Protection from Abuse

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On December 18th, Governor Corbett signed into law a bill updating Pennsylvania’s child abuse laws. When the abuses perpetrated by Jerry Sandusky were exposed, Pennsylvania’s child abuse statutes were scrutinized and found lacking in many respects. Sara Ganim of the Harriburg area Patriot-News wrote an excellent summary of these criticisms in November 2012. The investigation and arrest of Jerry Sandusky led to the creation in December 2011 by Pennsylvania’s General Assembly of the bi-partisan Taskforce on Child Protection.  This taskforce was asked to study child abuse protection and develop some meaningful reforms. It issued its final report and recommendations in November 2012.

The updated law is a considerable improvement from the previous law, noteably, expanding the definition of child abuse to include, simply, “bodily injury” (a lower standard than the previous “serious bodily injury”) and knowingly, recklessly, or intentionally committing acts of child abuse or failing to act when child abuse is being committed (emphasis added). It also proviodes immunity from liability for reporters, as well as an improved appeals process. Believe it or not, trying to lure a child into a vehicle or structure was not a specific offense, but that major oversight has finally been rectifified, as well, with the new law.

The definition of “perpetrator” has also been expanded to include family members of the child, as well as employees, volunteers, school teachers, and employees that have regular contact with the child. Previously, it was essentially limited to a parent, parent’s boyfriend/girlfriend, an individual over 14 living in the same house, or a person “responsible for the welfare of the welfare of the child.” Based on the Sandusky case, the latter part of the definition caused more questions and inaction than serving as what I interpret to be the intended “catch-all” language to cover anyone who was involved in the care of children. The Sandusky case started the discussion as to who exactly fell under the definition of being “responsible for the welfare” of a child? It was simply too broad and, as we saw in that case, too easy to justify inaction on the basis that a potential reporter had insufficient contact with the child.

As of 2010, Pennsylvania reported the lowest substantiated abuse rate in the country: 1.3 per 1,000 children (compared to the national average of 9.2 per 1,000 children). These updates, however, demonstrate how the old law hamstrung Pennsylvania’s child abuse investigative units by narrowing the definitions of abuse and perpetrator, and forcing them to reach the higher threshold of proving “serious bodily injury” to constitute abuse. Consequently, if an allegation of abuse was “unfounded” simply because the police or Children and Youth Services could not reach their evidentiary thresholds under the old law compared to the new law, then that statistic is illegitimate.

The influence of the Sandusky crimes on this law are apparent; the impact of the grand jury investigation and alleged cover-up by Penn State employees and administrators is clear. It may have taken three years since the creation of the Taskforce on Child Protection to bring about some reform, but they necessary improvements.  For a more complete summary of the changes to the law, read James Boyles’ article in the Newtown (PA) Patch.

A recent case in Centre County, Pennsylvania considered whether a PFA filed in one county will dictate what happens to a PFA citing the same incident, but filed in a different county. The Centre County Court of Common Pleas denied the defendant’s motion to dismiss on the basis that the plaintiff’s PFA stands on its own merits as to whether the plaintiff was justifiably in fear of defendant and warranted a PFA.

The defendant was granted her own PFA against the plaintiff in Erie County. The defendant argued that the Erie County action basically determined who was at fault. However, the Centre County court denied her motion to dismiss on the basis that they were not, in fact, the “same case” despite arising from the same incident. The Centre County Court found that the plaintiff had her own burden to reach on the PFA; if the plaintiff had a justifiable fear of the defendant, the Court had the authority to enter a PFA against the defendant. Even though the defendant was the protected party in the Erie County action, the judge could still find the facts warrent an order of protection in the plaintiff’s favor.

This is not a situation where res judicata or “coordinate jursdiction” applies.  Coordinate jurisdiction is the premise that judges sitting on the same case can’t overrule each other. Cross-claims for PFA are common in many cases, the difference in this situation being that instead of the actions being under one caption in one county, the plaintiff in Centre County followed the rules of civil procedure and was able to file a PFA in her home county. Having not filed a cross-petition in Erie County, she would have the chance to fully and independently adjudicate her claim for protection against defendant.

