloomsburg, PA 17815 Telephone: (570) 387-1873 Fax: (570) 387-6474 F LED- 0 -"?"E 7I1? -%4? ?F csc ? ?. ,±,., Y 2039 MAY 19 hr'l 2: 21 Cl,' ul ?'.?iry Request for Military Status Department of Defense Manpower Data Center 40 Military Status Report Pursuant to the Servicemembers Civil Relief Act Page 1 of I MAR-12-2009 05:26:00 Last Name First/Middle Begin Date Active Duty Status Serviee/Agency HEWIT DAVID H Based on the information you have furnished, the DMDC does not possess any information indicating that the individual is currently on active duty. Upon searching the information data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the current status of the individual as to all branches of the Military. 41 Mary M. Snavely-Dixon, Director Department of Defense - Manpower Data Center 1600 Wilson Blvd., Suite 400 Arlington, VA 22209-2593 The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems. The Department of Defense strongly supports the enforcement of the Servicemembers Civil Relief Act [50 USCS Appx. §§ 501 et seq] (SCRA) (formerly the Soldiers' and Sailors' Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the individual is currently on active duty" responses, and has experienced a small error rate. In the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual is on active duty, or is otherwise entitled to the protections of the SCRA, you are strongly encouraged to obtain further verification of the person's active duty status by contacting that person's Military Service via the "defenselink.mil" URL provided below. If you have evidence the person is on active-duty and you fail to obtain this additional Military Service verification, provisions of the SCRA may be invoked against you. If you obtain further information about the person ( e.g., an SSN, improved accuracy of DOB, a middle name), you can submit your request again at this Web site and we will provide a new certificate for that query. This response reflects current active duty status only. For historical information, please contact the Military Service SCRA points-of-contact. See: http://www.defenselink.mil/faq/pis/PC09SLDR.htmi WARNING: This certificate was provided based on a name and Social Security number (SSN) provided by the requester. Providing an erroneous name or SSN will cause an erroneous certificate to be provided. Report ID: DHVJOKBEFS https://www.dmdc.osd.mil/scra/owa/scra.prc_Select 3/12/2009 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff VS. DAVID H. HEWIT, Defendant CIVIL-LAW DOCKET NO. 09-1696 CIVIL TERM CERTIFICATION OF ADDRESSES I certify that the precise address(es) of Plaintiff and Defendant(s) are as follows: Plaintiff: Remit Corporation 36 West Main Street Bloomsburg, PA 17815 Defendant: David H. Hewit 4720 E. Trindle Road Mechanicsburg, PA 17055 Respectfully submitted, ? fjvy? Laurinda J. fo&c!Wr, squire Attorney for Plaintiff PA ID #82706 Remit Corporation 36 West Main Street Bloomsburg, PA 17815 Telephone: (570) 387-1873 Fax: (570) 387-6474 CF THE ; 20x9 HAY 19 Ptl 4.21 My I WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 09-1696 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due REMIT CORPORATION Plaintiff (s) From DAVID H. HEWIT, 4720 EAST TRINDLE ROAD, MECHANICSBURG, PA 17050 (1) You are directed to levy upon the property of the defendant (s)and to sell PERSONAL PROPERTY LEVY . (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due$1,350.17 Interest FROM 05/19/2009 - $118.08 Atty's Comm % Atty Paid $168.60 Plaintiff Paid Date: November 09, 2010 (Seal) L.L.$.50 Due Prothy $2.00 Other Costs David D. EW, rothono By: REQUESTING PARTY: Name Laurinda J. Voelker, Esq. Address: 36 West Main Street, Bloomsburg, pa 17815 Attorney for: Plaintiff Telephone: 570-387-1873 Supreme Court ID No. 82706 Deputy r r ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION, Plaintiff VS. CIVIL-LAW .A DAVID H. HEWIT, DOCKET NO. 09-1696 CIVIL TERM—-, Defendant I T"1 r? PRAECIPE FOR WRIT OF EXECUTION - Personal Property Levy To the Prothonotary: Issue writ of execution in the above matter, (1) directed to the Sheriff of Cumberland County; (2) against DAVID H. HEWIT, defendant, (3) against N/A, garnishee; (4) and enter this writ in the judgment index a. against DAVID H. HEWIT, defendant, and b. against N/A, as garnishee, as a lis pendens against real property of the defendant in name of garnishee(s) as follows: N/A (5) Amount Due: $ 1,350.17 Interest from 05/19/2009 $ 118.08 Other: $ 0 Credits: $ 0 Costs to be added: Clerks Fee: $ Sheriff: $ Total: $ Dated this day of November, 2010 I/G?h /GC V Laurinda J. Voel er, PA ID# 82706 Attorney for Plaintiff G? 36 West Main Street ?SbS Bloomsburg, PA 17815 (00 Telephone: 570-387-1873 Fax: 570-387-6474 g ,y?o? d a-Ny ? Sa p 1/6q- 40 fd a,611 g a bD :puL Lo 5--6-0 'V c& c k- L Cl? ? aNS? ra Ip..µ...?. R rr" --s c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION Plaintiff 0 Pti? VS. CIVIL-LAW DAVID H. HEWIT, DOCKET NO. 09-1696 CIVIL TERM Defendant WAIVER OF WATCHMAN Any deputy sheriff levying upon or attaching any property under within may leave same without a watchmen, in custody of whoever is found in possession, after notifying such person of such levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any such property before sheriffs sale thereof. DAVID H. HEWIT 4720 East Trindle Road Mechanicsburg, PA 17050 ,-a Dated this days of November, 2010 Laurinda J. VoelckS PA ID# 82706 Attorney for Plaintiff 36 West Main Street Bloomsburg, PA 17815 Telephone: 570-387-1873 Fax: 570-387-6474 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION Plaintiff VS. DAVID H. HEWIT, Defendant CIVIL-LAW DOCKET NO. 09-1696 CIVIL TERM AFFIDAVIT OF NON-MILITARY SERVICE P Y9 The Defendant is not now in the Military Service, as defined in the Soldier's and Sailor's Civil Relief Act of 1940 with amendments, nor has been in such service within thirty days hereof. 3 r/ Dated this day of November, 2010 Laurinda J. Voelgker,-PA ID# 82706 Attorney for Plaintiff 36 West Main Street Bloomsburg, PA 17815 Telephone: 570-387-1873 Fax: 570-387-6474 Request for Military Status Department of Defense Manpower Data Center 40 Military Status Report Pursuant to the Service Members Civil Relief Act Page 1 of 2 Nov-02-2010 11:34:14 t First/Middle Begin Date Active Duty Status Active Duty End Date Service A Name gency Based on the information you have furnished, the DMDC does not possess HEWIT DAVID any information indicating the individual status. Upon searching the information data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the current status of the individual as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and Coast Guard). Mary M. Snavely-Dixon, Director Department of Defense - Manpower Data Center 1600 Wilson Blvd., Suite 400 Arlington, VA 22209-2593 The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems. The DoD strongly supports the enforcement of the Service Members Civil Relief Act (50 USC App. §§ 501 et seq, as amended) (SCRA) (formerly known as the Soldiers' and Sailors' Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the individual is currently on active duty" responses, and has experienced a small error rate. In the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual is on active duty, or is otherwise entitled to the protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service via the "defenselink.mil" URL httn://www.defenselink.miUfaq/pis/PC09SLDR.htm1. If you have evidence the person is on active duty and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked against you. See 50 USC App. §521(c). If you obtain additional information about the person (e.g., an SSN, improved accuracy of DOB, a middle name), you can submit your request again at this Web site and we will provide a new certificate for that query. This response reflects active duty status including date the individual was last on active duty, if it was within the preceding 367 days. For historical information, please contact the Service SCRA points-of- contact. * Request for Military Status Page 2 of 2 More information on "Active Duty Status" Active duty status as reported in this certificate is defined in accordance with 10 USC § 101(d)(1) for a period of more than 30 consecutive days. In the case of a member of the National Guard, includes service under a call to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days under 32 USC § 502(f) for purposes of responding to a national emergency declared by the President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the unit they support. This includes Navy TARS, Marine Corps ARs and Coast Guard RPAs. Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S. Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps) for a period of more than 30 consecutive days. Coverage Under the SCRA is Broader in Some Cases Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be reported as on Active Duty under this certificate. Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service. Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of SCRA extend beyond the last dates of active duty. Those who would rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA are protected. WARNING: This certificate was provided based on a name and SSN provided by the requester. Providing an erroneous name or SSN will cause an erroneous certificate to be provided. Report ID:N9M08P6UKR ?. , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA REMIT CORPORATION Plaintiff Vs. CIVIL-LAW DAVID H. HEWIT, DOCKET NO. 09-1696 CIVIL TERM Defendant CERTIFICATION OF ADDRESSES I certify that the precise address(es) of Plaintiff and Defendant(s) are as follows: Plaintiff: REMIT CORPORATION 36 West Main Street Bloomsburg, PA 17815 Defendant: DAVID H. HEWIT 4720 East Trindle Road Mechanicsburg, PA 17050 Respectfully Submitted, 94? ??; arA??? Laurinda J. oelcker, PA ID# 82706 Attorney for Plaintiff 36 West Main Street Bloomsburg, PA 17815 Telephone: 570-387-1873 Fax: 570-387-6474 0tv of climbPrIa #1a RONNY R. ANDERSON Sheriff JODY S. SMITH Chief Deputy OFFICE OF THE SHERIFF One Courthouse Square, Room 303 Carlisle, Pennsylvania 17013 RICHARD W. STEWART Solicitor a January 21, 2011 ? m N ? Remit orporation 2 r- ? > O z o c3 Z c:1 -n David Hewit ' a 5rn*'i Writ No. 2009-1696 PO r, Property Claim Determ inatio"6 ' ' -'< To Whom It May Concern: Reference is made to Property Claim dated January 12, 2011, entered by Chris Kennedy, Writ of Execution No. 2009-1696 Civil Term, Remit Corporation vs. David Hewit. Ronny R. Anderson, Sheriff, has determined that the claimant, Chris Kennedy, in the above mentioned property claim, is the owner of the property set forth in the claim. cc Laurinda J. Voelcker, Atty for Plaintiff David Hewit, Defendant Chris Kennedy, Claimant So Answers: w ? NOTICE OF PROPERTY CLAIM Remit Corporation In the Court of Common Pleas Cumberland County, Pennsylvania VS David Hewit No. 2009-1696 Civil Term Writ of Execution TO THE DEFENDANT AND ALL OTHER PARTIES IN INTEREST: You are hereby notified that a property claim, a copy of which is attached hereto has been filed by Chris Kennedy, claiming property listed therein. Unless an appraisal of the property is requested within (10) days from the date of this notice, the Sheriff without making an appraisal will accept the value of the property set forth in the claim. Date 01-13-11 4Le.4?-?- e of Cumberland Coun B Cc Laurinda J. Voelcker, Atty for Plaintiff David Hewit, Defendant Chris Kennedy, Claimant PROPERTY CLAIM VS David Hewit TO THE SHERIFF OF CUMBERLAND COUNTY, PENNSYLVANIA In the Court of Common Pleas of Cumberland County, Pennsylvania Writ No. 7009-1 696 The property listed below and levied upon in this case is not the property of the defendant, but is the property of the undersigned. A list of the claimed property and the values thereof are: LIST OF PROPERTY VALUE A I ) r f te- /) -&0 ALL 9,Ecr?-nTS 5C9-10 CAN ?? ? ???,,? C G.?cit?a? 041: ? B 5 CuTPooR 4?[?c C/4 LL AT :?7 1-7 - 2g?, - 36 q0, THE CLAIMANT OBTAINED TITLE TO THE PROPERTY AS FOLLOWS: Date - - ?? Claimant State of Pennsylvania: County 1 eficu Xel being duly sworn acc to law, deposes and says that the ab a the property claim are correct and true. IMP6 Sworn and subscribed to before me This day of Claimant it'SZ A`ffiftigy 410A Jo A1uno3'dlgsuNaj ANM?I 3llgnd tiejoN'W('?jWs mnv 1v3S lvillvjON 0 LAUREN A. BURNS, Plaintiff V. ROBERT K. BURNS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2009-1957 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Thursday, October 8, 2009, Courtroom No. 3 APPEARANCES: SAMUEL L. ANDES, Esquire Attorney for Plaintiff ANDREW H. SHAW, Esquire Attorney for Defendant n C ,,, C= a `+7 -tx3 rnw ? -1 =--n mm o0 CD A X -n :? © Z ?....r1 ,? w 2> ORIGINAL • • INDEX TO PLAINTIFF'S EXHIBIT NO. 1 - Police report 2 - Child Protective Service r 3 - Court Orders dated June 9, 4 - York County Court criminal EXHIBITS IDENTIFIED 11 eport 48 2006 66 docket 71 DEFENDANT'S EXHIBIT NO. 1 - DPW report regarding Nina 25 2 - DPW report regarding Carly 25 3 - B1ueCross/B1ueShield services 30 4 - Patient report from Holy Spirit Hospital 31 5 - Letter dated September 25, 2006, from 34 Diakon Family Life 6 - Letter dated November 11, 2005, from 37 WellSpan 7 - Completion notice of anger management 38 8 - Letter dated October 23, 2007, from 39 Lutheran Social Services 3 1 THE COURT: Good afternoon. Mr. Shaw is the 2 moving party? 3 MR. SHAW: Yes. Thank 'you, Your Honor. As a 4 matter of housekeeping, Your Honor, Plaintiff will present 5 three witnesses, one of which is the Plaintiff. We have two 6 other witnesses. One will be in person. The other we're 7 requesting to testify by telephone. The witness to be in 8 person is Michael Connor, who is unable to be present at 9 1:00. Hopefully, he will be here before we rest. 10 Otherwise, we can call him as a rebuttal witness. 11 THE COURT: Well, I'm not worried about 12 order. Actually, do I understand that there is a -- are you 13 calling Ms. Hennessey from Children and Youth? 14 MR. ANDES: Yes. 15 THE COURT: Is she here now? 16 MR. ANDES: She's not here yet, Your Honor. 17 THE COURT: Then we'll start with dad, then 18 we'll go to Ms. Hennessey or mom, and then we'll take the 19 ancillary witnesses. 20 MR. ANDES: I have a police officer here. At 21 some point, I would like to -- 22 THE COURT: I thought he was going to be by 23 phone. 24 MR. ANDES: That's the second police officer. 25 We have two police officers. 4 0 1 THE COURT: Okay. 2 MR. ANDES: One other housekeeping matter. 3 Your Order scheduling the hearing directed the father to 4 have a drug and alcohol evaluation and a psychological 5 evaluation. The drug and alcohol evaluation I think is 6 underway. He's had at least two sessions. We didn't obtain 7 a report yet. But he has declined to obtain a psychological 8 evaluation. He simply refused to do that. 9 THE COURT: I read the pretrials. I 10 understand he's got an explanation for that, so I'll hear 11 that, and we'll go from there. Okay. 12 MR. SHAW: Thank you, Your Honor. We would 13 call the Plaintiff as our first witness. 14 THE COURT: Well, what is the police officer 15 going to establish? 16 MR. ANDES: He is going to testify about an 17 incident in the summer of 2008. 18 THE COURT: All right. Let's start with him 19 so we can get him out of here. 20 MR. ANDES: Okay. Officer Julseth. I'll 21 mark this as Plaintiff's 1 . 22 THE COURT: Is there an objection? 23 MR. SHAW: I'm just reviewing it now, Your 24 Honor. 