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HomeMy WebLinkAbout2018-08485 Truong V Teppig (2) GIAM TRUONG, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 2018-08485 : ANNA TEPPIG, : CIVIL ACTION LAW Defendant : IN CUSTODY HYAMS, J., NOVEMBER 19, 2021 I. PREAMBLE Resilience can refer to positive adjustment in the face of adversity. Resilience has also been defined as the capacity of individuals to cope successfully with significant change, adversity or risk. Hyun Lee and James Cranford II. BACKGROUND The parties to this challenging custody litigation were married at the time that their three children (F.T., G.T., and L.T.) were born. The breakup of the marriage stemmed from Father criminal charges and eventual incarceration after he pled guilty to statutory rape in which the victim was twelve (12) years old at the time Father initiated sexual contact. The parties had lived together in Georgia and Mother filed for divorce in Georgia during Fathertion. She eventually moved with the three subject minor children to Pennsylvania. Although the divorce decree provided Mother sole legal and physical custody of the children, Mother permitted contact between the children and their Father by way of telephone as well as some visits with him while he was incarcerated and for a period of time after release. This contact occurred from approximately late 2013 to 2017. In August of 2018, following a modification to Fathers probation conditions that permitted him to have supervised contact with his children, Father filed a custody Complaint seeking visitation with his children. He continued to reside in Georgia and therefore, has only sought limited partial custody during the school year and has only recently identified the request for expanded visitation to take place in Georgia during the summer months. Following conciliation, the parties were directed to identify a reunification counselor and Katie J. Maxwell, Esquire was appointed as guardian ad litem for the children. A series of Orders were entered by the Honorable Jessica E. Brewbaker from December 2018 October 2019. These orders were issued immediately following status conferences with counsel for the parties, the GAL and the reunification counselor. The orders slowly permitted and expanded Fathers contact with the children subject to the review and approval of the GAL and reunification counselor including discussion with counsel and their general agreement. The undersigned continued this practice of holding status conferences with counsel, the GAL and the reunification counselor to determine whether visitation should be expanded. Throughout 2020 (despite the complications brought on by the COVID-19 pandemic) and from January 2021- May 2021, Fathers visitation continued to be extended in length and/or frequency. An Order dated May 7, 2021 contemplated overnight visitation to begin subject to the input of the reunification counselor. At the same time that the overnight visitation was being contemplated, Mothers counsel identified for the first time, an open federal investigation regarding the Father and alleged child pornography. Despite numerous attempts of the GAL and Fathers counsel to glean a better understanding of the nature and status of the investigation, the details remained allusive and vague. The only clarification offered was that the material resulting in the investigation was specifically related to the same criminal conduct of Father involving the 12 year old victim. As the parties were unable to reach an agreement to overnight visitation and upon Mothers demand for a custody trial, hearings were held on September 27, 2021 and November 5, 2021. 1 The relevant testimony is summarized below in the following section. III. FINDINGS The GAL testified and recommended permitting Fathers visitation to increase to include overnight visitation. A now adult adoptive child of the parties, Joe Pham, testified that he met the Mother and Father at church when he was approximately fourteen (14) years old. Joe was fostered, and eventually adopted by the Mother and Father who were married at the time he met them. During the time that Joe lived with Mother and Father, all three subject minor children had been born and also lived in the marital home. Joe explained that he had a very pleasant life while living with Mother and Father, and Father was not an intimidating figure. He denied that Father ever encouraged him to have multiple sexual partners as a teenager. Joe described the subject minor children as being very happy while he lived there. He acknowledged an incident when he was fifteen (15) years old where Father struck him while they were in the home. The incident related to Joe telling Mother information that Father asked he withhold after Father fed him fast food for dinner. Joe described this as a one-time thing, and Father apologized after it had happened. Joe and Father did get into an argument when Joe was moving out and during the argument Father broke Joes phone. There were no other physical incidents involving Joe or that he witnessed. Joe decided to move out once he became aware of Fathers sexual relationship with a minor and that despite Mothers awareness of the relationship, she continued to frequently have the minor to the home to babysit the children. As he was no longer a minor, he decided he was ready to move out on his own. The