2004 Case Law
CHILDREN & YOUTH CASE LAW UPDATE
COURT OF COMMON PLEAS OF PENNSYLVANIA 2004
1. Adoption of J.P, 141 Mont. Co.L.R. 217 (Jan. 13, 2004)
The Montgomery Court of Common Pleas held that an unrelated,
third party, who established in loco parentis relationship with the subject minor child, lacked standing to adopt without the consent of the legal guardian (Children & Youth Agency).
2. Court of Common Pleas of Pennsylvania, Carbon County v. Commonwealth, Department of Public Welfare, Office of Children, Youth and Families, 67 Pa.D. & C.4th 138, 2004 WL 225282 (June 23, 2004).
The Carbon County Court of Common Pleas affirmed the confidentiality section of the Child Protective Services Law (CPSL) in a custody action, where father initiated suit against DPW, alleging that mother maliciously made child abuse referrals.
COMMONWEALTH COURT 2004
1. Dauphin County Social Services for Children and Youth v. Department of Public Welfare, 855 A.2d 159 (July 30, 2004)
At issue here before the Commonwealth Court was an order by the Department of Public Welfare Bureau of Hearing and Appeals requiring Dauphin County Children & Youth to disclose its investigatory file regarding a sexual abuse investigation to the perpetrator. The Commonwealth Court held that the Appeal from the Department of Public Welfare's Order was a proper collateral Appeal as it involved an order re: discovery and it was taken prior to the final disposition of the underlying facts.
More importantly, the Court held that the perpetrator of the indicated finding of abuse was not entitled to all of the materials in the investigatory file compiled by Dauphin County Social Services for Children & Youth. But only entitled to information contained in the statewide central register. The court relied heavily on In Re: State of Wagner, the parents of a child who suffered fatal injuries while at daycare sought the state's discovery of the Children & Youth Agency records concerning a child death review records.
2. R.F. v. Department of Public Welfare 845 A.2d 214(March 2, 2004)
The Commonwealth Court reversed the Department of Public Welfare-Bureau of Hearings and Appeals dismissal of the Appellants Appeal when the Appellate entered into a plea of nolo contendere to a charge of Endangering the Welfare of Children when the children & youth agency made an indicating finding of sexual abuse against Appellant. The appellant later entered into a negotiated plea agreement to one count of Endangering the Welfare of a Child. Consequently the children & youth agency changed the status of their investigation from indicated to "founded." The appellant sought an appeal from the change of status to founded and the Department of Public Welfare Bureau of Hearings and Appeals dismissed the request for lack of authority. The administrative law Judge at DPW – BHA found that the nolo contendere plea involved the same factual circumstances as those involved in the allegations of child abuse. Judge Pellegrini of the Commonwealth Court held that simply because the appellant entered into a plea of nolo contendere to Endangering the Welfare a Child, DPW may not infer that the plea was to an act of sexual abuse. The Court held that the plea was based on generic language that the appellant violated his duty of care to a child. As pointed out by the dissent, authored by Senior Judge Flaherty, the appellant was charged with 4 counts of Indecent Assault on an 8 year old, 1 count of corruption of a minor, and one count of Endangering the Welfare of a Child. Judge Flaherty wrote that all the facts were based on an affidavit of probable cause regarding underlying sexual offenses against an 8-year-old child. Judge Flaherty wrote despite the majority's position that the appellants colloquy changed the complexion of the underlying factual transaction. The sole focus on this Appeal is whether the plea involved the "same facts or circumstances involved in the allegations of child abuse." Judge Flaherty held that in his dissenting opinion that "DPW in finding child abuse here should be permitted to look further beyond the facts involved in the nolo contendere plea, rather than being limited to the colloquy of counsel in the court at the criminal trial as a majority opinion restricts."
3. Warren County Human Services v. State Civil Service Commission (Roberts), 844 A.2d 70(March 8, 2004).
Judge Pellegrini confirmed the state civil service commissions challenge to the removal of a caseworker due to a 1980 conviction for aggravated assault in violation of the Child Protective Services Law. In 2001 the Appellant was hired by Forrest/Warren Department of Human Services as a caseworker. As condition of his employment he submitted a copy of his Pennsylvania State Police criminal history. The appellant worked for the Department until it separated into three entities in December 2001. As a product of the new entity, Warren County Children & Youth began rehiring to fill vacancies and the appellant was thereafter offered a caseworker position, which he accepted on April 29, 2002. As a condition of his rehiring, the appellant was informed that he was required to submit new clearances. The administrator of the County Agency learned of the 1980 conviction and informed the Appellant it would be a violation of the CPS to offer to him to be employed with their agency.