25 THE COURT: Then I'll hold off. 5 • 1 MR. SHAW: Your Honor, I have no objection. 2 I have seen most of this before. 3 THE COURT: All right. 4 JASON W. JULSETH 5 having been duly sworn, testified as follows: 6 DIRECT EXAMINATION 7 BY MR. ANDES: 8 Q Officer, would you state your name and your 9 business address for the record. 10 A My name is Jason Wayne Julseth. You want 11 my -- what do you want to know? 12 Q By whom are you employed? 13 A Hampden Township Police Department, 230 South 14 Sporting Hill Road, Mechanicsburg, Pennsylvania, 17050. 15 Q How long have you been employed by them? 16 A About four years. 17 Q In what capacity, as a patrolman? 18 A Patrolman, yes, sir. 19 Q Did you have occasion to respond to an 20 incident in 20 08 involving Robert Burns? 21 A Yes, sir. 22 Q Can you tell us the date of the incident and 23 how it was that you were called to respond to it? 24 A The date was June 10th, 2008, approximately 25 5:15 in the afternoon. I was working my full capacity as a 6 0 • 1 police officer, driving a marked cruiser, wearing a police 2 uniform. I was on routine patrol, and I was dispatched 3 through Cumberland County Dispatch system that there was a 4 nine-year-old-girl who dialed 911 to report that her dad was 5 unresponsive or unconscious at the residence of 402 Pawnee 6 Drive. 7 Q What did you do in response to that? 8 A Initially, it was an EMS call. Due to the 9 severity of a child being involved, we always respond. I 10 responded. Upon arrival at the residence, I noticed that 11 the Hampden EMS was already on the scene. I exited my 12 cruiser and I spoke with them. They had indicated that they 13 had already been in the residence, but were kicked out by 14 Mr. Burns, who was inside and locked them out. 15 At that point, I tried the door. It was 16 locked. I initiated several times to contact anybody inside 17 the house. I rang the doorbell, knocked on the door. 18 Eventually -- I think she was nine at the time -- the older 19 girl that was inside unlocked the door for me. 20 I entered the residence. I had asked her 21 where her father was, and she pointed upstairs. There was a 22 stairwell just in front, when you go in the front door. I 23 started making my way up the stairs. The other girl was at 24 the top of the stairs. I had motioned for her to come down 25 to me. As she came to me, I had her pass me on the stairs 7 • • 1 to go see EMS. 2 At that point, I got to the top of the 3 stairs, and I walked to the right. I think it was the 4 master bedroom on the far right of the hall. Mr. Burns, who 5 later was identified to me as Mr. Burns, was sitting on the 6 master bed. He had shorts and a T-shirt on. I began 7 speaking with him. I asked him questions, why his daughter 8 would call 911. I asked him if he felt: okay, if he needed 9 to be seen by the EMS people. 10 His demeanor was fairly incoherent. I had 11 asked him questions of his daughter's names and ages, the 12 day of the week. He was unable to give me a true response 13 in any of them. His speech was slow and furtive. His 14 movements were slow. He had slurred speech. I really 15 wasn't getting anywhere talking to him and asking questions. 16 He denied any kind of drinking. I could smell an odor of 17 alcoholic beverage as I got closer to him stemming from his 18 breath and his person. 19 At that point, I asked him if I could escort 20 him downstairs to have EMS at least look at him, which 21 eventually he did. He had a little trouble walking. I had 22 to assist him to the stairway, and I helped him down the 23 stairs by holding his arm. We walked down the stairs, back 24 into the main entryway area, where he sat on the couch that 25 was right next to the stairway, I believe. EMS began 8 • 1 getting his vitals. I think they put the blood pressure 2 cuff on him and checked his pulse. 3 At that point -- it wasn't more than a 4 minute, probably -- he resisted EMS and wanted everybody to 5 leave. We told him that he had to go to the hospital. We 6 told him that he had no choice. EMS decided, due to his 7 actions, possible impairment, the incoherence of him, the 8 safety of himself, that he had to go to the hospital. We 9 told him he was going. He wanted to get his shoes. We said 10 that was fine. His shoes were upstairs. 11 He walked back up the stairs, and I walked 12 behind him. He went back in the master bedroom, went in the 13 bathroom in the master bedroom. He had taken down his 14 shorts and he had defecated, and he didn't wipe himself. He 15 pulled his shorts up and he sat back on the bed. 16 Q You said he didn't wipe himself. Did he 17 clean himself up at all after defecating? 18 A No. 19 Q Was there fecal matter on him and on his 20 clothing? 21 A There was fecal matter on the shorts, his 22 legs, and eventually I saw it when he sat on the bed. 23 Q After that, were you able to persuade him to 24 come along, to cooperate, or what happened? 25 A Well, he was uncooperative with the notion of 9 1 going to the hospital. He started becoming a little bit 2 combative, argumentative. In order to protect himself and 3 us, I felt the need to handcuff. So, with the assistance of 4 one of the EMS personnel, a Mr. Stark, I believe, we 5 handcuffed him at the rear and escorted him downstairs to 6 the gurney that was waiting outside. At that point, we put 7 him on the gurney, and I rode along with EMS, for safety 8 purposes, to the Holy Spirit Hospital. 9 Q Was there anyone in the home other than 10 Mr. Burns and the two girls? 11 A Not that I saw, no. 12 Q What happened to the two girls? What 13 arrangements did you make for them? 14 A I had learned later that. one of the girls, I 15 think the older one, had called their mother at the time. I 16 released them to I believe it was -- before I left, it was, 17 I think, Terry Fabiano, I believe, that I released the kids 18 to, which is Lauren's mother, I believe. 19 Q The mother's mother? 20 A The mother's mother, before I left with the 21 EMS team to go to Holy Spirit. I returned to the residence 22 after I cleared the hospital, and I met with Lauren. The 23 kids had to go somewhere. I thought, at that time, Terry 24 was fine. She had to go back in the house for the 25 medication for the girls, so I allowed her to go back in the 10 • 1 house to get the backpacks that the girls had. 2 Q When you went in the house the second time, 3 was there anyo ne else present in the home? 4 A No. 5 Q Did you prepare a report? 6 A I did. 7 Q I put before you a document marked 8 Plaintiff's 1. Is that a copy of the report you prepared? 9 A That's it. 10 Q Is that something you prepared shortly after 11 the incident? 12 A I believe the same day or the day after, yes, 13 sir. 14 Q Is it an accurate recitation or description 15 of what happened that day? 16 A Yes. 17 Q From your observation, was Mr. Burns 18 sufficiently competent and organized and capable that day to 19 care for these two young girls? 20 A At that time, no. 21 Q Do you think he could have cared for himself? 22 A At that time, no. 23 MR. ANDES: That's all the questions I have. 24 Thank you. 25 11 1 CROSS-EXAMINATION 2 BY MR. SHAW: 3 Q Officer, just a couple of questions. I note 4 in your report here that there's no reference to identifying 5 any alcohol present on the premises, is that correct? 6 A That's correct. 7 Q Did you search the premises? 8 A No. 9 Q But you don't ever recall seeing any alcohol 10 present on the premises? 11 A Not to my recollection. 12 Q Did you conduct a field sobriety test on 13 Mr. Burns? 14 A No. 15 Q Did you press any criminal charges against 16 Mr. Burns? 17 A No. 18 Q Did Mr. Burns appear to be sleepy to you? 19 A Yes. 20 Q Have you ever been in contact with an 21 individual that accidentally or for whatever reason took 22 Nyquil and cons umed alcohol within a short period after 23 that? 24 A I can't say that I've met anybody 25 specifically wi th that combination of Nyquil and alcohol 12 • • 1 that has admitted it to me. 2 Q Do you have any specific knowledge or field 3 knowledge as to the effect of mixing Nyquil with alcohol? 4 A I don't know any field knowledge of that, no. 5 Q Do you have any general knowledge of the 6 effects of missing those two? 7 A Not really, no. 8 Q Do you know if mixing those two could cause 9 someone to appear sleepy? 10 A I can only guess, in my opinion, and I would 11 say yes. 12 Q Would mixing those two cause someone to slur 13 their speech? 14 A In my opinion, I would say yes. 15 Q Could mixing those two cause someone to 16 appear to be nonresponsive? 17 A It's possible. 18 Q Did you arrest Mr. Burns? 19 A No. 20 Q But you said you handcuffed him. 21 A For his safety and our safety, I did. 22 Q He was home alone at that point? 23 A We were inside the residence with him. 24 Q At some point, you're leaving the residence? 25 A Correct. 13 • • 1 Q But you still chose to handcuff Mr. Burns 2 without pressing any charges, without placing him under 3 arrest, correct? 4 A That's called being detained. 5 Q So, you detained him against his will even 6 though he was going to be home alone? 7 A For his safety and our safety, I can do that, 8 yes,-sir. 9 Q Are you the individual that reported this 10 incident to Children and Youth? 11 A Yes. 12 Q The information that you have provided to 13 Children and Youth, is the extent of it in this report? 14 A Yes, sir. 15 MR. SHAW: I have no other questions. 16 REDIRECT EXAMINATION 17 BY MR. ANDES: 18 Q Did Mr. Burns make any statements to you that 19 day about tak ing Nyquil? 20 A I don't remember. 21 Q Did you see any evidence of Nyquil or 22 medications a round him or in the home? 23 A No. 24 Q I think you said earlier that you asked him 25 if he had had anything to drink and he denied that? 14 • 0 1 A Correct. 2 Q But you could smell the alcohol on his breath 3 and on his body? 4 A I could smell and/or on his breath and body 5 an alcoholic beverage, yes. 6 MR. ANDES: That's all the questions I have. 7 Thank you. 8 MR. SHAW: Nothing further. 9 THE COURT: Thank you. You may be excused, 10 Officer. 11 THE WITNESS: Thank you, sir. 12 THE COURT: Let's hear from dad. 13 ROBERT K. BURNS 14 having been duly sworn, testified as follows: 15 DIRECT EXAMINATION 16 BY MR. SHAW: 17 Q Mr. Burns, if you could please state your 18 full name for the Court. 19 A Yes. Robert K Burns. 20 Q What is your current residence? 21 A Current residence, I'm residing temporarily 22 with my parents at 402 Pawnee Drive, Mechanicsburg, Pa. 23 Q How long have you resided there? 24 A Basically going on four years. 25 Q We're here today in a custody matter 15 • • 1 regarding Nina and Carly Burns. For purposes of the Court, 2 what is your relationship with them? 3 A I'm their father. 4 Q Can you provide to the Court a background of 5 your relationship with the children since their birth? 6 A Sure. I was a professional, and I moved down 7 from New York when I married Lauren. The company went 8 through a downsizing, so I was either going to move to 9 Springfield, Massachusetts with the company that was going 10 to take over my corporation, or I would choose to contract 11 with that organization within the second year. The first 12 year -- 13 THE COURT: Could you slow down just a little 14 bit. 15 THE WITNESS: That's my Boston coming out in 16 me. For the first year of our marriage, I continued to work 17 for the Crosby Corporation, and I commuted between 18 Rochester, New York and Pennsylvania. Then when the company 19 downsized, I went on contract with a company called Smith & 20 Wesson, because I chose not to move to Springfield, 21 Massachusetts with them trying to take over the corporation. 22 Since that point in time, I basically, from 23 the children's birth, have raised both those kids 24/7, 24 including the weekends, where I was basically the 25 stay-at-home-dad and did some other contracting work in 16 • • 1 between there. Basically, my role was a stay-at-home-dad 2 for the first seven and a half years of our marriage before 3 the incident in September 105, and with the exception of the 4 last year. At 402 Pawnee Drive, I've maintained the 5 children three and half days a week. 6 BY MR. SHAW: 7 Q During the time that you stated that you were 8 a stay-at-home dad, is it safe to assume that Lauren, the 9 mother, your wife, she was a full-time employee? 10 A That's correct. 11 Q During that period when you were the 12 stay-at-home-dad, were you employed at all? 13 A I was employed by my brother-in-law's 14 company. Basically I was bringing some of the business 15 with the church goods business, but basically it was just a 16 family owned organization. So, no, I did not collect a W-2 17 at that time. 18 Q 19 at that point 20 A 21 Q 22 relationship 23 A 24 middle of the 25 the middle of Is it safe to say your primary responsibility was raising the two children? That's correct. What can you say has been the nature of your with the children over the years? I would say anything from getting up in the night, where I would read them books, to in the day or even at night where if they got 17 • • 1 sick I got up. Basically every day started with, I love 2 you, daddy. 3 I took both the children back and forth to 4 school, first Carly, and then when Nina became school age, 5 took them there twice a day and then picked them up twice a 6 day. I took them there. I took them to all of their 7 activities. I took them to their cheerleading, dance 8 classes, soccer, football games, that type of thing. 9 Q Was there a point in time where you no longer 10 served as the full-time caretaker for them? 11 A I would say it would have to be in September 12 of ' 05 . 13 Q But after that time period, September of 105, 14 did you continue to maintain some form of custody with the 15 children? 16 A Yes. I had them -- I picked them up on 17 Tuesday morning in Dillsburg, took them to school, had them 18 overnight Tuesday, took them to Catholic education classes 19 on Wednesday evening, dropped them off on Wednesday evening 20 with their mother. So, I had them from. Tuesday morning till 21 Wednesday night, and then from Friday noon after school till 22 Saturday night around 5:00, where I dropped them off at 23 Gold's Gym to my wife. 24 Q How long did this pattern continue? 25 A It continued until, I guess, the last year. 18 0 • 1 Q Would that have been the incident that the 2 officer just testified about on June 10th, 2008? 3 A That would be correct. 4 Q What has been the nature of your relationship 5 and contact with the children since June of 2008? 6 A Basically it was phone contacts when Children 7 and Youth got involved for the first number of months, which 8 I would have to go back and have my memory jogged. It was 9 probably six, seven months before anything ever went to 10 court. After that, it was agreed upon on supervised 11 visitations, which lasted for basically nine weeks. With 12 the exception of those nine weeks, it's been phone contact 13 with my girls, and only contact with my girls, which 14 basically is every other day. 15 Q Do you still have phone contact with the 16 girls even now? 17 A Yes. In fact, I talked to them two nights 18 ago. 19 THE COURT: I'm confused.. When Children and 20 Youth was involved, you had phone contact for several 21 months, then supervised visitation, you said, for nine 22 weeks? 23 THE WITNESS: That would be correct, yes. 24 THE COURT: Then it went back to phone 25 contact? 