HomeMy WebLinkAbout2018-08485
GIAM TRUONG, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. 2018-08485
:
ANNA TEPPIG, : CIVIL ACTION – LAW
Defendant : IN CUSTODY
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925(a)
In this significant custody action, Defendant, Anna Teppig (hereinafter “Mother”) appeals
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the court’s Order of November 24, 2021 granting Father overnight visitation following the
initiation of the following:
1. The current visitation supervisor, Amanda Truong, (Father’s 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, (Father’s 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
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While the Order was filed of record on November 24, 2021, the accompanying opinion was not docketed until
November 29, 2021 and Rule 236 Notices were sent on November 29, 2021.
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.
On November 29, 2021, Mother filed her timely Notice of Appeal and her Concise Statement
of Errors on Appeal in this Children’s Fast Track Appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In the interest of brevity, this court will incorporate the facts and procedural history found in
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. Subsequently, and at the request of Father, this
the November 24, 2021 trial court decision,
court filed a clarifying order dated and filed on December 1, 2021, scheduling a status
conference on December 22, 2021, to identify the Father’s overnight visitation schedule and
identify his level of compliance with the four (4) requirements identified in the order dated
November 24, 2021. The December 22, 2021 status conference was held and it was determined
that Father had substantially complied with the four (4) aforementioned requirements with the
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exception of competing the medical training regarding L.T. On December 22, 2021, the court
issued a custody order specifically identifying the physical custody schedule to include overnight
visitation for the Father. In her concise statement,Mother alleged the following errors with the
order dated November 24, 2021:
1. Did the trial court err as a matter of law or abuse its discretion in concluding that
overnight visitations with Father were in the best interests of the minor children, where
Father is a convicted child sex offender, and evidence of criminal convictions and child
abuse are relevant custody factors under 23 Pa.C.S.A. §5328(a)(2) and §5328(a)(2.1)?
2.Did the trial court err as a matter of law or abuse its discretion when it refused to permit
Mother to testify about Father’s history of spousal assault, rape and psychological
manipulation of Mother even though evidence of past abuse is a relevant custody factor
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Opinion and Order of Court (Hyans, J.) dated November 24, 2021 and filed November 29, 2021.
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Father’s counsel informed the medical training regarding L.T. was scheduled to be completed by Father and his
wife on January 12, 2022.
under 23 Pa.C.S.A. §5328(a)(2)?
3. Did the trial court err as a matter of law or abuse its discretion when it allowed the Father
to have overnight visitation with the minor children where the Reunification Counselor
testified that she had “reservations” about recommending overnight visitation because of
the high recidivism rate of child sex offenders?
4. Did the trial court err as a matter of law or abuse its discretion when it allowed Father to
have overnight visitation with the minor children where there was evidence of a pending
federal investigation of Father for possession of child pornography?
5. Did the trial court err as a matter of law or abuse its discretion when it relied solely on
Father’s Psychosexual Evaluation performed in Georgia, and twice denied Mother’s
request to obtain an independent Psychosexual Evaluation of Father,where the subject
matter of the Psychosexual Evaluation is a relevant custody factor under 23 Pa.C.S.A.
§5328(a)(2)?
6. Did the trial court err as a matter of law or abuse its discretion when it admitted Father’s
Psychosexual Evaluation into evidence where the Evaluator did not have a full and
complete history regarding Father’s history of deviant sexual desires and acts?
7. Did the trial court err as a matter of law or abuse its discretion when it disallowed the
testimony of H.N., a minor child and victim of Father’s statutory rape, where past abuse
is a relevant custody factor under 23 Pa.C.S.A. §5328(a)(2)?
8. Did the trial court err or abuse its discretion in concluding that the children would be
protected from Father’s pattern of engaging in deviant sexual behavior with children if
Father’s Wife, Amanda Truong, completes training by a sexual offender treatment
provider?