This case is an important reminder that coordinate jurisdiction is not going to prevent a PFA on the same incident being filed in a different jurisdiction. It may be worth considering the merits of filing a cross-action to the other side’s PFA or if there is a tactical reason to file an independent action in another Court.

Kristine Hopkins v. Rene Hopkins, 2013-2476.

A South Carolina attorney was recently disciplined for failing to have an active email address.

Despite characterizing herself as “retired” and not having a client in thirty years, the South Carolina Disciplinary Board still found that she “poses a substantial threat of serious harm to the public and to the administration of justice” for repeatedly failing to comply with the Court’s rule about having an active email address.

This case got me thinking about my practice, particularly my frustration with the tiny but hardcore group of attorneys who refuse to use email. One more than one occasion, I have had to take extra measures to hand deliver, courier, or Federal Express a document or correspondence to an attorney who does not use email. This has cost my client extra money to accommodate someone who is a rare exception in an industry that has accepted email, faxes, and smartphones (albeit, begrudgingly at times).

In one situation, I hand delivered a copy of a sizable responsive pleading to an attorney’s office. Faxing wasn’t an option and mailing would not work due to the forthcoming weekend. Though I could have served the document on the attorney at our hearing and been in complete conformity with the rules, I wanted to give the attorney the courtesy of having the pleading in advance. Had he used email, he would have had the PDF Friday afternoon to peruse at his convenience over the weekend. No good deed goes unpunished, however, and though his practice methods made service before the end of business on Friday virtually impossible (or, alternatively, cost prohibitive to the client), he nevertheless wrote a letter to tell me my hand delivery on Monday morning, in advance of the hearing, was “offensive.”

I scanned the letter into the system for future reference and dropped it in the recycle bin.

I recognize that some attorneys feel email is the scourge of the 21st century. The incorporation of email into smartphones makes us tethered to work around the clock. But in an industry that is essentially about customer service, it seems irresponsible – and in South Carolina, a breach of professional responsibility – not to have an active email account to communicate with clients, counsel, and the Court. To the best of my knowledge, no attorney in Pennsylvania has been disciplined for not having an email address or, even minimally, a fax machine. I can only speculate that it is a matter of time before a client – having become frustrated by being limited to either in person visits, phone calls, or “snail mail” letters – finds a new attorney or worse, files a disciplinary complaint against them.

 

The Pennsylvania Superior Court recently rendered an Opinion in the case of Ferko-Fox v. Fox, 2013 Pa.Super 1888. This Opinion is important from the standpoint that it affirms the requirement listed under 23 Pa.C.S.A. §6107(b)(1) that a Protections From Abuse petition requires an ex parte hearing to determine if there is immediate and present danger requiring immediate, temporary relief.

In the Fox case, the wife obtained a temporary Protection From Abuse evicting the husband from the marital residence, as well as prohibiting any communication between the two of them. The husband challenged the temporary PFA on the basis that § 6107(b) requires that the trial court conduct an ex parte hearing for the purpose of protecting the respondent’s due process rights. Specifically, the court found that when the PFA Act permits trial courts to temporarily suspend a “respondent’s rights and liberties based upon the petitioner’s demonstration of an immediate and present danger of abuse at an ex parte proceeding.”  As husband argues, what this essentially means is that a basic review of the verified Petition is insufficient to grant temporary relief without an ex parte hearing being done by the Court. 

 

The ex parte hearing is important in the PFA process because it gives the trial court the opportunity to examine the petitioner in person and under oath; this face-to-face examination of the individual allows the Court to explore facts and circumstances beyond that of the contents of the Petition. The petitioner’s motive may be examined and discerned by an in-person examination and questioning by a Judge. It would also give the presiding Judge the opportunity to examine physical evidence (or the absence thereof) of violence such as, “scratches, wounds and bruises.”