19 0 0 1 THE WITNESS: Yes, because -- 2 THE COURT: Why? 3 THE WITNESS: It went back to phone contact 4 because under the agreement with the supervised visitation 5 I had to come up with a couple of different parties that 6 would be a supervisory role. The only one party that was 7 accepted by my wife was a guy who actually couldn't do it. 8 So, after the first week, Lauren maintained 9 the supervised visitation with me and the children for the 10 nine weeks. It was supposed to be six weeks. It turned 11 into nine weeks. Lauren was present for seven of those nine 12 weeks. 13 Then we went back into court after the 14 agreed-upon supervised visitation with no incident, agreed 15 by my attorney and her attorney that nothing happened. 16 Lauren got into an argument with me, because I mistakenly 17 went to the wrong place and the wrong playground. Since 18 then, she decided she was no longer going to have supervised 19 visitation. So, unless I came up with somebody else, she 20 would not allow me to see the children. 21 BY MR. SHAW: 22 Q Have you come up with anybody else that has 23 been satisfactory to Lauren? 24 A I came up with about four or five people that 25 would have satisfactory, but their time was also limited. 20 0 • 1 Then Lauren, for whatever reason, contacted some of her 2 people that would be supervised visitation, and the 3 agreement was that I would come up with somebody after Jerry 4 was not able to do it, Jerry Gould was not able to do it. 5 I don't think she ever contacted any of those 6 people to see if they were willing to do it, but she 7 contacted her friends, who she came back and said were not 8 able to do it. She shouldn't have been in a place to 9 contact her friends to be in a supervisory role anyway. 10 Q So, if I can summarize where we stand 11 currently. We have a current Order of Court out there that 12 the parties are to attempt to agree on a supervisor. Until 13 then, that's why you have not seen the children, because 14 there is no agreed-upon supervisor? 15 A That's correct. 16 THE COURT: Who do you suggest as a 17 supervisor? 18 THE WITNESS: I suggested my mother being the 19 primary one. I suggested a friend of mine, Rick, who cannot 20 do it because of activities. My friend Jerry Gould could 21 never do it because he owns a carpet cleaning business and 22 his time is sporadic, plus he's got young girls. 23 THE COURT: That wasn't my question. Tell me 24 who you want to do it that can do it. 25 THE WITNESS: My mother is really the only 21 • • 1 person who can do it. 2 BY MR. SHAW: 3 Q Why is it that your mother is the only 4 person? 5 A Because everybody else works and they take 6 their kids to activities, and they just. don't have the time 7 to lend. 8 Q Is it your position that supervised 9 visitation should continue, or are you seeking something 10 other than that today? 11 A I'm seeking unsupervised visitation with my 12 children, because, in my opinion, it never should have 13 started to begin with. 14 Q But to clarify, at some point you did agree 15 to supervised visitation, is that correct? 16 A Yes, I did. 17 Q Can you explain to the Court why you did 18 agree to it at the time? 19 A Because I wanted to see my girls, and it was 20 my option to see my girls. 21 THE COURT: Hold on. Children and Youth 22 recommended supervised visitation, is that correct? 23 MR. SHAW: Your Honor, let me clarify 24 that for you. 25 MR. ANDES: Let's let him answer the 22 • • 1 question, if I may object to -- 2 THE COURT: I thought I was in charge, 3 Mr. Andes. 4 MR. ANDES: You are. I guess I would object 5 to his interjection to your question. You are in charge. I 6 understand that. I'm objecting to his -- 7 THE COURT: Well, I can defend myself, I 8 think. 9 MR. ANDES: I'm sure you can. 10 THE COURT: Didn't Children and Youth 11 recommend supervised visitation? 12 THE WITNESS: I believe that they did. After 13 the fact, with the exception of the one hearing in front of 14 Judge Ebert with Children and Youth, I never had any contact 15 with Children and Youth, so everything was done behind 16 closed doors. Then my attorney came back and he said, would 17 you agree to supervised visitation. But I think, initially, 18 you are correct, that it was their recommendation. 19 THE COURT: Well, tell me about the drug and 20 alcohol evaluation you had. 21 THE WITNESS: I've actually had two of them. 22 I had one done in York County in 105, which was an 23 evaluation that was conducted, which we have the paperwork 24 on. After the evaluation, they said I did not have a 25 problem, and I did not have to go to one. The most recent 23 1 one was completed yesterday. The report is not going to be 2 filed as of yet, but the initial findings on the urinalysis 3 came up negative, but it still has to go to a lab. It's not 4 unlike a pregnancy test, where they can pretty much -- 5 THE COURT: I understand. 6 THE WITNESS: I completed it. 7 THE COURT: My question is, an evaluation is 8 to determine whether or not you need treatment. 9 THE WITNESS: One evaluation said no back in 10 '05. The one yesterday is not completed, because it was 11 only done yesterday. 12 THE COURT: Who was that with? 13 THE WITNESS: Metzger and -- 14 MR. ANDES: Mazzitti & Sullivan. 15 THE WITNESS: I'm sorry? 16 MR. ANDES: Mazzitti & Sullivan. 17 THE WITNESS: Mazzitti &: Sullivan. Deb Good 18 is the counselor. 19 THE COURT: Well, I can tell you that we're 20 going to have a problem with unsupervised visitation until 21 I'm satisfied as to the results of the drug and alcohol 22 evaluation, so let's proceed from there. 23 MR. SHAW: I will, Your Honor. If I may, to 24 clear up the chain of events, I would ask you to take 25 judicial notice of various Orders that are out there with 24 1 this matter. 2 THE COURT: To the juvenile file? 3 MR. SHAW: Yes. 4 THE COURT: Let's admit them. Make them part 5 of this record. 6 MR. SHAW: Part of this, and I think Mr. 7 Burns may have gotten a little confused -- 8 THE COURT: That doesn't surprise me. 9 MR. SHAW: -- with the chain of custody as 10 far as the process. The supervised visitation was agreed 11 upon by the parties at a custody conciliation conference. 12 That occurred after the Court, through Judge Ebert, 13 dismissed the dependency action that was related with 14 Children and Youth, so the supervised visitation had nothing 15 to do with Children and Youth. 16 THE COURT: Well, let me! see the Orders. Why 17 was the dependency action dismissed? 18 MR. SHAW: It was dismissed because Ms. Burns 19 at the time had primary custody. 20 THE COURT: Okay. So that doesn't help me 21 for these proceedings at all. What Orders do you want me to 22 see? 23 MR. SHAW: What I want you to see, Your 24 Honor -- 25 THE COURT: I mean, I've got a big elephant 25 • • 1 out there, the incident of 108. 2 MR. SHAW: Absolutely, Your Honor. Your 3 Honor, what I'm handing to you has been marked as 4 Defendant's 1 and 2. What I'm offering to stipulate to -- 5 and I believe Mr. Andes will -- is that. this is the Order 6 from the Department of Public Welfare that is dismissing the 7 indicated finding by Cumberland County Children and Youth, 8 the indicated finding of abuse. That finding is under 9 appeal, just so you know, by Children and Youth. 10 THE COURT: This doesn't. mean a thing to me. 11 I have heard live testimony with regard to an incident that 12 occurred last year that gives this Court great concern, 13 obviously gave Children and Youth great concern, what 14 happened in the juvenile action. I'm not as concerned with 15 an administrative hearing as I am with what occurred in the 16 juvenile action, what services were put in place, what 17 follow-through there was, and what compliance there has been 18 with my Order in this case that a drug and alcohol 19 evaluation and a psychological evaluation be done. 20 MR. SHAW: Certainly, Your Honor, you have 21 the discretion to take into account the weight of any of 22 this that I present. I would just point out, and then I'll 23 leave it at that, that these are absolutely relevant in that 24 this -- 25 THE COURT: I didn't say they weren't 26 • 0 1 relevant. 2 MR. SHAW: Okay. The Department of Public 3 Welfare had the opportunity, and they reviewed the very same 4 police report that has been presented today. Based on that 5 and the other findings in the investigation by Children and 6 Youth, the Department of Public Welfare determined there 7 wasn't enough evidence to even show there was any abuse. 8 Now, as far as the status on the dependency 9 matter, that was dismissed by Judge Ebert because Ms. Burns 10 had primary physical custody. That's the end of it. 11 Children and Youth is completely out of the picture now, 12 completely. They have no jurisdiction in this matter now. 13 THE COURT: You are telling me things that I 14 know, but I've got a decision to make today on whether or 15 not, one, your client should have unsupervised visitation, 16 or two, whether the visitation should be supervised. 17 So, let's get an explanation as to what 18 happened on the 8th of June, and let's get an explanation as 19 to what has happened since then, and let's get an 20 explanation as to what compliance there has been with my 21 prior Court Orders. 22 MR. SHAW: Okay. I'll be happy to go in that 23 direction, Your Honor. 24 BY MR. SHAW: 25 Q Mr. Burns, let's go back. to the event of June 27 • 1 10th, 2008. Can you explain to the Court what happened? 2 A Yes. I had picked the children up from 3 school. Like you said, the officer, the EMS, showed up 4 around 5:30. I usually pick up the kids around 4:00, so 5 there was only a time frame of about an hour and half. I 6 came in and at e a half a sandwich. There was about a half a 7 glass of wine in the refrigerator. I drank that. 8 I told my children I wasn't feeling good, so 9 I went to take a nap. They're old enough to fend for 10 themselves. I drank Nyquil, maybe more than I should have. 11 I went up and -- I went and laid down. I guess my daughter, 12 at that point in time, because I was sleeping, she had 13 called 911. 14 Q Do you think that it was the Nyquil that was 15 causing you to be unresponsive? 16 A Sure, I do. 17 Q Of course, I'm not asking for any medical 18 opinion, but b ased on you as a lay person. Have you taken 19 Nyquil before? 20 A Yes. And I've known other individuals who've 21 done it, too, and the same thing happened to them, so I'm 22 not the only one. But yes. 23 Q When you just take Nyquil on its own -- have 24 you done that, first of all? 25 A Yes. 28 • • 1 Q What effect does it have on you? 2 A It does make you sleepy and it does make you 3 groggy. 4 THE COURT: Was there a blood alcohol test 5 taken at the hospital that night? 6 THE WITNESS: No, there was no test taken at 7 the hospital that night, with the exception of a glucose 8 test for diabetes. That was it. 9 THE COURT: Do you have the hospital records? 10 THE WITNESS: Yes, I do. We had a receipt 11 from the hospital that shows the tests that were taken or 12 were not taken. 13 MR. SHAW: I don't have multiple copies of 14 this, Your Honor. I'm happy to enter it as an exhibit. 15 THE COURT: By the way, what you have handed 16 me as 1 and 2 are the same document. 17 MR. SHAW: There are actually -- one is for 18 each child, if you look at the names and the docket numbers. 19 That's why I did that. 20 THE COURT: All right. Got it. 21 BY MR. SHAW: 22 Q Mr. Burns, to the best of your recollection, 23 do you remember what tests were taken at Holy Spirit 24 Hospital? 25 A I don't know, because I don't know the codes. 29 ! 0 1 I know there was only one test that was taken, and that was 2 a glucose test to test for diabetes. That was the only test 3 that was taken. 4 THE COURT: Well, I'm looking at the exhibit 5 right here, and it said alcohol diagnosis. 6 THE WITNESS: Right. Those were the ones 7 that were submitted to be taken. You can see that there's a 8 bill for it and then there's a minus for it, which means the 9 test was never taken, so I was not billed for it. The only 10 one I was billed for is the first one, which is the only 11 test that was taken. 12 THE COURT: My question was, do you have the 13 hospital records? I take it you went to the emergency room? 14 THE WITNESS: Yes. 15 THE COURT: Do you have the discharge 16 summary? 17 THE WITNESS: I was never given the hospital 18 records, no. 19 MR. SHAW: Your Honor, I believe I do. I was 20 not prepared to present -- 21 THE COURT: Well, if you're telling me that 22 the guy wasn't drunk, but he took too much Nyquil and he was 23 tested at the hospital, the best proof of that is to let me 24 know what the doctors have to say. 25 MR. SHAW: Your Honor, I do have a set of 30 • • 1 these hospital records. 2 THE COURT: Have you shared those with 3 Mr. Andes? 4 MR. SHAW: I have not. I would be happy to 5 provide those. I did not expect to introduce that as an 6 exhibit today. 7 THE COURT: I'm not going to tell you how to 8 try your case, but as a judge I know what the judge thinks 9 is important. 10 MR. SHAW: I'm happy to provide this as an 11 exhibit. Mr. Andes, I need to give him an opportunity to 12 review it. I'm happy to do so. They are what they are. 13 THE COURT: Why don't we take a five-minute 14 recess. 15 MR. SHAW: Thank you. 16 (A recess was taken.) 17 THE COURT: That's Exhibit 4. 18 MR. SHAW: Yes, Your Honor, the medical 19 records have been marked as Defense Exhibit 4. 20 BY MR. SHAW: 21 Q Just to lay a brief foundation, Mr. Burns, 22 you are looking at what has been marked as Defendant's 23 Exhibit 4. 24 A That's correct. 25 Q Do you recognize these documents? 31 • • 1 A Yes. That's the Holy Spirit Hospital report 2 for emergency room services. 3 Q Is this from the night of June 10th, 2008? 4 A That's correct. 5 Q Just real briefly, let's go to Page 8. I 6 know they're not numbered. If you flip through that, it 7 comes out to Page 8. Halfway down the page, in large bold 8 letters, it states clinical impression. 9 A Yes, I see it. 10 Q In that box there is circled alcohol 11 intoxication. Do you have any idea why that is circled? 12 A No, I do not. 13 Q To best of your knowledge, is that circled 14 because they ran any blood tests or other tests on you to 15 determine if you were intoxicated? 16 A They ran no tests at all. 17 Q From your standpoint, is this circled based 18 only on visua l observation? 19 A That would have to be the case. 20 Q Has this kind of incident ever happened 21 before while the children were with you? 22 A No, not in 11 years. 23 Q Have you ever had to be taken to the 24 emergency room for anything even close to this? 25 A No. 32 1 Q Do you have an alcohol drinking problem? 2 A I do not. 3 THE COURT: How often do you drink? 4 THE WITNESS: I would say I drink socially 5 during a foot ball game, something like that, so -- oh, I 6 don't know. Maybe sometimes a beer a week. Then maybe I 7 won't go for four or five weeks. Then maybe, you know, I 8 have a couple of beers with friends, and that's about it. 9 BY MR. SHAW: 10 Q Have you had any DUIs in the last 10 to 15 11 years? 12 A I've never had a DUI. 13 Q Have you undergone any form of evaluations in 14 the past? 15 A Meaning what? 16 Q Well, strike that question first. From your 17 perspective, do you have any psychological behavior 18 problems? 19 A No, and I've been tested three times for 20 that. 21 Q From your perspective, do you have any anger 22 management problems? 23 A I do not. 24 Q Have you undergone counseling or evaluations 25 for psychological, alcohol and/or anger management? 33 1 A Yes. I went through one evaluation where I 2 was deemed that I did not have any problem after the 3 evaluation was required by seven sessions. 