Pennsylvania

ABUSE

EVIDENCE

Commonwealth v. Schley, 2016 WL 695619 (Pa. Super. Ct.). Trial court’s denial of defendant’s motion in limine, precluding admission of complainant’s false sexual assault allegations, based on erroneous belief that such evidence was precluded by rape shield law, was reversible error. Prosecution of defendant, complainant’s adoptive mother, for endangering welfare of children was premised on her failure to act on complainant’s report of alleged sexual assault by her adoptive father. False sexual assault allegations were relevant to proving requisite intent, and by denying defendant’s motion before trial, decision to exclude evidence inherently affected defendant’s overall theory of defense and trial strategy, including her decision whether to testify.

EXPUNGEMENT OF REPORT

In re E.A., 82 A.3d 370 (Pa. 2913). Four year old’s recorded interview describing sexual abuse by father constituted substantial evidence that the administrative law judge could rely on to deny request to overturn agency’s child abuse finding. While child’s rambling answers might call the credibility of an adult into question, her answers about the abuse were consistent, and she gave clear answers when questioned about truthfulness, so that judge could find her credible.

R.W. v. Dep’t of Human Servs., 2015 WL 7248375 (Pa. Comm. Ct.). Court granted mother’s request to expunge indicated report naming her as perpetrator of child abuse by omission, which arose from child’s death when alone with father, who had history of mental health issues. Mother’s knowledge of father’s mental illness did not make her aware that father posed significant risk of physically abusing child.

REGISTRIES

B.B. v. Dep’t of Public Welfare, 17 A.3d 995 (Pa. Commw. Ct. 2011). In proceeding in which paternal grandmother petitioned to expunge indicated child abuse report, statutory presumption that evidence that child suffered child abuse is prima facie evidence of abuse by the parent or child’s caregiver did not apply since several people cared for child during period in which medical evidence showed child suffered injuries; presumption only applies to one caregiver unless evidence eliminates all but one caregiver from consideration.

G.V. v. Dep’t of Public Welfare, 91 A.3d 667 (Pa. 2014). Lower court incorrectly applied a “clear and convincing” standard of proof when father asserted evidence to expunge himself from the ChildLine Registry, and should have applied the “substantial evidence” standard of proof pursuant to the state Child Protective Service law. Father was accused of sexually abusing his teenage great-niece, for whom he and his wife shared custody. There was substantial evidence to support this allegation.

In re J.B., 107 A.3d 1 (Pa. 2014).State Sex Offender Registration and Notification Act, which provided for automatic registration of youth found delinquent for certain sex offenses violated due process under state constitution because it failed to allow for individual determination of a youth’s risk to reoffend and was based on false assertion that youth sex offenders had a high recidivism rate. FULL SUMMARY

J.M. v. Dep’t of Public Welf., 94 A.3d 1095 (Pa. Commw. Ct. 2014). Father was to entitled to an administrative appeal to determine if his name should be removed from child abuse registry and he received reasonable notice of and an opportunity to be heard in the underlying dependency proceeding. In the dependency proceeding, it was found that stepfather committed child abuse against his stepdaughter, constituting an adjudication. Minor accused stepfather of sexually abusing her for four years.

T.D. v. Dep’t of Public Welfare, 54 A.3d 437 (Pa. Commw. Ct. 2012). Administrative law judge properly admitted testimony of counselor regarding mother’s plan to kill herself and child via carbon monoxide poisoning in hearing to expunge indicated report. While state statute did contain counselor-patient privilege, the Child Protective Services Law, provided an exception to this and other privileges in child abuse cases.

V.W. v. Dep’t of Public Welfare, 51 A.3d 282 (Pa. Cmwlth. Ct. 2012). When mother did not appear at requested hearing to expunge her placement on child abuse registry, administrative judge erred in dismissing the case without requiring agency to present evidence of abuse or neglect. County agency had burden to prove abuse or neglect.

SUBSTANCE ABUSE

In re L.J.B., 199 A.3d 868 (Pa. 2018). The Pennsylvania Supreme Court held that a mother’s use of opioids while pregnant is not civil child abuse under the Child Protective Services Law (CPSL), which carries with it inclusion in a statewide database of child abuse perpetrators. Using statutory interpretation, the supreme court reasoned that the definition of “child,” under the CPSL does not include a fetus or unborn child, and a person is not a perpetrator of child abuse unless there is a “child” at the time of the act. Full Summary

ADOPTION

BEST INTERESTS

In re K.D., 2016 WL 4035989 (Pa. Super. Ct.). After preadoptive parents petitioned to adopt dependent four-year-old medically frail child in their custody, grandmother responded with answer and counterclaim for adoption. In granting grandmother’s petition, trial court abused its discretion by not conducting proper and complete analysis of child’s best interests. Grandmother failed to provide basic medical care during visits and had previously had own daughter removed from her care, and guardian ad litem and social workers recommended child be adopted by preadoptive parents.

