In the Interest of: M.S. & B.J.S. Appeal of: J.S. ( 2015 )

J-S73031-14
J-S73032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.S. & B.J.S., : IN THE SUPERIOR COURT OF
Minors, : PENNSYLVANIA
:
:
:
:
APPEAL OF: J.S., Mother, : No. 1288 MDA 2014
Appeal from the Order entered on June 30, 2014
in the Court of Common Pleas of Lancaster County,
Juvenile Division, No(s): CP-36-DP-0000095-2012;
CP-36-DP-0000196-2012
IN THE INTEREST OF: M.S. & B.J.S., : IN THE SUPERIOR COURT OF
Minors, : PENNSYLVANIA
:
:
:
:
APPEAL OF: R.S., Father, : No. 1289 MDA 2014
Appeal from the Order entered on June 30, 2014
in the Court of Common Pleas of Lancaster County,
Juvenile Division, No(s): CP-36-DP-0000095-2012;
CP-36-DP-0000196-2012
BEFORE: BOWES, WECHT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J: FILED APRIL 15, 2015
In these consolidated appeals, J.S. (“Mother”) and R.S. (“Father”)
(collectively “the parents”) appeal from the Dispositional Order1 concerning
their two minor children, M.S., born in November 2010, and B.J.S., born in
November 2012 (collectively “the Children”), which ruled that it was not in
1
The single Dispositional Order, which pertains to both Mother and Father, is
dated June 30, 2014.
J-S73031-14
J-S73032-14
the Children’s best interest for their permanency plan to include a
reunification plan concerning the parents. We affirm.
The trial court thoroughly set forth the relevant facts and procedural
history underlying this appeal in its Pa.R.A.P. 1925(a) Opinion entered on
March 17, 2015. See Trial Court Opinion, 3/17/15, at 1-6.2 We incorporate
the trial court’s recitation herein by reference. See id.
On appeal, Mother presents two issues for our review:
A. Whether the trial court erred when it failed to provide Mother
with a child permanency plan for reunification with [the
C]hildren?
B. Whether the trial court erred in finding [that] Mother abused
M.S. and B.J.S.?
Mother’s Brief at 9.
Father presents the following issue for our review: “Whether the trial
court erred when it failed to provide Father with a child permanency plan for
reunification with [the C]hildren[?]” Father’s Brief at 9.
The parents argue that the trial court improperly refused to order a
permanency plan for reunification following this Court’s remand in December
2013. See id. at 12-14; Mother’s Brief at 14-18. The parents contend that
the trial court’s omission was improper because (1) this Court previously
found that no aggravating circumstances existed; (2) the parents have made
progress in improving their parenting skills, and have participated in
2
We observe that Mother’s oldest child, J., the subject of the physical abuse
by both Mother and Father, is not implicated in the Dispositional Order on
appeal.
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J-S73032-14
programs offered by the Lancaster County Children and Youth Service
Agency (“the Agency”); and (3) the Agency inappropriately failed to give the
parents a “second chance,” despite the Children’s adjudication of
dependency. See Father’s Brief at 12-13; Mother’s Brief at 14-18. Mother
also argues that the trial court erred in finding that she had abused the
Children, as such finding is not supported by the record. See Mother’s Brief
at 15-16, 19.
Our standard of review is as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
***
[A]ppellate courts must employ an abuse of discretion
standard of review, as we are not in a position to make the close
calls based on fact-specific determinations. Not only are our trial
judges observing the parties during the hearing, but usually …
they have presided over several other hearings with the same
parties and have a longitudinal understanding of the case and
the best interests of the individual child involved. Thus, we must
defer to the trial judges who see and hear the parties and can
determine the credibility to be placed on each witness and,
premised thereon, gauge the likelihood of the success of the
current permanency plan. Even if an appellate court would have
made a different conclusion based on the cold record, we are not
in a position to reweigh the evidence and the credibility
determinations of the trial court.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
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J-S73031-14
J-S73032-14
Here, in the trial court’s Pa.R.A.P. 1925(a) Opinion entered on August
21, 2014, the court thoroughly addressed the parents’ claims, discussed the
applicable law, and determined that the court properly denied the parents a
reunification plan concerning the Children based upon (1) Mother and
Father’s respective prior physical abuse of J.; (2) the parents’ lack of
progress in their respective parenting plans; and (3) the trial court’s finding
that making the Children available for adoption, and providing them
permanency in a safe environment, would serve their best interests. See
Trial Court Opinion, 4/21/14, at 7-10. Our careful review confirms that the
trial court’s analysis is supported by the record and the law, and we adopt it
for purposes of this appeal. See id. The trial court properly exercised its
discretion in determining that reunification is not appropriate and is not in
the Children’s best interests. See In re R.J.T., 9 A.3d at 1190 (providing
that an appellate court must defer to the trial court judge who has presided
over several other hearings with the same parties and has a longitudinal
understanding of the case and the best interests of the individual children
involved); see also In the Interest of: D.C.D., 105 A.3d 662, 676 (Pa.