4 THE COURT: Required by who? 5 THE WITNESS: That would be Diakon Services. 6 I'm sorry. I didn't understand your question. 7 THE COURT: Required by who? 8 THE WITNESS: It was required by the County 9 of York based upon the September of 105 incident. 10 BY MR. SHAW: 11 Q I'm going to show you what is marked as 12 Defendant's Exhibit 5. Do you recognize this document? 13 A Yes, I do. 14 Q Is this the Diakon counseling that you were 15 just referencing? 16 A Yes, it is. 17 Q Does this appear to be accurate stating that 18 you participated in seven individual counseling sessions? 19 A Yes, that's correct. 20 Q You also underwent a psychiatric evaluation, 21 as well, through Diakon? 22 A Yes, I did. 23 Q Now, this states that the eval was completed 24 September 12th, 2006. Does that appear to be accurate to 25 you? 34 1 A Yes. 2 THE COURT: You indicated that the evaluation 3 said nothing was wrong, but apparently it recommended some 4 type of individual counseling. What was that for? 5 THE WITNESS: It did not recommend -- where 6 are you looking at that says it recommended individual 7 counseling? 8 THE COURT: Well, you had seven individual 9 counseling sessions. It said the evaluation was completed 10 and no follow-up care was recommended beyond individual 11 counseling. 12 THE WITNESS: Because their evaluation 13 process happened to be seven sessions. That's what the 14 evaluation process was. 15 THE COURT: It says that you were to return 16 as needed for any further counseling. 17 THE WITNESS: But nothing was recommended by 18 them that I actually needed to go through any type of a 19 course. 20 THE COURT: Well, what did you counsel for? 21 THE WITNESS: For the anger management and 22 psychological evaluation which was required by the County of 23 York. 24 THE COURT: Well, when you got together with 25 Mr. Kulas, did you just sit there and say, I don't need 35 • • 1 this? 2 THE WITNESS: No. They asked me a bunch of 3 questions as far as psychological and anger management. 4 Then at the end of their evaluation process, they would deem 5 whether or not I needed to go to a program, and they decided 6 that I did not need to. But if I decided to return on my 7 own, then I could do a follow-up. That's what that letter 8 says. 9 THE COURT: But if they didn't think there 10 was anything wrong with you, why would they tell you to 11 return on your own? That's all I'm trying to get at. 12 THE WITNESS: Because it's always everybody's 13 individual choice, if they feel a need to go back to the 14 organization, that they can do that. 15 THE COURT: And you don't feel the need? 16 THE WITNESS: No, I do not. 17 THE COURT: All right. 18 THE WITNESS: Obviously, they did not either. 19 BY MR. SHAW: 20 Q Have you undergone a prior drug or alcohol 21 evaluation through WellSpan? 22 A Yes, I did. 23 THE COURT: Was that also as a result of the 24 2005 incident? 25 THE WITNESS: It was mandated by the Court 36 • • 1 for a psychological, anger management, and alcohol evaluation. 2 BY MR. SHAW: 3 Q I'm going to show you what has been marked as 4 Defendant's Exhibit 6. Does that appear to be accurate as 5 far as the drug and alcohol evaluation with WellSpan? 6 A Yes, it does. 7 Q As I understand it, this letter states that 8 WellSpan recommended no further counseling? 9 A That's correct. 10 Q Have you undergone any anger management 11 counseling? 12 A Yes. Diakon was part of that. Then there 13 was an additional evaluation -- or an additional course 14 taken. 15 Q Was that with Alternative Behavior 16 Consultants? 17 A Yes. That was a voluntary program that I 18 decided to go through, because that was also a condition as 19 a result of September 105 where there was a probationary 20 period. My probation officer said, you can go through your 21 psychological evaluation; but if you go through Adult 22 Behavior, which is a one-day course, they will decide 23 whether or not you need counseling. For the sake of my 24 purposes, for probation, I actually went through both of 25 those two evaluations, Diakon and Adult Behavior 37 • 1 Consultants. 2 Q I'm going to show you what I have marked as 3 Defendant's Exhibit 7. Do you recognize this? 4 A I do. 5 Q Does this appear to be accurate regarding the 6 recommendati on from Alternative Behavior Consultants for the 7 anger manage ment program? 8 A Yes, it does. 9 Q Have you undergone any other counseling, 10 specifically any counseling with Lutheran Social Services? 11 A Yes, I did. 12 Q I'll show you what has been marked as 13 Defendant's Exhibit 8. Do you recognize this? 14 A Yes, I do. 15 Q Does this appear to be accurate from Lutheran 16 Social Services that you did attend 26 sessions here? 17 A Yes. 18 Q Why did you attend those? 19 A I attended those sessions because there was a 20 violation of the PFA, which the Cumberland County Court 21 deemed was non-harassing, non-abusive, but it was a 22 technical violation of the PFA because I had a conversation 23 with my wife -- or an argument, basically, with my wife, 24 things other than the children. 25 So, the PFA court decided that they did not 38 s +? 1 think that I needed to have any additional time put onto my 2 sentence, and they basically just said, you know, case 3 opened and closed, and they did not violate my PFA any 4 stretch of the imagination. But because the PFA was a 5 condition of probation, I went before Judge Blackwell in the 6 County of York, and she said, this time you're going to go 7 through a program, even though I was not violated by the PFA 8 court. So, I attended 26 sessions, and completed it, with 9 Lutheran Social Services in York County. 10 Q Now, the most recent Order from this Court 11 orders you to undergo a psychological evaluation and an 12 alcohol evaluation. Have you complied with the Order for 13 the alcohol evaluation? 14 A Yes, I have. 15 Q Can you explain to us what has occurred at 16 this point? 17 A At this point in time, they have a two-step 18 evaluation process. They could only fit me into their 19 schedule for the second session as of yesterday. So, to my 20 knowledge right now, the urinalysis has come back negative, 21 but it's still got to be sent to the lab. Plus there was 22 not due time to finish up a report from yesterday afternoon 23 till today, so that report is still pending. 24 Q At this point, is there anything further you 25 are instructed to do from Mazzitti & Sullivan? 39 0 i 1 A No, there's not. 2 Q The order also ordered that you undergo a 3 psychological evaluation. Have you done that? 4 A I have done it three times. I went through 5 two evaluations, and I went through one mandatory course. 6 Q Have you undergone a psychological evaluation 7 since this Court issued its Order? 8 A No, I have not. 9 Q Why not? 10 A Because I've been through it three times 11 before, and I did not think one was deemed. In addition, 12 too, I did not know it was a mandated psychological 13 evaluation by the Court. I thought it was voluntary. When 14 it came back to me, I agreed to the alcohol evaluation. But 15 because I had done a psychological evaluation and completed 16 one course, there was not a need to go through a fourth one. 17 Q When were you made aware of an issue 18 regarding the desire by the mother, by Ms. Burns, that you 19 undergo a psychological evaluation? 20 A I believe after the last session with Mr. 21 Gilroy. I believe that's when that was. I don't know the 22 exact date. 23 Q Was that a conference call between just the 24 attorneys and Mr. Gilroy, the conciliator? 25 A Yes, I believe it was. 40 • • 1 Q Let's just talk for a couple of minutes about 2 your time with the children, especially since this incident 3 in June of 2008. I understand you haven't had much contact 4 with them? 5 A That's correct. 6 Q Can you explain to the Court, though, when 7 you do have contact, from your perception, what is it like? 8 A Well, I believe after the first session, 9 which I believe was kind of strained because they had not 10 seen me in a while, they warmed up to me. But my contact 11 obviously is limited. My oldest one especially knows it's 12 being supervised. 13 It's basically outside contact, when the 14 weather permits. It's either that or going to the bowling 15 alley or the mall. I think one time we went to Hampden 16 Township pool because we had membership passes. Basically, 17 it's either at a park or in a mall or going to a restaurant, 18 something of that nature. 19 Q Did the children appear to be comfortable 20 around you? 21 A Of course, they did. 22 Q Did they hug you? 23 A Of course, they did. 24 Q Did they say anything to you? 25 A Meaning what? 41 • • 1 Q That would show any emotions toward you. 2 A I love you, daddy. I miss you, daddy. Don't 3 go yet, daddy. 4 Q Was that done only during your physical 5 supervised visits? How about telephone contact? 6 A No. They always tell me they love me. 7 Q Do they ask any questions about wanting to 8 see you more? 9 A Oh, they've asked those questions. But I 10 can't say that on the other end of the line, especially over 11 the last year, they're being coached what to say and what 12 not to say. I can't say that. 13 Q Have they indicated to you that they would 14 like to see you more? 15 A Yes. In fact, my daughter the other night 16 said, daddy, we had a football game. You should have been 17 at the last game. They are cheerleaders, by the way. 18 Q We had a custody conciliation conference on 19 July 2nd. Do you remember that? 20 A Yes. 21 Q Do you remember if there was any discussion 22 about you meeting with the children's counselor? 23 A Yes. They were attending, to my knowledge, 24 the Beech Street Program, which I believe was set up by 25 Children and Youth. To my knowledge, they had only met with 42 • • 1 them a couple of times. When I was asked to participate, I 2 said, yes, for the sake of my children, to find out what's 3 going on, I would be more than happy to answer any of their 4 questions and attend the Beech Street Program. 5 Q What was your understanding as to the purpose 6 of you sitting down with a counselor? 7 A Just to see how things were going and how 8 comfortable my children were around me and to find out what 9 was going on and to talk to the counselors about the 10 relationship between my children and myself. 11 Q Are you still willing or desirous to engage 12 in that form of counseling? 13 A Sure. 14 THE COURT: Why haven't you done it to this 15 point? 16 THE WITNESS: Because every time I have tried 17 to do it I have been shot down. 18 BY MR. SHAW: 19 Q What happened with Beech Street? 20 A They came back and just said, to my 21 knowledge, the way it was written, that they did not want me 22 there. I don't know if it's because they don't want parents 23 there or they did not want me there. I have no idea. 24 Q Have you proposed to anyone else? 25 A As far as counselors, have I proposed to 43 0 • 1 anybody else? 2 Q Do you remember if you, or through me, have 3 proposed anyone else to Ms. Burns? 4 A Yes. 5 Q Do you know the response to that? 6 A The response was negatory. 7 Q When did the issue of psychological 8 evaluation and alcohol evaluation become an issue here in 9 the custody pro ceedings? Was it after this whole thing with 10 the children's counselors? 11 A Yes, it was. 12 Q So, the drug and alcohol, if I understand it, 13 was never an is sue at the earlier custody conciliation 14 conferences? 15 A No, it was not. 16 Q Just one last question to wrap this up, and 17 that is, again, just to make sure that the Court is 18 understanding. What is it that you are seeking out of this 19 custody hearing today? 20 A I would like to have full contact with my 21 girls, unsuperv ised. 22 Q In that light, are you willing to work 23 through a counselor to achieve that? 24 A Yes, I would do that. 25 MR. SHAW: I have nothing further. 44 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay. What is Ms. Hennessey going to say? I see she is sitting back there. MR. ANDES: She is going to testify about the investigation done after the incident in June. In particular, there are some things in her report that I think contradict some of the things that he said. THE COURT: With regard to what, the incident itself or the services afterwards? MR. ANDES: I think primarily the contradictions are with regard to the incident itself and what he told the people at that time he had done, what drinks he had, and then what follow-up she did. THE COURT: All right. Before you cross, I would like to hear from Ms. Hennessey. MR. SHAW: Your Honor, I would object to Ms. Hennessey's testimony in that it's all based on hearsay. I don't believe there will be any testimony as to statements made by Mr. Burns directly to Ms. Hennessey. Any information she has is 100 percent hearsay. THE COURT: Mr. Andes. MR. ANDES: That's the nature of her report. She gathers information as part of her report. Her report is prepared as part of the routine investigation of these incidents. Yes, it does have hearsay. THE COURT: But your offer of proof didn't 45 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 indicate hearsay. MR. ANDES: Oh, I'm sorry. Then I apologize. What her report says is contradictory in some regards to his testimony about the incident. Then she will testify about what the follow-up was that their office did. THE COURT: Okay. I don't want to be thick here. Did she talk to him about what he had to drink? MR. ANDES: No, to my knowledge, she did not. THE COURT: Then I don't. see how you get by the hearsay. What else is she going to say? MR. ANDES: To tell you the truth, Your Honor, I would have to ask her that. She was going to testify about her report. What I was asking her to do was put the report into evidence, ask her how the report was prepared, and what the sources of the information were and what follow-up the office did. She was the intake worker. Her primary responsibility was to do the intake and the initial recommendations and actions, and then it was passed off to a caseworker that followed up after that. THE COURT: Okay. Let's hear what she has to say. You can make your objections to hearsay as they arise. MR. SHAW: Okay. Thank you, Your Honor. THE COURT: You need me to order you to discuss this case, do you not? MS. HENNESSEY: I do need you to order me. 46 • • 1 THE COURT: You are so ordered. 2 AUDREY HENNESSEY 3 having been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. ANDES: 6 Q Would you state your name and address for the 7 record, please . 8 A My name is Audrey Hennessey, 9 H-e-n-n-e-s-s- e-y. My address is 16 West High Street, Suite 10 200, Carlisle, Pennsylvania, 17013. 11 Q Are you employed? 12 A I am employed. 13 Q By whom? 14 A Cumberland County Children and Youth 15 Services. 16 Q What is your position? 17 A My current position is an intake supervisor. 18 Q How long have you worked for that agency? 19 A I'm just about ready to start my sixteenth 20 year. 21 Q How many years have you worked as an intake 22 worker or supe rvisor? 23 A I have been in the intake unit my entire 24 career at Chil dren and Youth. 25 Q Did you have an occasion to investigate an 47 • • 1 incident involving Robert Burns and his two children that 2 took place in June of 2008? 3 A I did. 4 Q What did you do to gather information with 5 regard to that investigation? 6 A I conducted interviews with Ms. Burns, Nina, 7 Burns, Carly Burns, and Mr. Burns in conjunction with his 8 attorney, Mr. Shaw. Along with that, I had discussions with 9 EMS staff, law enforcement, and the hospital staff. 