Opinion
File No. CN17-01480 Case No. 20-23483
11-12-2020
A K , Petitioner v. A K , Respondent
Thomas D. Shellenberger, Esquire, 1601 Milltown Road, Suite 10, Wilmington, DE 19808, Attorney for Father Marie I. Crossley, Esquire, 5721 Kennett Pike, Wilmington, DE, 19807, Attorney for Mother
PROBABLE CAUSE ORDER ON PETITION RULE TO SHOW CAUSE Thomas D. Shellenberger, Esquire, 1601 Milltown Road, Suite 10, Wilmington, DE 19808, Attorney for Father Marie I. Crossley, Esquire, 5721 Kennett Pike, Wilmington, DE, 19807, Attorney for Mother ARRINGTON, Judge.
On November 9, 2020, the Court conducted a Probable Cause hearing on the Petition Rule to Show Cause and Motion for Emergency Ex Parte Order filed by A K ("Father") alleging contempt by A K ("Mother") of the Custody Order dated August 19, 2020. Mother and K ("sixteen year old daughter") currently reside in Delaware. Father and the three other daughters, K ("fifteen year old daughter"), K ("twelve year old daughter") and K ("six year old daughter") reside in New Jersey. Mother, Mother's counsel, Father, and Father's counsel were present for the hearing. Father presented one additional witness. Based on the testimony presented, the Court resolves the motion as set forth below.
PROCEDURAL HISTORY
On August 2, 2019, Father filed a Petition for Custody. Prior to February 2020, Mother had primary residential placement of the parties' four children. In March 2020, the then-fourteen year old daughter went to live with Father and remained with him. Father had the parties' youngest child for five weeks but otherwise she lived primarily with Mother.
Dkt. #60.
On August 19, 2020, the initial Custody Order was issued granting Father primary placement of the three youngest children. The oldest child remained with Mother. Mother did not appeal the decision which became final on September 18, 2020.
Dkt. #157.
On August 27, 2020, Father filed a Petition Rule to Show Cause and Motion for Emergency Ex Parte Order alleging that Mother had unreasonably interfered with Father's custodial rights granted in the Custody Order. An Ex Parte Order was granted suspending Mother's visitation and contact with the children until after a hearing. On September 2, 2020, the Court conducted the required fifteen-day hearing and found Mother in contempt of the Custody Order.
Dkts. #160, 161.
Dkt. #161.
Dkt. #165.
On September 23, 2020, Father filed a Motion and Affidavit for Emergency Ex Parte Order and a Petition to Modify Visitation. On September 25, 2020, the Court issued an Interim Order of Visitation Modification, staying Mother's weekend custodial time due to Delaware being listed on the New Jersey list of states requiring quarantine for children returning to New Jersey.
Dkts. #169, 170.
On October 23, 2020, Mother filed an Emergency Motion for a Telephone Conference due to Delaware being removed from New Jersey's list of impacted states. On October 23, 2020, the Court held the teleconference and ordered the stay lifted on Mother's custodial time and resolving the visitation modification petition. Mother's visits resumed on October 23, 2020.
Dkt. #185.
Dkt. #187.
On October 28, 2020, Father filed a second Petition Rule to Show Cause and Motion for Emergency Ex Parte Order. On October 29, 2020, an Ex Parte Order was granted suspending Mother's visitation and contact with the children until after a hearing. On November 9, 2020, the Court conducted the required fifteen-day probable cause hearing.
Dkts. #189, 191.
Dkt. #192.
STATEMENT OF FACTS
On August 19, 2020, the Court issued the current Custody Order in this case. The Order awarded Mother and Father joint legal custody of the children and awarded Father primary residential placement of the three youngest children. Among the many bases for the Order were the Court's concerns about Mother's control over the Children, the Children's excessive absences from school in Mother's care, and Mother's alienating behaviors that affected the Children's behavior toward Father. Significantly, the parties' adult daughter provided credible testimony on the serious impact of Mother's behavior on the Children.