reunification counselor, Jamie Orris, LSW has been providing reunification counseling 1 If testimony from a witness is not discussed the weight of that testimony was deemed not relevant as it pertains to the best interest custodial factors. to the family since January 2019. She generally sees the children following their visits with their Father. She described Father as being highly cooperative. She supports visitation including overnight visits at this time, however, she identified that she still has some reservations. Even though the visits are great, the kids are happy and they want to have overnights with their Father, she is well aware that sexual offenders have a high recidivism rate. Her unease has to do with Fathers past and not what is presently happening during the visitation process. Despite her reservations, she believes overnight visitation should be initiated at this time. Father resides in Georgia with his current wife, Amanda Truong and their two-year-old child, A.T. All three minor subject children have a positive relationship with their half sibling, A.T. There are multiple paternal relatives (aunts/uncle/s, grandparents) who reside near Father in Georgia and maintain a close connection with him. Father owns and works in a restaurant located in Georgia. He was convicted of statutory rape as a result of a sexual relationship he commenced with a twelve (12) year old. The relationship continued for several years thereafter until Father was arrested and incarcerated. He was convicted in 2013 and he remained in prison until 2015. He was released to a transitional center where he remained until 2016. Fathers parole ended in 2018 and the terms of his parole were modified in April of 2018 to allow Father supervised contact with his own children and to have pictures and videos of his own children. At some point well before Fathers arrest, Mother became aware that Father was having a sexual relationship with a minor. Father and Mother had an open marriage and engaged in group sex with other couples. They had shared sexual encounters with Fathers minor victim when the minor was under the age of eighteen (18), but over sixteen (16), the legal age of consent in Georgia. Father discussed the sexual offender treatment he received after he was released from the transitional center as part of his parole requirements and his realizations about himself as a result of that treatment. While Father was incarcerated, Mother permitted the subject minors to visit their Father and speak with him multiple times a week on the phone. The phone calls continued until 2017, even after Mother moved out of Georgia with the children. It appeared Fathers contact with the children stopped around the same time Mother settled down with her current husband. Father obtained permission from his probation officer to come to Pennsylvania in 2018, close in time to L.T.s birthday. He sent Mother a text message that he was going to drop off gifts for the children, and Mother never responded. While he and his wife were driving in Mothers neighborhood, Father saw F.T. walking and they eventually recognized each other. Father stopped, and he and F.T. had a happy, but brief reunion. He provided her the gifts, but Mother called the police as a result of this contact and filed for a PFA. Father ultimately agreed to a PFA being entered against him in October 2018 that expired in February 2020 without any violations. Mother stopped all communications with Father at some point in 2018, and, from that point forward, communications occurred only through counsel. As a result of the instant custody action Father filed, Judge Brewbaker held a pretrial conference in January 2019 and permitted the children to initiate contact with their Father, but Father could not make the initial contact. Following a July 2019 status conference, Judge Brewbaker permitted four hour visits with Fathers wife, Amanda, supervising. In September 2019, a Section 5329 Risk of Harm Evaluation was ordered. Georgia does not have that exact type of statutory evaluation, thus Father obtained a sexual offender evaluation with Matthew B. Connelly, which was ultimately deemed acceptable by the Court. Concerns identified by Mother regarding visitation during the ongoing status conferences included Father taking the children across state lines, Father holding a portion of a visit in his hotel lobby and F.T. buying a bra during a visit with her Father. These concerns were discussed during status conferences and it was learned Father took the children to Maryland during a visit in 2020 to watch a movie because no local movie theatres were open and operating. One visit partially took place in a hotel lobby where Father was staying. This occurred because L.T. needed to use a restroom and the COVID-19 pandemic limited what restroom options were available. They never left the lobby area of the hotel. Finally, F.T. purchased her own bra during a visit that took place at the mall and at no time did Father enter the particular store where the bra was purchased. All of these concerns were discussed at status conferences and addressed with Father as part of the reunification counseling and at no time did either the GAL or Ms. Orris recommend visits decrease as a result of the aforementioned concerns. Father learned following a status conference regarding overnight visitation that there