C.L.D. v. T.M.F.

18 Pa. D. & C.4th 304, 1993 Pa. Dist. & Cnty. Dec. LEXIS 221
CourtPennsylvania Court of Common Pleas, York County
DecidedFebruary 19, 1993
Docketno. 89-SU-05552-03
StatusPublished

This text of 18 Pa. D. & C.4th 304 (C.L.D. v. T.M.F.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.L.D. v. T.M.F., 18 Pa. D. & C.4th 304, 1993 Pa. Dist. & Cnty. Dec. LEXIS 221 (Pa. Super. Ct. 1993).

Opinion

BLACKWELL, J.,

Mother in this case alleges that father sexually abused their daughters. She seeks to suspend, if not terminate, any unsupervised visits by father. Father denies all of the allegations. The court finds that the mother in this case has not met her burden of proof by clearly and convincingly showing that the father* sexually abused or acted in a sexually inappropriate manner with his daughters. A recital of the facts and witnesses is now necessary.

On December 1, 1989, C.L.D. (father) filed an action seeking custody of L.M.D., date of birth, July 21, 1988. Prior to a February 22, 1990 hearing, N.L.D. was bom on January 6, 1990, to T.M.S., now T.M.F. (mother). Father acknowledges paternity of L. and N.

At the February 22, 1990 hearing, father and mother agreed that mother would have majority physical custody of the two girls and that father would have L. alternate weekends, with a phased-in schedule as follows:

[305]*305(A) Alternate Saturdays, from 9 a.m. until 6 p.m., for three months, commencing March 2, 1990;

(B) Alternate Sundays, from 9 a.m. until 6 p.m., for three months, commencing March 9, 1990;

(C) Then for three months alternate Saturdays, from 9 a.m. until Sunday at 6 p.m.; and then,

(D) Alternate weekends from Friday at 6 p.m. until Sunday at 6 p.m.

Father also had alternate holidays, one week in the summer for 1990 and 1991, and then in 1992 for two weeks. Christmas holidays were set forth for the father as being December 24 at noon, until December 25 at noon, in even-numbered years, and in odd-numbered years from December 25 at noon, until December 26 at noon. As for N., father was awarded the right to visit N. at mother’s house with the parties to agree upon the expansion of custodial rights for father with N.

No pleadings were filed to indicate any problems with the above arrangement until February 21, 1992. At that time, father sought to expand his rights of minority physical custody to include an earlier pick-up time, alternate Halloweens, Father’s Day, three weeks in the summer, two nights each week from 4 p.m. until 8 p.m., father’s birthday, and alternate birthdays of the children. The conciliation conference was set for March 4, 1992. It is noted that, from the pleadings, no conference was held. On March 6,1992, allegations of sexual abuse were raised alleging that father had sexually abused L. During the investigation, father, although contending the children had been brainwashed and that he had not done anything, agreed not to see the children until the investigation was completed. At this point in time, there was no allegation [306]*306that N. had been abused. The court, on May 18, 1992, issued an order that suspended father’s rights of custody with L., and ordered supervised contact with N. Psychological evaluations of the parties were ordered. The order was based upon allegations of sexual abuse of L. by father and upon the investigation by York County Children and Youth Services Agency. A trial was conducted commencing October 7, 1992.

Cathy Utz, a caseworker for the agency, testified that, pursuant to her investigation, father was an indicated sexual abuser of L. and N. On March 6, 1992, the agency received a referral of sexual abuse of L. by father, and L. was interviewed on March 10, 1992, at the agency. L. stated to Ms. Utz that she saw her dad’s “wee-wee” and that she had been in bed awake and naked when her dad was in bed asleep and naked. She also told the caseworker about putting ice on her dad’s wee-wee. On March 27, 1992, L. met with Ms. Utz and Officer Zumbrum of the Hanover Police Department. When L. would not talk to Office Zumbrum, he left the room. L. then told Ms. Utz that the ice had made “wiggles” stick up.

A supervised visit did occur between father and the children. L. stated that she did not want to see father and that she thought father would steal her. Ms. Utz observed that N. was happy to see father, but that L. ran crying to mother. On April 2, 1992, the agency filed an indicated report of sexual abuse of L. and listed father as the perpetrator. Play therapy and art therapy were recommended as possible counseling for L.

Allegations concerning sexual abuse of N. were raised in June 1992 and investigated by Ms. Utz and Officer Zumbrum. When N. was interviewed on August 5,1992, she stated that dad had poked her wee-wee with his finger [307]*307and made it hurt. On August 8,1992, the agency indicated a finding of sexual abuse of N. with father listed as the perpetrator.

Ms. Utz’s findings of abuse were based on (1) the children’s statements to her; (2) Ms. Utz’s beliefs that children of this age tend not to make up stories like those reported; and (3) that there was no indication mother, or anyone, was telling or coaching the children as to what to say. Ms. Utz’s findings were not based on physical evidence, but on her experience as a caseworker in handling these cases and the children’s stories. Ms. Utz’s training and manner of conducting the interviews of the children establish her as a credible witness to the degree that she is and was involved with this case.

Sue Allen, who was qualified as a family and play therapist, testified as to her counseling of L. and N. She testified that she saw approximately 100 children in 1992, 15 of whom were sexually abused and the remainder were emotionally or physically abused. Ms. Allen then referred the children to Ms. Karen Stabley, an art therapist within the same group as Ms. Allen. Ms. Allen said she would not (and did not) push the children for information. She saw the children eight times and engaged the children in play therapy. Despite Ms. Allen’s recommendation for continued counseling, mother ceased taking the children to therapy.

Of further interest to this court is Ms. Allen’s testimony regarding the intake interview conducted with mother on June 3,1992. According to Ms. Allen’s testimony, mother was determined to insure that no visitation occurred between father and their daughters, would do anything she had to do to get her daughters away from father, was certain father had sexually abused L., and was searching for proof of abuse that would “hold up in court.”

[308]*308L. appeared to Ms. Allen to be an aggressive child who was very protective of her sister, N. Ms. Allen testified that L.’s protective attitude, aggressive behavior, description of interactions with father, and the need to protect herself (such as surrounding herself with stuffed animals whom she designated mom, step-father, and protectors, or using a make believe gun to kill the “mean-man”) are indicative of sexual abuse. Ms. Allen concluded that L. was sexually abused by father. Ms. Allen concluded also that there is a “high likelihood” that N. has been abused and concludes that she is at high risk of abuse if she is in the presence of father. Certain therapeutic recommendations were made, as well as the recommendation that father not be allowed unsupervised contact with his daughters.

Art therapy was used with L. by Karen Stabley at the Lehman Center. Ms. Stabley, an art therapist for seven years, testified that her evaluation of L. and her drawings led her to conclude that L. had been sexually victimized by father. Ms. Stabley stated that 50 percent of the children she sees have been sexually or physically abused.

When the court met with the children, L. was initially very reticent in talking. The court, the court reporter, and two attorneys were present. N.

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18 Pa. D. & C.4th 304, 1993 Pa. Dist. & Cnty. Dec. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cld-v-tmf-pactcomplyork-1993.