2014) (where the agency had failed to employ “reasonable efforts” to reunify
a child with her parent, holding that permanency for a child may not be
delayed because of such failure “when a court has otherwise held that
grounds for termination have been established and the court has determined
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J-S73031-14
J-S73032-14
that termination is in the best interests of the child by clear and convincing
evidence.”).
Additionally, pursuant to this panel’s directive in our February 19,
2015 Judgment Order, the trial court, in its Pa.R.A.P. 1925(a) Opinion
entered on March 17, 2015, thoroughly discusses the enumerated factors
that a court must consider concerning evidence issued at a permanency
review hearing, as set forth in 42 Pa.C.S.A. § 6351(f) and (f.1). See Trial
Court Opinion, 3/17/15, at 7-10. We incorporate the trial court’s detailed
discussion herein for purposes of this appeal. See id.
Based upon the foregoing, we conclude that the trial court properly
exercised its discretion in refusing to require reunification in the permanency
plan for the Children, where the parents had previously twice abused J., and
reunification was not in the Children’s best interests.
Dispositional Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2015
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
JUVENILE DIVISION
IN THE INTEREST OF: SUPER. CT. NO.: 1288 MDA 2014
M. S., A Minor DOCKET NO.: CP-36-DP-95-2012
B. J. S., A Minor DOCKET NO.: CP-36-DP-196-2012
IN THE INTEREST OF: SUPER. CT. NO. 1289 of 2014
M. S., A Minor DOCKET NO.: CP-36-DP-95-2012
B. J. S., A Minor DOCKET NO.: CP-36-DP-196-2012
By: Leslie Gorbey, J.
OPINION SUR APPEAL AND ON REMAND
FACTUAL HISTORY AND PROCEDURAL HISTORY
Three sisters are involved in this case: J. R. (J.), born September 15, 2007, M. S.
(M.), born November 22, 2010, and B. J. S. (B. J.), born November 11, 2012. J. S.
(Mother) is the mother of all three girls. R. S. (Father) is the father of M. and B. J., and
the step-father of J .. S. R. is J.'s biological father.1
At the time of J.'s birth, Mother was single. She subsequently married R. S.
When J. was nine months old, she was indicated as abused by the Lancaster County
Children and Youth Social Service Agency (Agency). Her injuries, as described in a
Commonwealth Court opinion, included bruising and swelling of the left side of her
head, bruising near the right temporal region, bruises on both sides of her neck, a large
r-
bruise on the rib cage, a buckle fracture of the left tibia and a fracture of the lefti1h ri~ c:,
(") 2
R.S., Jr. v. Department of Public Welfare, No. 1947 C.D. 2010 (April 1, 2011). ~ ~
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Protective Service Plan was put in place. (N.T. 9/17/12, 48) Father was indicated as
the perpetrator of this abuse on August 1, 2008, and J. was placed informally by
agreement, with her maternal grandparents. Father appealed to the Commonwealth
Court, which- affirmed his status as perpetrator. (R.S., Jr. V. Department of Public
Welfare, supra) On June 18, 2010 the protective services case was closed. Mother
has never believed that Father was a perpetrator.
Mother gave birth to M. S. on November 22, 2010. Although the infant was
permitted to go home with Mother and Father, a safety plan was established by the
Agency, providing that Father was to have no unsupervised contact with her. (N.T.
1/7/13, 95) The Family Service Plan was formulated and provided that both parents be
evaluated for parental competence. After J.'s first abuse discussed above, Mother had
seen a therapist, John Weigel, as part of her plan. He found Mother functioning at a
borderline intelligence range and had serious concerns about her ability to function as a
parent. He recommended individual counseling to address the relevant issues. He was
also concerned about her failure to accept Father as the perpetrator. His test results
show that Mother had a high score on the scale indicating false answers.
Mother next saw Dr. Gransee, a psychologist, for a parenting assessment in May
of 2011; his evaluative report recommended parent training. On August 20, 2011, a
Personal Parent Trainer (PPT) was assigned to the Ss'. After some time, the parents
seemed to be making progress, and J. returned to live with her mother, her step-father
and her sister in January of 2012. The PPT, who was to stay to support the
reunification, was discontinued early when J. was abused for the second time in early
March of 2012. On March 16, 2012, Mother took J. to see a physician and told him that
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bruises on the child happened during a nightmare when J. threw herself against a wall.
