1 IN THE CIRCUIT COURT, TWELFTH JUDICIAL CIRCUIT 1 IN AND FOR SARASOTA COUNTY, FLORIDA JUVENILE DIVISION 2 3 IN THE INTEREST OF: 4 MAYA KOWALSKI and 5 KYLE KOWALSKI, CASE NO.: 2016-DP-000601-NC 6 DOB: 12/16/2008, 06/07/2007, 7 Minor Children. 8 _______________________________/ 9 10 TRANSCRIPT OF DIGITAL RECORDING OF 11 SHELTER REVIEW EVIDENTIARY HEARING 12 VOLUME I 13 DATE TAKEN: Tuesday, November 8, 2016 14 TIME: 9:53 a.m. - 1:58 p.m. 15 PLACE: Sarasota Judicial Center 16 2002 Ringling Boulevard Courtroom 5B 17 Sarasota, Florida 18 BEFORE: The Honorable Lee E. Haworth 19 20 Transcribed by: Susan B. Wilson, RPR, CRR, CRC, FPR 21 22 23 ____________________________________________________________ SUSAN B. WILSON, INC. 24 14015 Ivylgail Drive North Jacksonville, Florida 32225 25 (904) 994-6133 swlsn1@yahoo.com 2 A P P E A R A N C E S 1 2 MEGAN LEAF, Esquire 3 4 Children's Legal Services 1864 17th Street 5 Sarasota, Florida 34234 6 appearing on behalf of the Department. 7 8 JAREN M. MONAHAN, Esquire 9 Guardian At Litem Program 10 2071 Ringling Boulevard, Suite 625 Sarasota, Florida 34237 11 appearing on behalf of the Guardian Ad Litem. 12 13 14 DEBRA M. SALISBURY, Esquire 15 Law Office of Debra M. Salisbury, P.A. 3293 Fruitville Road, Suite 101 16 Sarasota, Florida 34237-6453 17 appearing on behalf of the Parents. 18 19 - - - 20 21 22 23 24 25 3 I N D E X - V O L U M E I 1 2 E X A M I N A T I O N S 3 Witness Page 4 SALLY M. SMITH, M.D. 5 DIRECT EXAMINATION BY MS. LEAF 49 6 CROSS EXAMINATION BY MS. SALISBURY 146 7 REDIRECT EXAMINATION BY MS. LEAF 151 8 RECROSS EXAMINATION BY MS. SALISBURY 153 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 (REPORTER'S NOTE: Digital recording file name 1 11-08-16 (1 partial).mp3 provided to the reporter 2 began as follows. Proceedings prior to this point, 3 if any, were either not recorded or were not 4 provided in digital form to the reporter for 5 transcription.) 6 MS. SALISBURY: Every time he appeared at the 7 hospital, he was read a list of rules that he had 8 to comply with, told he had to sign the paper, the 9 same rules, or his visit would be canceled. 10 Yesterday Kyle's visit with his sister was 11 suddenly canceled by the social worker, who I think 12 is going to be testifying today, as Kyle was being 13 driven across the Skyway Bridge to visit his 14 sister. 15 Kyle is nine years old. He has been denied 16 sibling visitation. And for some strange reason he 17 has to be supervised too. 18 These issues must be addressed by the Court. 19 I want the Court to know I have made repeated 20 good-faith efforts to resolve these issues by email 21 and discussions with Attorney Leaf and I have been 22 ambushed and stonewalled. 23 Maya's attorney agrees that she needs to have 24 more contact with her brother and father right now. 25 5 And in fact, on Page 24 of the transcript, Lines 16 1 through 18 of the shelter hearing transcript, you 2 will see that CPI Masica indicated, quote, "Dad 3 hasn't caused any issues at the hospital. He's 4 always been appropriate with the child." 5 Those are the issues that we want to 6 preliminarily put on the record. 7 The other thing that I want to put on the 8 record today that I have concerns about, as I do in 9 any hearing, I would prefer that all the attorneys 10 in this case make proper objections on the record, 11 and by that I mean no speaking objections where you 12 tip the witness's hand. And so that's my last 13 thing that I'd like to address. 14 THE COURT: I notice that the arraignment's 15 set for tomorrow. Could we arraign today, do you 16 think? 17 MS. SALISBURY: I don't see why not, if you 18 set the date. 19 THE COURT: Ms. Leaf? 20 MS. LEAF: Seeing as the parents are here, I 21 don't see there being a problem -- 22 MS. SALISBURY: Or we could do it Thursday. 23 THE COURT: Let her finish speaking, please. 24 MS. LEAF: I don't see there being a problem 25 6 with that. And one of the issues was whether or 1 not we should be continuing that arraignment out 2 until these proceedings are done. 3 THE COURT: Well, there was a motion for 4 expedited arraignment, or filing; right? 5 MS. SALISBURY: Yes, sir. 6 THE COURT: Are you planning on filing a 7 petition? 8 MS. LEAF: It's already been filed, 9 Your Honor, pursuant to that request. 10 THE COURT: Okay. So that's not an issue at 11 the moment. 12 MS. SALISBURY: Right. 13 THE COURT: So let me just ask, Ms. Leaf, in 14 regards to the shelter review, what witnesses or 15 what evidence do you wish to present today? 16 MS. LEAF: There would be evidence from 17 Dr. Sally Smith pertaining to the issues that 18 brought this case forward that have been listed 19 within the 2A and the additional records review 20 that she has conducted. There will be testimony 21 from an All Children's Hospital social worker. 22 One thing that has not been brought up at this 23 point is that there has been prior agreement that 24 the individuals who were out of county and/or 25 7 medical staff would be able to testify by phone. 