HomeMy WebLinkAboutCP-21-DP-0000333-2006
IN THE MATTER OF J.R., : IN THE COURT OF COMMON PLEAS OF
born 08/04/05 : CUMBERLAND COUNTY,
: PENNSYLVANIA
:
:
: CP-21-DP-333-2006
IN THE MATTER OF J.R.
ORDER OF COURT
nd
AND NOW
, this 22 day of December, 2009, after de novo hearing in the above
captioned matter and review of the briefs submitted by the parties, the Court finds J.R. to be a
physically abused child and that the perpetrator of that physical abuse was Lisa Heyman;
IT IS HEREBY ORDEREDAND DIRECTED
Accordingly, that Lisa Heyman’s
DENIED
request to dismiss all pleadings and petitions alleging such abuse are .
By the Court,
__________________________
M. L. Ebert, Jr., J.
Lindsay Baird, Esquire
Attorney for CCC&YS
Jackie Verney, Esquire, GAL
Cindy Hribal, Esquire,
Jason P. Kutulakis, Esquire
Attorney for Petitioner
Sean Shultz, Esquire
Attorney for the mother
J. Probation
CASA
CCC&YS
IN THE MATTER OF J.R., : IN THE COURT OF COMMON PLEAS OF
born 08/04/05 : CUMBERLAND COUNTY,
: PENNSYLVANIA
:
:
: CP-21-DP-333-2006
IN THE MATTER OF J.R.
OPINION and ORDER OF COURT
Ebert, J., December 22, 2009 –
STATEMENT OF FACTS
On the morning of May 8, 2008, Lisa Heyman (hereinafter Heyman), the former foster
1
mother, took two-year-old J.R. to KinderCare Daycare. Heyman explained to Christie Yanez
(hereinafter Yanez), the class teacher, that J.R. had been a little rambunctious that morning, had
2
run into her hand, and had hit himself in the face with some toys.
3
After Heyman left, Yanez noticed a big mark on the side of J.R.’s face. She took him
45
aside and asked him about it. J.R. told her, “Mommy slapped me.” J.R. referred to Heyman as
67
Mommy, not his biological mother. Yanez then asked him, “Why did mommy slap you?” J.R.
8
replied, “I was bad.” He explained to Yanez that Heyman had locked him in his room because
9
he was jumping on the bed.
1
Notes of Test., May 13, 2009, p. 73-4 (hereinafter N.T. at __).
2
N.T. at 23.
3
N.T. at 24.
4
N.T. at 24.
5
N.T. at 24.
6
N.T. at 27-8.
7
N.T. at 24.
8
N.T. at 24.
9
N.T. at 24.
2
Yanez immediately spoke to her supervisor about the incident because she wanted the
10
supervisor to see the injury to J.R.’s face. Within minutes of talking with J.R., Yanez filled out
11
an incident report describing the injury and what J.R. had told her.
12
Yanez observed that J.R. was not acting himself and was sad most of the morning.
13
During the class naptime Yanez photographed J.R.’s injury to complete her incident report.
Yanez’s supervisor contacted ChildLine and Ashlee Atland (hereinafter Atland), J.R.’s
14
Cumberland County Children and Youth caseworker, about the incident. At about 3:00 PM
15
Atland picked J.R. up.
Mary Groshans (hereinafter Groshans), a caseworker for CCC&YS (hereinafter
16
CCC&YS), met with Atland and J.R. at about 4:00 PM. She did not question J.R. about what
17
happened for fear of interfering with the investigation. She was there to see him, take
photographs of the injury, assure his safety by placing him in an emergency respite home, and set
18
up an evaluation by the Children’s Resource Center (hereinafter CRC). Within minutes of
19
arriving, Groshans photographed J.R.’s bruises as Atland held him. When Groshans observed
the four distinct bruises that were located in a row up J.R.’s face, it was very clear to her, based
20
on the number and spacing of the bruises, that it was a handprint.
10
N.T. at 24.
11
N.T. at 25.
12
N.T. at 23.
13
N.T. at 26.
14
N.T. at 27.
15
N.T. at 27.
16
N.T. at 36-7.
17
N.T. at 37, 39.
18
N.T. at 37, 40.
19
N.T. at 38.
20
N.T. at 38-9.
3
On May 9, 2008, Dr. Paula B. George (hereinafter Dr. George), an expert in pediatric
21
medicine, performed a complete physical examination of J.R. at the CRC. She was, however,
unable to conduct a meaningful forensic interview because J.R. was too young and was unable to
22
communicate with her in an understandable manner. She observed that J.R. had an acute
physical injury in the form of petechial bruises on the left side of his face that extended from his
23
left temple down underneath his left jaw. She stated that a petechial bruise of this type is
indicative of a high velocity impact from a rapidly moving hand and that the petechial bruises on
24
J.R.’s face indicated a serious violent impact. She observed some outlining relating to the
25
fingers of a hand. She believed that after sustaining this injury, J.R. would have felt pain and
26
perhaps had a headache lasting for a period from hours to a day or more. From the
examination, Dr. George could conclude, to a degree of medical certainty, that the acute bruising
27
she observed on J.R.’s face was caused by a slap and that it would have been very painful.