10 Q Did you prepare a report? 11 A I did. 12 Q I'm going to show you a document we have 13 marked Plaintiff's Exhibit 2. Is that a copy of the report 14 you prepared? 15 A That is. 16 Q What, if anything, did you learn about the 17 incident from Mr. Burns or from the girls? 18 A I had my first initial conversation on June 19 10th. That evening I had a conversation with the police 20 from Hampden Township and with emergency room doctor, 21 Dr. Dubin. The following day, I had a conversation with 22 Ms. Burns, a full interview with Ms. Burns and the two 23 children. Do you want me to go into what was said there? 24 Q Yes. 25 A It was my understanding that prior to the 48 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agency closing on the 10th, we had gotten a call that there was a concern about two girls left in the care of their father, Mr. Burns, who appeared to be in a position where he could not be woken. The oldest child, Carly, at the time, was instructed to call 911. At that time, the EMS staff arrived. Because of the time of the incident when it started, it went into the night. I happened to be the emergency duty caseworker on call that night, as well, so I received a phone call from Hampden Township Police noting that they responded to the home after EMS responded and was having some difficulty entering the home. THE COURT: I don't need to know what the police had to say. The question was the interview with Ms. Burns and the children. What did they have to tell you? THE WITNESS: Okay. I was told that it was the last day of school. Nina was picked up early, around 9:30 that morning, from her father, and that Mr. Burns, in the company of Nina, went back to Dillsburg school to get Carly, picked her up, returned to the house. The girls were watching TV in the upstairs bedroom, the grandmother's bedroom, and Mr. Burns was downstairs watching TV. Carly reported that it was approximately -- she said a period of time. Then we just described -- tried to do it with episodes of TV shows. She said maybe three or 49 ! 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 four TV shows, so I counted that to be like a half an hour long children's episodes. She went downstairs to try to talk to her dad, and he was what she said sleeping, what she thought was sleeping on the couch, but she was not able to get him to wake up. She said initially she shook him and said, hi. He kind of opened his eyes and said, hi, but went right -- immediately went back to sleep, and she started becoming concerned. THE COURT: Did she mention drinking? THE WITNESS: At that time, she did not. THE COURT: At any time, did she? THE WITNESS: She did, yes. She reported that she thought that her dad was drinking. She thought that his behavior was similar to the past when he had been drinking. She reported that she had seen him drink beer in the past; that that day that he had a cup, and inside the cup was liquid that was yellow in color; and that she felt that this time was worse than the previous time, that he seemed like he couldn't walk and wasn't able to carry on a conversation. So that was my interview with the girls that day. Then I later, on the 20th of June, had an interview with Mr. Burns in Mr. Shaw's office and inquired about the amount of alcohol that he had consumed that night. He reported that he consumed a half a glass of wine that was 50 • • 1 sitting inside the refrigerator door; that when he made a 2 sandwich, he drank that, along with some Nyquil. 3 THE COURT: Any follow-up services? 4 THE WITNESS: I did indicate the child abuse 5 on both of the girls and recommended that -- there was a 6 safety plan that was initiated at the beginning, and that 7 was still outstanding at the time of my indicated status, 8 which was August 6th of 2008. The girls were recommended to 9 have some kind of counseling. That came out of a dependency 10 hearing that the agency had conducted. 11 THE COURT: Was that followed through on? 12 THE WITNESS: Ms. Burns took care of that, 13 but we didn't -- we just provided her with a resource list, 14 and she chose who -- 15 THE COURT: So, you don't know anything about 16 that? 17 THE WITNESS: I don't, personally. I 18 accepted the case for service, and it was transferred to an 19 ongoing worker. I do believe that they were involved with 20 someone from the Beech Street Program at the time. Mr. 21 Burns was recommended to have drug and alcohol counseling. 22 He was very uncooperative during my 60--day period of 23 investigation, so I was not able to assess a lot with him. 24 The recommendation of the ongoing worker was 25 for him to be assessed fully for the need for a psychiatric, 51 L? • 1 and obviously he was recommended for a drug and alcohol 2 assessment, refrain from drinking or using drugs. He was 3 also referred to a parenting program through Alternative 4 Behavioral Consultants. 5 THE COURT: And he did the ABC program? 6 THE WITNESS: Not during my period of time, 7 no. 8 THE COURT: Did he do the drug and alcohol 9 evaluation? 10 THE WITNESS: Not during my period. He 11 denied a need for it. 12 THE COURT: Okay. Mr. Andes, anything you 13 want to add to that? 14 MR. ANDES: I think, Your Honor, frankly, you 15 covered most of the territory I would have wished to cover. 16 THE COURT: Mr. Shaw. 17 MR. SHAW: Just a couple of questions. 18 CROSS-EXAMINATION 19 BY MR. SHAW: 20 Q I don't remember if it was Nina or Carly to 21 whom you were referring that relayed most of the information 22 about that evening, but at no point did she indicate that 23 she saw him drinking excessively or anything such as that? 24 A It was difficult for her, due to her age, to 25 determine whether it was excessively, but she did report 52 • • 1 that he had alcohol that was yellow in color in a cup. She 2 was primarily in the upstairs bedroom during a major part of 3 the afternoon until she went down and this incident 4 occurred. 5 THE COURT: And she'd indicated that she had 6 seen him drunk before? 7 THE WITNESS: She had indicated that in the 8 past there had been times where he had been drinking and she 9 was having difficulty getting him to wake up. She would 10 call it wake up. She had indicated that there were times 11 when they would visit with their father that they would all 12 sleep on the same bed, a pull-out couch. in the family room, 13 and indicated there were times where he would have 14 difficulty waking, and he would like kind of roll and, you 15 know, would be in their area. But she had mentioned that 16 there had been times in the past where he had been drinking. 17 Most of the time it would be whenever Mr. Burns' parents 18 were not at the residence. 19 MR. ANDES: I do have one question, if I may 20 follow up. 21 REDIRECT EXAMINATION 22 BY MR. ANDES: 23 Q Were you able to determine whether a blood 24 alcohol test was conducted at the hospital on Mr. Burns? 25 A I was informed by both the emergency room 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L • doctor and Mr. Burns that he refused both toxicology and a BAC. Q So that they were requested, and he refused them, and he told you that himself? A Yes. MR. ANDES: That's all the questions I have. Thank you. RECROSS-EXAMINATION BY MR. SHAW: Q You stated that Mr. Burns was uncooperative during your investigation. What do you mean by uncooperative? A He refused to follow through with the safety plan, which warranted a court hearing. He refused to provide me with -- when I asked for medical records, I was told that -- I was actually handed the medical records from you at the time at the office. I was not permitted to have consents. He would not cooperate with any kind of background information about previous treatment or history or anything like that. Q So, one of your major hang-ups in him being uncooperative is he refused the safety plan. Is it a safety plan that you designed? A The safety plan the agency recommended at the time of the investigation. 54 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q He has the right to refuse that, right? A That's correct. Q In fact, the afternoon that you were informed that he was refusing was the afternoon that you met with myself and Mr. Burns, is that right? A That is correct. Q Knowing that I represented Mr. Burns, you still went to the courthouse and got a temporary Court Order without permitting Mr. Burns any opportunity to give his side of the story to Judge Ebert, is that correct? A I explained during our conversation that if he would not abide by the safety plan our agency has no choice but to ask for a verbal Order from the judge asking for the visits to be stopped until a court hearing could be held, which is the procedure in Children and Youth. Q But you obtained an ex parte Order, correct? A I don't know if that would be considered ex parte. It's a procedure in our agency that when we have an issue we have to call a judge and ask for a verbal, and it's up to the judge whether they give that or not. MR. SHAW: I have nothing further. THE COURT: Thank you. You may be excused. MR. ANDES: Thank you, Your Honor, for taking her out of order. THE COURT: Mr. Burns, do you want to come on 55 • 1 back. I'm sure Mr. Andes has some questions. 2 (ROBERT K. BURNS resumed the witness stand.) 3 CROSS-EXAMINATION 4 BY MR. ANDES: 5 Q Is it your testimony, Mr. Burns, that you 6 drink only socially as you had outlined before? 7 A That's correct. 8 Q Have you had friends that have recommended to 9 you or implored you to go get help for your alcohol problem? 10 A To my knowledge, only one recently. 11 Q Who would that be? 12 A That would be Jerome Gould. 13 Q Jerome Gould? 14 A Yes. 15 Q He is the man that you and your wife both 16 agreed could act as a supervisor, he was a friend of both of 17 yours? 18 A He was actually a friend of mine. He only 19 knows her through myself. He does not know her that well. 20 Q When was it that he asked you or implored you 21 to go get help for your drinking, how long ago? 22 A I don't know. A few months back, maybe. 23 Q Did that take place at Michael Connor's 24 house? 25 A It took place either -- yes, it could have 56 9 0 1 taken place at his house. He's talked to me about that. 2 Q Was there an incident in which you were 3 involved at Mr. Connor's house in which you defecated on his 4 steps? 5 A That was not a defecation on his steps. What 6 it was is we went out on St. Patrick's Day. I was not 7 around my children at the time. We came back to his house. 8 For medical reasons, I said, you know, I need to go to the 9 bathroom. I did go up his stairs. He said, why don't you 10 go downstairs. At that point in time, you know, my pants 11 did fall down. Yes, there was an incident. It was not a 12 defecation on the steps. 13 Q Isn't it true that that's why Mr. Gould was 14 there, to clean up the carpet that you had soiled? 15 A Yes. I think soiled is the wrong word, but 16 yes, that is correct. 17 Q That's why Mr. Gould was called to come 18 there, to help clean up whatever this was that you had left 19 on the steps? 20 A That's correct. 21 Q You said it was because of a medical 22 condition. What medical condition do you have that causes 23 you to lose control of your bowels? 24 A Well, it was a situation. after night. There 25 was a lot of stress that was involved. It could have been a 57 • • 1 hemorrhoidal issue. I was just trying to get to the 2 bathroom. Nothing medical. It's only, you know, the second 3 time it's ever happened to me in my life, and it was just 4 something that happened that particular night. 5 Q What time of day did this occur? 6 A It occurred at nighttime after we came back 7 from St. Patrick's Day. 8 Q What time of night? 9 A I don't know. It probably was after 12:30, 10 1:00 in the morning, sometime after that. 11 Q Had you been drinking that day? 12 A It was St. Patrick's Day. Yes, we were out 13 drinking. 14 Q Were you intoxicated when this defecation or 15 whatever you want to call it occurred? 16 A Oh, you're talking about. was I intoxicated? 17 We were at the bar, so, yeah, we probably had a couple of 18 drinks, maybe one too many, sure. 19 Q Can you tell us about how many you had? 20 A I don't know. Maybe a beer or two an hour 21 over the course of, I don't know, four or five hours. I 22 wasn't counting. 23 Q So, maybe four or five beers over the course 24 of four or five hours, and yet the result was that you went 25 back to Mr. Connor's house and had this problem? 58 i 0 1 A I said that's an approximation. We were out 2 at the bars, when somebody sticks another beer -- hey, are 3 you ready for one? I wasn't counting. 4 Q You heard Officer Julseth's testimony. Is it 5 true that you soiled yourself that day, also? 6 A Are you talking about the day of the Nyquil? 7 Q I'm talking about June 10th, 2008. 8 A Yes. That's the day I'm referring to. Yes, 9 I went upstairs to go to the bathroom, and he followed me 10 up, and I was trying to go into the bathroom. That's what 11 happened when I went into the toilet, yes. 12 Q Did you clean yourself up, or was it as he 13 said, that you actually ended up sitting on the bed and 14 soiling the bed covers? 15 A I didn't soil the bed covers. What I did was 16 I left the bathroom, and I guess I had not wiped myself 17 completely at that point in time, so that's why he saw 18 something on the bed covers. 19 Q Now, you testified that you drank Nyquil that 20 day, but I think you testified that you have seen the effect 21 of Nyquil when combined with alcohol on other people. I 22 think you mentioned, for instance, your mother or someone in 23 your family? 24 A No. I never mentioned anybody in my family. 25 Q But you have seen the effect, as you 59 • • 1 described it, of drinking when you have taken Nyquil, is 2 that correct? 3 A No. That's after the fact. It's after it 4 happened to me. I talked to other friends, and they said, 5 yeah, I've done that, too. That's when I learned after the 6 fact. I did not know prior to that. 7 Q Now, June 10th, 2008, was, in fact, the last 8 day of school for Carly, was it not? 9 A That's correct. 10 Q In fact, she was out of school right after 11 lunch, about 1:00, is that correct? 12 A That's correct, probably. 13 Q So, you had gone and picked her up at 1:00, 14 and she was w ith you until, I think, the incident? 15 According to the officer, he responded about 5:00 p.m. that 16 day. 17 A That's correct. 18 Q During that time, is it your testimony that 19 the only thing you had to drink was half a glass of wine? 20 A That was the only alcohol that was in the 21 house, and th at was half a glass of wine. I felt sick after 22 that. That's when I had the Nyquil. 23 Q So, you had the drink of wine, and then you 24 took the Nyqu il? 25 A After I started feeling bad, yes, that's 60 • 1 correct. I did not combine the two of them together. 2 Q What were the symptoms that you had that you 3 didn't feel well? 4 A I just felt nausea and an upset stomach. I 5 said, you know, I think I should lay down and get some rest. 6 I figured that would help me. 7 Q You took Nyquil because you had an upset 8 stomach? 9 A I took Nyquil because I was feeling nauseous, 10 and I needed to get a little bit of sleep. I was exhausted. 11 Q That night when you were taken to the 12 hospital, is it true that you refused the blood alcohol test 13 and other tests that the doctors and the nursing staff 14 recommended? 