1 So Ms. Bedy has -- the All Children's Hospital 2 social worker -- she has been subpoenaed for a 3 hearing at 2:30 in Hillsborough County. She does 4 have the availability of a notary with her that she 5 can testify by phone, but based on that prior 6 agreement of the parties, that's how we were 7 proceeding with her. 8 Then we have -- 9 THE COURT: Excuse me. What is her name? 10 MS. LEAF: Her name is Cathi Bedy. 11 THE COURT: All right. 12 MS. LEAF: And then we would have testimony 13 from investigations. 14 And then there's a question, though, 15 Your Honor -- 16 THE COURT: Are you talking about CPI? 17 MS. LEAF: By CPI, that's correct. 18 THE COURT: Do we have names? 19 MS. LEAF: There is a Pinellas County CPI. 20 Her name is Julie -- and I cannot pronounce her 21 last name -- Mikoulic, M-i-k-o-u-l-i-c. I believe 22 that's the accurate spelling for it. And then we 23 would also have an investigator here from Sarasota, 24 Lindsey Masica. 25 8 And possibly a fifth witness that is a family 1 support worker from investigations. The intent of 2 her testimony was to bring the Court up to speed 3 with regards to the reasonable efforts that the 4 department has made; however, given the motions 5 that Ms. Salisbury filed at the last minute 6 yesterday, not providing any parties reasonable 7 notice with regards to that and requesting that 8 they be heard, in fact setting it on an amended 9 notice of hearing for today and Thursday, the 10 department is cautious as to what evidence needs to 11 be presented today because we do not want to be 12 seen as opening the door for any consideration with 13 regards to Ms. Salisbury's motion, given the fact 14 that we've had no notice of that, that this hearing 15 is set solely for the purpose of shelter review, 16 and we do not want testimony that's elicited for a 17 valid reason, which is why we're before the Court, 18 to be misconstrued to allow her to make the 19 arguments that she just made before the Court even 20 agreed whether or not we would hear those motions 21 today. 22 THE COURT: In other words, you want to limit 23 this simply to the shelter review. 24 MS. LEAF: Specifically to the shelter review 25 9 and issues pertaining to probable cause, yes, 1 Your Honor. 2 THE COURT: And the issues that Ms. Salisbury 3 just raised you say were done yesterday? 4 MS. LEAF: Correct, Your Honor. They were 5 filed I believe yesterday morning. And there was 6 no request of the parties with regards to hearing 7 time. It was an amended notice of hearing that was 8 filed in conjunction with the orders. 9 I find it ironic that Ms. Salisbury's arguing 10 that she has to protect due process rights of her 11 clients, but all of the parties in this proceeding, 12 including the department, the guardian ad litem, 13 and the child, have due process rights and the 14 opportunity to be heard on these matters and 15 afforded the opportunity to prepare adequately for 16 those matters, especially with the allegations that 17 she's raised in her motions alleging that I myself 18 have behaved unprofessionally, which she has 19 already brought up before the Court. 20 And I also find it ironic that she's bringing 21 up discovery issues when the department has been 22 very transparent with regards to the documents that 23 we have in our possession, yet it was 24 Ms. Salisbury's office who would not provide 25 10 discovery in response to our demand until I gave 1 her a final notice yesterday, saying, "The deadline 2 for this is today. I still have not received it. 3 And as a courtesy, I request that you provide it by 4 3:00 o'clock today so that I may attempt to review 5 the records that are in your possession before 6 today's hearing." 7 Now, those documents were provided to my 8 office. However, I have not had time to review 9 them. That goes against the fundamental practice 10 of law, in that we're essentially going forward on 11 a trial by ambush. 12 Now, I have given everything in my possession 13 at the time that they have come into my possession. 14 Ms. Salisbury may not agree or like the fact that I 15 didn't get the records as quickly as she wanted, 16 but what I have is what has been given to me, and 17 it has been an extraordinary effort to try to get 18 the information that we have. 19 I don't disagree with her with regards to her 20 efforts from All Children's Hospital, because I've 21 had that issue myself in not getting a response 22 from a subpoena. And it wasn't until yesterday 23 morning that the child protective investigator 24 provided me with the records that they had 25 11 obtained. 1 THE COURT: What's your position regarding 2 Ms. Salisbury's request to dismiss the petition as 3 to Kyle? 4 MS. LEAF: Well, Your Honor, I think it's 5 pretty clear from the shelter petition that was 6 filed that the shelter that was being sought was 7 for Maya. I believe in one of the paragraphs it 8 even specifically states that the shelter is as to 9 Maya Kowalski only and that Kyle is not subject to 10 that. However, the reason he was included in the 11 petition was for that CPT evaluation that the 12 department requested at the time of the shelter 13 hearing, which Judge Dees granted. 