28
On May 20, 2008, Groshans received a call from Heyman at her office. Heyman
29
recounted the events that occurred on the night of May 7, 2008. In that call Heyman told
Groshans that she never meant to hurt J.R., they were having a bad night, he would not settle
down and go to bed, and he was running around. She said that she put her hand out to stop him
30
and he ran into it. During the call, Heyman never denied that she inflicted the injury, rather she
31
stated that she would never deliberately hurt J.R. and that it was not intentional.
21
N.T. at 4, 8, 12.
22
N.T. at p. 8.
23
N.T. at 9, 10, 12.
24
N.T. at 10, 11.
25
N.T. at 21.
26
N.T. at 18.
27
N.T. at 17, 19.
28
N.T. at 42.
29
N.T. at 42.
30
N.T. at 42-3.
31
N.T. at 43.
4
Daniel Green (hereinafter Green), of the Department of Public Welfare (hereinafter
DPW), conducted the abuse investigation rather than CCC&YS because the allegation of abuse
32
involved a foster parent. Heyman told Green that on the night of May 7, 2008, J.R. had been
33
acting out and refused to stay in bed. She further explained to Green that at some point J.R.
was lying down and she had her hand up and that he “leaned up real fast and hit his face on her
3435
hand.” Green filed an indicated Child Protective Service Investigation Report (form CY-48).
Green’s report reflected his conclusion that J.R.’s injuries met the standard for serious physical
or mental injury as defined by the Child Protective Services Law, that the medical assessment by
the CRC indicated that J.R. suffered acute pain from his injury, and that Heyman’s explanation
36
for J.R.’s injury was inconsistent with the medical evidence.
Heyman testified that J.R. was in the foster home and under her direct care at the time the
37
injury took place. She testified that she told the daycare employees on the morning of May 8,
2009, that J.R. had a rough time on the prior night falling asleep and that he had a couple of
38
marks on his face. Heyman further stated, “At one point he was laying on the bed and I finally
did say, J.R., you have to go to bed. And he slammed his head like he has done numerous times,
39
but this time slammed it back and then hit my hand.”
PROCEDURAL HISTORY
As a result of the report made on May 8, 2008, CCC&YS caseworker Mary Groshans
filed a juvenile petition with the Court on June 10, 2008, charging “continued dependency and
abuse.” On June 16, 2008, a hearing was held before the Juvenile Master at which Dr. George
32
N.T. at 53-4.
33
N.T. at 56.
34
N.T. at 56.
35
N.T. at 59.
36
N.T. at 59.
37
N.T. at 71-3.
38
N.T. at 74.
39
N.T. at 77.
5
testified as to her observation of the bruising to J.R.’s face and her opinion that the “petechial
bruising” would have required a high velocity impact, most consistent with a slap.
(Recommendation of the Master) The Master recommended that J.R. be discharged from his
pre-adoptive placement with Lisa Heyman and that the child be placed in a Diakon pre-adoptive
foster home with Matthew and Christine Weaver. The Master’s recommendation was approved
and made an Order of Court on June 23, 2008 (inadvertently typed 2007).
Apparently, at the first hearing on June 16, 2008, no decision was made on a requested
finding that J.R. was a physically abused child. The reason for this was that the Master had a
concern about whether foster mother Heyman was required to have notice of the hearing and if
so, did she receive such notice (See Recommendation of Master dated 6/16/09). However, the
Master did recommend that J.R. be discharged from his pre-adoptive placement with Lisa
Heyman and placed in the care and custody of CCC&YS to be placed in another Diakon pre-
adoptive foster home. This recommendation was made an Order of Court dated June 23, 2008.
The notice issue was researched by counsel and the Master determined that an abuse
finding could be made without specific notice of the hearing to Heyman. Accordingly, the
Master found by clear and convincing evidence that J.R. was a physically abused child. This
specific recommendation was accepted by the Court by Order dated July 22, 2008, and by
separate Order of Court on July 25, 2008, finding J.R., by clear and convincing evidence, to be a
physically abused child.
After the child was removed from Heyman’s home, as a result of the June 16, 2008,
hearing before the Master and the Order of Court dated June 23, 2008, the case remained
dormant and proceeded as a standard CCC&YS case. On October 8, 2008, Heyman filed a
Motion for Reconsideration of the Court’s Orders of July 22 and July 25, 2008. Additionally,
6
Lisa Heyman filed a Petition for Allowance to file Notice of Appeal Nunc Pro Tunc on October
9, 2008. A Rule was issued upon CCC&YS to file an Answer to the Motion for Reconsideration,
which they did on October 27, 2008. Heyman filed an Amended Response to that Answer.
Heyman’s basic premise was that she had not received proper notice of the abuse allegations
which were considered at the June 16, 2008 hearing and, accordingly, no opportunity to be
heard.
CCC&YS Answer of October 27, 2008, denies Heyman’s claim of deficient notice. In
retrospect, if notice to Heyman was adequate, then the Orders of July 22 and 25, 2008, were in
fact final orders which should have been appealed within 30 days. Accordingly, this Court
would then not have jurisdiction to hear the matter de novo. However, this case was complicated
by Heyman’s additional Petition for Allowance to File Notice of Appeal Nunc Pro Tunc on
grounds that CCC&YS failure to give proper notice equated to a breakdown in the Court’s
40
operation. Faced with this dilemma, this Court decided to grant Heyman’s Motion for
Reconsideration and to allow her to have a de novo dispositional hearing with regard to the abuse
issue. The de novo hearing was set for February 11, 2009.