Prior to the 1994 amendments to the Child Protective Services (CPSL) the CPSL contained a bar to employment if an applicant had committed one of the enumerated crimes including aggravated assault within 5 years prior to applying for a position with direct child contact. In 1994 amendments to the CPSL eliminated the 5-year band therefore completely preventing anyone applying for a position with direct child contact if they had previously been convicted of Aggravated Assault. As a result of the appellant's aggravated assault conviction his employment was terminated June 20, 2002. Judge Pelligrini held that § 6344 (c) prohibited the hiring of applicants previously convicted of certain enumerated crimes, however, it did not banned existing employees from continuing to work in a child-care field despite having a similar conviction.
Judge Pelligrini declared 23 Pa. C.S.A. § 6344 (c) therefore unconstitutional. Judge Cohen dissented.
SUPERIOR COURT OF PENNSYLVANIA 2004
1. In Re: G.P.-R a/k/a Baby Boy R., Appeal of: G.P.-R., Natural Father, 851 A.2d 967, 2004 Pa.Super. 205, 2004 WL 1211510 (June 3, 2004)
The Superior Court held that filing a petition to terminate parental
rights before the final adjudication of goal change to adoption does not violate fundamental parental rights. The due process rights of a parent are protected when the parent is afforded an adjudication hearing and regular review hearings. And on a petition to terminate parental rights.
2. In the interest of: N.S., K.G., P.A., Appeal of: D. & M.B., 845 A.2d 884 (March 16, 2004)
The Superior Court held that a former foster parents lacked standing to pursue adoption or visitation of their 3 previous foster children. The court held that despite the fact that the children had resided with the foster parents for period 55 PA Code §370-73 and 42 Pa. C.S.A. § 6336.1 and §6357.
3. In Re: W.M.; W.R..; W.R..; W.D.; and W.D., Minors, Appeal of: W.T., Mother, 842 A.2d 425, 2004 Pa. Super. 15 (January 22, 2004)
The Superior Court affirmed Trial Court's ruling that children were dependent when the mother of the children had permitted the children's father to have continued contact with the children after the mother had learned that the father had sexually abused the youngest child. The Superior Court held that it is the province of the trial court to determine that (1), if the child presently is without proper care and control, and (2), if so whether such care and control are immediately available. The court held that the focus is not on whether the other siblings are actually at risk of sexual abuse themselves but rather the key question is whether the siblings fit a broader definition of lacking "proper parental care or control, subsistent education is required by law, or other care and control necessary for his fitness, mental or emotional health, or morals."
It is at the trial court's discretion to determine that siblings of sexually abused children fit that definition, even if there is no evidence that the siblings themselves will be sexually abused.
4. In Re: T.T., Appeal of J.M. and J.M., 842 A.2d 962, 2004 Pa. Super. 26 (February 4, 2004)
The Superior Court in this case reversed the trial court's decision
to permit the mother's husband, who also is the alleged perpetrator of sexual abuse of the subject minor children, to intervene more than 10 months after the adjudication of dependency of the children. The appellant was seeking to set aside the adjudication of dependency. The Superior Court found that the appellant was less than dilatory and that the appellant had ample opportunity to intervene at the onset of the proceedings. The court additionally held that the trial court no longer had the power to permit intervention because the matter had been finally adjudicated and a hearing on a Petition to Intervene was pointless.
5. In the matter of: B.L.W., Minor, Appeal of N.W., Mother, 843 A.2d 380, 2004 Pa. Super. 30 (February 12, 2004)
An en banc Superior Court reversed the initial Superior Court panel and affirmed the Trial Court's termination of parental rights. The en banc panel held that the children & youth agency's efforts towards reunification is not a valid consideration at the termination of parental rights Hearing, as the law allows children & youth to "give up on the parent once the family service plan goal has been changed to adoption." This case involved a mentally challenged or limited mother who, despite her stated desire to raise her child, was unable to due to her incapacity that had not been remedied.
The Court held that a parent who was incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.
6. In the matter of the adoption of: K.G.M. and T.J.M., Appeal of: J.T.M., Natural Father, 845 A.2d 861, 2004 Pa. Super. 54 (March 5, 2004)
The Superior Court reversed the proceeding to confirm the consent to voluntarily relinquish parental rights of the father where the mother indicated that she had sent notice to the father former place of employment and that she is "almost certain" that he received notice of the hearing. The Superior Court reversed indicating that the specific notice requirements contained in 23 Pa.C.S. § 2721 requires compliance. The case was remanded for further proceedings.