 

Consequently, the Superior Court found that Lancaster County’s informal practice of an in-camera review of the Petition prior to the entry of a temporary order was insufficient to protect the respondent and to ensure justice in the application of the act. The Superior Court’s Opinion conclusively holds that “absent an exigent circumstance that prevents a petitioner’s appearance, due process mandates a trial court convene an ex parte hearing prior to entering a temporary PFA pursuant to §6107(b)”. 

 

The practical application of this holding is that each and every Protection From Abuse requesting temporary relief that is filed in Pennsylvania will now have an initial ex parte hearing on the record before a determination as to whether a Temporary Order will be entered. This will certainly increase the work load of court reporters since the Protection From Abuse Act requires entry of a final Order within ten (10) days of the filing of the Petition (except where a continuance is granted) and thus requiring significant turnaround of the transcript of the hearing for use at trial. 

From a practice perspective, counsel for PFA Petitioners and Respondents will need to be vigilant in obtaining the record from the Court and it is fair to assume that pro se litigants will not have the knowledge or wherewithal to either know about the necessity of having a transcript, nor how to go about obtaining it. Like any change to a standard practice, there will be some adjustment to this new procedure, but I would assume that the courts, court reporters, and counsel will develop as efficient a process as possible to address the added requirement of an ex parte hearing and transcript. An unintended consequence of this rule may also be that temporary orders will be much more judiciously entered in some Counties than perhaps they were before. The requirement of an immediate and present danger of abuse will be much more closely scrutinized in situations in which the facts are much less clear than in more obvious situations.

The stereotype of a family law attorney is that they deal in divorces or are limited to issues between spouses. The reality is that the practice can be far reaching in scope and encompass estate planning issues, business interests, and matters that extend beyond ex-spouses, but that deal with many aspects of a client’s life.  A recent example of how the term “family law” can truly encompass the entire family made news recently in the form of the legal action NFL rookie offensive lineman Tyron Smith had to take against members of his family. Mr. Smith found himself at odds with family members who allegedly had become so aggressive in their demands for money that he had to call the police to intervene. Mr. Smith’s representatives report that about $1 million is missing from him.

Mr. Smith plays tackle for the Dallas Cowboys. While in southeastern Pennsylvania that job description may not get him much sympathy, I think everyone can at least understand and appreciate why a young man who is (allegedly) missing $1,000,000.00 would need to establish some secure boundaries between his family and his money. An NFL player’s career is short; don’t confuse the small number of higher profile long-term players for the general rank-and-file of the NFL. The fortunate ones may play an average of three years; some never make it past their rookie contract or, for that matter, rookie training camp. Mr. Smith, under the NFL’s new collective bargaining agreement, is extremely well-paid, albeit not as well-compensated as his predecessors, many of whom has gone on to financial ruin due to family situations not unlike his.

 

As reported by Kareem Copeland of www.NFL.com, subsequent reports have come out about the facts behind Mr. Smith’s call to the police and his family disputes there was a disagreement about money (while acknowledging that he has given them a sizable portion of his four-year, $12.5 million contract). Nevertheless, Mr. Smith clearly reached a point where he could not trust those closest to him and had to act out of self-interest to protect himself and his financial stability.

 

Andrew Brandt, who has the distinction of having served on both sides of the NFL bargaining table as an agent and executive with the Green Bay Packers, wrote an interesting account of his experience with young players in similar situations as Mr. Smith. He has experienced the difficulty of counseling a client to act in a way that may hurt – emotionally or financially – someone they love, but sometimes that is a consequence of protecting the client.