Giving credence to the old adage that “no good act goes unpunished” what followed was
a protracted motions process which included preliminary objections, motions to compel
discovery, and several continuances. Additionally, Heyman subpoenaed the child to testify at the
de novo hearing. A petition for an in camera hearing pursuant to 42 Pa.C.S.A. §5985.1 was filed.
The in camera hearing was conducted on April 22, 2009, and the Court found that the then 3 year
old boy was not competent to testify as a witness at the de novo hearing.
40
CCCY&S Exhibit #10 introduced at the de novo hearing on May 13, 2009, makes it is clear
that Lisa Heyman did have notice of the June 16, 2008 hearing and the nature of what was to
transpire at that hearing.
7
Finally, on May 13, 2009, the de novo hearing was held. At the conclusion of the hearing
both counsel requested that a transcript of the hearing be prepared and that they be given an
opportunity to file proposed findings of fact, conclusions of law, and briefs in the matter. The
transcript in the case was filed with the Court on June 15, 2009. The brief on behalf of Heyman
was filed on June 30, 2009, followed by CCC&YS’ brief on July 1, 2009.
DISCUSSION
I. The Existence of Child Abuse
Under Child Protective Services Law, child abuse occurs, in relevant part, when “[a]ny
recent act or failure to act by a perpetrator … causes non accidental serious physical injury to a
child under 18 years of age.” 23 Pa. Cons. Stat. Ann. § 6303 (b) (1) (i) (2008). J.R., who was
only two years old at the time of this incident, is clearly a child. CCC&YS, the Pennsylvania
Department of Public Welfare, the Cumberland County Juvenile Court Master, and this Court
have determined that Heyman perpetrated child abuse upon J.R. It has been clearly established
that: (1) J.R. suffered serious physical injury, (2) that this serious physical injury was caused by a
recent non-accidental act, and (3) that Heyman was the perpetrator who committed the act.
These findings, at the dispositional hearing, warranted J.R.’s removal from Heyman’s home.
a. J.R. Suffered Serious Physical Injury
Serious physical injury is defined as an injury that “causes a child severe pain.” 23 Pa.
Cons. Stat. Ann. § 6303 (a). J.R. suffered serious physical injury because the injury caused him
severe pain.
The bruises on J.R.’s face, initially observed by both Yanez and Groshans, were
indications of serious physical injury. Upon observing indications of serious physical injury,
CCC&YS were diligent and appropriate in their duties by referring J.R. to the CRC for a prompt
8
medical examination of his injury. “If the investigation indicates serious physical injury, a
medical examination shall be performed on the subject child by a certified medical practitioner.”
23 Pa. Cons. Stat. Ann. § 6368 (a).
The medical examination performed by Dr. George revealed serious physical injury.
This was established by her direct observation of petechial bruises on the left side of J.R.’s face
that extended from his left temple down underneath his left jaw. Dr. George concluded, to a
degree of medical certainty, that the bruising she observed on J.R.’s face would have been a very
painful injury. The medical assessment by the CRC indicated that J.R. suffered acute pain from
his injuries.
Having examined the photographs taken by Groshans on May 8, 2008, it is the
conclusion of this Court that a two-year old child who sustained the injuries depicted in the
photographs suffered severe pain. Similarly in D.N. v. Com., Dept. of Public Welfare, 562 A.2d
433 (Pa. Cmwlth. 1989), the Court found that the child suffered severe pain from an examination
of photos of the bruises that were admitted as evidence. In S.T. v. Dept. of Public Welfare, 962
A.2d 679, 683 (Pa. Cmwlth. 2008), the photographic evidence of a child’s injuries was
considered to be substantial evidence that the child had suffered severe pain. “A finding that a
child has suffered severe pain does not need to be supported by witness testimony or medical
evidence” and in fact, “photographs alone of a child's injuries may support a finding that the
injuries caused the child severe pain.” Id. (citing D.N. v. Dept. of Public Welfare, 562 A.2d 433
(Pa .Cmwlth. 1989) and City of Phil., Office of Children, Youth and Family Services v. Dept. of
Public Welfare, 767 A.2d 10 (Pa. Cmwlth. 2001)).
However, in this case, not only are there photographs of J.R.’s injury, there is also
witness testimony and medical evidence indicating that the child suffered severe pain. Clearly,
9
from all of the evidence, including the photographs of J.R.’s face, this Court finds substantial
evidence that supports the finding that J.R. suffered severe pain.
b. The Serious Physical Injury Was Caused By a Recent Non-accidental Act
Dr. George’s testimony established a clear and convincing basis for this Court to find that
J.R.’s serious physical injury was caused by a recent non-accidental act. George described the
injury as acute, which satisfies the definition of a recent act. Heyman in her testimony to this
Court, and in her explanations to Green and Yanez, indicated that J.R.’s injury was a recent one.