(N.T. 9/17/12, 77) The Agency received a March 23rd call from Mother to tell them that
J. had banged into the bedside wall during a nightmare and had been injured. When
the caseworker went out to the house to investigate, she found that the child had black
eyes, bruising and lacerations to her face. She took photographs. (GAL's Exhibit 1 ).
Mother reported that she had gone into J.'s room alone after hearing J. scream, and
believed that J., in the throes of a nightmare, had slapped or punched herself in the
face, or banged her head, face first, against the wall. (N.T. 1/7/13, 114 et seq., 131)
Mother did not see these things happen; it was a supposition or fabrication on her part.
Father did tell his mother-in-law that Mother was hitting J .. (N.T. 7/30/212, 287) Mother
told the police that the medication she was on could have caused the incident, but she
later denied having said that. (N.T. 7/30/12, 166). Mother insisted that J. had frequent
nightmares or "night terrors." She told an Agency caseworker that "J.'s nightmares were
getting worse ... And they were going to be taking J. to the doctor because of concerns
that J. may be having some kind of seizures because she shakes so violently during the
nightmares." (N.T. 7/30/12, 354) The resource mother told the Court that J. had had no
nightmares or other nighttime disturbances while with her. (N.T. 7/30/12, 197-198) In
addition, when M. S., the child's aunt, brought J. to see Dr. Hoshauer for an
investigation of abuse, she said nothing about J. having sleep problems, although she
was specifically asked. (Id at 230) Mother also went out of her way to hide the injured
child from others. During the week immediately following the injury, she did not take J.
to the doctor for treatment for the injuries, canceled her meetings with the PPT, and
kept J. home from school. (N.T. 1/7/13, 144) She did not keep an appointment for an
3
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\.
investigative meeting with the police. (N.T. 7/30/12, 167-169)) She told the Court that
the doctor had been unavailable when she called, but she admitted she did not then
seek alternative care such as an Emergency Room visit. (Id at 144-147) A Shelter Care
Order triggered by the March, 2012 abuse was issued by the Lancaster County Court
on May 1, 2012. On May 10, 2012, temporary custody of M. was also given to the
Agency, Mother was named as a perpetrator of abuse against J. and both children were
placed by the Agency. Father was named as a perpetrator by omission because he
had indicated to his mother-in-law that Mother had been hitting J .. (N.T. 7/30/12, 287)
On May 14, 2012, a scheduled hearing was continued because Father's attorney was
unavailable. On May 18, 2012, M. was placed in an Agency approved resource home
with J .. A safety plan provided that J. and M. would live with their paternal aunt M. S.
and have only supervised contact with Mother and Father. A CASA was appointed for
the case on May 22, 2012. Unfortunately, the aunt's significant other did not want to be
a permanent resource for the child, so on June 18, 2012, after a hearing, the order was
modified and the children were placed in foster care.
On July 30, 2012, and September 17, 2012, hearings were continued
because of a lack of time to complete testimony. On September 20, 2012, the girls'
placement was modified after hearing, and they were moved to live with their maternal
grandparents. Mother was permitted to visit only in her parents' house. Hearings were
held on October 1 and 14, December 6, 2012, and January 7, 2013 in order to
complete testimony.
Mother informed the Agency on October 11, 2012 that she was again
pregnant and her third child was born on November 11, 2012. The Agency took
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custody of the newborn, B. J., and placed her in an agency approved resource home.
These foster parents are willing to be a permanent resource for the little girl.
The Court received expert testimony from Cathy Hoshauer, M.D., a pediatrician
and an expert in the evaluation of child abuse victims. (N.T. 7/30/12, 203 et seq.) Dr.
Hoshauer had seen J. and reviewed an interview of her by a forensic interviewer
concerning the injuries. She subsequently prepared a report, in which she concluded
that the injuries sustained by J. were inconsistent with her hitting her head on a wall.
(Id. at 215 et seq; Petitioner's Exhibit 1) She explained further that "if you bump your
head against a wall, you're not going to get injuries in multiple different places. So her
injuries were her mouth, below her eye, above her eye and hemorrhage within the eye,
and that's not something that will - - that a child can create enough force on their own."
(N.T. 7/30/12, 223-224) She also responded negatively when asked if she had ever
seen a child of four or so who was able to self-injure themselves with their own hands
or other body parts to cause purple bruising on their face. (N.T. 7/30/12, 219)
On March 20, 2013, aggravated circumstances were found as to Mother and
Father, an adjudication order was issued and all three children were found to be
dependent. J. was placed in the physical custody of her biological father, M. to the
custody of her maternal grandparents and B. J. to her foster parents.