14 Based off of that evaluation, the department 15 did not file allegations because we don't have 16 information with regards to him. So he was never 17 sheltered by the department. There was an order 18 for him to do a CPT evaluation. There has been no 19 other protective action taken on behalf of that 20 child. So I see it as a nonissue, because even the 21 shelter order clearly states that it is Maya who is 22 placed in the department's protective supervision 23 and not Kyle. 24 THE COURT: So you're saying that you made 25 12 efforts to get the records from All Children's but 1 if there was delay, it wasn't on the department's 2 side; it was on the hospital's? 3 MS. LEAF: Correct. 4 THE COURT: All right. 5 MS. LEAF: Your Honor, Ms. Salisbury made some 6 other arguments. First I'll go briefly into the 7 issue with regards to her motion to show cause 8 against CPT. Again, the department is objecting to 9 that being heard today due to lack of notice. Also 10 that motion requires service upon the CPT agency. 11 I don't believe that that's been effected within 12 the last 24 hours. And CPT is represented by their 13 own counsel, who has the right to be able to review 14 the motion, prepare their witnesses, and assess 15 whatever else needs to go forward. 16 THE COURT: Well, let's pause on that. 17 Ms. Salisbury, how do you suggest we go 18 forward on the CPT issue without -- 19 MS. SALISBURY: I'm only asking you to issue 20 an order to show cause for us to have a hearing 21 another day on that. That's all I'm asking for. 22 THE COURT: Well, have you provided any sort 23 of notice to the CPT folks that you're doing that? 24 MS. SALISBURY: I have not provided notice 25 13 because I was going to serve them with the order to 1 show cause, which I believe is the proper 2 procedure, and then they will either appear before 3 the Court or explain why they haven't provided the 4 records. 5 THE COURT: Well, okay. So you are trying to 6 get that heard when? 7 MS. SALISBURY: When the Court will issue an 8 order to show cause where they can appear before 9 the Court and answer why they haven't provided the 10 records on another date and time. 11 THE COURT: All right. 12 MS. SALISBURY: That's all I'm seeking. 13 THE COURT: What is the status of their 14 production of records at the moment? 15 MS. SALISBURY: All I have is a disk that I 16 retrieved by having a staff member drive 17 to St. Pete with medical records. 18 THE COURT: You have a disk. Have you 19 reviewed the disk? 20 MS. SALISBURY: Absolutely. 21 THE COURT: Does it contain relevant material? 22 MS. SALISBURY: It contains medical records. 23 It does not contain any of the typical CPT records 24 that are kept in the course of an investigation 25 14 provided to me routinely in investigations like 1 this. 2 THE COURT: Well, do you know if their routine 3 is the same as Sarasota? 4 MS. SALISBURY: Well, since they come under 5 the statute and there are certain documents that 6 they're supposed to produce under the statute, I 7 would think that it would have to be the same 8 documents. And I have that order in the file and 9 it lists all the documents that they're supposed to 10 produce in it, but they did not produce any of 11 those. 12 THE COURT: Well, are those documents going to 13 be bearing on the issues we're trying to consider 14 today? 15 MS. SALISBURY: I believe they would be, but 16 they haven't been produced. There's a whole list 17 of documents they're supposed to produce, such as 18 case progress notes, assessment activity reports, 19 supervisory case review documentation, case closure 20 documents. Now, maybe they don't have that yet 21 because they haven't closed, but typically they 22 produce what they can and then give updated ones. 23 Secondary CPT assist reports, any drawings, 24 any documentation as to any DCF contract providers 25 15 that documentation was shared, you know, like when 1 they called in the psychologist to do this. He 2 was -- 3 THE COURT: Okay. If I grant the motion 4 you're asking for, that evidence will not be before 5 me today. 6 MS. SALISBURY: No. 7 THE COURT: So we're going to have to proceed 8 on what we have today; right? 9 MS. SALISBURY: That's correct. 10 THE COURT: Okay. 11 MS. SALISBURY: And I will have the trial by 12 fire on that. 13 THE COURT: Well, that's fine. 14 MS. LEAF: Well, and I've told everyone, Your 15 Honor, I do not have that disk. We don't have the 16 luxury of having somebody who could drive up to 17 Pinellas County on Friday. I don't believe that 18 the guardian has that disk as well. My 19 understanding was that Dr. Smith was going to 20 provide that to the parties today. 