was an alleged federal investigation involving him and child pornography. Due to that discovery, he contacted his probation officer who, made contact with the federal system and could not identify any new investigation involving Father. He has identified a plan for overnight visitation regarding sleeping arrangements and this plan was approved by Ms. Orris. Fathers wife testified briefly explaining her position on supervision and the accommodations they were making to their Pennsylvania townhouse to meet the recommendations of Ms. Orris for overnight visitation, including bedroom location. Mothers concerns regarding Father having overnights were that he was grooming the children and the possibility that he would sexually and physically abuse them. She explained that she felt his behaviors constituted taking down their walls and making them do what he wants them to do. Mother expressed extreme concern when F.T. came home with a bra following a visit with Father because of his sexual offender background despite a lack of evidence or testimony that Father was present when F.T. bought the bra. In addition, their child, L.T., who is diagnosed with down syndrome, has made comments and displayed silly gestures that Mother has identified as grooming by Father. Mothers other comments regarding grooming/lowering of walls were not credible. Unfortunately, Mother believes that because of Fathers sexual offender background with a non- relative minor, any attempt to inquire about his childrens lives, constitutes grooming. Quite possibly the saddest, but clearest example of this belief was Mother claiming that Father telling the children that he loved them constituted grooming them. Mother said that in this case, the Father was not a normal father and she found it problematic that he was trying to establish emotional connections with the children and get them to trust him. She struggled to identify topics of conversation that were appropriate for Father to discuss with the children and was only able to identify sports and school. Mother acknowledged that she was unwilling to show Father how to properly care for L.T.s medical issues despite it being in L.T.s best interest. She did point out that Father could be trained by a medical provider. Mother claimed she was manipulated and abused by the Father during their marriage. She felt she had no choice but to engage in appalling sexual acts including having her own affairs. While Mothers depiction of the marital relationship was disturbing, even assuming her depiction was accurate, nothing that she described changes the analysis on the best interest factors as it relates to supervised overnight visitation at this point in the custody action. In addition, Fathers communications with F.T. early on regarding custody or painting the other parent in a negative light, while concerning and inappropriate, were not grooming or manipulation. Those communications reveal a Father who wants his children to know that he loves them and wants to be able to visit them. Matthew B. Connolly, a licensed professional counselor, who specializes in treating sex offenders, treated and evaluated Father. In the Fall of 2018, Mr. Connolly performed a Psychosexual Offender Evaluation of the Father. Based on the treatment and evaluation, Mr. Connolly had no reason to believe that Father would have a sexual interest in his own children. Father underwent polygraph testing on a regular basis for probation and treatment purposes that encompassed questions addressing interest in sexual contact with family members, including his children. When asked such questions, there was no significant response when Father denied contact. Mr. Connolly found Father to be at low risk to recidivate generally and a low risk to his children. He was in agreement with supervised contact between the Father and his children. Mother presented testimony from Ashley Milspaw, PsyD, who did not evaluate Father, but reviewed records and spoke with Mothers attorney resulting in her generating a report dated September 20, 2021. Dr. Milspaw recommended Father undergo a Section 5329 Risk of Harm 2 Evaluation. She expressed concerns about Father having overnight visitation before there was a Section 5329 Risk of Harm Assessment completed, before the children were evaluated by a clinical psychologist, and before the supervisor had been properly trained or executed a supervisory affidavit. The evidence has demonstrated that it is in the best interests of the children for the Fathers visitation to be extended to overnight visits. This determination is not only endorsed by the GAL, but is also overwhelmingly supported by weighing the evidence presented and applying it 2 This issue was previously litigated prior to undersigneds involvement in the custody action. As Fathers state of residency does not have a comparable Section 5329 Risk of Harm Evaluation, the Psychosexual Evaluation prepared by Matthew B. Connolly was accepted when presented at a status conference that was held before the Honorable Jessica E. Brewbaker in October 2019 as complying with the September 3, 2019 Order directing Father to undergo a Section 5329 Evaluation. 