Father appealed the March 20, 2013 orders concerning M. and B. J. to the
Pennsylvania Superior Court on April 17, 2013. Mother appealed the Orders concerning
all three girls to the Superior Court on the same day. The Superior Court issued its
opinion on December 10, 2013, affirming the dependency adjudication decision, but
finding there were no aggravated circumstances and remanding the matter because of
5
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the Court's decision to deny a reunification plan based thereon. A remand hearing was
scheduled for March 3, 2014,and then continued to June 23, 2014,at the same time as a
permanency review hearing. It was around this time when Mother went on her own to
see another therapist, Bruce Eyer. (N.T. 1 /7 /13) 137) He has recommended no further
necessary action, but this decision was based only on what Mother chose to self-report.
For instance, he did not even know about the first instance of abuse. (Id., 151) She
remains in therapy with him; he still has no detailed background information and has not
dealt with any abuse. (N.T. 4/28/14, 7-8; 6/23/14, 21) Mother and Father are involved in
a parenting program; a caseworker inquiry found that it involved basic child care and did
not deal with abuse. (N.T. 4/28/14, 14.) Mother testified that she cannot think of any
other services that the Agency could provide to her to remedy her situation. (N.T.
6/23/14, 26) Father did not testify at all so the status of his involvement in any services is
unknown. The only information the Court has is that he has been attending a parenting
program with Mother.
This Court issued its dispositional order on July 1, 2014, and.without finding
aggravated clrcumstances.denied the parents a reunification plan. On July 30, 2014,
Mother and Father both appealed the July 1 order to the Pennsylvania Superior Court,
which issued an opinion on February 19, 2015, again remanding the matter to the trial
Court with instructions to discuss the specific considerations set out in Section 6351 (f)
and Section 6351(f.1) of the Pennsylvania Juvenile Act. It is pursuant to this remand
that this opinion is being written. The arguments and discussions of this Court's two
prior decisions, insofar as consistent with the two Superior Court remand opinions, are
incorporated herein by reference.
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ISSUE
Whether two young children should be returned to their family in which their older
half-sister was seriously abused on two separate occasions, the parents have been
found to be perpetrators of the abuse, have no plan for reunification, have made no
progress toward remedying the situation in which the abuse occurred, and where the
children live with appropriate permanent resource families.
ANALYSIS
Section 6351 (f) sets out specific elements for the trial court to consider during a
review hearing in order to support its decision after that hearing. These elements and
the Court's specific consideration of them are as follows:
Section 6351 (f) Matters to be determined at permanency hearing -At each permanency
hearing, a court shall determine all of the following:
(1) the continuing necessity for and appropriateness of the placement.
Given the history of this family, the serious abuse perpetrated twice upon J. and
the fact that there have been no serious remedial actions taken by the family relative to
infliction of abuse, the children remain appropriately in foster care. The Court cannot
rely upon either Mother or Father to keep the children safe since both, at different times,
inflicted serious physical abuse upon J. This is not a situation where one parent is
appropriate. Neither parent can be trusted to ensure the safety of the children. And
since M. is doing well in a household which includes her maternal grandparents and her
half-sister J., B. J. is doing well and is happy in her current resource home, and the girls
visit with each other on a regular basis, the Court finds these arrangements to be
decidedly appropriate. If the children are not in placement in a safe setting with
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\
appropriate resource parents, then the only alternative is to return them to two parents
who are proven abusers of a child.
(2) the appropriateness, feasibility and extent of compliance with the permanency
plan developed for the child.
While there is currently no plan for reunification in effect, the parents' compliance
therewith cannot be examined, but these parents have been in a prior situation where
they were operating under a safety plan and a Family Service Plan for J. The plan
included various goals for the parents and also provided for a personal parent trainer
(PPT). Despite the provision of one-on-one instruction by the PPT and in the final phase
of their Family Service Plan, J. was again seriously abused, lndicatinq that these parents
were not sufficiently compliant with the plan to remedy their abusive tendencies.
(3) the extent of progress made toward alleviating the circumstances which
necessitated the original placement.
There is no visible progress. J. was abused for the second time during the time a
PPT was providing extensive help to the parents and they were also receiving help from
the Agency. Mother continues to insist that the child was not abused, but harmed
herself. She also does not believe that Father was the perpetrator of the first abuse
which included two fractured bones. By the time of placement in 2012 when J. was just
four and a half years of age, she had been seriously abused by both her step-father and
then by her mother. The Court saw a disturbing lack of candor in these parents'
testimony. It was clear from Dr. Hoshauer's testimony that J. was not injured by her
activities during "night terrors." She was harmed by someone else. Mother has also not
been truthful with her current therapist and without the operative facts he has concluded
8
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that she needs no additional help from him. Whether the parents' denial is purposeful or
unconscious, it does not bode well for the safety of young children in their care and
certainly indicates that these parents have made little if any progress.