7. In Re: G.T., Appeal of S.S., 2004 Pa. Super. 62, 845 A.2d. 870 (March 15, 2004)
The Superior Court affirmed the trial courts declaration of two children to be dependent. In this case the younger of the two children suffered neurological damage as a result of shaken baby syndrome. The children & youth agency filed petitions alleging dependency for both children based on mother's failure to seek prompt medical attention for the younger child, where she had noticed that the child's head began to swell. The trial court found both children dependent in ordered that continued in the placement with their grandmother. The Superior Court affirmed the trial court's declaration of dependency of both children despite the fact that the older child had not necessarily suffered any neglect, as the younger child had. It was found that the decision not to seek medical care for the younger child evidenced a willingness to put both children at risk. The Superior Court noted that recent amendments to the Juvenile Act required an increased awareness of the safety and well being of siblings of abused and neglected children. While they may not be themselves abused, such children are more vulnerable than a well cared for child.
8. In the interest of: J.S.C., A Minor, 851 A.2d 189, 2004 PA Super 182
(May 24, 2004)
Monroe County Court of Common Pleas ordered the agency to arrange for visitation between the dependent child and incarcerated mother. The Agency appealed.
The Superior Court held that the appeal was interlocutory, not final and therefore the appeal was quashed.
Of interest, is that the Superior Court reviewed a previous case (In the Interest of Rhine, 456 A.2d 608 (1983), where the court found that the trial courts suspension of visitation would result in prolonged, indefinite or permanent loss of a substantial private interest. Therefore it was a "collateral appeal."
9. M.G. & J.G., Minors, Appeal of: P.G., Natural Mother, 855 A.2d 68, 2004 Pa. Super. 251 (July 1, 2004)
The Superior Court in this case held that a goal change from reunification to adoption is not a necessary prerequisite to the initiation of involuntary termination proceedings. The Superior Court reversed the trial courts denial of Petition to involuntarily terminate parental rights where 6 months prior to child's birth the father was arrested and sentenced to 13-35 years incarceration. During the first two years of incarceration the father was provided visitation and thereafter provided occasional letters and phone calls from the child's mother. 6 years after his initial incarceration the mother purchased a home and got remarried. For more than 2 years father did not attempt to contact mother or maintain any contact with his child. During those 2 years father admitted that he did not seek help from relatives, friends, or pursue legal action to enforce his right to child visitation. He claimed he was unable to provide financial support for the child. For 2 years, the father did not inquire about the child's progress in general or school performance in particular. The father stopped communicating with the mother for several years prior to the request that he terminate his parental rights. The mother testified that her current husband had fulfilled the role of parent to the child providing emotional, financial support, helping with homework and other related activities, and including the child in holiday gatherings with his family. The child refers to him as "Dad". The Superior Court held that although the parental duty requires that the parent act affirmatively with good faith interest and effort and not yield to every problem, in order to maintain the child-parent relationship to the best of her ability in difficult circumstances.
The court held that, "a parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship". Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities where others provide the child with his or her physical and emotional needs. The Superior Court held that when a parent is incarcerated, the fact of incarceration does not, in itself, provide grounds for the termination of parental rights. However, a parents responsibilities are not tolled during incarceration. The focus is on whether a parent utilizes resources available while in prison to maintain a relationship with his or her child.
Most notable in this case is that the trial court found that the mothers conscious decision to keep the father out of the child's life was an obstacle with the father, despite his efforts, could not ever come. The Superior Court reversed its holding that the Trial Courts stopped short of a full analysis of father's conduct under the totality of the circumstances. The Superior Court held that the Trial Court erred in focusing improperly on mother's actions and failed to consider fathers obligation to take affirmative steps to overcome the purported obstacles, which prevented establishing a close relationship with the child. The Superior Court held that the father had a duty to exert himself, to take and maintain a place of importance in the child's life. The court held that although mother was not forthcoming with providing contact and updates regarding their child it is incumbent upon the father to use any and all resources to seek the whereabouts of the child and file appropriate pleadings to seek appropriate enforcement of visitation and communication with the child.
10. In Re: B.N.M., Appeal of: B.L., 2004 Pa. Super. 311 (August 9, 2004)
11. In Re: D.W., D.W., and B.C., Appeal of: BB.W., Mother, 856 A.2d 1231, 2004 Pa. Super. 320 (August 18, 2004)
In a case of first impression, the Superior Court held that 23 Pa.