9. Did the trial court err or abuse its discretion in concluding that the minor children will be
adequately protected from their father’s deviant sexual behavior when it set up a
procedure for the reunification counselor to meet with the children no more than three
days after visitation with Father?
10. Did the trial court err or abuse its discretion when it held that L.T., who has special
needs, will be adequately cared for if Father and his Wife, Amanda Truong, receive
medical training about L.T.’s medical issues?
For the following reasons, this court should be affirmed on appeal.
DISCUSSION
In any child custody case, the ultimate consideration is the best interest of the subject
children. The legislature enacted section 5328(a) of the Child Custody Act in order to delineate
the “factors the trial court must consider when awarding any form of custody.” J.R.M. v.
J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011). The 16 factors that trial courts must consider when
making a best interests of the child analysis in any custody determination are as follows:
(1) Which party is more likely to encourage and permit frequent and continuing contact
between the child and another party.
(2) The present and past abuse committed by a party or member of the party's household,
whether there is a continued risk of harm to the child or an abused party and which party
can better provide adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse
and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and community
life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of
domestic violencewhere reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing
relationship with the child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental,
educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make appropriate child-care
arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to
cooperate with one another. A party's effort to protect a child from abuse by another party is
not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household.
(16) Any other relevant factor.
42 Pa.C.S.A. §5328(a).
In Mother’s first purported error, she complains that awarding Father overnight visitation,
was not in the best interest of the subject minor children under 23 Pa.C.S.A. §5328(a)(2) and
§5328(a)(2.1) because Father is a convicted child sex offender. Best interest factor 2.1 requires
consideration of 5329.1(a), which discusses identifying if a child is a victim of child abuse as
defined by Pennsylvania’s Child Protective Services Law (“CPSL”) and/or whether a party or a
member of a party’s household is identified as a perpetrator of an indicated or founded child
abuse and the details of the abuse. As Father’s conduct resulting in his sex crime conviction
involving a minor child occurred in Georgia, it is presumed there was no child protective
services investigation under Chapter 23 of Pennsylvania’s Child Protective Services Law. Even
if Georgia had a similar law, there was absolutely no evidence presented by Mother of
involvement of a child welfare agency or a non-criminal child abuse investigation involving
Father. Therefore, there was no evidence for the court to consider related to §5328(a)(2.1).
Despite Mother’s complaint to the contrary, §5328(a)(2) was carefully considered by this
court and discussed in both the court’s opinion as well as the best interest factor chart attached to
the court’s opinion. This factor did not weigh in favor of Father due to the gravity of his
conviction (statutory rape of a child that began when the child was only 12 years old and
continued for several years). It should be noted that the child victim was not Father’s child and
was not related to Father. While this particular best interest factor did not weigh in favor of
Father, it was thoughtfully considered along with the 10 (ten) best interest factors which the
court found did weigh in favor of Father.
In Mother’s second error complained of on appeal, she claims this court refused to permit
Mother to testify about Father’s history of spousal assault, rape, and psychological manipulation.
Mother was not precluded from testifying to these particular topics. Mother repeatedly testified
that the Father raped her during their marriage and manipulated her into having affairs and
unwanted sexual relationships, which included having intercourse with Father and his statutory
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rape victim.Mother testified that she was afraid of Father during the marriage as he would yell,
scream, break frames, throw plates and give her the silent treatment. Mother attempted to go
beyond providing her version of purported abusive events that occurred during the marriage and
wanted to testify to explicit sexual preferences and details regarding the marital sex life of the
parties. The conduct that Mother sought to introduce regarding the sexual relationship of the
parties was at least eight (8) years old and in some instances, more than ten (10) years old.
See Michael T.L. v. Marilyn J.L., 525 A.2d 414, 416–418 (Pa. Super. 1987) (“Without evidence
of a harmful effect on the child, a parent's past conduct should have little weight in making a
custody decision.”); see also Johns v. Cioci, 865 A.2d 931, 942 (Pa.Super.2004) (“Unless it is
shown that a parent's conduct has had a harmful effect on the child, that conduct should be given
little weight in custody determinations”). Mother was not prevented from testifying about any
incidents of abuse or manipulation. She was however, unable to make a connection between the
explicit details of the sexual encounters between the parties during their marriage to any of the
16 best interest factors and it was for that reason the court sustained Father’s objections to that
topic of testimony.