REPRESENTATION

In re Adoption of C.A.S., 2017 WL 2665152 (Pa. Super. Ct.). Trial court should have continued termination of parental rights proceedings so father could petition for court-appointed counsel, given that father might have been misled by conflicting and inaccurate instructions about whom to contact for legal assistance. Court erred by failing to continue termination proceedings so father could petition for court-appointed counsel. Appellate court vacated order terminating father’s parental rights and remanded for new termination hearing. Before new hearing, court was required to determine if father continued to qualify for court-appointed counsel and appoint him counsel if necessary.

CUSTODY

GRANDPARENTS

D.P. v. G.J.P., 2016 WL 4720690 (Pa.). Paternal grandparents brought action against mother and father seeking partial physical custody of minor children. Granting grandparents standing to file action for partial physical custody based solely on parents’ separation for six months did not satisfy strict scrutiny and violated parents’ due process rights. Parents’ six-month separation did not make state’s interest sufficient to justify disturbing right of presumptively fit parents to decide with whom children should associate.

DELINQUENCY

CONFRONTATION CLAUSE

In re N.C., 74 A.3d 271 (Pa. Super. Ct. 2012). Juvenile’s right to confront witnesses was violated when child victim’s hearsay statements were admitted in delinquency hearing where she was unavailable to testify, given that she curled up into a fetal position and refused to answer questions, and where statements were testimonial given they were conducted weeks after the incident and were thus not due to an emergency and were not sought for treatment.

GROUNDS

In re D.S., 39 A.3d 968 (Pa. 2012). Trial court order finding youth delinquent for providing false information to law enforcement officers required reversal where plain clothes police officers did not identify themselves as officers or inform the youth he was a subject in an official investigation. Though testimony indicated the youth knew the officers, the statute clearly requires ununiformed officers to disclose identity and purpose of investigation.

JUVENILE RECORDS

In re S.D.,
 53 A.3d 73 (Pa. Super. Ct. 2012). In case involving youth who was adjudicated delinquent for a sex offense and placed on probation, court properly required notifying university of his offense and disposition. Statute did not define ‘school’ but goal of law was in part community safety and no evidence showed that youth was any less a risk to university students than high school students.

PLACEMENT

In re J.M., 42 A.3d 348 (Pa. Super. Ct. 2012). Trial court lacked authority to incarcerate youth in county jail for violating juvenile probation. Although he was 18 at the time of the violation, state statute did not allow incarceration in adult facilities as a disposition from delinquency adjudication even if the individual was, according to other laws, legally an adult.

REPRESENTATION

L.M.P. v. E.C., 2016 WL 6248014 (Pa. Super. Ct.). Child’s guardian ad litem in custody proceeding filed petition requesting payment for fees and costs. Court awarded requested costs but rejected 79% of fees as excessive, and guardian appealed. Trial court abused its discretion in rejecting fees when it acknowledged complexity of child custody case and indicated guardian fulfilled responsibilities in exemplary manner. Court did not explain which of guardian’s services fell outside scope of appointment order and guardian ad litem statute or how it arrived at amount of rejected fees.

SELF-INCRIMINATION 

Commonwealth v. Brown, 26 A.3d 485 (Pa. Super. Ct. 2011). In case where child allegedly murdered father’s fiancée and unborn child, trial court finding that child was not amenable to rehabilitation in hearing to determine whether to transfer him from criminal to juvenile court because he would not admit guilt violated his  Fifth Amendment right against self-incrimination.

DEPENDENCY

AGGRAVATED CIRCUMSTANCES

In re J.M., 2017 WL 2774667 (Pa. Super. Ct.). As matter of first impression, family court lacked authority to enter order finding child was subject to aggravated circumstances once it determined child was not dependent. Plain language of statute provided that court may make finding of aggravated circumstances only if it finds child is dependent. Statute contained no provision authorizing findings on aggravated circumstances if no finding of dependency is made.

CONFRONTATION CLAUSE

In re N.C., 105 A.3d 1199 (Pa. 2014). Trial court’s admission of video-taped forensic interview with minor victim during delinquency adjudication hearing violated juvenile’s rights under Confrontation Clause. Court improperly deemed uncommunicative four-year-old victim available for cross-examination when it admitted her recorded statements, which were testimonial in nature, into evidence without juvenile’s prior opportunity to cross-examine her.

DERIVATIVE ABUSE

In re E.B., 83 A.3d 426 (Pa. Super. Ct. 2013). Where father was facing criminal charges for physical abuse against older siblings, trial court could find that infant was at serious risk of abuse sufficient for dependency adjudication. Though father had not yet been criminally convicted, it was enough that the abuse had been indicated by the agency and the father was on a waiting list for services, making a current in-home safety plan inappropriate.

