A H v. J C

Decision Date16 December 2021
Docket NumberCN17-06391,Pet. 21-24256
PartiesA H (FOR B C and L C), Petitioners v. J C Respondent.
CourtDelaware Family Court
Date of Order: 11/16/2021

Transcript Received: 1/12/2022

Order Entered: 1/14/2022

A H by Patricia Weir

J C Pro Se

REVIEW OF COMMISSIONER'S ORDER

FELICE GLENNON KERR, JUDGE

Pending before the Court is a Request for Review of a Commissioner's Order ("ROCO") filed by J C ("Father"). Father is seeking a review of the Order entered by Commissioner Francis Mieczkowski on November 16 2021 regarding the Granting of a Petition for Protection from Abuse ("PFA"), which A H ("Mother") filed against Father on behalf of their children, B C ("B" or "the Child") and L C ("Layla") alleging that Father committed acts of abuse against B and L[1]

STANDARD OF REVIEW

A party may seek a review of a Commissioner's Order pursuant to 10 Del. C. § 915(d)(1), which provides:

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.[2]

Because this was a Commissioner's final order, the Court reviews the Order de novo.[3] According to Black's Law Dictionary a de novo review is "[a]n appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings."[4] Pursuant to Family Court Civil Rule 53.1(b), an appeal of a Commissioner's Order must "set forth with particularity the basis for each objection."[5] Upon taking the matter under review, a judge of the Court will make a de novo determination regarding the objected to portions of the Commissioner's Order.[6] A judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party.[7]

PROCEDURAL BACKGROUND

On March 5, 2020 the Court entered an Order on Custody and Visitation which gave Father primary residence of the children and gave Mother visitation every other week from Thursday after school until Monday morning and every other week from Thursday after school until Friday morning. The parties share the summer, holidays and breaks. Mother filed a PFA Petition against Father on October 19, 2021 on behalf of the children alleging that Father had physically abused Bryce and that Layla was present. On November 9, 2021, Mother filed a Motion for Child Interview which was discussed on the record and will be addressed herein. On November 10, 2021 the Petition was heard by the Commissioner and a finding of abuse was made and a PFA was entered. On November 16, 2021, additional written findings were made by the Commissioner in support of the decision to enter the PFA Order. On December 16, 2021, Father filed the ROCO and this is the decision on the ROCO.

ARGUMENTS RAISED

The ROCO, which consists of 3 pages of statements and arguments and contains several attachments, which shall not be reviewed or considered in a ROCO. Only the official evidence entered at the hearing can be considered. Father should have filed a Motion to Reopen or for a new trial if he wished to enter additional evidence. While the arguments are lengthy and interlaced with Father's own factual statements, they are essentially regarding two categories. The first is that the Child interview was not appropriate and did not conform to procedures and guidelines and that the Court should disregard the testimony of Dr. Koussal as Mother did not enter the full records from Nemours Hospital into evidence. These two sets of arguments contain both factual and legal components. The Court notes that the ROCO contains combined statement of facts and argument blurred into one and will not address what appear to be statements of Father's version of the facts as specific objections as requested by the ROCO form.

ANALYSIS
CHILD INTERVIEW

Father alleges that the Commissioner violated numerous procedures and guidelines but does not cite what these procedures and guidelines are. The Court will do its best to discern what Father intends by this statement by reviewing his allegations with the Court record surrounding the discussion about having B interviewed or testify and the interview with B. Father first alleges that the Motion for Child Interview was untimely and that he strongly opposed the child testifying and that the interview should not have taken place at all. However, the record does not support this contention. The Court notes that Mother is under no obligation pursuant to the Family Court Civil Rules of Procedure or the PFA Statute to provide Father with a list of her witnesses. Bryce is essentially the Petitioner and as the Petitioner he would be expected to be present and available to testify. Pursuant to 10 Del. C §1042(f):

The Court may examine a child outside the presence of the parties for the purpose of obtaining the child's testimony and ascertaining the truth of a matter asserted by a party to a proceeding. The Court may permit counsel to be present at the examination, and to also examine the child. The Court may permit a party who is not present for the examination to submit questions of fact for the Court to use in ascertaining the testimony of the child.

At the outset of the hearing the attorneys raised the issue of the Motion for Child Interview filed the day before the hearing. The time-period for PFA petitions to be heard is short, just 30 days from filing, and as a result this procedure is not amenable to the same discovery process as many other cases. As B is the alleged victim, without a Child Interview, the alternative would be for five-year-old B to testify in open court. Counsel for Mother advised that she filed the Motion as it was her understanding that Father preferred the Child to testify in open court. When asked, Father's counsel represented that he did not want the child to testify in open court and ultimately both parties and the Commissioner appeared to agree that the Child would be interviewed and that the parties could submit questions. Neither party opted to submit questions.[8] While it is not entirely clear that both counsel were given the opportunity to be present, neither specifically requested to be present and the statute places the decision within the discretion of the Commissioner and there is nothing in the record to suggest that the Commissioner abused this discretion. Father did not strongly oppose having the child testify as represented in his petition and the child did not "testify" in the classic sense. Additionally, the child was not asked to choose between his parents as alleged by Father.[9] The child was the alleged victim of the abuse and was a factual witness to the incident and was essentially the only witness other than Father present during the incident. There was not error committed in interviewing the Child.

Father alleged that it was error to interview the Child as there had been numerous other persons at the hospital who spoke to B and the Child Advocacy Center (CAC) interview had not yet taken place. The Court reviewed the discussion in the record regarding the issue of the CAC interview which was scheduled for the Monday after the PFA hearing. Father was given the opportunity to continue the PFA hearing for a week which was the maximum amount allowed by statute but would be after the CAC interview. Father's counsel stated in response to this proposal," Your Honor, my client would like to move forward today." [10] Father cannot now complain about something that he agreed upon.

Father also makes numerous allegations about the way that the Child was interviewed and with the Commissioner's findings regarding the Child's statements. This judge listened to the recording of the interview and found no errors in the manner in which the interview was conducted. The Commissioner developed a rapport with Bryce and talked to him about matters outside the PFA at first so that he would not be as intimidated in the Courtroom setting which can be difficult for adults. He spoke to the Child in a way one would speak to a child as opposed to an adult for the most part. Without Father alleging a specific set of rules or guidelines, the Court has no information on what rule or guideline he alleged the Commissioner to have violated. This judge finds nothing inappropriate in the way the...

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