3 to the custodial best interest factors. However, the evidentiary hearing, while lengthy and at times seemingly redundant, was not without benefit. This crucial stage of initiating overnight visitation is not the time to be undaunted. Therefore, the following requirements must be met prior to the initiation of overnight visitation: 1. The current visitation supervisor, Amanda Truong, (Fathers wife), will complete training to be completed by a sexual offender treatment provider (to include A Better Tomorrow Counseling Services); 2. The current visitation supervisor, Amanda Truong, (Fathers wife), will complete an Affidavit of Accountability of Physical Custody Supervisor that includes input from the reunification counselor, GAL, Mother and the sexual offender treatment provider who provided the supervisory training; 3. The reunification counselor shall continue to meet with the children no more than three business days following visitation with Father and she shall immediately alert the GAL of any concerns she has following overnight or any type of visitation with the Father; 4. Father and Amanda Truong shall receive medical training from an appropriate medical provider who treats or has treated L.T., with regard to his bowel treatments and any necessary care that he may need during longer visitation periods. Mother shall sign any releases or authorizations necessary and cooperate with the process of ensuring that this medical training can be set up to take place. 3 See attached custodial best interest factor analysis. The parties should be conscious that despite the pain and horror that constituted their marriage, three beautiful and resilient humans were created. en is grating on your ears, I don't think it's the children who need to be adjusted. Stefan Molyneux BY THE COURT, _________________ Carrie E. Hyams, J. Tabetha Tanner, Esquire 2145 Market Street Camp Hill, PA 17011 ttanner@tanner-law.com For the Plaintiff Bryan Schroll, Esquire 603 Sheppard Road Voorhees, NJ 08043 bschroll@schrollandbowman.com For the Defendant Katie Maxwell, Esquire 54 E. Main Street Mechanicsburg, PA 17055 katie@waltersgalloway.com GAL Exhibit A FACTOR Discussion FACTOR OUTCOME Which party is more likely to Mother has understandably been hesitant to This Factor favors encourage & permit frequent permit frequent and continuing contact & continuing contact between between the children and their Father custodial time to the child & another party following his arrest and incarceration. overnight visitation and However, she has failed to recognize the it be in the subject minor therapeutic progress made and the best interest. recommendations of the therapeutic providers as well as what the children are requesting (specifically F.T. who is 17 years), and has formulated her own lay opinions about how conduct (discussing religion, relationships, how he cares about the children, fighting to be able to see them), is She further has refused to provide Father with training related trained. At no time did she father opportunities for Father to receive training al providers. The present & past abuse This Factor does not committed by either party or Father is convicted of having sex with a minor child who was age 12 years old at the time of custodial time to household, whether there is a the initial incident. The Father continued to overnight visitation and continued risk of harm to the engage in this criminal course of conduct while it would not be in the child or an abused party & the minor was 14-16 years of age and up and which party can better until the Father was arrested/incarcerated. best interest. provide adequate physical Since Father has been released from prison, he safeguards & supervision of has been working with a therapeutic provider the child. that provides counseling and reunification services to the children and has had a high level of cooperation from Father. He has followed all of her recommendations. While there is no known current risk of harm to the children in the last 3 years, the gravity of the criminal behavior and the offense cannot be ignored. All parental duties related to the children and This Factor favors The parental duties able to performed by each party on be performed by Father. custodial time to behalf of the child. overnight visitation and it be in the subject minor . The need for stability & Father is not requesting any disruption in his This Factor favors education, family life & or involvement in their residential community. custodial time to community life. He has always traveled to PA from GA for his overnight visitation and visitation and has been willing to transport the it be in the subject minor children to their activities despite those activities cutting into his custodial time. His current proposed custodial schedule would not result in any disruption to the stability of the children in the areas of education, family life & community life. The availability of extended Father resides in GA. His parents and several This Factor favors family siblings reside nearby and he has frequent extendi contact with them. His Mother has even custodial time to traveled with him and his wife to PA for visits overnight visitation and and to help with caretaking of his youngest it be in the subject minor child (non-subject minor child). The three subject minor children are very close This Factor favors relationships with each other. They have a half sibling who resides with Father full time and attends custodial time to with the three subject minor overnight visitation and children.. F.T. has a good