EDUCATIONAL EXPENSES

In re A.T., 81 A.3d 933 (Pa. Super. Ct. 2013). Trial court did not abuse discretion in ordering agency to pay for a laptop for foster youth attending community college. While youth had access to computers in the computer lab, library, and a common area at her independent living placement, trial court properly balanced the burden on the agency and the youth. Court found, based on testimony, that she had to wait in line for public computers and had been late in turning in assignments, such that providing her a laptop was needed for her well-being.

FAILURE TO IMPROVE 

In re T.M.T., Jr., 64 A.3d 1119 (Pa. Super. Ct. 2013). Father’s parental rights were properly terminated on ground the conditions that led to custody failed to improve after 12 months. Father missed many visits, did not attend medical appointments as ordered for child’s serious eye condition, failed all drug tests, failed to secure housing, and became incarcerated by the time of trial.

FOSTER PARENTS

In re C.R., 111 A.3d 179 (Pa. Super. Ct. 2015). Former foster mother, from whose care two minor children were removed due to safety concerns related to foster father, was not denied due process right to notice and opportunity to be heard in dependency proceedings. Former foster mother knew about removal of children and could have filed motion to participate in proceedings, but instead waited six months following removal of children to file motion for permanency review.

In re J.F., 27 A.3d 1017 (Pa. Super. Ct. 2011). In case where a permanency hearing was rescheduled to allow judge to decide whether child should be removed from her foster home, trial court properly allowed foster mother an opportunity to be heard in hearing and despite notice being less than is required, foster mother was able to not only appear herself, but to bring two witnesses on her behalf.

GROUNDS

In re P.S.S.C., 32 A.3d 1281 (Pa. Super. Ct. 2011). In termination proceeding, trial court erred in finding father was incapable of assuming parental duties or that he evidenced a settled purpose of abandoning his child where little attempt was made by agency to translate documents or ensure there was an interpreter where the father only spoke Spanish. Due process required meaningful communication with the father about his rights and responsibilities.

HEARINGS

In re J.B., 39 A.3d 421 (Pa. Super. Ct. 2012). In juvenile court case where child was charged with murder, trial court properly denied news media’s requests to intervene and open hearings to public. State provided compelling argument to overcome state constitutional presumption of openness in court hearings given the child’s young age and possible psychological ramifications of public involvement.

PERMANENCY PLAN

In re A.B., 19 A.3d 1084 (Pa. Super. Ct. 2011). Trial court properly denied child welfare agency’s petition to change permanency plan from reunification to adoption based on evidence that mother had strong bond with children, one child expressed desire to return home and children responded positively to mother during visits, mother showed care and concern for children and recognized threat that maternal grandfather, a registered sex offender, posed to children.

PHYSICAL ABUSE

In re L.Z., 111 A.3d 1164 (Pa. 2015). Evidence in dependency proceeding against mother supported court’s finding that dark bilateral cheek bruising constituted serious physical injury that would have caused 21-month-old child severe pain within meaning of statute. Mother perpetrated abuse in form of penile laceration, cheek bruising, and severe diaper rash and yeast infection by failing to protect child from aunt, who cared for child immediately before hospital visit for these conditions.

REGISTRIES

In re S.H., 96 A.3d 448 (Pa. Commw. Ct. 2014). Lower court improperly denied father’s request to expunge indicated report that he sexually abused his son from the ChildLine Registry. Evidence presented at registry expungement proceedings included testimony by father’s four year old that father inserted his finger into his anus, expert witnesses testifying that father’s behavior was not typical of a child abuser, and no physical evidence of abuse. In sum, the evidence was contradictory and did not support father’s sexual abuse of son.

RELATIVE PLACEMENT

In re H.V., 37 A.3d 588 (Pa. Super. Ct. 2012). Where children entered care due to domestic violence, trial court improperly changed case goal from reunification to permanent legal custody with the grandparents because the mother had sufficiently complied with her plan and there was a continuing strong bond between her and her children. Trial court’s concerns that mother’s new boyfriend posed a similar risk were not supported by the evidence; though he had a criminal record, it was for driving under the influence and disorderly conduct, not domestic violence.

VOLUNTARY PLACEMENTS

In re W.M., 41 A.3d 618 (Pa. Super. Ct. 2012). Trial court properly held the agency was not eligible for federal funding during period children were in foster care via a voluntary placement agreement because agreement did not conform to statute. Voluntary agreements may be reached where parents seek assistance from the agency and the agency did not provide assistance to father to clean up his uninhabitable house.