Since the second placement of J., the parents attended a "basic child care" class
which did not deal specifically with abuse. If the parents were unable to make progress
with the intensive one-on-one PPT class, then attending a basic class on child care is of
little value to alleviate the reason which necessitated the reason for placement.
(4) the appropriateness and feasibility of the current placement goal for the
child[ren].
The children are in suitable resource homes where they are doing well, are
happy, and, above all, are safe from the kind of abuse perpetrated upon J. by her step-
father and her mother. Both homes are permanent resources and adoption is
contemplated as soon as is procedurally possible.
Section 6351 (f.1) sets out additional matters for examination. The relevant
paragraph in this case is (f.1 )(2) which asks the Court to consider "if and when the child
will be placed for adoption and the county agency will file for termination of parental
rights in cases where return to the child's parent, guardian or custodian is not best suited
to the safety, protection and physical, mental and moral welfare of the child."
As stated above, the Court believes because of the two separate physical abuses
perpetrated upon J., the lack of candor of the parents about the origin of her injuries,
their lack of response to the remedial efforts taken by the Agency, and their current lack
of realistic remedial services, there is no way the Court can return these children to their
parents and thereby put their safety, protection, physical, mental and moral welfare in
9
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jeopardy. The current, very appropriate placements are permanent, and adoption of
these children is contemplated.
For the reasons set out above, the Court finds that the current disposition is that
which is best suited to the safety, protection, and physical, mental and moral welfare of
the S. children.
BY THE COURT:
~~
Dated: March 16, 2015 LESLIE GORBEY, JUDGE
Attest:
Copies to:
I certify this document to bo rn::ci
Caprice Hicks-Bunting, Esquire
Samuel Encarnacion, Esquire in the Lancaster County OLc::, :jf
Elizabeth A. Stineman, Esquire the Cler!~ of the Courts.
d~t~))r!! » 1~: '.
David J. Natan, Esquire
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
JUVENILE DIVISION
IN THE INTEREST OF: SUPER. CT. NO.: 1288 MDA 2014
M. S., A Minor DOCKET NO.: CP-36-DP-95-2012
B. J. S., A Minor DOCKET NO.: CP-36-DP-196-2012
IN THE INTEREST OF: SUPER. CT. NO. 1289 of 2014
M. S., A Minor DOCKET NO.: CP-36-DP-95-2012
B. J. S., AMinor DOCKET NO.: CP-36-DP-196-2012
By: Leslie Gorbey, J.
OPINION SUR APPEAL
FACTUAL HISTORYAND PROCEDURAL HISTORY
Three sisters are involved in this case: J. R. (J.), born September 15, 2007, M. S.
(M.), born November 22, 2010, and B. J. S. (B. J.), born November 11, 2012. J. S.
(Mother) is the mother of all three girls. R. S. (Father) is the father of M. and B. J., and
S. R. is J.'s father.1
At the time of J.'s birth, Mother was single. She subsequently married R. S.
When J. was nine months old, she was reported as abused to the Lancaster County
Children and Youth Social Service Agency (Agency). Her injuries, as described in a
Commonwealth Court opinion, included bruising and swelling of the left side of her
head, bruising near the right temporal region, bruises on both sides of her neck, a large
bruise on the rib cage, a buckle fracture of the left tibia and a fracture of the left 81h,....,rib.
J> = (;
R.S., Jr. v. Department of Public Welfare, No. 1947 C.D. 2010 (April 1, 2011 ~ A~ ~
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Protective Service Plan was put in place. (N.T. 9/17/12, 48) Father was indicated as
the perpetrator of this abuse on August 1, 2008, and J. was placed informally by
agreement, with her maternal grandparents. On June 18, 2010 the protective services
case was closed. Mother has never believed that Father was a perpetrator. Father
appealed to the Commonwealth Court, which affirmed his status as perpetrator. (Id)
Mother gave birth to M. S. on November 22, 2010. Although the infant was
permitted to go home with Mother and Father, a safety plan was established by the
Agency providing that Father was to have no unsupervised contact with her. (N.T.
1/7/13, 95) The Family Service Plan also provided that both parents be evaluated for
parental competence. After J.'s first abuse, Mother had seen a therapist, John Weigel,
as part of her plan. He found Mother functioning at a borderline intelligence range and
had serious concerns about her ability to function as a parent. He recommended
individual counseling to address the relevant issues. He was also concerned about her
failure to accept Father as the perpetrator. His test results show that Mother had a high
score on the scale indicating false answers.