relationship with her it be in the subject minor half sibling. G.T. wanted to hold her right away and is always the first one to run to his younger half sibling. L.T. also has a close connection with his younger half sibling. It is believed that there are step sibling/s in substantial evidence in this regard. The well-reasoned preference F. T. and G.T. feel things are going well and This Factor favors of the child, based on the are enjoying visits. The older two feel they are capable of helping L.T. with his medical issues custodial time to should anything arise on a visit with Father. overnight visitation and The older two subject minors are ready and it being in the subject willing to begin having overnights with Father and want to go to GA to see other family interest. members. F.T. will be 18 in April 2022. The reunification process as per their reunification therapist, is high. disabilities, his preference is not being highlighted, however, there was no evidence that he does not wish to continue to have visitation with his Father. The attempts of a parent to There was no credible evidence that the parties This Factor is N/A. turn the child against the try to turn the children against the other other parent, except in cases parent. of domestic violence where reasonable safety measures are necessary to protect the child from harm. Which party is more likely to Both parents have demonstrated the ability to This Factor favors maintain a loving, stable, maintain a loving, stable and nurturing consistent & nurturing relationship with the children custodial time to relationship with the child overnight visitation and adequate for the child's it being in the subject emotional needs interest. Which party is more likely to This factor comes into play for the most part Until Father receives the attend to the daily physical, with regard to the youngest child due to his necessary training, this emotional, developmental, medical vulnerabilities. Father has not been Factor does not favor educational & special needs of the child er siblings have been custodial time to capable of addressing these medical issues for overnight visitation and L.T. if one it would not be in the visitation. best interest. The proximity of the The parties live numerous states away from This Factor favors residences of the parties each other, but Father has always figured out ways to travel to PA from GA for his visitation. custodial time to overnight visitation and it being in the subject interest. Each party's availability to This Factor is N/A at this time given the extent This Factor is N/A. care for the child or ability to make appropriate child-care children. arrangements The level of conflict between It does not appear that the parties have been This Factor favors the parties & the willingness able to cooperate with each other outside their & ability of the parties to pts to custodial time to cooperate with one another. communicate on issues and even that has been overnight visitation and A party's effort to protect a plagued with trepidation and frustration. it being in the subject child from abuse by another party is not evidence of moving to overnight visits is understandable, interest. unwillingness or inability to the complete disregard for progress made in cooperate with that party various areas (sexual offender treatment, reunification), etc. is disheartening. The visits with Father are not a new step and they have been ongoing for over two years without any concerns related to visitation in a hotel waiting room/use of hotel bathroom during Covid and F.T. purchasing a bra at the mall during a visit) did not result in visits stopping or decreasing and the credible evidence did not support doing so. This Factor is N/A. The history of drug or alcohol There were no reports of drug and alcohol abuse of a party or member concerns in either household. of a party's household The mental & physical These issues were not raised as the current This Factor is N/A. condition of a party or member of a party's take place in Pennsylvania. Aside from household information presented regarding mental infirmity. Substantial weight was not given to suicidal ideation as it was not credible. Any other relevant factor The reunification counselor previously This Factor favors recommended (supervised) overnight visitation be initiated. She is open to a phase in approach custodial time to overnight visitation and would like to monitor those visits and how they it being in the subject go before extending visitation to take place over the Summer in GA. She acknowledges interest. that more recently she has been and is still on the fence regarding increasing the visitation time to overnights, (this happened after federal investigation regarding Father and child pornography), but her reservations relate to what she knows about child abusers and nothing specific to this case or the Father in this case. The GAL recommends visits progress to overnights (supervised) with those overnight visits eventually occurring in GA over the summer. Father had a sexual offender evaluation and the evaluator testified Father completed sexual offender treatment. There was no credible evidence presented that Father is grooming his own children or credible evidence that would corroborate that Father has sexual interest in his own biological children. Exhibit A CUSTODY CHECKLIST