 

Tyron Smith’s experience is not exclusive to wealthy athletes; many people find themselves in situations of having to seek judicial intervention in the form of Protection from Abuse Petitions, evictions, or needing counsel to resolve a financial issue in Orphan’s Court. Mr. Smith clearly found himself in a situation in which he had to consider what legal protections were available to him in order to secure his future. While Tyron Smith’s athletic career may be long, his post-NFL life will be much longer and – whether his actions prove to have been justified or a misunderstanding – he should commended for not waiting until his playing days and money ran out before doing something to protect both.

Protection from Abuse (aka “PFA”) Orders are Pennsylvania’s version of what is colloquially known as the “restraining order.” What makes the PFA unusual is that it is a civil action, but has a criminal component to it, namely the punishment for violating the PFA: jail.

One of America’s longest standing legal traditions is that a defendant cannot be tried for the same crime twice. This concept is otherwise known as “double jeopardy.” Recently, a Superior Court decision addressed PFA’s and the application of double jeopardy to a defendant charged with several violations of a PFA during one episode.

The opinion for the case of Hill v. Randolph (707 MDA 2010) was filed on June 1, 2011. In this case, the defendant had physically assaulted the victim after accessing her house and in spite of repeated demands that he leave the premises. Eventually, the police were called and he was charged with two counts of violating the PFA; one count of accessing the residence and a second count for the physical assault. Mr. Randolph was ultimately found in contempt of the PFA and sentenced to six months in jail.

On appeal, Randolph argued that the Court did not follow the legislative intent of the PFA statute by depriving him of a jury trial and convicting him on multiple counts from a single incident.

The Superior Court could not disagree with Randolph more. In striking down his appeal, they found that there is nothing in the PFA statute precluding the trial court from allowing the prosecution of multiple contempt charges or the prosecution of the crimes as contempt rather than a general criminal prosecution.

Moreover, the PFA statute considered the Constitutional rights of defendants and allowed for the prosecutor, in this case the Lancaster County D.A., to utilize the PFA statute to quickly and legally send a violent offender to jail for in excess of six months.   Double jeopardy did not exist where multiple criminal actions occurred in a single episode, while the two crimes were two distinct acts and did not merge together for a single six month sentence, but stood on their own.

Pennsylvania’s Protection from Abuse Act is the mechanism under which individuals can seek restraining orders against abusive parties. In filling out a petition for protection from abuse, the filing party must define the relationship between the plaintiff and defendant. Among the choices, are spouse, ex-spouse, parents of the same children, brother/sister, persons who live or have lived like spouses, current or former sexual/intimate partner, parent/child, other relationship by blood or by marriage.

These categories certainly constitute a broad spectrum of interpersonal relationships, but the question can arise as to whether the interaction between two people constitutes a relationship under one of the above categories. 

 

Under a recent Pennsylvania Superior Court case (Evans v. Braun), the Court found that two dates was a sufficient amount of time to establish the Petitioner’s standing to bring an action under the Protection from Abuse Act. The Court held that although the parties only went on two dates, by voluntarily entering into a relationship in which they attempted a romantic bond, the petitioner established standing to bring an action as a romantic partner. The length of the relationship is irrelevant compared to the mutual decision to enter into a relationship between the parties.

 

Though it may seem obvious that a party that is being abused by another should have any standing necessary in order to protect themselves, the Protection from Abuse Act is designed, at least in some part, to address the abusive conduct from an individual with whom you share some type of relationship. That the Court has demonstrated a broad interpretation of what constitutes a “partner”, means that petitioners can have the security of the Protection from Abuse Act even in the most superficial or short relationships. The abuse of one person by another is not acceptable at any time, but  by offering a broad interpretation of what constitutes a partner, the Court allows petitioners a way of protecting themselves beyond of that private criminal complaints or prosecutions.

 

Finally, it is worth keeping in mind that the actions sufficient to hold a person in contempt of a PFA are often not “illegal” from the sense that they, independent of the PFA, break any law. Keep in mind, however, that any contact between parties subject to a PFA violates the Order. Therefore, any text, phone call, or note passed from a third party can all constitute a violation of the PFA and land the violator in jail after a contempt hearing.