21 THE COURT: Let me ask this question. Here we 22 are. You've requested a day and a half for this. 23 And apparently some of the evidence that the 24 parents say they need is not available at the 25 16 moment. Why don't we just cut to the chase and set 1 a trial date? 2 MS. LEAF: I agree, Your Honor. 3 THE COURT: Do the arraignment, let them deny 4 it, and let's get this thing done instead of 5 messing around with these kind of issues. 6 MS. SALISBURY: Because my clients are being 7 denied contact with their child and they wanted a 8 shelter review under the law. 9 THE COURT: That's fine. But I'm thinking 10 maybe we could set an expedited trial date. 11 MS. SALISBURY: My clients, I've discussed 12 that with them. I have discussed that with my 13 clients repetitively. Pursuant to Chapter 39, they 14 wanted an evidentiary shelter review. 15 THE COURT: I'm not trying to deny them that. 16 I'm trying to move past that. We'll have a shelter 17 review today. They may not like the result; they 18 may like the result. I don't know how it's going 19 to turn out. I'm just looking down the road. 20 Even with a shelter review, I doubt the 21 department's going to back off and just dismiss 22 everything. So you're probably looking at a trial 23 in any event, aren't you? 24 MS. SALISBURY: Well, but even so, 25 17 Your Honor's job today is to balance all the rights 1 of all the parties in the courtroom, including the 2 child. And so just because they won't back off 3 doesn't mean that you can't deny the shelter and 4 leave the child in at least the care of one of the 5 parents, if not both. 6 THE COURT: Okay. Well, I understand. If you 7 get everything you want today, you're still looking 8 at a trial. And I'm trying to say let's get this 9 thing -- they're in agony because they're being 10 deprived of their child, and the government's 11 saying they have a reason to do that. And even if 12 you get everything you're asking for today, the 13 department's going to go forward. 14 I'm just asking if it's possible to get this 15 thing on a fast track so we don't have to languish 16 and the child be in limbo for months. 17 MS. SALISBURY: Well, we can't get our 18 visitation rights, either. That's being run over 19 by the department. 20 THE COURT: Well, we might be able to resolve 21 that today. 22 MS. SALISBURY: Okay. Let me -- 23 THE COURT: I'm trying to look past that. 24 MS. SALISBURY: Do you want me to take a break 25 18 and discuss that again with my clients? 1 THE COURT: I'm fine with -- does the guardian 2 have a position? 3 MR. MONAHAN: Your Honor, we're here for a 4 shelter review. They're entitled to a shelter 5 review. It's a very low burden of proof of 6 probable cause. 7 We're fine with fast-tracking this. I believe 8 that all this evidence that was to come out today, 9 which I know that Ms. Leaf got it late yesterday 10 afternoon -- I haven't seen the motions that were 11 sent this morning. I was shown this morning the 12 motion that Ms. Salisbury wanted to be heard today. 13 I was shown a packet of documents which I cursorily 14 looked at. There's no way I could actually review 15 them and have any meaningful arguments to this 16 Court because they're just too voluminous. 17 I think we'd be better served, and I think the 18 child would most definitely be better served, if we 19 were able to actually review all the evidence in 20 this case, have a full trial, which is the parents' 21 right. And I agree with Your Honor the State's not 22 going to back off on this. I believe that the 23 position of the guardian right now, based on what 24 we've seen with the two visits with the child, it's 25 19 not appropriate to back off at this point in time, 1 either. So we're fine with an expedited track. 2 THE COURT: Well, let me be clear here. I'm 3 not talking about doing anything that interferes 4 with the parents' right to have a shelter hearing 5 today. Okay? 6 MS. SALISBURY: That's our position. 7 THE COURT: You're entitled to have that. 8 I'm saying let's look down the road to see if 9 there's some way we can get this resolved at least 10 in an expedited fashion. 11 MS. SALISBURY: And there's no reason why the 12 Court cannot take judicial notice of the testimony 13 from today in a subsequent trial. 14 THE COURT: Well, yeah. But I think given the 15 history here, I have to have everything done pretty 16 much by the book. I don't know if I'll take 17 judicial notice. I don't know if I'll be the 18 judge. 19 But what I was going to suggest, go ahead and 20 talk to your clients about this expedited trial. 21 Again, you're going to have your shelter hearing 22 today, and maybe Thursday if we need it. But -- 23 MS. SALISBURY: We will need it Thursday. I 24 have many, many witnesses. I have doctors who have 25 20 agreed to testify. I've gone through great efforts 1 to clear their calendars. 2 THE COURT: That's fine. I'm not saying it's 3 not going to happen. I just want to see what their 4 position is and try to get an expedited trial, 5 because I can coordinate with Judge Dees' office, 6 see if we have time available, give them the 7 comfort of knowing this is not going to drag on 8 forever, regardless of what happens on the shelter 9 review. Okay? 10 MS. SALISBURY: Okay. Just -- 11 THE COURT: Five minutes. 