From the examination, Dr. George concluded, due to the nature and configuration of the marks
on J.R.’s face, that to a degree of medical certainty, the cause of the injury that she observed was
a slap.
Additionally, when Groshans observed the four distinct bruises that ran up J.R.’s face, it
was very clear to her, based on the number and spacing of the bruises, that it was a handprint.
When asked about the bruising, J.R. told Yanez that Heyman had slapped him. Furthermore, the
number and spacing of the petechial bruising on J.R.’s face indicates that the cause was not an
accidental act and is prima facie evidence of abuse. “Evidence that a child has suffered child
abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts
of the … person responsible for the welfare of the child shall be prima facie evidence of child
abuse by the … person responsible for the welfare of the child.” 23 Pa. Cons. Stat. Ann. § 6381
(d). J.R. was in the foster home and under the direct care of Heyman at the time the injury took
place. This serious physical injury to J.R. was caused by her recent non-accidental slap.
c. Heyman Was the Perpetrator Who Slapped J.R.
A perpetrator is defined as “a person who has committed child abuse and is a … person
responsible for the welfare of a child [or] an individual residing in the same home as a child.” 23
10
Pa. Cons. Stat. Ann. § 6303 (a) (2008). This Court did consider J.R.’s hearsay statements by
Yanez. Yanez testified that J.R. had told her that Heyman had slapped him because he was bad.
The medical evidence presented by Dr. George and the testimony of Groshans corroborates that
the injury was caused by a slap. This Court found that Heyman’s testimony lacked credibility
and that her recitation of what caused J.R.’s injury was totally implausible. The explanations
given by Heyman to Yanez, Green and this Court as to how J.R. was injured were additionally
inconsistent. None of Heyman’s various explanations comport with the medical evidence
presented by Dr. George. From all the evidence this Court finds Heyman to be the perpetrator.
Furthermore, even without determining the exact series of events that lead to J.R.’s
abuse, Heyman can still be found to be the perpetrator. The Superior Court has held that “once
the child abuse has been established, finding that the caretakers were the abusers need only be
shown by prima facie evidence that abuse normally would not have occurred except by reason of
acts or omissions of caretakers because likelihood that abuse occurred at hands of someone other
than caretakers is small.” Matter of Read, 693 A.2d 607 (Pa. Super 1997). It has already been
determined that J.R. suffered abuse in the form of serious physical injury that was caused by the
recent non-accidental act of a slap. At the time the injury occurred, Heyman was J.R.’s
caretaker, responsible for his welfare, and they both resided in the same home. Therefore, the
prima facie evidence shows that Heyman, as caretaker, was the perpetrator of abuse.
II. J.R. was Incompetent to Testify
“Competency of a witness is presumed and the burden falls upon the objecting party to
demonstrate incompetency.” Com. v. Bishop, 742 A.2d 178, 186 (Pa. Super. 1999). “When a
witness is a child, “there must be a searching judicial inquiry as to mental capacity, but discretion
nonetheless resides in the trial judge to make the ultimate decision as to competency.” Com. v.
11
Short, 420 A.2d 694, (Pa. Super. 1980). “A competency hearing concerns itself with the
minimal capacity of the witness to communicate, to observe an event and accurately recall that
observation, and to understand the necessity to speak the truth.” Com. v. Delbridge 855 A.2d 27
(Pa. 2003)
According to Pa. R. E., Rule 601 (b) (2007) “[a] person is incompetent to testify if the
Court finds that because of a mental condition or immaturity the person: (1) is, or was, at any
relevant time, incapable of perceiving accurately; (2) is unable to express himself or herself so as
to be understood either directly or through an interpreter; (3) has an impaired memory; or (4)
does not sufficiently understand the duty to tell the truth.” As enunciated in Rosche v. McCoy,
156 A.2d 307, 310 (Pa. 1959), that decision is based on three criteria: “There must be (1) such
capacity to communicate, including as it does both an ability to understand questions and to
frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and
the capacity of remembering what it is that she is called to testify about and (3) a consciousness
of the duty to speak the truth.” This inquiry should be “more searching in proportion to the
proposed witness’s chronological immaturity.” Commonwealth v. Dowling, 883 A.2d 570, (Pa.
2005). Here, it must be recalled that J.R. was 2 years old at the time of the abuse and only 3
years old at the time he testified at the competency hearing.
Initially, after Heyman indicated that she was subpoenaing the child to testify at the de
novo hearing, the Commonwealth filed a Petition for an in camera hearing pursuant to 42
Pa.C.S.A. §5985.1, often referred to as the Tender Years Hearsay Act. Fidler v. Cunningham-
Small, 871 A.2d 231 (Pa.Super. 2005). Fundamentally this law allows hearsay statements of a
child witness who would otherwise be competent to testify if the child is unavailable as a
witness. Under the law, in order to find a child unavailable as a witness, the Court must
12
determine that testimony by the child as a witness will result in the child suffering serious
emotional distress “that would substantially impair the child’s ability to reasonably
communicate.” 42 Pa.C.S.A. §5985.1(a)(2)(ii),(a.1). On April 22, 2009, prior to the actual
competency hearing, a meeting was held in chambers with all counsel. At this meeting, the
child’s natural father’s counsel was excused from further participation, and the Court directed
that the actual in camera hearing, given the number of people present, would be held in the
Court’s jury deliberation room.