Mother was granted alternating weekend visits with the Children. On Father's first weekend visit with the girls, Mother was found to have directed the fourteen year old daughter to video the home, to follow people with the camera, and to give directions to the six year old daughter from Mother while in Father's care. The Order on the Rule to Show Cause petition set more restrictions but did not limit Mother's time with the girls.
Father was also given custodial time with the parties' sixteen year old daughter. The daughter has refused to visit with Father without any rational explanation.
Mother's visitation with the girls was stayed for two visits due to travel restrictions between states in result of the COVID-19 pandemic. The stay was lifted after New Jersey issued a decision acknowledging Delaware's executive order to honor custody orders as "essential". On the same weekend that Mother's visitation resumed, there was another alleged violation of the Custody Order. Father filed for Emergency Ex Parte Relief. All contact with Mother was halted by Order of the Court until the probable cause hearing was held within fifteen days.
Father's Case
Father filed this Petition Rule to Show Cause alleging that Mother is causing psychological harm to the parties' children and disrupting the lives of all of the residents of Father's home by continuing to make patently false claims to the police and the child protection services.
Father testified that the New Jersey child protection agency, Division of Child Protection and Permanency ("DCP&P"), arrived at his home ten minutes before midnight on October 2, 2020. Father was not there for the initial visit as he was out to dinner with a friend. Father spoke to R O ("Ms. O "), the investigator assigned to the case, to learn the details of the allegations against him. Father testified that DCP&P came to the house because they had received a call from Mother on October 2, 2020, alleging that Father had grabbed the twelve year old daughter by the arm and put his arm down her underpants in order to get her cell phone. Father testified that the twelve year old daughter has not had her cell phone since he took it away on August 22, 2020, and that the alleged incident DCP&P came out to investigate was the one that this Court resolved in its previous Contempt Order.
Father testified that DCP&P came out to his home again at 2:00 p.m. on October 26, 2020, immediately following the children's first resumed visit with Mother. Father was not there for this visit as he was at work. Father spoke to Ms. O and learned that DCP&P came to the house because they had received another call from Mother alleging that M K ("Ms. K ") was providing the children with "mind altering drugs and alcohol." Father stated that DCP&P has been to his home at least four times, as the agency has had to return after the initial investigative visits to interview Father and all other members of his household.
Father testified that when he picked up the girls on the evening of October 25, 2020 following Mother's first resumed weekend, they were hysterical and did not want to return to New Jersey with him. Father stated that he was prevented from leaving because Mother and the sixteen year old daughter kept opening the car doors, telling the girls "Keep doing you... you're doing a great job. We'll be together soon." Father testified that he ended up pulling away before the girls were buckled in, and that they were crying that they "hated [Father]." Prior to this visit with Mother, Father stated that the Children were fine with him. Father noted that the six year old was happy and rarely spoke with Mother when she would call. However, after two days with Mother, the six year old inexplicably "hated" Father.
Father stated that the girls spoke very little on the drive home, but that when he tried to talk to the six year old daughter to figure out what was wrong, she told him "not to worry" and that "she would be back to her normal self in a day or two." Later that evening, as Father was getting ready to put the six year old daughter to sleep, the six year old daughter told Father that Mother said she would "make a phone call" and that "they would all be back together in Delaware." Father testified that DCP&P came to his house the following afternoon.
Father called his sister-in-law, M K , to testify. Ms. K testified that the first time DCP&P arrived at the house it was approximately ten minutes before midnight and everyone in the home was asleep. Ms. K stated that the investigators had all of the children other than the six year old wake up. The investigators separated the adults from the children and then interviewed all of the children privately. After interviewing the children, the investigators spoke to the adults to let them know why they were there. Ms. K testified that all of the children were extremely nervous the next day, and that they huddled together when the investigators returned the following morning to interview the six year old daughter. In support of the alleged impact on the children, Ms. K testified that her boys had planned an escape route in case the investigators wanted to take them away.