15 A I refused all tests, because I refused being 16 taken out of my home. The first time the EMS people showed 17 up I asked them to leave. I went to the hospital, you know, 18 without consent. 19 Q That's why you refused all the tests? 20 A That's correct. 21 Q Did you know at that time that the officer 22 had accused you or had felt that you were intoxicated? 23 A I would have to go back and recall that. I 24 don't remember exactly what the officer said at that point 25 in time. 61 • • 1 Q Did you know that the doctor felt that you 2 were intoxicated on alcohol? 3 A No. The only thing that I know is where he 4 said that he smelled alcohol, I smell alcohol on your 5 breath. I said, well, yeah, I had a couple of drinks, but 6 he never really pushed the issue with me. 7 Q In light of that, you did not feel it was to 8 your interests to take the tests to disprove that you were 9 intoxicated? 10 A I did not feel that I was going to take any 11 of the tests, because I refused even being taken to the 12 hospital, and I knew I was going to be billed for it. I 13 said, I shouldn't even be here. You had no right to take me 14 out of my house. So, I refused all tests, that's correct. 15 Q I'm directing your attention, Mr. Burns, to 16 the sixth page of the medical records which we have marked 17 as Defendant's Exhibit 4. The top heading is listed 18 clothing and valuables. I take it that's a receipt that you 19 signed where you indicate what clothing and valuables you 20 brought to the hospital. Did you sign that? 21 A If you're talking about under Robert K. 22 Burns, if the scribbling above that is my signature? It 23 could be, but I can't read that. 24 Q Well, it says -- I'm directing your attention 25 to where it says, patient, colon. Then someone has written 62 0 • 1 in, patient unable to sign. Is that your signature below 2 that, or is that someone else's? 3 A What are you talking about, the scribbling 4 next to it? What are you talking about? 5 Q Right here (indicating).. 6 A I understand that. 7 Q It says, patient unable to sign. On the line 8 below that, there appears to be a signature. Is that your 9 signature? 10 A That's not my signature. 11 Q So, you did not sign that? 12 A No. 13 Q These various sessions that you've had -- 14 your attorney offered us exhibits. In fact, the alcohol 15 testing or evaluation, for want of a better term, and the 16 anger management that you completed in 2005 and 2006 was as 17 a result of an incident in which you allegedly, at least, 18 assaulted your wife, and then eventually assaulted the 19 police officers who responded to your home in Dillsburg, is 20 that right? 21 A That's kind of incorrect. 22 Q And you pled guilty to the assault and the 23 resisting arrest charge in York County, is that right? 24 A The advice of my attorney was to do that. 25 But enter the preliminary hearing through Judge Thomas in 63 9 • 1 Dillsburg. It was supposed to be an ARD case, because the 2 officer, Sergeant Williams at that time, filed simple 3 assault charges. Judge Thomas was ready to throw it out, 4 because even his partner, Sergeant Wargo, said that the guy 5 was just trying to leave the house. The officer assaulted 6 me. I did not assault the officer. 7 Q In fact, all of the charges were bound over? 8 A They were not. They were all dismissed, with 9 the exception of one simple assault charge, because my wife 10 would not agree to it. The D.A. agreed to it. The officers 11 agreed to it, according to my attorney at the time, Clyde 12 Vedder, so Judge Thomas decided to hold over the simple 13 assault and resisting arrest charges. 14 THE COURT: Were you drinking at the time of 15 that incident? 16 THE WITNESS: No, I was not drinking. There 17 was no alcohol found on the premises. I had like a half a 18 beer, but I was not what I would have considered drinking at 19 the time of that incident. 20 THE COURT: Had you consumed any alcohol at 21 that time? 22 THE WITNESS: Yes. After my wife got home 23 from work, yeah, I did, I had a beer or so. Then we got 24 into an argument, which is when she called 911, but I was 25 not intoxicated. 64 1-1 0 1 THE COURT: All right. 2 THE WITNESS: Nor was I charged of anything 3 alcohol related. 4 BY MR. ANDES: 5 Q It's your testimony, then, that all of the 6 charges were dismissed by the district magistrate, and the 7 only charges that got to the county court were the simple 8 assault and the resisting arrest? 9 A Unless you can inform me otherwise, most of 10 the charges were dropped. If there were other charges that 11 were bound over, you would have to tell me what they were, 12 because I don't recall at this point in time. 13 Q You did plead guilty to those two charges, 14 and you received 18 months probation, is that right? 15 A The simple answer to that is yes. 16 Q Various testing that you did in 2005 and 2006 17 was ordered as part of that criminal prosecution, is that 18 right? 19 A Yes. With the exception of the 26-week 20 course through Lutheran Services, yes. 21 THE COURT: If you weren't drinking at that 22 time, why did the judge order a drug and alcohol evaluation? 23 THE WITNESS: Because, to my understanding, 24 in the County of York -- and I followed up since then 25 through the probation officer -- that with any kind of a 65 • • 1 domestic abuse offense they always require an anger 2 management and an alcohol evaluation. That's just standard 3 form. 4 BY MR. ANDES: 5 Q At the same time, there was a Protection from 6 Abuse Order entered in York County? 7 A Yes. 8 Q I think you testified that there was 9 subsequent action on that, but it was because of a technical 10 violation, and the judge dismissed that: subsequent action? 11 A He said it's a technical violation, so he 12 added no additional criminality to that.. He said, it's a 13 technical violation, because you had an argument with your 14 wife which was unrelated to the children, and the PFA 15 required all conversations to be only related to the 16 children. To my stupidity, I did not know that. 17 Q Which judge are you talking about? Which 18 judge entered that order? 19 A The violation of the PFA? 20 Q Yes. 21 A I believe it was Judge Ebert. 22 Q Mr. Burns, I'm going to show you a two-page 23 exhibit. They are both Orders by Judge Ebert dated the 9th 24 of June, 2006. In fact, you pled guilty to the count of 25 indirect criminal contempt, did you not? 66 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, because like I was telling you before -- Q I didn't ask you why. You pled guilty, yes or no? A Well, yes, because I did have a conversation unrelated to the children. Yes. Q And the judge sentenced you to the three days you had served, a fine of $300.00, released you to a York County detainer, and then put you on supervised visitation, is that right? That's what the Order says, if you want to take a minute and read it, A Yes, that's what it says. Q In fact, the same day, in the same case, because of your conduct, the judge extended the duration of the Protection from Abuse Order for a full year. That's the second page. A I understand that. Q But it's your testimony that this was only a technical violation in which you did nothing wrong? A It was deemed non-threatening and non-harassing. And between my attorney, Clyde Vedder, the judge and the D.A., before we actually got in front of the judge to enter the Court Order, Judge Ebert was not even aware that Lauren had filed it in two different counties. There was no knowledge of any of that. In fact, the D.A. and my attorney were surprised that after the hearing had 67 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 closed he said, by the way, I'm going to add another year to the PFA because I can. At that point in time, York County stepped up, and then they took me away, and then I was dismissed on those charges because of the fact it was double jeopardy. Q You mean the charges in York? A The PFA charges in York. Q But these Orders entered by Judge Ebert are, in fact, accurate copies of the orders he entered extending the term of the PFA for a year and imposing a fine and a jail sentence, which he suspended and placed you on probation, is that not true? A I would say that's true, yes. Q When did you -- you completed the 26 weeks with Lutheran Social Services in October of 2007. Which Court ordered that? A That would be York County. Q Is that part of the PFA? A No, it was not. Like I said -- Q Part of the criminal prosecution? A The PFA was a condition of the probation. The PFA in Cumberland County was a technical violation. It was -- Q We heard that. My question was -- let me interrupt you. My question was, was this ordered as part of 68 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the PFA, or was it ordered as part of the probation in your criminal prosecution? A Because the PFA was part. of the criminal -- it was a PFA violation, which was part of the criminal, so it had to be part of the criminal. Q Which judge ordered it, Judge Ebert or the judge in York? A Judge Blackwell. Q As I read these, I don't: see anything that indicates you have ever undergone a psychological evaluation. ABC, Alternative Behavioral Consultants, indicated that you completed an anger management program in June of 2006. WellSpan indicates that you were apparently there one day for a drug and alcohol evaluation. Is that correct, one day? A That's their process, yes. Q How long were you there? A I don't know. Two, three hours. Q Diakon indicates that you completed the treatment recommendations, but it doesn't talk about a psychological evaluation. It does say that a psychiatric evaluation was completed, and no follow-up psychiatric care was recommended, quote, beyond individual counseling. Did they recommend that you continue counseling? A No. If they would have recommended I do 69 • • 1 individual counseling, they would have sent that back to the 2 judge, and it would have been ordered to me to do so. 3 Q But you didn't read that to mean you were to 4 continue any kind of individual counseling? 5 A I had conversation with them. They said 6 there is no further counseling that's needed on your part 7 unless you want to do that. It was not mandated. 8 Q The Lutheran Social Services Program, what 9 was that, the advanced program? That has to do with 10 domestic abuse, is that correct? 11 A To my knowledge, it just has to do with anger 12 management. It has nothing to do with domestic abuse. 13 That's not the way it was read to me. 14 Q But you would agree it was not a 15 psychological evaluation? 16 A It was deemed to me that they were one and 17 the same, so yes, I would say that it's more of an anger 18 management than a psychological evaluation, that is correct. 19 Q Do you still live with your parents? 20 A Yes. 21 Q How long has it been since you held 22 employment? 23 A I have had opportunities to move out of 24 state, but it's been outside of my brother-in-law's company. 25 It has been through the course of this four years, 70 • 1 basically, yes. 2 Q Isn't it true you weren't working prior to 3 the incident in 2005? Isn't it true you really haven't held 4 a job for approximately ten years? 5 A I wouldn't say that. I would say I was 6 working on behalf of my brother-in-law's company. But, yes, 7 I was a stay-at-home dad, that's correct. It was a role 8 reversal. 9 Q Was that something that you believe that 10 Lauren Burns agreed to, that she wanted you to stay home, or 11 was that your idea? 12 A No, it was never my idea. 13 Q Was it her idea that you stay home and not 14 work? 15 A It was a partnership between a marriage that 16 if you don't get anything around here, I will continue to 17 work until something comes your way. So, it was agreement 18 between both parties, yes. 19 Q So, your testimony is she agreed that you 20 would stay at home and not work? 21 A Yes, I would say that. 22 MR. ANDES: Your Honor, I have a copy of the 23 docket from the York County criminal prosecution which we 24 have agreed I may admit into evidence. I would mark that, I 25 guess, Plaintiff's Exhibit 4. That's all the questions I 71 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have at this time. REDIRECT EXAMINATION BY MR. SHAW: Q Mr. Burns, after you pled guilty to the PFA violation in front of Judge Ebert, did you enjoy custody of the children? A Yes. Q The PFA that was entered against you originally, d id it include the children? A It never did. Q So, during the time there was a PFA against you, did you continue to have custody of the children? A Yes, I did. Q Alone? A Yes, I did. Q Overnight? A Yes, I did. Q Let's go back to the incident of June 10th, 2008. You te stified you took the Nyquil. Were you pretty out of it? A Yes. Q Could that explain why you had trouble being woken? A I would say so, yes. Q Did that have any impact on your ability to 72 • • 1 -- from your recollection, as to your inability to sign 2 these medical records that were pointed out to you earlier? 3 A Sure. 4 Q Very quickly, let's go back to the incident 5 that was just talked about at the beginning of your 6 cross-examination, St. Patrick's Day of this year. Was 7 Jerry Gould present that night? 8 A No, he was not. 9 Q Apparently, you were drinking that night. It 10 was St. Patrick's Day. You admitted to that? 11 A Yes. 12 Q So, I guess you were the only one drinking? 13 A Well, the only one drinking that was close to 14 the door, because nobody else could get inside. So, yeah, I 15 would say there was probably half the town that was 16 drinking, if not more. 17 Q But you were the only one that drank to 18 excess, I guess? 19 A Oh, I'm sure I was, being facetious. 20 Q From your observation where you were at, did 21 it appear pretty much everyone in the room where you were 22 was imbibing alcohol pretty freely? 23 A Yes. 24 Q Is that your idea of what certain people do 25 on St. Patrick's Day? 73 • i 1 A Sure, it is. 2 Q Did you have the kids that night? 3 A No, I did not. 4 Q Do you engage in that kind of conduct when 5 the children are in your custody? 6 A No, I do not. 7 MR. SHAW: I have nothing further. 8 RECROSS-EXAMINATION 9 BY MR. ANDES 10 Q During the time prior to June of 2008, when 11 you had custody of the girls, it was at: your parents' home, 12 is that right? 13 A Yes. That's where we stayed, but we didn't 14 stay there. Yes, we spent the overnights there, that's 15 correct. 16 Q And your parents live there? 17 A That's correct. 18 Q Now, on St. Patrick's Day, everyone else was 19 drinking. Did anyone else have an accident on the steps? 20 A You're asking me what the whole city of 21 Harrisburg did. I have no idea. 22 THE COURT: Thank you, sir. You may step 23 down. Let's hear from mom. 24 25 74 C 1 LAUREN A. BURNS 2 having been duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MR. ANDES: 5 Q State your name and address for the record. 6 A Lauren Ann Burns, 510 Ridgeview Drive, 7 Dillsburg, Pa. 8 Q How old are you? 9 A Forty-six. 10 Q You're married to Robert Burns, and you're 11 the mother of Carly and Nina, and he is their father? 12 A Correct. 13 Q When did the two of you separate? 14 A That would be September in 2005. 15 Q Prior to that, had you had difficulty with 16 your husband, in particular, with regard to violence 17 directed at you? 18 A Yes, I did. 19 Q Without going into great detail, had you 20 contacted the authorities because of violence? 21 A Yes. 22 Q Had he, in fact, prior to 2005, pled guilty 23 to charges that were brought against him by you or the 24 police? 