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Father’s victim, H.N., was the age of consent in Georgia at the time that Mother and Father had sexual encounters
with her at the same time.
Mother’s third error complained of on appeal is a mischaracterization of the reunification
counselor’s testimony in its entirety. The reunification counselor, Jamie Orris, LSW has been
providing reunification counseling 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 Father’s past and not what is presently
happening during the visitation process. Despite her reservations, she believes overnight
visitation should be initiated at this time (emphasis added).
Mother’s fourth alleged error relates to the illusive, pending child pornography investigation
that she claims is active at the federal level. The court, Father, GAL and reunification counselor
learned of this child pornography investigation on or around May 2021 during a status
conference with counsel, GAL and the reunification counselor. That conference was the first
time overnight visitation with Father was significantly considered. This was the first time
Mother’s counsel mentioned the investigation, despite Mother testifying at the custody trial
regarding pictures she provided to law enforcement as early as 2019, which led to the
investigation. Father, Father’s counsel and the GAL all attempted to obtain updated information
concerning the federal investigation, and no one, including Mother,could present evidence that
charges had been filed, despite an approximate two (2) year investigation. Mother did confirm
that the pictures she provided,and her understanding of the alleged child pornography
investigation,all stemmed from pictures of Father and his child victim, the same child victim
that he had been convicted of statutorily raping. Father also admitted that these pictures of his
child victim were taken at the time that he was engaged in an illegal relationship with her. The
conduct of Father allegedly under federal investigation is not unknown to the parties or the court.
While disturbing, it is the same past conduct that was already considered when analyzing
§5328(a)(2).
Mother’s fifth error complained of on appeal was not properly preserved for appeal. 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 Father’s 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, Father’s visitation continued to be extended in length and/or frequency. Mother’s requests
for Father to obtain a second evaluation were decided by Judge Brewbaker and the undersigned
judge well before this current appeal. Specifically, on August 29, 2019, Mother filed a Petition
for Extraordinary Relief and for Defendant to Undergo a Sex-Offender Specific Evaluation. On
September 3, 2019, Judge Brewbaker entered an order denying Mother’s Petition for
Extraordinary Reliefand for Defendant to Undergo a Sex-Offender Specific Evaluation but
ordered the Father to undergo a Section 5329 risk-of-harm evaluation and present the results to
the court and opposing counsel at the status conference scheduled for October 11, 2014. Mother
did not ask for reconsideration or request a hearing on the matter. Following the October 11,
2014 status conference in which Mother’s counsel was present, Judge Brewbaker issued an order
permitting the youngest child, L.T. to visit with Father in the office of the reunification
counselor, Jamie Orris and permitted Father to have visits with the other two children in a public
place, supervised by his wife, for up to four (4) hours each, one time each in November 2019,
December 2019, January 2020 and February 2020. It was at that status conference that the parties
discussed Father’s inability to obtain a Section 5329 risk-of-harm evaluation as a resident of
Georgia, because the particular evaluation was defined by Pennsylvania’s custody statute. Father
did obtain a Psychosexual Evaluation Report during this timeframe. Counsel for the parties
reported at the custody trial underlying this appeal that this Evaluation was discussed at the
October 11, 2014 status conference and accepted by the court as complying with the September
3, 2019 order issued by Judge Brewbaker regarding sex offender/section 5329 evaluation. As
previously stated, Judge Brewbaker increased Father’s contact and visitation with Father
following the October 11, 2014 status conference,and Mother did not appeal this order nor did
she request a custody trial on the matter. As outlined in Mother’s June 2, 2021
Answer/Objection to Plaintiff’s Petitionfor Special Relief, Mother consented to multiple orders
that expanded Father’s contact with the children for communication and visitsincluding visits
that took place following Mother’s review of thePsychosexual Evaluation Report. See Mother’s
June 2, 2021 Answer/Objection to Plaintiff’s Petition for Special Relief at New Matter, paras.