Ms. K testified that DCP&P investigators were waiting on her porch when she came home from school with the girls. Ms. K stated that the investigators said that they had received a call from Mother "alleging that the girls were receiving mind altering drugs and alcohol." The investigators again separated the adults from the children and interviewed each child. Moreover, the investigators searched through the entire house, ran the hot water, looked through food, flushed the toilets, and checked every bedroom and the living areas. Ms. K testified that all of the children in the home were nervous afterwards and had many questions.
Mother's Case
Mother disputes Father's claim that she is causing psychological harm to the children and reporting false claims. Mother testified that in the beginning of October she reached out to her attorney for ancillary matters, Megan Mahle, Esquire, and asked whether Ms. Mahle could direct her to an advocate to speak on behalf of the girls to the Court. Ms. Mahle suggested Mother contact the Office of Child Advocate if she had concerns. Mother testified that she filled out a contact form online for the Office of the Child Advocate and "received an email from Angela Burnie who directed [Mother] to contact New Jersey Child Protective Services based on the information that she had provided."
Mother's Ex. 1. Mother's e-mail request stated that she was "trying to figure out how the judge can factually hear-understand the turmoil of the current custody order through the girls via an adult advocate," and that she was "at a loss as to why the girls [and Mother] are being subjected to this & how to correct it like yesterday."
Mother's Exhibit 1 indicates that the Delaware Office of Child Advocate ("OCA") e-mail was sent because Mother requested e-mail rather than a phone call. Contrary to Mother's testimony, the OCA e-mail asked if Mother had reported it to which Mother responded that she had made the call. Mother further responded to the OCA worker's request, "I have not filed any petitions yet. It's been instructed to me to wait...".
Mother testified that she decided to reach out for assistance because of the allegations that the twelve year old daughter was telling Mother. Mother stated that on September 25, 2020, the twelve year old daughter told Mother that Father grabbed her by the arm and dragged her to the car despite the fact that she did not want to go. According to Mother, the twelve year old reported that Father left red marks on her arm and told her that if she did not go that he would "send her to the psych ward."
Ms. O indicated that on October 2, 2020, Mother had alleged that Father had put his hands down the child's underpants to get a cell phone. The child had not had a cell phone since late August. Father has denied this allegation. The Court further notes that the Custody Order recited that Mother, not Father, had sent the children to in-patient psychiatric centers multiple times.
Mother testified that while the girls were at Mother's for their first resumed weekend visit, the six year old daughter told Mother that Father "showers naked with her" and "rubs her all over." Mother stated that she texted Ms. O about the allegations and, according to Mother, Ms. O told Mother to call in a report for the allegation but not until after the girls returned to Father's home.
Ms. O ' information provided to the Court contradicts this assertion. Ms. O stated that Mother herself contacted DCP&P on October 2, 2020 and October 25, 2020. DCP&P is required to investigate all allegations. Ms. O stated that DCP&P has no issue with the girls remaining with Father.
Mother testified that during her first resumed weekend visit with the girls, the twelve year old daughter informed her that they had been consuming alcohol at Father's home. Mother stated that the twelve year old daughter told her that Father will have the twelve year old daughter "drink his drinks to see if anyone does anything" and the six year old daughter said that Ms. King has her "drink the purple stuff." Mother testified that the girls informed her that the six year old daughter "often retrieves alcoholic beverages from the refrigerator" for the adults in Father's home.
Mother testified that the girls miss Mother and that when it is time for them to return to Father, they do not want to go back. Mother claims that the girls do not understand why Mother has to make them go back. Mother stated that she attended two counseling sessions with a therapist, but that the therapist advised her that there was no need for her to continue counseling after her second session. The counselor did not testify. Mother testified that she has scheduled a mental health evaluation for November 17, 2020 with L C -K , Psy.D.