Mother next saw Dr. Gransee, an Agency consultant, in May of 2011; his
evaluative report recommended parent training. Mother also went on her own to see
another therapist, Bruce Eyer. (N.T. 1/7/13) 137) He has recommended no further
necessary action, but this decision was based only on what Mother chose to self-report.
For instance, he did not even know about the first instance of abuse. (Id., 151) She
remains in therapy with him; he still has no detailed background information and has
not dealt with the abuse. (N.T. 4/28/14, 7-8; 6/23/14, 21) Mother and Father are
involved in a parenting program; a caseworker inquiry found that it involved basic child
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care and did not deal with abuse. ( N.T. 4/28/14, 14.) Mother testified that she cannot
think of any other services that the Agency could provide to her to remedy her situation.
(N.T. 6/23/14, 26) Father did not testify as to the status of his compliance, if any, with
the plan. The only information the Court has is that he has been attending a parenting
program with Mother.
On August 20, 2011, a Personal Parent Trainer (PPT) was assigned to the Ss'.
After some time, the parents seemed to be making progress, and J. returned to live with
her mother, step-father and sister in January of 2012. The PPT, who was to stay to
support the reunification, was discontinued early when J. was again abused in March of
2012. On March 16, 2012, Mother took J. tosee a physician and told him that bruises
on the child happened during a nightmare when J. threw herself against a wall. (N.T.
9/17/12, 77) After a second incident on March 20, 2012, the Agency received a March
23rd call from Mother to tell them that J. had banged into the bedside wall during a
nightmare and had been injured. When the caseworker went out to the house to
investigate, she found that the child had black eyes, bruising and lacerations to her
face. She took photographs. (GAL's Exhibit 1 ). Mother reported that she had gone into
J.'s room alone after hearing J. scream, and believed that J., in the throes of a
nightmare, had slapped or punched herself in the face, or banged her head, face first,
against the wall. (N.T.1/7/13, 114 et seq., 131) Mother did not see these things
happen; it was a supposition or fabrication on her part. Father did tell his mother-in-law
that Mother was hitting J .. (N.T. 7/30/212, 287) Mother told the police that the
medication she was on could have caused the incident, but she later denied having
said that. (N.T. 7/30/12, 166). Mother insisted that J. had frequent nightmares or "night
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terrors." She told an Agency caseworker that "J.'s nightmares were getting worse ...
And they were going to be taking J. to the doctor because B. was concerned that J.
may be having some kind of seizures because she shakes so violently during the
nightmares." (N.T. 7/30/12, 354) The resource mother told the court that J. had had no
nightmares or other nighttime disturbances while with her. (N.T. 7/30/12, 197-198) In
addition, when M. S., the child's aunt, brought J. to see Dr. Hoshauer for an
investigation of abuse, she said nothing about J. having sleep problems, although she
was specifically asked. (Id at 230) Mother also went out of her way to hide the injured
child from others. During the week following the injury, she did not take J. to the doctor
for treatment for the injuries, canceled her rneetinqs with the PPT, and kept J. home
from school. (N.T. 1/7/13, 144) She did not keep an appointment for an investigative
meeting with the police. (N.T. 7/30/12, 167-169)) She told the Court that the doctor
had been unavailable when she called, but she admitted she did not seek alternative
care such as an Emergency Room visit. (Id at 144-147) J.'s Shelter Care Order
triggered by the March 23, 2012 abuse was issued by the Lancaster County Court on
May 1, 2012. On May 10, 2012, temporary custody of M. was also given to the Agency,
Mother was named as a perpetrator of abuse against J. and both children were placed
by the Agency. Father was named as a perpetrator by omission because he appeared
to know that Mother had been hitting J .. (N.T. 7/30/12, 287) On May 14, 2012, a
scheduled hearing was continued because Father's attorney was unavailable. On May
18, 2012, M. was placed in an Agency approved resource home with J .. A safety plan
provided that J. and M. would live with their paternal aunt M. S. and have only
supervised contact with Mother and Father. A CASA was appointed for the case on
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May 22, 2012. Unfortunately, the aunt's significant other did not want to be a permanent
resource for the child, so on June 18, 2012, after a hearing, the order was modified and
the children were placed in foster care.
On July 30, 2012, and September 17, 2012, hearings were continued
because of a lack of time to complete testimony. On September 20, 2012, the girls'
placement was modified after hearing, and they were moved to live with their maternal
grandparents. Mother could visit only in her parents' house. Hearings were held on
October 1 and 14, December 6, 2012, and January 7, 2013 in order to complete
testimony.
Mother informed the Agency on October 11, 2012 that she was again pregnant
and her third child was born on November 11, 2012. The Agency took custody of the
newborn, B. J., and placed her in an agency approved resource home. These foster
parents are willing to be a permanent resource for the little girl.