77-87.
Finally, following a May 2021 status conference where the Mother made her first demand for
a custody trial to undersigned, Mother’s counsel made a oralrequest for an independentsexual
offender evaluation. Mother’s request for trial and a new evaluation were based upon the
recently identified federal investigation into Father and child pornography. As Mother did not
indicate that the federal investigation involved any new victims or incidents of child sexual
abuse, but only involved picture/s of Father’s prior child victim who Father was convicted of
statutorily raping, the request for Father to submit to a new sexual offender evaluation was
properly denied without prejudice. The May 14, 2021 order scheduled a custody trial and
pretrial conference, as per Mother’s demand,denied Mother’s request for a new sexual offender
evaluation without prejudice, and indicated that the matter could be revisited if the current
criminal investigation moved beyond the investigation phase and resulted in new charges. Thus,
any requests for Father to submit to an independent psychosexual evaluation, were properly
denied.
Mother’s sixth error complained of on appeal relates to the admission of the Psychosexual
Evaluation Report performed by Matthew B. Connolly. Father filed the Psychosexual
Evaluation Report of record on February 25, 2020, and no objections were ever filed by Mother
to the report. The report was listed as an Exhibit and Matthew B. Connolly was listed as a
witness in Father’s Pretrial Statement/s. In addition, Mother also listed the Psychosexual
Evaluation Report as her own exhibit for trial, (D-6) in both of her Pretrial Statements. At the
conclusion of trial, Father moved for admission of all his exhibits including Plaintiff’s Exhibit-1,
the Psychosexual Evaluation of Matthew B. Connelly. Mother failed to object to any of Father’s
exhibits, including the Psychosexual Evaluation; therefore, this issue was waived.
Mother’s seventh error involves the preclusion of a witness. This witness was listed by
Mother for the first time in an amended Pretrial Statement she filed after the September 27, 2021
hearing, but before the conclusion of the custody trial on November 5, 2021. On November 1,
2021, Father filed a Motion to Strike Defendant’s Pretrial Statement and Preclude Witness
Testimony Pursuant to 1915.4-4(c). Father’s Motion to Strike complained that, for the first time,
Mother sought to present testimony at trial from Father’s sexual abuse victim, H.N., who was
twelve years old at the timethe abuse was initiated.Father alleged unfair surprise and a failure
to comply with Pa.R.C.P. No. 4019(c)(2). Father also asserted that the probative value of the
testimony of H.N. would be outweighed by unfair prejudice and needlessly presenting
cumulative evidence in contradiction of Pennsylvania Rule of Evidence 403. The GAL
concurred in Father’s Motion. A Rule was issued upon Mother by Order dated November 1,
2021 to show cause on the timing of the amended Pre-Trial Statement, and to provide an offer of
proof for H.N.’s testimony, how her testimony would address any of the sixteen best interest
custody factors, andwhy H.N.’s testimony would not result in the presentation of cumulative or
irrelevant evidence where Father had admitted on the stand his criminal conviction for statutorily
raping H.N. On November 3, 2021, Mother filed an Answer to Father’s Motion to Strike and
Preclude Witness that contained New Matter. The basis for Mother’s request to present H.N. as
a witness was to rebut the testimony Father provided regarding details of Father’s relationship
and sexual abuse of H.N. In addition, H.N. would also testify to incidents involving Mother’s
relationship with Father as well as incidents with Father and Joe Pham. Mr. Pham was a former
foster child of the parties when they were married, and he is now an adult. He had testified at the
September 27, 2021 hearing regarding incidents that Mother alleged H.N. also witnessed.