LEGAL STANDARD
At a hearing on an application for an ex parte order, the Court needs to determine whether there is probable cause that the girls are experiencing emotional distress due to Mother's conduct. The Delaware Supreme Court has stated that "[p]robable cause is an elusive concept which avoids precise definition," which generally "lies somewhere between suspicion and sufficient evidence to convict," and "exists when the facts and circumstances [are] sufficient in themselves to warrant a man of reasonable caution in the belief." The purpose of a Probable Cause Hearing is to determine if there is enough evidence to find more than a suspicion that what is alleged has occurred. Hearsay evidence is permitted at a Probable Cause Hearing. The Court must look at the totality of the circumstances when making its decision.
Dep't of Servs. for Children, Youth & Their Families v. Fowler, 122 A.3d 778, 783 n.23 (Del. 2015)
Id.
Id. --------
ANALYSIS
It is essential that the Court look at the complete history of a case when making its decisions, interim or final. The allegations in a Rule to Show Cause petition are not standalone statements. The Court must consider the totality of the circumstances in reaching its decision. In this case, there is a second example of Mother undermining the Court's Custody Order after having been found in contempt in the first instance.
Based upon prior findings from this Court and the credible testimony from the hearing on this application, there is more than probable cause to find that Mother is continuing to interfere with the Custody Order. Of particular importance are the comments made by the six year old daughter when she returned to Father. When Father questioned the youngest daughter about why she was so upset to go with Father, she told him "not to worry" and that "she would be back to her normal self in a day or two." Later that evening as Father was getting ready to put the six year old daughter to sleep, the six year old daughter told Father that Mother said she would "make a phone call" and that "they would all be back together in Delaware." In fact, Mother did exactly what the six year old had told Father she would do. Multiple calls were made to the police and the child protection agency alleging facts already decided. As Father's counsel argued, not content with the lack of progress, she called again alleging that the girls were drinking alcohol and being given mind altering drugs. The actual statements from the girls to Mother do not mention any drugs. The girls' statements about alcohol were not credible as the twelve year old said that Father would watch her "drink his drinks to see if anyone does anything." The six year old said that she had a "purple drink" which could have been grape juice or Kool Aid as much as some undesignated alcohol. Somehow, Mother transmuted these statements into her allegations to the authorities. The logical conclusion on intent is that Mother was attempting to get the girls "all [] back together in Delaware" notwithstanding the actual Custody Order.
Mother's statements to the girls to "keep doing" and "we'll be together soon" as Father was trying to pick up the girls from their weekend visit were inappropriate and instigating. Mother has a Custody Order that states she will have alternate weekend visitation with the girls who reside at Father's home. To suggest to the girls that they will have any contact with Mother other than what is specified in the Custody Order is simply confusing to the girls and detrimental to their emotional well-being.
The Court has found by more than a reasonable suspicion that Mother is telling the girls that they will be returned to her, and that everything will go back to the way that it was before. Those actions by Mother alone are going to cause severe emotional distress, in particular when the girls are not returned to Mother. The fact that Father was awarded primary placement of three of the children is a plain statement that the prior state of affairs in Mother's care was not in the children's best interests.
The unfortunate reality of the situation is that Mother has had two weekends of visitation with the girls since the Custody Order was enforced, each of which immediately were followed by Mother reporting alleged and unfounded abuse in Father's home.
The Court has serious concerns. There is more than a reasonable suspicion that alienating behaviors are occurring and those behaviors have substantially affected the children.
ORDER
IT IS HEREBY ORDERED THAT:
1. Mother shall have no contact with the Children in Father's home until this matter is resolved after a final hearing.
2. Mother shall provide all Court Orders connected to the custody matter to Dr. K for her evaluation. If Mother intends on having Dr. K testify, an expert report must be prepared and shared with opposing counsel upon delivery from the expert.
3. K shall start treating with a counselor immediately. The counselor is to be selected by Father. The counselor should be provided with all Court Orders connected to the custody matter.
4. A full hearing on the Rule to Show Cause Petition shall be held on TUESDAY, DECEMBER 15, 2020 from 9:00 a.m. until 11:00 a.m. Both Parties should be prepared to present expert testimony on the alleged abuse and the impact of the report on the children.
IT IS SO ORDERED this 12th day of November 2020.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge Date E-mailed: November 12, 2020