Opinion
FILE NO.: CN15-05688 CPI NO.: 15-31747
08-16-2016
DIVISION OF FAMILY SERVICES (DFS) Petitioner/Appellant, v. J----- J---- (d.o.b. -/--/03), Respondent/Appellee.
INTERIM ORDER FOLLOWING REVIEW OF COMMISSIONER'S ORDER
A request was filed on June 2, 2016 by Wendy Danner, Esquire, Deputy Attorney General, on behalf of the Division of Family Service (Petitioner), seeking a review by a judge of this Court of a decision and order denying a petition for substantiation by a Family Court Commissioner on May 11, 2016. The matter was assigned to this judge on June 21, 2016. An answer was filed by Respondent, J----- J----, on July 18, 2016.
Pursuant to 10 Del. C. §915(d)(1),
any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a Judge of the Court by filing and serving written objections to such order, as provided by the rules of Court, within 30 days from the date of the Commissioner's Order. A Judge of the Court shall make a de novo determination of those portions of the Commissioner's Order to which objection is made. A Judge of the Court may accept, reject, or modify in whole or in part the Order of the Commissioner. The Judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
On October 15, 2015, DFS filed a Petition for Substantiation of J----- J----, then twelve years old, requesting he be substantiated at Level IV for sexual abuse of his four-and-a half-year old cousin for placing his private part in his cousin's mouth.
After a hearing on March 22, 2016, the Commissioner issued a decision and order on April 17, 2016, denying the petition for substantiation on the basis that DFS had failed to established jurisdiction in this matter as there was no evidence submitted as to where the alleged act of abuse occurred and as to any risk of future harm. DFS filed a motion to vacate order and/or motion for reargument on April 13, 2016. On May 11, 2016, the Commissioner denied the motion to vacate order and/or reargument.
DFS argued in its appeal/objection to the Commissioner's order that no objection had been made by the Respondent or his attorney that the alleged act of abuse at issue occurred outside New Castle County, Delaware. DFS also contended that the fact that the Wilmington Police Department and a DFS worker from New Castle County investigated the matter demonstrated that the act was alleged to have occurred in New Castle County. No evidence, however, was presented to establish these facts. It was further pointed out, however, that a CAC staff member at the beginning of the CAC tape, which was introduced into evidence, announced that the interview was at the request of the Wilmington Police Department.
Respondent's attorney, Thomas A. Foley, Esquire, filed a response on July 18, 2016 contending that no where does the substantiation statute codify that a child can be placed on the Child Protection Registry as a perpetrator and that to place a twelve-year-old child on the Registry seems to be counter to the purpose of the statute to protect children. This judge finds some sympathy for Respondent's argument. As set forth in 16 Del. C. §921 and §923, the purpose of the Child Abuse Registry " is to protect children and to ensure the safety of children in child care, health care and public educational facilities" in the context of the child protection levels specified in 16 Del. C. §923. Each of these levels affects the substantiated individual's ability to be employed in a child-serving entity or health care facility. This context seems to be irrelevant to a twelve-year-old child, who presently is not and in the near future will not be employable in such facilities. Thus, it is surprising that DFS would seek to substantiate a child as young as twelve and one might question whether the General Assembly intended the Child Protection Registry to apply to such a young child. Nevertheless, 16 Del C. §924(c), requires DFS to file a Petition for Substantiation "before any child is entered on the Child Protection Registry" (emphasis added) and §925(d) specifies that: "the Family Court shall appoint counsel for any unrepresented child against whom a Petition for Substantiation has been filed" (emphasis added). Thus, the wording of both of these provisions complates that a juvenile or child may be substantiated as a perpetrator. While the General Assembly may wish in the future to clarify an intent to exclude young children, this judge is not comfortable ignoring the present wording of the two statutes.
Respondent's second argument addresses the weight of the evidence against him. While the testimony of the four-year-old victim was not consistent nor clear, and was at best inartful, and while the Respondent denied the alleged actions, the Court finds by a preponderance of the evidence, though perhaps not beyond a reasonable doubt, that the Respondent did place his penis in the victim's mouth. This judge is well aware that four-year-olds are not the most articulate witnesses. While there could be some concern as to whether the victim was coached, observing his demeanor throughout the CAC interview and questioning what would motivate the victim to fabricate his story convinces this judge that the inappropriate act did likely in fact occur.
As for Respondent's last argument supporting the Commissioner's finding that the Court lacked jurisdiction because of the failure to establish where the act occurred, the Court finds there was sufficient evidence to establish jurisdiction for a civil case in that evidence on the CAC tape, which was introduced, acknowledged that the CAC interview was being undertaken at the request of the Wilmington Police Department. Furthermore, there was no dispute as to where any alleged acts occurred and no challenge by Respondent to this court's jurisdiction. While parties cannot confer jurisdiction if a court does not have it, there is no evidence that the Family Court lacked jurisdiction over this matter or that the matter was in an inappropriate venue.
The Court does, however, agree with the Commissioner and the Respondent that DFS failed to present any evidence to support the appropriate substantiation level on which Respondent should be placed.
16 Del. C. §925(b) provides that if a person is found to have committed an act of abuse or neglect, "the Court shall also determine by a preponderance of the evidence after a hearing on the merits...the risk of future harm the person poses to children and designate the person to the appropriate Child Protection Level."
In this case, however, no evidence was presented as to the risk of future harm that this respondent posed to children.
Therefore, a supplemental hearing will be scheduled to hear such evidence.
IT IS SO ORDERED. 8/16/16
Date Written Order issued
/s/ _________
JUDGE BARBARA D. CROWELL 8/16/16
Date Written Order Mailed cc: Commissioner
Wendy Danner, Esquire, DAG
Thomas A. Foley, Esquire
See also, State v. Griffin, File No. CN10-06039, p. 4 (Del. Fam. Ct. Sept. 30, 2011); State v. R.R., Del. Fam. Ct., 2011 WL 5346106.