Mother had not yet testified. Ultimately, the court precluded testimony from H.N. as Father’s
criminal record and statutory rape of H.N. was a fact of record. The nuances of that sexual abuse
were not probative of whether he would abuse his own children and were not relevant to the
sixteen best interest factors. Mother was reminded, in the November 4, 2021 order precluding
H.N.’s testimony, that she could impeach Father’s credibility through her own testimony or other
witnesses recalled in her case in chief. Mother failed to demonstrate how H.N.’s testimony about
the known sexual abuse she endured as a child approximately ten years prior at the hands of
Father would be probative of the best interest factors and not outweighed by prejudice.
Presenting a rape victim as a witness for a custody matter unrelated to the criminal case where
the abuse is an admitted fact of record and therefore the purported testimony lacks probative
value, is disconcerting at best. H.N.’s testimony was properly precluded.
Mother’s eighth error complained of on appeal is unsupported by the record. Father’s wife
was directed to supervise visitation between Father and the children dating back to 2019 as per
Orders issued by Judge Brewbaker, including the order issued on October 11, 2019. Mother
admits in her June 2, 2021 Answer/Objection to Plaintiff’s Petition for Special Relief that she
consented to the October 11, 2019 order directing that Father’s wife supervise his visitation with
the children. See Mother’s June 2, 2021 Answer/Objection to Plaintiff’s Petition for Special
Relief at New Matter, para. 81. Mother failed to present credible evidence that Father’s wife was
an inappropriate supervisor or that, for the almost two-yeartime frame that she provided
supervision, her supervision was inadequate or did not protect the children. Father’s expert,
Matthew B. Connolly provided testimony that he would recommend training for the supervisor
of Father’s visitation. Mother never presented evidence that training should be provided to
Father’s wife, however, based upon Father’s own evidence, it was ordered prior to Father being
able to initiate overnight visitation, as per the order now on appeal.
Mother’s ninth and tenth errors complained of on appeal are similarand like her eight issue,
are not supported by the record. Mother complains that having the children meet with their
reunification counselor no more than 3 days after visitation with their Father does not adequately
protect them. Ms. Orris, the reunification counselor testified that this was a general practice set
up around the time that Father began his visitation with the children outside of her office. Ms.
Orris was already meeting with the children approximately 3 days after their daytime, weekend
visitation with Father. There was no evidence presented by Mother that this practice was not
adequately protecting the children during the almost two years of visitation withFather, and
there was no evidence presented as to how this practice would now not adequately protect them
if the visitation also included overnights.
Mother’s final error complained of on appeal relates to the youngest child’s medical
condition. Mother testified that L.T. was born with special needs, including a medical condition
that impacts his bowels and results in the need for bowel irrigations twice a day. Father has not
had training regarding bowel irrigations, but L.T.’s older siblings were aware on how to address
these medical conditions if any issues would have arisen during the Father’s visitation in 2019,
2020 and 2021. Mother acknowledged that she was unwilling to show Father how to properly
care for L.T.’s medical issues despite being in L.T.’s best interest. She did point out that Father
could be trained by a medical provider. Father presented evidence that, at the time of L.T.’s
birth, he was L.T.’s primary caretaker for approximately two years as Father was not working
and Mother was the sole breadwinner. He not only provided for L.T.’s day-to-day care, but also
took him to all of his medical appointments. Mother failed to present credible evidence that
having Father and his wife alsotrained to provide necessary medical care to L.T., as they
transitioned into overnight visitations, did not adequately protect L.T.
BY THECOURT,
February 1, 2022 _________________
Carrie E. Hyams, J.
Distribution:
Tabetha Tanner, Esquire, 2145 Market Street, Camp Hill, PA 17011
Bryan Schroll, Esquire, 2 Sheppard Road, Suite 603, Voorhees, NJ 08043
Virginia Hinrichs McMichael, Esquire, 150 N Radnor Chester Rd., Ste F-200, Radnor,
PA 19087
Katie Maxwell, Esquire, 54 E. Main Street, Mechanicsburg, PA 17055