12 MS. SALISBURY: Okay. Thank you. 13 THE BAILIFF: All rise. 14 (Recess.) 15 (End transcription of digital recording file 16 11-08-16 (1 partial).mp3.) 17 (Begin transcript of digital recording file 18 11-08-16 (2).mp3.) 19 THE COURT: We're back on the record. 20 You-all be seated. 21 MS. SALISBURY: My clients understand -- 22 THE COURT: Do you want to wait for them? 23 MS. SALISBURY: No. 24 My clients understand that it is the Court's 25 21 preference to go ahead and set an expedited trial. 1 It is very, very difficult to clear hearing 2 times with everybody and, you know, we're heading 3 into a holiday season where I was told you had no 4 more dates for November. I have a big trial in 5 Manatee County in December. So, you know, that may 6 be problematic in itself. 7 But the one huge problem here that's going on 8 is that the department -- we want to resolve the 9 visitation issue. And I will present to Your Honor 10 that the target of the dependency case really is 11 largely the mother. 12 And I have my -- Dr. Duncan has largely 13 finished their testing and their evaluations, 14 checking their collaterals. The delay is the 15 department. They haven't provided the information. 16 And they think that because they haven't had a 17 chance to get information, that you should just 18 leave Maya not seeing her family indefinitely until 19 they get around to it. I've tried to work that out 20 on break. 21 So my proposal is this: that we have a 22 hearing on Thursday morning with Dr. Duncan when 23 she was supposed to testify and that you make a 24 decision then. Because the order specifically 25 22 states -- and I say I don't think the order was 1 written properly and consistently, and I don't 2 think that that was intentional, but the order 3 doesn't state that the psychological of the child 4 was to be done by somebody on staff at All 5 Children's. But I believe the order specifically 6 states that as soon as the psychologicals were 7 done, that, you know, the Court would look at the 8 visitation issue. 9 And if you look at the transcript, Judge Dees 10 said she'd even take a verbal. She would take a 11 verbal on the psychologicals. I've tried to talk 12 to DCF about it, CLS about it. Their position is 13 they would need time to review the reports and 14 everything. 15 They want to drag out this. And that's the 16 problem with delaying a true shelter hearing, 17 because the parents are kept separated from the 18 child. The child is suffering. 19 If Mr. Kelly were here -- and it's in the 20 medical records that the child is suffering from 21 being separated from her parents. If you want to 22 separate the mother, it's killing her, but she'll 23 stay separated, if she has to. But he's no 24 problem. They stated at the shelter hearing he's 25 23 never been a problem, he's never behaved 1 inappropriately. He'll sign any visitation 2 contract you put in front of him. 3 I've met Kyle when he met Mr. Kelly. Kyle is 4 a very well-behaved nine-year-old child. I think 5 if Kyle had the rules explained to him, he would 6 probably be bright enough to understand and sign a 7 contract. He did very well in the CPT interview. 8 There's no reason to continue to keep Maya so 9 isolated that she can't have a normal visitation 10 and normal relationship with her brother and her 11 father. It's harming her further. That's why we 12 need the shelter review. That's the issue. 13 THE COURT: Again, I'm not addressing whether 14 or not you're going to get your shelter review. 15 I've been able to get -- had a visit just a few 16 minutes ago with the Court administrator. He's 17 authorized four trial days. I'm opening up my 18 calendar. I just want to stay on the issue of 19 trying to get a trial date that would work 20 calendar-wise for the parties. 21 MS. SALISBURY: Where does that leave us with 22 visitation? 23 THE COURT: We're going to address that. I'm 24 not making any ruling -- what I see is inevitable 25 24 is a trial date. And I think to get this done and 1 done quickly, I need to go ahead and see if we can 2 set that, without prejudice to your positions on 3 the shelter. Okay? 4 So, again, with having to move some things 5 around ... 6 MS. LEAF: Your Honor, are we wanting to set 7 the dates now? Because there are a couple of other 8 responses that the department had to the things 9 that Ms. -- 10 THE COURT: I know. I'm trying to stay on one 11 point here. 12 MS. LEAF: I understand. I just wanted to 13 make the Court aware. 14 THE COURT: I'll give you a chance to respond. 15 MS. SALISBURY: The other thing is that 16 whatever dates are set, we then have to make sure 17 all these experts can be lined up again. 18 THE COURT: Exactly. And, again, I'm assuming 19 that everybody's going to try to work assertively 20 to try to get that to happen. 