While not included in the transcript of the hearing, just prior to convening the hearing,
the Court was handed a letter by a Children and Youth Services worker, dated April 8, 2009, and
signed by Dr. Jay Wiley Dickerson, Medical Director, Department of Psychiatry, Beauford
Memorial Hospital, South Carolina. The Court had never seen the document previously and
immediately inquired whether the doctor was present to testify. The worker informed the Court
that the Doctor was not present. It was obvious that the purpose of the letter was to provide a
medical opinion that it would be against the interest of the child to testify in regards to physical
abuse. Immediately upon reviewing the document, the Court indicated that it would not accept
such testimony without the doctor. Counsel for Heyman immediately indicated that he had not
seen the letter and that it was improper for the Court to view the letter, whereupon the Court had
the letter marked as CCC&YS Exhibit #1, dated April 22, 2009, and copies provided to all
parties. In her brief, Heyman’s counsel raises the issue of marking the exhibit for the record and
whether or not the letter was a factor in the Court’s ultimate determination. By separate Order of
Court, to clarify the matter, CCC&YS Exhibit #1, dated April 22, 2009, has been made a part of
the record. The Court did not consider the letter because (1) the witness was not available to
testify and (2) the question as to unavailability due to “emotional distress” was secondary to
13
determining whether the child was competent to testify at all. Given the ultimate decision of this
Court, the issue of emotional distress did not have to be reached. Accordingly, the letter was not
a factor in the ultimate determination made by this Court.
The child was finally brought into the jury deliberation room and questioned by all
counsel. The initial questioning focused on the child’s understanding of the concept of truth, his
ability to understand questions and communicate rational answers. It was clear from this initial
round of questioning that the child did not have a firm grasp of chronological time in that he did
not know days of the week or the names of the months of the year. His understanding of time
was based on the passing of the seasons (hot and cold times of the year) and the occurrence of
major holidays (Christmas, Easter, Trick or Treating).
In any regard, at the conclusion of this round of questioning the Court had the boy leave
the room and had further discussion with counsel. At that point, the Court found that (1) J.R.
understood questions, (2) that he had the capacity to communicate, (3) that he was conscious of
the duty to speak the truth, and (4) that he was able to express intelligent answers. Based on this,
Heyman’s counsel declared “the point is the kid is competent to testify.” (Competency Hearing,
4/22/09, Notes of Testimony, p. 19, hereinafter C H N.T., p.). The Court felt that in order to
make a proper determination of competency, further inquiry had to be made with regard to the
child’s capacity to remember what it was that he was being called upon to testify about. The
child was then brought back into the room and another round of questioning was allowed.
The child did indicate that he did remember Heyman, in that he referred to her as
“mommy Lisa.” When asked how long he had lived with her, his answer was “like 10 minutes I
would say.” The child further stated that he couldn’t remember the color of her house, anything
else about the house, or even that Heyman had a job. When shown a picture of the injuries to his
14
face, the child initially indicated that he fell. When questioned by the Guardian Ad Litem, he at
first stated that he “fell down” when asked the following line of questions:
Q: How do you think you got those marks?
Mr. Kutulakis: I object.
The Court: Overruled.
The Witness: I fell down.
By Ms. Verney:
Q: You fell?
A: Uh-huh.
Q: Did you ever fall more than once at her house, at Mommy Lisa’s house?
A: (Witness shakes head negatively.)
Q: Just one time?
A: Two times. Well, I had two bruises.
Q: Did you get marks on your face when that happened?
A: (Witness shakes head negatively.)
Q: When you fell two times at her house, did you ever get marks on your face?
A: No.
Q: Where did you get marks when you fell at her house?
A: I don’t know where I got the marks.
Q: Do you remember when you got those marks on your face?
A: I don’t.
Q: Do you remember how you got those marks on your face?
Mr. Kutulakis: Objection asked and answered.
15
The Witness: I don’t remember. I fell.
By Ms. Verney:
Q: You fell?
A. Uh-huh.
Mr. Kutulakis: Okay. (C H N.T., p. 28-29)
In assessing all of the child’s testimony in its entirety, especially with regard to the
incident in question, the Court found the child’s answers to be confused and inconsistent. Given
the fact that the child was only two years old when the incident happened and only three years
old at the time he testified at the competency hearing, these inconsistencies were clearly
indicative of a lack of memory. At the conclusion of the hearing the Court ruled that “the child
lacks the capacity to remember what it was that he was called about to testify” and accordingly
he was found not competent to testify as a witness. Understandably, three-year-old J.R. was
unable to remember the events that occurred almost a year prior, when he was only two years
old.
Heyman relies on the case of Com. v. Stohr, 522 A.2d 589 (1987) for the proposition “the
mere presence of defects in perception, memory and narration does not preclude a finding of
testimonial competency.” Id. at 595. It must be noted that this quote was not part of the majority
opinion in the case but appeared in the concurring opinion of Judge Kelly. More importantly, the
child in Stohr was four and a half years old at the time of the criminal incident and
approximately five years, nine months old at the time she was called upon to testify. The
majority holding in Stohr specifically states “as the Judge holds the superior opportunity to
evaluate the competency of a proposed child witness, once a determination is made, we will not
disturb the Court’s finding absent a flagrant abuse of discretion.” Id. at 591. More recently, the
16
Superior Court held that “the determination of competency is a matter for the sound discretion of
the trial court, which will not be disturbed absent a clear abuse of that discretion.” Com. v.
McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
This Court personally observed the child witness and conducted the inquiry required by
law to determine competency. On this record, to find that a three year old, attempting to
remember an incident which occurred over eleven months before when he was two years old, to
be incompetent to testify as a result of his lack of capacity to remember cannot be said to be a
“flagrant” abuse of discretion. This Court found that J.R. lacked the capacity to remember what
it was he was called about to testify, accordingly, this Court found that J.R. did not have the
competency to testify as a witness in this case.
III. Hearsay Statement Analysis
Heyman objects to the admission of hearsay statements made by J.R. Basically, an
examination of the record shows that two instances of hearsay statements made by J.R. to
daycare worker Christie Yanez appear in the record. First, Yanez testified at the dispositional
hearing as follows:
A: Jaidon came in, in the morning, and he –
The Court: Approximately what time?
The Witness: It was breakfast time, so maybe 7:30, 8:00 o’clock,
maybe a little later.
He came in and he had climbed up on my lap, gave me a hug which
he normally does every morning, only this time he was a little bit sad.
We sat there and we chatted for a few minutes. I spoke with Lisa, who
had told me –
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By Ms. Baird:
Q: Are you referring to Lisa Heyman?
A: Yes. She told me that he was being a little rambunctious that
morning and he had run into her hand and then she had said he was
swinging some toys around and he hit himself in the face. She had
left and Jaidon had not been acting himself. He had been sad most
of the morning. So I had taken him to a table nearby and spoke
with him and I had asked him about his face because I noticed he had
a big mark on his face and I asked him what happened, he said –
Mr. Kutulakis: I object, Your Honor.
The Court: Overruled.
The Witness: -- mommy slapped me. And I said, why did
mommy slap you? I was bad, he said. And then he said that
she had locked him in the room because he was jumping on
the bed.
By Ms. Baird:
Q: Please go ahead.
A: Oh, no, I was just going to tell you what my next steps were.
Q: Please.
A: I gave him a hug and I immediately went and I spoke to my
supervisor about the incident. I wanted her to see his face.
Q: Did you at that point fill out an incident report?
A: Yes, I did.
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The child was eventually taken to the Pinnacle Health Children’s Resource Center where
he was examined by Dr. Paula George. Dr. George testified at the dispositional hearing and her
two reports relating to this case, CCC&YS’ Exhibit #6 and #7 were admitted to the record.
CCC&YS’ Exhibit #7 contains no hearsay. Children and Youth Exhibit #6 contains the
following statements as part of Dr. George’s evaluation:
“Jaidon was noted to have bruising on the left side of his face when he
entered daycare. After his foster mother left, Jaidon reported to daycare
workers that his foster mother had hit or slapped him on the face and
then locked him in his bedroom. Foster mother reported that Jaidon
ran into her hand and that he hit himself with a toy.”
Children and Youth Exhibit #6.
The doctor did not interview J.R., indicating in her report that “Jaidon is too young for a
forensic interview,” however, she did add that he has reported to both daycare providers and to
his new foster mother that his prior foster mother slapped him in the face. Heyman’s counsel
did object to the admission of this report. Initially, it must be noted that the Court was aware of
this hearsay testimony from very early on in the case. The statements are included in the
Juvenile Petition to the Court filed by CCC&YS and in the Recommendation of the Master
which was approved by Order of Court dated June 23, 2008.
Equally important, is the fact that at this time, Heyman’s only request for relief is her
Motion to Reconsider the Court’s Orders of July 22 and 25, 2008. These orders specifically
dealt with findings made at the June 16, 2008 dispositional hearing for J.R. The purpose of the
CCC&YS petition and the recommendation of the Master which led to the orders in question
dealt with a new placement for the child. That inquiry was triggered by Heyman’s alleged
violation of the Department of Public Welfare’s regulations governing foster family care
agencies. Heyman was a pre-adoptive foster mother for Diakon Adoption and Foster Care
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Services. Accordingly, she was required to comply with the Department’s regulations regarding
discipline of foster children in her care. Specifically, the regulations state as follows:
§3700.63 Foster child discipline, punishment and control policy.
(a) Discipline.
(1) Foster children shall be directed with techniques that stress
praise and encouragement.
(2) Foster children may not be subjected to verbal abuse,
derogatory remarks or threats of removal from the foster home.
(b) Punishment. The following forms of punishment are prohibited:
(1) Abusive discipline practices.
(2) Physical punishment inflicted upon the body.
55 Pa.Code §3700.63
It must be remembered that Heyman challenges the action taken by CCC&YS on June 16, 2008,
which led to this Court’s Orders of July 22 and July 25, 2008. One cannot lose sight of the fact
that the June 16, 2008 hearing was a dispositional hearing to determine if J.R. should be placed
in another pre-adoptive home because of Heyman’s alleged violation of the Department’s
regulations regarding physical punishment and abusive practices. Therefore, when the Court
heard the matter de novo on May 13, 2009, it was still a dispositional hearing regarding J.R. The
only substantive change from the June 16, 2008, hearing was that the Court had cured Heyman’s
objections regarding full notice of the allegations against her and an opportunity to be heard.