C.S.A. § 2511(b) had the best interest section, applies to all subsections of section A. In this case, the children & youth agency petitioned to involuntarily terminate parental rights pursuant to section 2511(a) 1, 2, 5, and 8. During this proceeding the mother attempted to present testimony regarding her compliance with counseling sections and having requirements of the family service plan. Upon objection of the children & youth agency, that testimony was stricken and stopped. The trial court held that all testimony pursuant to the parents efforts to remedy the conditions which gave rise to the initiation of the child's placement shall not be considered when those remedies come after the filing of the involuntary termination of parental rights petition.
12. In Re: S.M.B., A.M.J., and G.G.B., Minors, Appeal of D.J. Mother, 856 A.2d 1235, 2004 Pa. Super. 329 ( August 23, 2004)
Anders v. California, 368 U.S. 738, (1967) it was extended by this case to appeals involving the termination of parental rights. It stands for the proposition that appellate counsel may contemporaneously file a Petition for Leave to Withdraw as Counsel but must preserve the appellate issues for the appellate Court to consider despite appellant's counsel claiming that the appeal is frivolous.
13. In Re: N.W., Minor Child, Appeal of P.L., Natural Mother, 859 A.2d 501, 2004 Pa. Super. 368 (September 21, 2004)
14. In Re: R.L.T.M., a Minor, Appeal of Lancaster County Children & Youth Services, 860 A.2d 190, 2004 Pa. Super. 386 (October 4, 2004)
Superior Court in this case affirmed the trial court's denial of a petition to terminate parental rights where the Court determined that the child had a bond with the mother coupled with the child's intellectual capacity, militated against termination for parental rights. However, the trial court found that the children & youth agency sustained its burden of proof concerning the statutory grounds for termination, and went on to find that it is not in the best interest of the child to terminate the bond between this child and the mother. In this case, the child had lived with mother 9 years and had a psychological evaluation providing that a positive attachment exists with mother despite the 2-year placement of the child in foster care.
15. In the interest of: C.B., and A.L., Minors, Appeal of W.L., Natural Father and C.B., Natural Mother, 861 A.2d 287, 2004 Pa. Super. 402 (Filed October 20, 2004)
In this case the Superior Court affirmed the trial court's termination of visitation between the parents as they found that a "grave threat" was met. The court found that although the sexual abuse charges were dismissed against the father, the trial court found by clear and convincing evidence that the father sexually abused the subject minor child. The court additionally found that aggravated circumstances in the suspension of reunification efforts were appropriate in this case. Most noteworthy are the newly enacted revisions of the Pennsylvania Juvenile Act. The significance of these changes to the law cannot be overstated because the focus in dependency proceedings can be shifted under certain circumstances. The Adoption and Safe Families Act (ASFA) directs the emphasis away from paramount importance previously enjoyed by parental rights to establish "unequivocally the goals of children in the child welfare system are safety, permanency and well-being." The 1997 amendments make clear that the health and safety of the child supersedes "all other."
16. In Re: B.S., Appeal of: Philadelphia Department of Human Services, 861 A.2d 974, 2004 Pa. Super. 423 (November 3, 2004)
Here the Superior Court reversed the trial court's denial of a goal change request by the Agency from reunification to SPLC. The trial court in this case denied the Children & Youth's goal of permanent legal custodianship petition because it found that the Agency did not present a "compelling reason that reunification would not best serve the child's physical, mental or emotional health, safety or more welfare." The Superior Court determined that this finding was an error because Section 6351 (f.1)(3) does not require the Agency to provide a compelling reason that reunification is not best suited to a child's safety, protection, and moral welfare. When an agency files an SPLC Petition the Agency is required merely to prove that reunification or adoption is not best suited to the child's safety, protection, physical, mental and moral welfare.
17. In The Interest of: J.F., Appeal of J.J.R. and B.F., 562 A.2d 1258, 2004 Pa. Super. 442 (November 23, 2004)
The Superior Court held that a children & youth agency must adhere to a standard of reasonableness in withholding or giving its consent to the voluntary relinquishment of parental rights. In this case the county agency refused to grant its consent to the appellant-parents' petition to voluntarily relinquish their parental rights of the child. The trial court denied the petition without a hearing on whether the refusal was reasonable.