21 So the week of December 12th. The week of 22 December the 19th. 23 MS. SALISBURY: What are you saying when you 24 say "the week"? Any day? 25 25 THE COURT: Four days. You can pick any of 1 those four days. 2 The 12th and the 19th. That's the week before 3 Christmas. Then we have the week after Christmas, 4 which happens to be four days, before New Year's. 5 So I have those three weeks for consideration. 6 And that's without even getting into January, which 7 I can do, but I'd prefer not to. I want to get it 8 done, if we can, this year. 9 MS. LEAF: Your Honor, what was the third week 10 you said? 11 THE COURT: It's the week after Christmas. It 12 starts the 27th. 13 MS. SALISBURY: I'm off. I have some time off 14 already. 15 THE COURT: Well -- 16 MS. SALISBURY: So I'm available the week of 17 the 12th. 18 THE COURT: Guardian? 19 MR. MONAHAN: The 12th is the best for us, 20 Your Honor. 21 MS. SALISBURY: But, you know, we all have 22 hearings on Wednesday, so we wouldn't be able to do 23 it on Wednesday. 24 THE COURT: Well, we've got -- 25 26 MS. SALISBURY: Unless I can get coverage. 1 And Mr. Kelly, too, has hearings, and we normally 2 cover for each other. He would be here on behalf 3 of the child. 4 THE COURT: Well, okay. That still gives us 5 four days that week. 6 MS. SALISBURY: Okay. 7 That would work if we can get some visitation 8 squared away. 9 THE COURT: I'm not touching visitation yet. 10 MS. SALISBURY: And I would invoke the rule. 11 THE COURT: Well, let's -- 12 MS. LEAF: Your Honor, I think both the weeks 13 of December 12th and December 19th -- I mean, we'll 14 make it happen. We'll have to arrange coverage for 15 certain things, but we'll make it happen. 16 THE COURT: Why don't we do this, then. Let's 17 go ahead and proceed with the arraignment today. I 18 know it was set for 10:00 o'clock tomorrow. 19 Kevin, you've got to make sure that we're 20 clear on the record on this. 21 THE CLERK: Yeah. 22 THE COURT: Okay. We're having the 23 arraignment -- I don't know about Mr. Kelly's 24 position. I suppose we could -- 25 27 MS. SALISBURY: That I don't know, if he's 1 available that week. I can try to text him right 2 now. That will be a big question. 3 (Texting) "Are you available the week of 4 December 12th for the Kowalski expedited trial? 5 The judge is on the bench and he wants to know 6 now." 7 He doesn't always respond promptly, so ... 8 THE COURT: Tell you what. Let's go ahead and 9 tentatively do that. Let's go ahead and have the 10 arraignment. We'll show -- I take it, 11 Ms. Salisbury, you wish to enter a denial to the 12 petition? 13 MS. SALISBURY: Yes. 14 THE COURT: All right. And so denial by 15 Ms. Salisbury on behalf of the mother. 16 Mr. Kelly is not present. If we have a 17 problem, I'm sure we'll hear back -- 18 MS. SALISBURY: Mr. Kelly represents the 19 child. I represent both parents. 20 THE COURT: Both parents. 21 Let's make sure that we have a notation in the 22 record as to the denial by the parents. And we'll 23 set the trial date tentatively for the December the 24 12th week of four days, excluding Wednesday, which 25 28 would be the 14th, unless you can agree to try it 1 during those days. 2 We understand there may be witness issues as 3 far as trying to coordinate, et cetera. 4 Is there going to be any objection to video or 5 electronic telephonic testimony? 6 MR. MONAHAN: No, Your Honor. We're fine with 7 that. 8 MS. SALISBURY: It depends. 9 MS. LEAF: I'm fine with that. 10 MS. SALISBURY: It would depend on if there 11 was a witness that we needed to see the demeanor 12 of. 13 THE COURT: All right. 14 MS. SALISBURY: That's the only thing I can 15 think of. 16 THE COURT: Let's do this also. Let's 17 see -- we probably need to do a pretrial or status 18 review on how things are going. How does December 19 the 5th look for just a status review on any issues 20 complicating the trial date? That's a Monday. 21 MS. SALISBURY: I'm sorry, I think I have a 22 hearing that day. 23 THE COURT: We can do it anytime then. 24 MR. MONAHAN: I've got a couple hearings in 25 29 the morning, but other than that it's open. 1 MS. LEAF: It looks like both my calendar and 2 I believe Ms. Runevitch has a hearing in the 3 morning, but we could definitely do something in 4 the afternoon. 5 MR. MONAHAN: If I need coverage -- 6 THE COURT: How about 1:30 in the afternoon on 7 the 5th? 8 MS. SALISBURY: That looks like it will work. 9 I haven't synced my phone up in a while, so there 10 may be a conflict, but I doubt it. 11 THE COURT: All right. So, again, 12 tentatively, Kevin, 1:30 status review -- call it a 13 pretrial, if you want -- on December 5th, 1:30. 14 Trial date starting at 9:30 on the 12th of 15 December, knowing that we're going to have to 16 confirm certain dates. 17 The issue of the telephone appearances, video 18 appearances, is pending, not been resolved. 19 And that should do it for that. 20 Now, the witness rule has been invoked. If we 21 have any witnesses present who are not parties, 22 they need to exclude themselves and wait to be 23 called. 