The factual issues remained the same, namely: (1) did Heyman slap the child, (2) if she did, did
this act constitute “child abuse” by clear and convincing evidence and (3) was the change in
placement best suited to the safety, protection and physical, mental and moral welfare of J.R.
This Court could rely on examining traditional hearsay exceptions which might apply in
this case. These could include: (1) Pa.R.E. Rule 804 (a)(3), which discusses an exception when a
20
witness is unavailable due to their lack of memory of the subject matter of the declarant’s
statement, (2) the admission of a child victim’s hearsay testimony in an administrative hearing
through the testimony of the child’s family or investigating professionals “if the time, content,
and circumstances under which the statement is made provide sufficient and indicia of
reliability” A.O. v. Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth 2003), or (3) in regard to
Dr. George’s report, (C&Y Exhibit #6), whether hearsay upon which an expert witness relies is
admissible into the record under Pa.R.E. Rule 703.
Such analysis is not necessary. As aptly pointed out by counsel for CCC&YS at the
beginning of the in camera competency hearing on April 22, 2009:
First of all, to keep this in order, his characterization of
this as a hearing under the CPS Law and not the Juvenile
Law is inaccurate. The original hearing that went before
the Master that he is requesting rehearing of was a
dispositional hearing under the Juvenile Act to move the
children from this foster home.
C H N.T. p. 4
Since this hearing was a dispositional hearing, conducted after the adjudication of J.R. as
a dependent child, Section 6341(d) of the Juvenile Act applies. This section provides as follows:
(d) Evidence on issue of disposition. – In disposition
hearings all evidence helpful in determining the questions
presented, including oral and written reports, may be
received by the court and relied upon to the extent of
its probative value even though not otherwise competent
in the hearing on the petition. The parties or their counsel
shall be afforded an opportunity to examine and controvert
written reports so received and to cross-examine individuals
making the reports. Sources of information given in
confidence need not be disclosed.
42 Pa.C.S.A. §6341 (d).
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Under this provision, the two limited hearsay statements were admissible. Again, this
matter was presented to a Judge sitting as a finder of fact. This Court was well aware of the
proposition that its ultimate determination could not rest on these hearsay statements alone. This
did not happen. The ultimate decision made by this Court was based on: (1) the observations and
descriptions of the injuries made by teacher, Christie Yanez and CCC&YS caseworker, Mary
Groshans, (2) the photographs of J.R.’s injuries taken by Mary Groshans, and (3) the expert
testimony of Dr. Paula B. George. Dr. George’s testimony was especially critical in discounting
the various explanations for J.R.’s injuries provided by Heyman. The Court found Ms.
Heyman’s testimony at the de novo hearing on May 13, 2009, regarding the cause of J.R.’s
injuries was simply not credible.
This Court did not rely on the hearsay testimony presented at the hearing and there was
ample additional, credible evidence that Heyman had physically abused J.R.
IV. The Statutorily Required Time Frame
Heyman challenges the timeliness of the investigation. Counsel for Heyman has
constantly relied on the Child Protective Services Law (hereinafter CPSL), 23 Pa. C.S.A. § 6301
et seq., to seek relief in this case, but the de novo review he requested was clearly a matter
covered by the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. When this Court conducted its de novo
hearing on May 13, 2009, it was conducting a dispositional hearing. It was not conducting an
inquiry into whether an abuse report was “founded,” “indicated,” or “unfounded.” Accordingly,
the investigative time provisions in the CPSL have no application in this case and provide no
relief to Heyman.
Even if the CPSL applied, this Court finds that the Department of Public Welfare’s
investigation was timely. “The investigation by the county agency to determine whether the
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report is ‘founded,’ ‘indicated’ or ‘unfounded’ and whether to accept the family for service shall
be completed within 60 days in all cases. If, due to the particular circumstances of the case, the
county agency cannot complete the investigation within 30 days, the particular reasons for the
delay shall be described in the child protective service record.” 23 Pa. Cons. Stat. Ann. § 6368
(c) (2007). Heyman contends that this whole case should be dismissed because the investigation
took 37 days instead of 30 days and a reason for the delay was not described in the child
protective service record.
An investigator has 60 days to complete an investigation. Should an investigation take
longer than 30 days a valid reason for the delay should be described in the child protective
service record. This investigation by DPW was completed well within the required 60 day time
frame prescribed for all cases. It took 37 days from the date on which the report of suspected
child abuse was received on May 8, 2008, to the conclusion of the child abuse investigation on
June 13, 2008.