The Court received expert testimony from Cathy Hoshauer, M.D., a pediatrician
and an expert in the evaluation of abuse victims. (N.T. 7/30/12, 203 et seq.) Dr.
Hoshauer had seen J. and reviewed an interview of her by a forensic interviewer
concerning the injuries. She subsequently prepared a report, in which she concluded
that the injuries sustained by J. were inconsistent with her hitting her head on a wall.
(Id. at 215 et seq; Petitioner's Exhibit 1) She explained further that "if you bump your
head against a wall, you're not going to get injuries in multiple different places. So her
injuries were her mouth, below her eye, above her eye and hemorrhage within the eye,
and that's not something that will - - that a child can create enough force on their own."
(N.T. 7/30/12, 223-224) She also responded negatively when asked if she had ever
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seen a child of four or so who was able to self-injure themselves with their own hands
or other body parts to cause purple bruising on their face. (N.T. 7/30/12, 219)
On March 20, 2013, aggravated circumstances were found as to Mother and
Father, an adjudication order was issued and all three children were found to be
dependent. J. was placed in the physical custody of her father, M. to the custody of her
maternal grandparents and B. J. to her foster parents.
Father appealed the March 20, 2013 orders concerning M. and B. J. to the
Pennsylvania Superior Court on April 17, 2013. Mother appealed the Orders concerning
all three girls to the Superior Court on the same day. The Superior Court issued its
opinion on December 10, 2013, , affirming th'e dependency adjudication decision, but
finding there were no aggravated circumstances and remanding the matter because of
the Court's decision to deny a reunification plan based thereon. A remand hearing was
scheduled for March 3, 2014 and then continued to June 23, 2014 at the same time as a
permanency review hearing. This Court issued its dispositional order on July 1, 2014,
and without finding aggravated circumstances denied the parents a reunification plan.
On July 30, 2014, Mother and Father both appealed the July 1 order to the Pennsylvania
Superior Court, pursuant to which appeal this opinion is being written.
ISSUE
Whether the Court appropriately denied Mother and Father a reunification plan for
their two younger-daughters when the third daughter had been physically abused twice
at separate times, once by Father resulting in bruising and two fractures and twice by
Mother resulting in serious bruising of her head and face, neither party has completed a
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plan in a period of over three years, and there are no additional useful services that can
be offered to Mother and Father.
ANALYSIS
In its opinion of December 1 O, 2013, the Superior Court affirmed this Court's
decision that M. and B. J. were dependent and abused children. The Superior Court,
however, found that this Court erred in its finding of aggravated circumstances; the case
was remanded for an examination of whether a plan for reunification could be withheld
absent aggravated circumstances. This court scheduled and held hearings relevant to
the Superior Court's remand order.
Once a child has been adjudicated dependent, additional decisions in the context
of permanency planning are made according to his best interest. In re J. S. W., 651 A. 2d
167 (Pa. Super 1994) Permanency planning is a concept whereby children are not
relegated to the limbo of spending their childhood in foster homes, but instead,
dedicated effort is made by the court and the children's agency to rehabilitate and unite
the family in a reasonable time, and failing in this, to free the child for adoption. In re
J.S.W., 651 A.2d 167, 170 (1994) The Superior Court has held that providing no plan
for reunification can be an appropriate decision, depending on the factual
circumstances. In re R. T., C.A., K.A., 778 A.2d 670 (Pa. Super, 2001) In In R. T.,
although the trial court had found that aggravated circumstances existed and did not
provide a reunification plan based on that finding, the Superior Court decided that there
were no aggravated circumstances because of a lack of statutory retroactivity, but still
permitted there to be no plans for reunification .. In so doing, the Court said :
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Preliminarily, we note that although the polestar of the Juvenile Act is reunification of the
family, 55 Pa. Code§ 3130.67 lists adoption as a permissible goal for a dependent child.