24 MS. LEAF: And, Your Honor, if we can just 25 30 address -- 1 THE COURT: Yes. I'm sorry. Go ahead, 2 Ms. Leaf. Sure. 3 MS. LEAF: Another issue that Ms. Salisbury 4 brought up at the beginning was that she had 5 subpoenaed the child to testify in court. She was 6 stating tomorrow afternoon, but I think she 7 actually means the 10th in the afternoon. 8 MS. SALISBURY: Yeah. 9 MS. LEAF: The child is a party to this case. 10 They can call whatever witnesses they want. 11 However, we're dealing with a child that is at All 12 Children's Hospital. I've spoken with the social 13 worker. We can elicit testimony with regards to 14 this later today as well. 15 The transportation of the child to court 16 physically is going to require a medical transport. 17 She can provide some more specifics with regards to 18 the issues as it pertains to Maya's treatment and 19 what the treating physicians have recommended. 20 They do have Skype capabilities at All Children's 21 Hospital, to where she could be -- she could 22 testify via Skype, and my understanding is that the 23 courtroom has the technology to be able to receive 24 that as well. 25 31 So we would be asking, at a minimum, that that 1 be conducted. We would also be asking that there 2 be some parameters put in place with regards to the 3 child's testimony. 4 The Rules of Juvenile Procedure allow the 5 Court to put in place parameters with regards to 6 examination of child witnesses. Clearly we found 7 out about the child being -- or the parents wanting 8 the child to testify yesterday, so the department 9 hasn't been able to file any motion with regards to 10 an in-camera review, but given the allegations that 11 are pending, the psychological nature of what is 12 happening, or at least what the allegations are of 13 what is happening, we would ask that there be an 14 in-camera review of the child that happens outside 15 of the parents' presence. 16 There's a no contact order that's in place 17 between the child and the mother. To have her 18 testifying in front of the mother while that's 19 going on would essentially negate the purpose for 20 why that no contact order was put in place. 21 While there's supervised contact with the 22 father, it inherently puts the child in a position 23 to feel the need to appease the parents and/or 24 places her in the psychological turmoil that the 25 32 allegations surrounding this is. 1 The allegations are that it's factitious 2 disorder by proxy, that she believes she has this 3 condition because somebody has told her that she 4 has. By having her testify in front of the people 5 that are the alleged perpetrators who have told her 6 that this is what she has is going to perpetuate 7 that cycle of the psychological issues that this 8 child is experiencing. 9 So with that, if the Court is going to require 10 testimony of the child, then we would at least ask 11 that she be able to testify via telecommunication 12 and also that there be some parameters put in place 13 requiring an in-camera examination of her. 14 THE COURT: Well, I take it she's receiving 15 some sort of therapy from some professional there 16 at All Children's? 17 MS. LEAF: Yes. 18 MS. SALISBURY: Yes. 19 THE COURT: Do they have a recommendation one 20 way or the other about whether she'd even be 21 allowed to do that? 22 MS. LEAF: When I spoke with the social worker 23 last night, she stated that they were working on 24 writing something up, but I haven't received that. 25 33 And, again, the social worker will testify and can 1 elaborate further on that today. 2 MS. SALISBURY: Her attorney feels that she is 3 well able to come to the courtroom and that she 4 wants to come to the courtroom. And if anybody had 5 discussed that with me, I have always stipulated to 6 removing my clients from the courtroom while the 7 child testifies. 8 Maya is, from what I understand, a very 9 strong-willed young woman. She's very verbal. She 10 has no problems expressing her opinions about 11 things. 12 If the Court wanted an order entered that the 13 parents would step out of the courtroom while she 14 testifies, I would think -- they're shaking their 15 heads that they agree to that. I would have no 16 problem with that. 17 But I think that the Court needs to actually 18 see her in person and see her physical appearance 19 in person rather than on Skype. And her attorney 20 indicated that she is capable of coming here to the 21 courtroom and testifying. 22 THE COURT: Well, I will need to have some 23 sort of information from whoever is taking care of 24 her that has qualifications to comment upon her 25 34 suitability to appear electronically or in person. 