In J.L. v. Com., Dept. of Public Welfare, 575 A.2d 643, 645 (Pa. Cmwlth. 1990) the
petitioner “challeng[ed] the timeliness of the hearing officer's adjudication, contending that a
lapse of almost eight months between the date on which the hearing record was closed and the
date on which the hearing officer filed his recommendation was a denial of his right to a ‘speedy’
decision.” In support, the petitioner cited regulatory provisions, which specified a 90-day time
limit. Id. The Court in that case found that “[t]o sacrifice the safeguard afforded to Petitioner's
daughter in the form of a filed, substantiated report of indicated child abuse solely on the basis of
a procedural error committed by DPW would, for all practical intents and purposes, serve only to
penalize the child.” Id. at 647. The Court went on to say, that “[s]uch a result under the instant
circumstances, in our opinion, would utterly and unnecessarily circumvent the primary thrust of
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the [Child Protective Services Law], namely, “to encourage more complete reporting of
suspected child abuse” so as to protect the children of the Commonwealth, who have been found
to be “in urgent need” of effective child protection services, from suffering any further injury and
impairment.” Id. This Court agrees with that reasoning and finds that the completion of the
DPW’s investigation was in essence timely and in no way prejudiced Ms. Heyman.
V. There Is No Conflict of Interest in the Investigation by the DPW and Prosecution by
the County
There is no question that Heyman, as a pre-adoptive foster parent was an agent of the
County agency. 55 PA ADC §3490.4(i). In such cases the regulations have provided for the
regional staff of the Department of Public Welfare to conduct the investigation of the child abuse
report made pursuant to the CPSL. 55 PA ADC §3490.81. The provision states: “When the
suspected abuse has been committed by an agent of the county agency, the regional staff shall
investigate the report.” 55 PA ADC §3490.81 (a). What is equally interesting however is what
the regional staff may not do. According to the regulations, (1) they may not take protective
custody of the child, (2) petition the Court, or (3) provide services. Again in this case, this Court
was dealing with the placement of this child as a result of a dispositional hearing held under the
provisions of the Juvenile Act.
The Department’s Regional Investigator, Daniel Green did investigate the report of
suspected child abuse and determined that the report was indicated. Green did testify at the de
novo hearing on May 13, 2009, as to his investigation. That investigation consisted of
interviewing the very individuals the Court heard testify directly during the de novo hearing.
Nothing that Investigator Green stated in any way influenced this Court’s decision. The Court
24
was not interested in determining whether a child abuse report was unfounded, indicated or
founded.
Heyman has provided no case law which supports the contention that the manner in
which the CPSL investigation was conducted in this case constituted a conflict of interest which
in any way prejudiced her. In hindsight, given the nature of the testimony heard by this Court,
the case probably should have been referred to the Cumberland County District Attorney’s
Office for a criminal investigation under the provisions of 18 Pa.C.S.A. § 2709 relating to
harassment and/or 18 Pa.C.S.A. § 2701 relating to simple assault. That did not happen, but this
Court did hear substantive, relevant evidence untainted by any supposed conflict of interest.
Heyman attempts to analogize the case at bar to situations where District Attorneys have
clear conflicts of interest in prosecuting criminal cases. See, Commonwealth v. Eskridge, 604
A.2d 700 (Pa. 1992), Commonwealth v. Breighner, 684 A.2d 143 (Pa.Super. 1996) (cases in
which a part time elected District Attorney, who was also a member of a private law firm which
brought a civil action based on the same course of conduct which led to a criminal case.)
Commonwealth v. Wisor, 902 A.2d 1245, (Pa.Super. 2006) (victim of a criminal case was the
son of a District Attorney’s Office employee.) Heyman’s situation as a Diakon foster parent
contracted to provide pre-adoptive foster care simply does not present these types of
relationships. CCC&YS was not “prosecuting” Heyman in the case at bar. It was conducting a
dispositional hearing under the Juvenile Act to determine what placement was in the best interest
of J.R. While the CPSL does indicate that Heyman was an “agent” of the County; for the
purposes of the Juvenile Act, her relationship was not so close as to require any declaration of
conflict of interest.
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Regardless of who did the investigation, the evidence would have remained the same. A
teacher saw a bruise on a child’s face, the bruise was photographed, and the child was taken to an
expert pediatrician for examination. This Court was asked to determine if a change of placement
from Heyman’s home was appropriate. Clearly, there is no conflict of interest which warrants a
change in the dispositional outcome of this case.
CONCLUSION
This Court concludes that the record sufficiently supports findings that Heyman's actions
resulted in serious physical injury to J.R. and caused him severe pain. Having found substantial
evidence to support the necessary findings and having found no error committed, we deny Lisa
Heyman’s request to dismiss all pleadings and petitions regarding the abuse.
Accordingly, the following Order shall be entered:
ORDER OF COURT
st
AND NOW
, this 21 day of December, 2009, after de novo hearing in the above
captioned matter and review of the briefs submitted by the parties, the Court finds J.R. to be a
physically abused child and that the perpetrator of that physical abuse was Lisa Heyman;
IT IS HEREBY ORDEREDAND DIRECTED
Accordingly, that Lisa Heyman’s
DENIED
request to dismiss all pleadings and petitions alleging such abuse are .
By the Court,
__________________________
M. L. Ebert, Jr., J.
Lindsay Baird, Esquire
Attorney for CCC&YS
26
Jackie Verney, Esquire, GAL
Cindy Hribal, Esquire
Jason P. Kutulakis, Esquire
Attorney for Petitioner
Sean Shultz, Esquire
Attorney for the mother
CASA
J. Probation
CCC&YS
27