25 A Yes. 75 • • 1 Q September of 2005, I don't want a 2 blow-by-blow account, but you were at work? 3 A I was at work. 4 MR. SHAW: Your Honor, I would object to the 5 testimony. It has nothing to do with custody. It has 6 merely to do with any alleged domestic violence between 7 Mr. and Mrs. Burns. It has nothing to do -- there's no 8 claims of any domestic abuse or violence against the 9 children. 10 THE COURT: Want I want to focus on, 11 Mr. Andes -- because I understand where you're coming from, 12 you want supervised visits -- we'll focus on the alcohol 13 issue, unless you can link the violence up to the girls. 14 MR. ANDES: Well, here is what I want to do. 15 I agree that we should concentrate on the alcohol. That 16 incident was fueled by alcohol. He testified under oath 17 that he hadn't been drinking that day. 18 THE COURT: I understand that. 19 MR. ANDES: I would like to get into that. 20 THE COURT: Then we can get into that from an 21 alcohol perspective. 22 MR. ANDES: Okay. 23 BY MR. ANDES: 24 Q You came home from work at what time? 25 A 5:40. 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • • Q Where was your office? A My office was in Carlisle. Q About how far from your home? A About 20 minutes. Q So, you drove, I take it, straight home from work? A Correct. Q When you got home, how did you find your husband? What was his condition? A I was very strongly convinced that there was a problem. I could smell alcohol on him. He had a little bit of difficulty with his speech, and I knew something clearly was not right. Q There was an incident in which he assaulted you? A Yes. Q He pushed you to the ground or something? A That's correct. Q Was it unusual for you at that time to come home and find him having consumed alcohol? A No. Q Was it unusual while you were home with the girls that he would consume alcohol? A He had signs that he had consumed alcohol. I didn't see him physically drink. Many times I was not there 77 • • 1 because I was at work, but it was very clear when I came 2 home that there was a problem. 3 Q After you came home and you were at home in 4 the evening, would you see him drink? 5 A Occasionally, but I believe most of it was 6 down in our basement. 7 Q That's where he went? 8 A Um-hum. 9 Q That particular day when you got home, after 10 the first confrontation, what did you do? 11 A Well, I realized I wasn't going to be able to 12 leave the house to take my daughters to cheerleading 13 practice. It was becoming a fight outside, a battle. I 14 thought the best thing to do would be to get them inside. 15 Typically, he would just go down to the basement, and I 16 wouldn't hear from him for a couple of hours. So, I 17 thought, all right, maybe things will die down. I hadn't 18 realized that the girls hadn't yet eaten dinner, so I got 19 them something to eat. I brought them upstairs to the 20 master bedroom thinking that he would just kind of settle 21 down for a few hours. 22 Q In fact, did he go to the basement? 23 A He did. 24 Q Were you able to determine what he was doing 25 in the basement? 78 i • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I did not go down there. I stayed upstairs. Q Could you hear anything he was doing down there that led you to believe that he was awake, asleep or what? A When I had gone down to the kitchen to get something to drink, I walked by the door. I heard what sounded like some snoring, so I just assumed that that would be it for the night, that he'd just fallen asleep and that would be the end. Q Was that typical of his behavior at that time, that he would go to the basement and fall asleep or whatever? A Disappear down to the basement, yes. Q But later that night he came up? A The phone rang. That must have woken him up. He walked up the steps. Q That's when the incident. started that resulted in you calling the police? A That's correct. Q The police came, and there was a fight between him and the police? A That's correct. Q You have been separated since that time? A Yes. Q Was that the only incident in which he had, 79 • • 1 in your view, had too much to drink in such a way that it 2 controlled o r prevented you from controlling his conduct? 3 A Oh, no. 4 Q How frequently would it happen that he drank 5 to that poin t? 6 A Sporadically, there were three pretty severe 7 incidents. But very frequently I would come home and find 8 him in that condition. After our separation, there were 9 issues, one involving the PFA violation with 13 phone calls 10 that were se mi-coherent to my voice mail at work and then 11 additional o nes at home to my cell phone. 12 Q After your separation, he went to live with 13 his parents in Mechanicsburg? 14 A Yes. 15 Q And you were living with the girls in 16 Dillsburg? 17 A Correct. 18 Q He testified that he saw the children two 19 days and two overnights each week. Is that true? 20 A Yes. 21 Q How was that arranged? 22 A I would meet him in the morning to exchange 23 the girls. I would meet him at the end of the period we 24 agreed upon to pick them up. 25 Q Were you concerned about: the safety of the 80 • 1 girls at that time? 2 A Well, there was always the underlying 3 concern. However, knowing that he was at his parents', 4 I thought at the time that they would look out for their 5 grandchildren and that I would not have to be as concerned. 6 Q Did you come to change that opinion? 7 A I did. 8 Q What happened to change the opinion? 9 A A continual denial from his mother about any 10 issues with alcohol. But more so, Carly eventually opened 11 up and told me that there were some things that occurred 12 that just were not good, one involving Robert pushing her 13 into a chair. His mom saw all of this. He did not strike 14 her, but he was very close, in her face. He lost his 15 temper. 16 Another involving the sofa bed situation. 17 Carly did not want to sleep down there with her father, 18 because she felt that he was drunk. She went upstairs -- 19 Bob did not want her to go upstairs -- to sleep in one of 20 the spare rooms. She sent her back down. She did not do 21 anything to intervene. 22 I started hearing about these things. I 23 realized that it didn't sound as if his parents were going 24 to protect my children. Then I became very concerned. 25 Then, obviously, the incident in June of 2008, grossly 81 • • 1 concerned. 2 Q To your knowledge, does your husband 3 acknowledge a problem -- has he ever acknowledged a problem 4 with alcohol? 5 A Not to me. 6 Q Does he deny it to you? 7 A Yes. 8 Q Have you ever suggested when you were 9 together that he get help, that he go see somebody, that he 10 get some kind of professional assistance? 11 A Not only when we were together, but up until 12 a couple of months ago. I said, I'll help you find a 13 treatment facility. I'll keep you on my insurance until you 14 are through the treatment. I have reached out to his 15 friends, I've reached out to his family, but I have spoken 16 to him many t imes about it. 17 Q What has his reaction to that been? 18 A I don't have a problem. 19 Q He testified that when we went to the 20 conciliation conferences we had tried to agree -- in fact, 21 we had agreed that he would meet with a counselor to try to 22 understand th e problems between him and the girls. 23 A Yes. 24 Q Is that right? 25 A That's correct. 82 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Who was the girls' counselor at that time? A It was Cindy Smiscak at Beech Street Program. Q That's spelled S-m-i-s-c:-a-k. Did you speak with Ms. Smiscak about the involvement that way? A I did. I told her the outcome of the hearing. Her response was that they are just not set up to intervene between the children and the parents. That is not their role. She did give me suggestions as far as others, because the intent to -- our understanding was to help Robert understand how his behavior frightened the girls so that they could begin to repair the relationship. But it's not her role. Her role is a play therapist and children's counselor. It's not to intervene between the parents and the children. Q In fact, did you and I provide your husband, through his attorney, with the name of someone at the Alternative Behavioral Center? A Yes. Q Do you remember the woman's name? A I -- Q A Q take place? A Is it Lori Sweger? Kim Sweger, I believe. In fact, did any counseling with her ever Not to my knowledge. 83 0 • 1 Q We went back, this matter was scheduled, and 2 the judge entered an order requiring the drug and alcohol 3 and the psychological evaluation. 4 A Yes. 5 Q Did you, in fact, learn through me that your 6 husband refused the psychological evaluation? 7 A Not only through you, but he left me many 8 messages stating that he was refusing to attend. He will 9 not go, just flat out was not going to go. 10 Q He testified that there were nine weeks when 11 he saw the girls with supervision. Who provided the 12 supervision? 13 A Well, mainly myself. 14 Q How did you do that? 15 A How or why? 16 Q First of all, how did you do it? How was it 17 arranged? 18 A It was arranged through contacting Bob, 19 either e-mail or phone call, in a public meeting place for 20 the allotted time, a couple of hours. The reason being is 21 it became very difficult to get anybody to supervise. I 22 asked some of my own friends, but they also were not willing 23 to supervise. It's quite a time commitment. More so, I 24 felt like my children were reassured that with me there it 25 would be okay. 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q When you supervised the visitation, were you immediately present right beside Bob with the girls, or did you have some other arrangement? A Beside or in the general vicinity. Q So, the girls knew you were available? A They knew I was there, yes. Q There was a time when you discontinued that? A Yes. Q Why? A Well, I said all along I would be willing to supervise these visitations as long as there is no bad communication coming from Mr. Burns. I continued to receive e-mails saying everything from I hate you to all sorts of other threats and veiled threats -- and I do have those with me -- as well as phone calls saying that there was never a need for a PFA, I never did anything, these visits shouldn't been supervised. It was getting ugly. The one, I guess, final straw for me was I was trying to make arrangements for our weekend visitation. I just got back to a message saying, you know, I have a meeting with Rite Aid executives, and you're just going to have to play it by ear, but it wouldn't nail down a time. I said, listen, you know, I need to have a time. Please leave me a time, or I'm going to assume, if you're not going to, that we're not going to have any visitation. That's how 85 • • 1 the nature of the communication went. 2 Q Are you satisfied to have his mother provide 3 supervision? 4 A I am not. 5 Q Why not? 6 A Because my girls have expressed a fear that 7 they do not feel protected. They don't feel that she is 8 going to intervene if there is an issue with him drinking, 9 and also some of the things that I outlined earlier that 10 Carly told me after the fact. 11 THE COURT: When you have the visitation, 12 you're there for the exchange, are you not? 13 THE WITNESS: Correct. 14 THE COURT: Okay. 15 BY MR. ANDES: 16 Q Were there times when you tried to ask Mr. 17 Burns' parents for help in dealing with his alcohol and his 18 rage and these problems you were having? 19 A Many. 20 Q What was their reaction to that? 21 A Basically, we didn't see him drink, we didn't 22 see it. Kind of a denial. I called them. I was locked in 23 the bathroom that night in September, and I appealed to them 24 several times. I said, I'm locked in the bathroom with the 25 girls. I don't know what to do. Would you please come and 86 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 help me. They just basically said, we don't want to get involved. Q From your observation, are the girls fearful of their father? A When he is drinking, yes. I believe they love their father, but they do not love the behavior that has come along with the alcohol. Q In the last several months, have you had occasion to receive phone calls from your husband? A Yes. Q Can you tell from his speech and his statements whether he is intoxicated? A Yes. Q How frequently does he call you when he appears to be intoxicated? A Well, last week I received several phone calls. It's sporadic. But on average,, probably a couple of times a week. Q What makes you believe he is intoxicated? A After being with him for a long time, I can tell by the speech patterns. He begins to repeat himself. In some cases, he stutters. In some cases, he just doesn't make sense. THE COURT: When the supervised visitation was being conducted, there was no problem with alcohol then, 87 • • 1 was there? 2 THE WITNESS: When I was there, no. 3 THE COURT: And you can tell when he has been 4 drinking? 5 THE WITNESS: Yes. 6 BY MR. ANDES: 7 Q Are you willing to arrange visitation if some 8 adequate supervision can be provided? 9 A Yes. 10 Q Are you willing to provide the supervision 11 yourself? 12 A No, I'm not. 13 Q Why not? 14 A I'm fearful. I'm still -- we've had a 15 history here that has been violent, threatening. PFAs don't 16 seem to cease behavior, PFA violations. Just nothing seems 17 to stop it. 18 Q Has he made statements to you in person or on 19 the phone or by e-mail that suggest, on his part, a 20 disregard for authority? 21 A Yes. 22 Q What sorts of things has he said? 23 A Well, the Dillsburg Police are corrupt, 24 Children and Youth Services are socialists, PFA is a joke, 25 and on and on to that nature. 88 • • 1 Q Does that give you some reason to be 2 concerned about his behavior? 3 A Yes. 4 MR. ANDES: That's all the questions I have. 5 THE COURT: Mr. Shaw. 6 CROSS-EXAMINATION 7 BY MR. SHAW: 8 Q 9 another propo 10 Psychological 11 A 12 Q Ms. Burns, were you ever provided with sed counselor, being Kristen Gennett at Franco Associates? Yes, I believe I was. You said no to that individual, as well, 13 right? 14 A Honestly, I don't recall saying no to her. 15 THE COURT: What do you mean, as well? Who 16 else did she say no to? 17 BY MR. SHAW: 18 Q Let me rephrase that. Did you decline her? 19 A I don't believe I did. 20 Q So, you would be willing for her to be a 21 family counselor where Bob could go there with the children 22 in an attempt, as the memorandum from the custody 23 conciliation stated, to determine what the problem is? 24 A Yes, if that's the nature of the counseling. 25 MR. SHAW: Okay. Good. 89 • • 1 THE COURT: What is that name? 2 MR. SHAW: Kristin Gennett at Franco 3 Psychological Associates. 4 MR. ANDES: G-e-n-n-e-t--t. 5 THE COURT: Your client has counseled with 6 Ms. Sweger before. He doesn't want to do that with the 7 children? 8 MR. SHAW: It's his understanding that that's 9 not what Alternative Beha vioral Consultants is about, not 10 family counsel ing. 11 THE COURT: Well, they deal with 12 reunification, and that's what this is. 13 MR. SHAW: I mean, I can have him testify 14 again. 15 BY MR. SHAW: 16 Q It's true the two of you don't get along very 17 well, is that right? 18 A Yes. 19 Q But some o f these concerns and issues, as far 20 as custody, pr obably are a result of the nature of the 21 relationship n ow between you and Bob? 22 A No. 23 Q You first filed for custody in March of 109, 24 is that right? 25 A Correct. 90 • 1 Q So, during this entire time there was a PFA 2 by you against him, you agreed for the children to have -- 3 for him to have custody with the children, partial? 4 A Yes, and especially at the advice of Sam. 5 Q But you agreed, nonetheless? 