1 So until I hear that, I'm not sure what I can do. 2 MS. SALISBURY: Okay. The problem we have is 3 that the social worker up there has been running 4 the show and stopping a lot of the visitations and 5 restricting Maya's access. Maya doesn't have 6 telephone access; she doesn't have her computer to 7 use for school unless -- I don't know if that's 8 been worked out yet. I know Ms. Hutchinson said 9 she would work on that. 10 You know, she's being kept from the rest of 11 the world. She's not allowed to have visitors 12 unless the social worker says they're okay. Kyle's 13 visit was stopped yesterday when he was driving 14 over the Skyway to go see her. He was with his 15 uncle. The uncle was told that he couldn't visit. 16 And -- 17 MS. LEAF: Your Honor, we're getting into 18 issues with regards to visitation which the Court 19 has clearly stated you're not ruling on right now. 20 THE COURT: No, I think the visitation is part 21 of the shelter review. 22 MS. SALISBURY: Yes. 23 THE COURT: So I don't have a problem with 24 trying to visit that issue. 25 35 But let me just ask, Ms. Salisbury: Could you 1 tell me what witnesses you're going to be wanting 2 to present? 3 MS. SALISBURY: Yes. 4 THE COURT: And by the way, you talked about a 5 Thursday afternoon. This was set for today and 6 half a day on Thursday. 7 MS. SALISBURY: That's not what we were told. 8 We were told we had a full day, and we have a full 9 day of witnesses. And I'm sorry if there's been 10 some miscommunication -- 11 THE COURT: Who told you that? 12 MS. SALISBURY: Tasha told us that. And -- 13 THE COURT: Well, it wasn't cleared with me. 14 MS. SALISBURY: Sarah is sitting right here. 15 She's the one that was responsible -- 16 THE COURT: I'm not disputing that. It wasn't 17 cleared with me. 18 In any event, give me your witnesses. 19 MS. SALISBURY: We have Dr. Kirkpatrick, one 20 of the treating physicians. Dr. Duncan. And if we 21 can still have a hearing about the visitation on 22 Thursday, she's available to testify in the morning 23 at 9:00 a.m. 24 We have Dr. Spiegel, who also treated the 25 36 child. We have Dr. Wassenaar, who is the 1 pediatrician that has treated both children. 2 And I don't think we ever got the issue 3 resolved about whether the petition for shelter was 4 being dismissed as to Kyle, and we'd like that 5 addressed today before we leave. 6 We have a therapist from physical therapy that 7 the child was receiving here. 8 THE COURT: Do you have a name? 9 MS. RUNEVITCH: Becky -- 10 MS. SALISBURY: Becky. 11 MS. RUNEVITCH: -- Johnson. 12 MS. SALISBURY: Becky Johnson. 13 MR. MONAHAN: Rebecca. 14 MS. SALISBURY: Rebecca Johnson. 15 We have a Dr. Hanna that has also treated the 16 child. We would have the therapist from Eagle's 17 Wings -- and I'm forgetting her name. 18 MS. RUNEVITCH: A therapist from -- physical 19 therapy, Agility, Alan Dalton. 20 MS. SALISBURY: So there's another therapist, 21 Alan Dalton. 22 And then -- I think we got those backwards. 23 We have Jack Kowalski and Beata Kowalski that 24 would be testifying. And likely we have -- your 25 37 brother's name? 1 MR. KOWALSKI: Robert Rynes. 2 MS. SALISBURY: Robert Rynes. 3 UNIDENTIFIED SPEAKER: [Unintelligible]. 4 MS. SALISBURY: Yeah. You need to step out, 5 please. 6 Robert Rynes will be testifying, the uncle. 7 We would also -- we'll have the child testify. 8 The Court needs to hear from the child. She's 9 a party. And we would like to -- you know, I guess 10 we'll have to have Kyle testify if there's not 11 clarity about whether the case is being dismissed 12 as to Kyle or not. And I think they're entitled to 13 that clarity today. 14 MS. LEAF: I think there is clarity, in that 15 the petition did not seek shelter of him. He was 16 included only for the purpose of the dependency 17 evaluation. Moving forward, the dependency 18 petition clearly states that there are no 19 allegations against him. If Ms. Salisbury just 20 simply wants his name removed from the caption, 21 that's -- 22 MS. SALISBURY: No. There's a statement in 23 the petition that was filed that says "At the time 24 of the filing of this petition, the department is 25 38 not seeking adjudication of the child Kyle 1 Kowalski." 2 So my question is: What does that mean? 3 THE COURT: Well, if you're asking for an 4 order that says that Kyle is not subject to the 5 petition for dependency filed in regards to Maya, 6 you have that order. 7 MS. SALISBURY: I don't understand what your 8 ruling was just now, Judge. 9 THE COURT: My ruling is that Kyle was not 10 included in the petition for dependency. 11 MS. SALISBURY: Okay. Thank you. That 12 clarifies it. 13 THE COURT: Is that right? 14 MS. LEAF: Correct. 15 MS. SALISBURY: And so is the shelter as to 16 Kyle being dropped, where he will not be checked on 17 or bothered at school? Because that is the 18 process -- 19 THE COURT: I don't understand, if he's not a 20 party to the petition, how that's going to happen. 21 MS. LEAF: Correct. He was not sheltered and 22 placed in the department's custody. 23 MS. SALISBURY: Okay. 24 MS. LEAF: Now, if there's an investigation as 25 39 to him, then that -- 1 THE COURT: You're talking about 2 prospectively. 3 MS. LEAF: Correct. 4 THE COURT: Okay. At the moment he's not in 5 the case. 6 MS. LEAF