See id. at (b)(9)(iii). See also In the Matter of Luis R., 430 Pa. Super. 518, 635 A.2d 170,
172-73 (1993), appeal denied, 538 Pa. 635, 647 A.2d 511 (1994) (noting permissible
goals listed in 55 Pa. Code§ 3130.67(b)(9), and explaining that "one goal is not
mandated over another; nor does the language of the regulation require that each goal
be implemented in the order in which they are listed."). A review of the trial court's
......... Order and its Opinion following appeal reveals that the court found the placement
plan amendments at issue here appropriate, regardless of the alleged aggravating
circumstance." In re R.T., 2001 PA Super 157, 778 A.2d 670, 680 (Pa. Super. Ct. 2001)
The instant opinion is directly governed by the In re R. T. holding, and this court
finds that refusal of a reunification plan for Mother and Father is an appropriate
measure. In 2008, at nine months of age, J. was physically abused by Father, with
resulting serious physical injuries. Mother continues to believe that Father was not the
perpetrator. Then in 2012, after a Personal Parent Trainer worked with Mother and
Father, after both J. and M. were returned to them, after they had been involved with
the Agency for a matter of years and received a long list of services, J. was again
seriously abused, experiencing resulting lacerations, bruising, swelling on the face and
swollen and black eyes. The family was unable to look inward for a cause, instead
blaming the child herself, citing bad dreams and sleep disorders. This conclusion was
dispelled by the testimony of Dr. Horshauer, a pediatrician, who said she had never
seen a child harm herself as J.'s injuries indicated. The Court agrees with and accepts
Dr. Horshauer's opinion as a matter of judicial good sense, finding Mother's testimony
not credible. The limited strength and small hands of a child cannot conceivably create
on that child's own body the kind of injuries obvious on J.'s face in the picture provided
as the Guardian's Exhibit 1, and bumping a head against a wall cannot conceivably
produce various discrete injuries all over a child's face. The Court believes that J. did
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not harm herself, but rather that Mother was the perpetrator. Mother's actions on the
night of the injuries and afterward are very telling to this Court and support its decision.
She was in J.'s room before anyone else for some unspecified period of time. She
insisted unreasonably that J. was responsible for her own injuries. She contends that
she did not obtain medical care for J. because when she called to make an appointment,
the doctor would not see J., but then she never took this visibly injured child to the
emergency room for treatment. She kept the child home from school so the teachers,
mandated reporters, would not see her. She insistently refused to permit the personal
parent trainer to come as she normally would, so the PPT would not see J. That Mother
harmed J. and then went to such lengths to keep her hidden and away from medical
attention indeed provides sufficient evidence that J. is an abused and dependent child.
The extent of her injuries and her mother's indifference to them as well as the history of
her step-father's abuse, clearly supports her having been removed from her parents'
custody.
Although J. was seriously abused twice, once by her step-father and once by her
mother, a scenario which fulfills the requirements of abuse and dependency, the court
recognizes that M. and B. J. were not physically harmed by either Mother or Father.
Nonetheless, the operative concepts apply to them also. They have a Mother and
Father who are both perpetrators of abuse as parents. There is nothing in the record
that indicates to the court these children would be safe if they were given into the
custody of these parents, absent Mother's and Father's successfu)W' engagement in
remedial activities. Mother and Father did not sufficiently engage in such activities.
Neither was fully compliant with the available plan. Mother saw a counselor at
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Pennsylvania Counseling Services, but stopped when the counselor went elsewhere.
She saw Dr. Gransee , who recommended par en t t raining,
. . which the Agency provided in
the form of a PPT. Despite such personalized t raining,
. . J . was injured again. Mother
went to Dr. Eyer, another therapist, on her own .1rniti1a t'1ve, but. never showed him prior
informational reports, allowing him to know only what she chose to self-report. Father
never even testified as to his remedial activities, if any. Mother told the Court that she
and Father are now in counseling together, but little information is available concerning
the substance of the counseling or their progress. There are no objective criteria
available to the court that indicate that Mother's and Father's predilections to harm a
child in their care has been remedied to such an extent that J., or any other child, would
be safe. In the last hearing, Mother was candid in admitting that there was nothing else
the Agency could provide that would be helpful to her.
To allow these children to languish in foster care, while no additional services are
available, is clearly not in the children's best interests. Not only are M. and 8. J.
unquestionably dependent children at the present time, they appear to be permanently
without an appropriate parent. After a finding of dependency, the standard to be applied
by the court as to further disposition is the best interest of the child . M.'s and B. J.'s best
interests requires that they live permanently in a loving home where there exists no risk
of harm from their parental caretakers. Given the long time frame of this case and the
parents' lack of progress, Mother and Father are not those caretakers and cannot be
trusted to provide a safe haven for these children within a reasonable period of time.
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CONCLUSION
For the reasons stated above this Court finds that to return M. and B.J. to Father
and/or Mother would place the children at risk of harm, since neither parent has
completed a plan or reached a status which informs the court that there is no longer a
risk of abuse being perpetrated upon a child in their custody. The Court therefore
believes it to be in these dependent children's best interest to deny Mother and Father a
reunification plan.
BY THE COURT:
DATED:
Attest:
August».. , 2014 LES=!v~GE
Copies to:
Caprice Hicks-Bunting, Esquire
Samuel Encarnacion, Esquire
Elizabeth A. Stineman, Esquire
David J. Natan, Esquire
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