6 A Yes. 7 Q When you filed for the PFA, you did not file 8 on behalf of the children, as well, correct? 9 A No. There was no violence against the 10 children directly. 11 Q You stated there were incidents that started 12 to cause concern, but, again, you still. did not file for 13 custody until March of 2009? 14 A Yes. 15 Q Do you ever consume alcohol in the presence 16 of the children? 17 A No. Like maybe a glass of wine, social, but 18 no. 19 Q During the time that you and Bob were 20 together, your testimony is you never consumed alcohol in 21 the presence of the children? 22 A Not to excess. 23 Q What do you consider excess? 24 A Over three. 25 Q You indicated an incident where Mr. Burns 91 ! • 1 pushed Carly into a chair at his parentis' house. Isn't it 2 true that his mother denied that incident occurred? 3 A I don't know if his mother denied it or not. 4 Q She never denied to you over the phone or in 5 person that t hat incident did not occur? 6 A No. 7 MR. SHAW: I have nothing further. 8 REDIRECT EXAMINATION 9 BY MR. ANDES: 10 Q You filed this petition in 2009. Prior to 11 that, he was not seeing the children, is that right, as a 12 result of the incident in June of 2008? 13 A That's correct. 14 THE COURT: I'm aware of the record. I did 15 the special relief. 16 MR. ANDES: Yes. Okay. 17 BY MR. ANDES: 18 Q Has Carly written for you or to you a 19 statement as to her conce rns about her father? 20 A Yes. 21 MR. ANDES: Your Honor, I don't know if you 22 will choose to speak to t he children or not -- 23 THE COURT: I'd prefer not to, but if the 24 parties insist. It seems like they have been through 25 enough. 92 • 1 MR. ANDES: They have been through enough. I 2 think what I would offer is this statement from Carly about 3 her concerns for her father, and then perhaps you won't have 4 to speak with them. 5 THE COURT: Do you think maybe those concerns 6 would be better taken up with a counselor than the Court? 7 MR. ANDES: Absolutely. 8 THE COURT: Then why don't we save it for 9 that? 10 MR. ANDES: That's fine with me. I think a 11 counselor could do a better job than any of us could. 12 THE COURT: Certainly they should be shared 13 with dad. I have no problem with that.. 14 MR. ANDES: I have a witness on the 15 telephone. 16 THE COURT: Who is that? 17 MR. ANDES: That's the police officer from 18 the 2005 incident. 19 THE COURT: You may very well catch a 20 ten-yard penalty for piling on. 21 MR. ANDES: He would confirm all of the 22 gruesome details, but I wouldn't ask him that. I would just 23 ask him to confirm the level of intoxication that he 24 observed. But I don't have to call him. I think you heard 25 the testimony. 93 1 THE COURT: Who else do you have? 2 MR. SHAW: If I could have just a moment with 3 my client. 4 THE COURT: Who is that in the back? Are you 5 Mr. Gould? 6 MR. GOULD: Yes. 7 THE COURT: I would like to hear from 8 Mr. Gould. Come on up, sir. 9 JERRY GOULD 10 having been duly sworn, testified as follows: 11 EXAMINATION 12 BY THE COURT: 13 Q You're sort of new to these proceedings, but 14 your name has come up. You're a friend with both parties, 15 is that correct? 16 A Yeah. I've been friends with Bob since we 17 were kids, and then his wife after they were married. 18 Q Have you talked with Bob about seeking help 19 for his alcohol problem? 20 A I have a couple of times. 21 Q How recently? 22 A The last day, I talked to him on the phone 23 before he stopped calling me, because he knew I was coming 24 here. You know, he didn't want me to :interfere, really. 25 Q How often? 94 0 0 1 A How often? 2 Q Have you discussed his alcohol problem with 3 him? 4 A Every time I talk to him, pretty much. 5 Q And his response? 6 A He doesn't have a problem. 7 THE COURT: Okay. Mr. Shaw, do you have any 8 questio ns? 9 MR. SHAW: Yes, Your Honor. 10 CROSS-EXAMINATION 11 BY MR. SHAW: 12 Q Is it true you have abuse issues of your own? 13 THE COURT: Whoa, whoa, whoa. That's kind of 14 beyond the scope of direct. Let's be more specific with 15 abuse. Are we talking sexual abuse, alcohol abuse? 16 BY MR. SHAW: 17 Q Do you have drug or alcohol abuse issues of 18 your own? 19 A I do not. I mean, I drink a couple of times 20 a week, probab ly, but I'm not really fond of alcohol. I use 21 it for effect mostly. 22 Q Do you consume illicit drugs or illegal 23 drugs? 24 A No. That's ridiculous. 25 MR. ANDES: Your Honor, I object to this. 95 • • 1 THE COURT: I sustain it.. 2 MR. SHAW: Your Honor, recognizing that one 3 individual has a pr oblem, if he has a problem of his own -- 4 THE COURT: What better to see you with, my 5 dear. 6 MR. SHAW: All right. I have nothing further 7 then. 8 THE COURT: Thank you, sir. 9 MR. ANDES: I have one or two questions. 10 CROSS-EXAMINATION 11 BY MR. ANDES: 12 Q On at least one or more of those occasions, 13 has Michael Connor also asked, perhaps begged, Mr. Burns to 14 get help for his alcohol problem? 15 MR. SHAW: Objection, Your Honor. He is 16 asking for hearsay. 17 MR. ANDES: No. I'm asking if it was in his 18 presence. 19 THE COURT: Overruled. 20 THE WITNESS: Yes. 21 THE COURT: Have you seen Mr. Connor ask him 22 to get help for alcohol? 23 THE WITNESS: We have done that together. 24 BY MR. ANDES: 25 Q And the answer, I take it, was the same from 96 E • 1 Mr. Burns? 2 A I thought maybe something was going to 3 happen, but I guess not. Yeah, pretty much. 4 MR. ANDES: That's all the questions I have. 5 Thank you. 6 THE COURT: Thank you, sir. 7 MR. ANDES: May this witness be excused? 8 THE COURT: He may. 9 MR. ANDES: That means you may leave. Thank 10 you very much. At some point, I need a few minutes to call 11 my witness by telephone to tell him he doesn't have to 12 testify. 13 THE COURT: Okay. Do you have anything else, 14 Mr. Shaw? 15 MR. SHAW: I do not, Your Honor. 16 THE COURT: Okay. We'll reconvene at 3:15. 17 MR. ANDES: Thank you. 18 (A recess was taken.) 19 20 THE COURT: Mr. Burns, I have been doing this 21 for a lot of years. Your case is actually very sad. There 22 is no question, based upon the testimony I have heard these 23 past three hours, that you are an advanced alcoholic. You 24 have a very serious problem. As long as I have jurisdiction 25 over this matter, you're going to have to choose between 97 • • 1 alcohol or your children, and that should be no choice at 2 all, and I would hope it's not. 3 You need counseling. If the evaluation you 4 took yesterday comes back to say that you do not need 5 counseling, then I'm assuming that you lied to them about 6 the nature and extent of your alcohol use. So, if it comes 7 back and says you don't need counseling, I'm directing that 8 you get another evaluation. And you may with the same 9 people, but I want you to present them with the following 10 facts: 11 And now, this 8th day of October, 2009, after 12 hearing, we make the following Findings of Fact: 13 1. In 2005, Robert Burns was arrested as a 14 result of assaultive behavior towards his wife and 15 thereafter towards the police. He was intoxicated. 16 2. He pled guilty to those charges and was on 17 probation for 18 months, during which he underwent a drug 18 and alcohol evaluation which, astonishingly, said that no 19 treatment was needed. 20 3. Throughout the course of his marriage he 21 abused alcohol and ignored the pleas of Plaintiff to seek 22 help. 23 4. In June of 2008, while he had custody of his 24 children, he drank to excess, passed out, and the children 25 were forced to call 911 for help. 98 1 5. When the EMS arrived, he became combative, 2 defecated on his pants, was taken to the hospital, and 3 refused all toxicology testing. 4 6. On St. Patrick's Day 2009, he defecated on 5 the rug of a friend while intoxicated. 6 7. He has continued to deny any problem and has 7 made up unbelievable stories to explain the above 8 events. 9 8. His friends have repeatedly and consistently 10 asked him to seek treatment for his alcohol abuse, which he 11 has refused to do. 12 9. Despite the glaring evidence to the contrary, 13 he continues to deny any problem with alcohol. 14 So, those are the facts that I found after 15 what I heard. If after seeing those facts any counselor 16 says you do not need help, then I will want to hear from 17 that counselor in court. If I'm wrong, then all you have to 18 do is swear off alcohol. And if it's not a problem, it 19 shouldn't be a problem, should it? 20 MR. BURNS: No, I don't agree with your 21 assessment; but yes, you're right in what you just said. 22 THE COURT: Good. Your children were scared 23 by what occurred. Hopefully you've read the letter from 24 your daughter, which I didn't feel I needed to see at this 25 point in time. 99 E 1 MR. BURNS: I don't even feel that came from 2 my daughter, quite honestly. 3 THE COURT: Well, then we have a real 4 problem. 5 MR. BURNS: I did read the letter, yes. 6 THE COURT: Okay. I'm going to direct that 7 you undergo counseling to repair those bridges with your 8 daughter in front of Ms. Gannett. I'm going to direct you 9 to institute that as soon as practical, because until that 10 time, and until I review this matter and see how your 11 alcohol counseling has come and how your progress is, you're 12 only going to have supervised visitation. 13 Now, on the other hand, Mom, I understand 14 your concerns. I'm satisfied that with the limited 15 visitation that doesn't include overnight that grandma can 16 supervise. So, after we've got some counseling under the 17 belt with Ms. Gannett, we're going to coo to my order of 18 May 7, 2009, which provides for Wednesdays from 5:00 to 19 7:30, and then one weekend day for -- and we'll do four 20 hours on a weekend day, but you have the right to withhold 21 the visitation if you think he has been drinking. We'll 22 enter the following order: 23 And now, this 8th day of October, 2009, after 24 hearing, we enter the following Temporary Custody Order: 25 1. The Mother, Lauren A. Burns, and the Father, 100 0 1 Robert K. Burns, shall enjoy shared legal custody of Carly 2 M. Burns, born August 23, 1998, and Nina F. Burns, born June 3 27, 2002. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. The Mother shall enjoy primary physical custody of the children. 3. Father shall immediately make arrangements to get the children enrolled in counseling with Christine Gannett to help repair the damage done between him and his daughters as a result of his past behavior. The costs of the counseling to be paid for by Father. How is the telephone contact going now? What nights? MS. Burns: Between Robert and the girls? THE COURT: Yes. MS. Burns: Okay. I mean -- THE COURT: How often? MS. Burns: Every other day. THE COURT: Okay. Next number: 4. Father shall be entitled to liberal telephone contact with his children. 5. After three sessions with Ms. Gannett, or sooner if she recommends, the Father shall be entitled to periods of temporary physical custody of the minor children as follows ... Does 5:00 to 7:30 suit your schedule, or do 101 • • 1 you want to make it a little bit later? Problems, Mr. 2 Burns? 3 MR. BURNS: Yes, Your Honor. The only 4 problem I have, which is not really a problem, is we've been 5 fluctuating on that schedule. It seems up to this point in 6 time, which goes back to some of the points that you just 7 made, but it seems that I have jumped through all of the 8 hoops. There has never been alcohol in front of the kids, 9 never once in front of teachers, coaches, whatever. 10 THE COURT: Does Tuesday work? 11 MR. BURNS: Tuesday has to be flexible for 12 me, because her schedule can change and mine can change. 13 THE COURT: You don't work. 14 MR. BURNS: But I'm saying in the event that 15 something is coming down the pike -- that's okay at this 16 point in time, sure. That's fine. Tuesday works. 17 THE COURT: At 5:00 or 5:30? Where do you 18 work? 19 MS. BURNS: I work in Carlisle. 20 MR. ANDES: From 5:30 to 8:00, Your Honor. 21 That would give the same length of time, but just delays it 22 half an hour so she can get home. 23 THE COURT: ... as follows: 24 A. On Tuesdays from 5:30 p.m. to 8:00 p.m. 25 B. One day each weekend, as agreed upon by 102 • • 1 the parties, from noon until 4:00 p.m. 2 C. The Father's periods of temporary custody 3 shall be supervised by his mother or some other person 4 agreed upon by the parties. 5 6. Mother has the right to deny periods of 6 partial physical custody if she has any indication that 7 Father has been drinking. 8 7. Father is directed to comply with any 9 treatment recommendations of Mazzitti & Sullivan. If they 10 deny that he needs any further counseling, a copy of my 11 Findings of Fact shall be provided to them and a 12 re-evaluation completed. If they still deny that he needs 13 further counseling, then I would ask that the evaluator come 14 to Court and testify. 15 8. Upon Father successfully completing alcohol 16 counseling and giving up alcohol, we will consider further 17 partial custody to include overnights and unsupervised. 18 Does that cover everything? 19 MR. ANDES: If I may be heard on three brief 20 points. 21 THE COURT: Of course. 22 MR. ANDES: I'll be brief. 23 THE COURT: I'll bet. 24 MR. ANDES: The prior order required my 25 client to pay for the evaluations. If there is to be a 103 • • 1 re-evaluation of the drug and alcohol abuse, we would like 2 that expense put on Mr. Burns. We would like the counseling 3 by Ms. Gannett put on Mr. Burns. 4 THE COURT: Isn't there insurance coverage 5 for that? 6 MS. BURNS: No. 7 MR. ANDES: Not that we're aware of, no. 8 MS. BURNS: I pay out-of-pocket. They don't 9 have insurance for counseling. 10 MR. ANDES: Finally, what we would like is 11 for Mr. Burns' mother to have at least one session with this 12 counselor so she understands what the counselor's 13 perceptions of these problems are and what she should do to 14 avoid those or minimize those problems. I think that can be 15 arranged fairly simply. If Mrs. Burns is willing to 16 supervise the visitation, I would think, she would be willing 17 to accept some instruction. 18 THE COURT: Add to the appropriate paragraph: 19 The costs of the re-evaluation to be paid for 20 by Father. 21 Then add to the counseling paragraph: 22 The costs of the counseling to be paid for by 23 Father. 24 I would raise with Ms. Gannett the prospect 25 of including your mother. If she deems that to be 104 9 0 1 appropriate, then that should be done. 2 Do you need me to set up a time now for a 3 further hearing in this matter? 4 MR. ANDES: I don't think so, Your Honor. 5 MR. SHAW: I would say no, Your Honor. 6 THE COURT: Okay. Good. Of course, my Order 7 can be changed by agreement of the parties at any time. I 8 can't tell what's in the best interests of your children as 9 well as you can, but I can tell that you have a problem. I 10 just want to make it clear, so that when you're in front of 11 another Court and try to minimize what I found today -- 12 that's why I made those Findings of Fact. It's very clear. 13 Everything in your testimony minimized your 14 involvement or your problems. If you think anybody buys the 15 fact that you drank Nyquil for an upset stomach and got 16 blitzed the way you did that night, then maybe you need the 17 psychological in addition to the alcohol counseling. 18 Court is adjourned. 19 (The proceeding was concluded.) 20 21 22 23 24 25 105 • • CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Susan Rice Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Dat 106 Edward E. Guido, J.