18. In Re: C.M.T., Appeal of L.A.P., Natural Mother, 861 A.2d 348, 2004 Pa. Super. 418 (October 29, 2004)
Here the sole basis for the allegation of dependency in this case involves the truancy of the child. Here the trial court was reversed by the Superior Court in that the trial court erroneously shifted the burden of proof at the hearing to requiring the mother to prove that the child's absences were justified. The Superior Court held that proof by clear and convincing evidence by the agency of distinct facts is required in declaring a child is dependent based upon truancy.
1.) The child is subject to compulsory school attendance
2. Is habitually truant
3. The child is truant without justification
19. In re: Adoption of: J.E.F., C.J.U., and N.G.F., Appeal of S.B., Aunt and D.B., Uncle, 2004 WL 2698927 (Pa.Super.) (November 29, 2004).
***this case is unbelievable)
The Superior Court reversed the orphan's court's dismissal of aunt and uncle adoption petition, where the agency had involuntarily terminated parental right and retained custody. The Superior Court held that the trial court may dispense with the necessity of the agency's consent where there is "familial relationship or when the party seeking to adopt has stood in loco parentis to the children."
The Superior Court made no mention into where the "relatives" have been while the children languished in child welfare. This matter was remanded for further hearing.
SUPREME COURT OF PENNSYLVANIA 2004
1. Commonwealth of PA v. Stephen Rex Edmiston, 851 A.2d 883 (June 22, 2004)
The Supreme Court of Pennsylvania in this case reaffirms the holding of United States Supreme Court determined in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 l.ed. 2d 40 (1987) A Defendant seeking inspection of children & youth records is entitled only to an in camera inspection by the trial court. The Pennsylvania Supreme Court affirmed Ritchie in holding that criminal defendants/perpetrator have no right to conduct a fishing expedition for possible exculpatory evidence contained in children & youth records. Neither a defendant nor defendants counsel have a constitutional right to be present for the in camera inspection.
2. Commonwealth of PA v. Gerald John Delbridge, 771 A.2d 1 (Pa. Super. Ct. 2001) (October 21, 2004)
This is a seminal 2003 case where the Supreme Court set aside the trial court's conviction of the defendant pending a new competency hearing of the subject minor child (victim child). See Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003) The within opinion by the Supreme Court was the resulting appeal from that competency hearing. The Supreme Court held that the victim child was competent to testify and had not been so tainted by the suggestive interviewing process to declare the child unavailable. The trial court held that the appellant failed to meet his burden of proving that the children were tainted by clear and convincing evidence.
Interestingly, the court further held that there was no necessity to admit expert testimony on the question of taint and further that the expert testimony proffered by the defendant did not satisfy the requirements for admissibility.
Most noteworthy in the Supreme Court's opinion is the trial courts initial opinion that the concept of taint was not generally accepted in the psychology community and therefore is not admissible under the frye test. The Supreme Court specifically noted that "we do not note that whether expert testimony is admissible without meeting the requirements of frye is an open question as frye only applies in novel science, it is unclear . . . . .annulled at this time rendering an opinion whether psychological expertise on taint, and the impact of taint on competency, is a type of evidence that falls within the prevue of frye.
1. PA v. Ritchie, 480 U.S. 39, 1.075 Ct 989 (1987).
2. Pennsylvania 2004 Legislative Service, Amendments to 23 Pa.C.S.A § 6344
3. SENATE BILL No. 137 Session of 2003
4. In the matter of Victoria R. Judgette W., Family Court of New York
The Judge in this case held that because every child born deserves a
mother and father or at the very least a mother or a father, this Court is once again taking the unusual step of ordering the biological mother to conceive no more children until she reclaims her children from foster care and other caretakers, or until the jurisdiction of this Court over her expires. Although this court did not take the extreme steps of ordering chemical castration, etc. it did file the New York's highest court seminal custody case, Bennet v. Jefferies holding that a parent has a right to rear its child and a child has a right to be reared by its parent (40 NY 2d. 543.) The Judge in this case held that in light of the common sense reason of Bennet, the court held that a parent has the responsibility to rear his or her children, but not an unlimited right to bear children irresponsibly. In this case the mother had been neglecting her 5 children since the year 2000. Parental rights had been terminated regarding 2 of those children in 2003. The subject minor child in this case, Victoria R. was born in the spring of 2000, and a petition for dependency was filed 4 days after her birth, due to the positive toxicology screen for cocaine. The court held that instead a mother-daughter relationship beginning at birth, it nearly ceased at birth. The very important relationship needs to be put in place instead of having permanently it will be through the support of efforts of the agents of the department to get the respondent clean and sober, and engaged with her child beginning with supervised visitation. "This responsibility of parenting Victoria falls on society because respondent has left it to us."