SEXUAL ABUSE

REPORTS

T.W. v. Dep’t of Public Welfare, 38 A.3d 1067 (Pa. Commw. Ct. 2012). Agency’s administrative order correctly held that grandfather was a person with care and control sufficient to meet the criteria of inclusion on an indicated report of child sexual abuse. Despite grandfather’s argument that he did not have custody and was not alone with the child, the undisputed fact that he took a bath with the child was sufficient to show care and control, if for only the duration of the bath.

TERMINATION OF PARENTAL RIGHTS

ADOPTION

In re M.R.D., 2016 WL 4541129 (Pa.). Mother and maternal grandparents filed petition to terminate father’s parental rights to his two children. Cause exception in state adoption statute did not allow grandfather to adopt children without mother relinquishing her rights as way to facilitate termination of father’s rights. Grandfather and mother were not part of intact cohabitating family unit, relinquishment was not necessary to avoid unique complications, and allowing adoption would have opened door for misuse of adoption proceedings to involuntarily terminate rights of unwanted parents.

BEST INTERESTS

In re E.M.I., 57 A.3d 1278 (Pa. Super. Ct. 2012). In case where mother filed for termination of father’s parental rights, trial court properly found that termination was not in child’s best interests. Evidence did not support that child was likely to be adopted. Though mother claimed child would be adopted by her spouse, courts concerns were justified by the fact that it was not clear spouse had a parental relationship with the child. Couple lived with extended family members who did much of the parenting, mother and spouse’s relationship was relatively new, and spouse did not testify such that court could fully gauge intentions.

DISABILITIES

In re J.J.L., 2016 WL 6776288 (Pa. Super. Ct.). Americans with Disabilities Act (ADA) did not apply to proceeding to terminate intellectually disabled mother’s parental rights under Adoption Act. Addressing mother’s claim of discrimination under ADA would improperly require court to shift attention from needs of child to those of mother. However, assuming application of ADA, child welfare agency adequately accommodated mother. Agency’s parenting educator worked one-on-one with mother, and caseworker and special education teacher met with and reviewed mother’s family service plan and goals with her. 

EVIDENCE

In re L.J.B., 18 A.3d 1098 (Pa. 2011). Termination order was vacated because testimony indicated stepmother possibly did not wish to adopt child in case where petition to terminate was filed against the mother by the father; termination of parent’s rights is only appropriate where there will be a stepparent adoption as it promotes stability for the child and otherwise would be merely punitive.

FAILURE TO IMPROVE

In re Adoption of C.D.R., 111 A.3d 1212 (Pa. Super. Ct. 2015). Evidence supported termination of mother’s parental rights due to parental incapacity that could not be remedied. Caseworker testified that mother had criminal history, her progress in efforts at reunification was inconsistent, and she did not complete drug and alcohol treatment and psychiatric services offered to her. Mother had previously demonstrated progress toward reunification but then failed to attend three visits with child and informed caseworker that she no longer wanted to have any contact with child welfare agency.

In re D.A.T., 91 A.3d 197 (Pa. Super. Ct. 2014). Despite mother completing majority of her case plan, including attending parenting classes, obtaining housing, and visiting with the infant, lower court properly terminated mother’s parental rights. Mother still did not appreciate the safety concerns and precautions she needED to take to keep the minor healthy and safe. Mother gave birth to infant while diagnosed with the HIV infection, and was prescribed medication to lessen the risk of passing the HIV virus to the infant. Mother refused to take the medication, and after minor was born, mother still did not fully understand the critical health condition of the infant and failed to follow any medical advice.

In re M.T., 101 A.3d 1163 (Pa. Super. Ct. 2014). Trial court’s decision to change children’s permanency goal from return to parents with a concurrent goal of adoption to adoption only was affirmed. Children could not be safely returned to parents, who failed to demonstrate insight into safe parenting and had difficulty understanding the safety and developmental needs of the children. Foster parents were an adoptive resource and were willing to provide an ongoing relationship between the children and parents. 

GROUNDS

In re P.S.S.C., 32 A.3d 1281 (Pa. Super. Ct. 2011). In termination proceeding, trial court erred in finding father was incapable of assuming parental duties or that he evidenced a settled purpose of abandoning his child where little attempt was made by agency to translate documents or ensure there was an interpreter where the father only spoke Spanish. Due process required meaningful communication with the father about his rights and responsibilities.

HEARSAY

In re J.R., 72 A.3d 669 (Pa. Super. Ct. 2013). While hearsay statements were admissible for limited purpose to show children’s states of mind underlying expert’s conclusions, they were not admissible to support the truth of the sexual abuse allegations, and no other evidence supported termination ground for sexual abuse. However, termination was appropriate on other grounds including mother’s lack of mental health and substance abuse treatment.

INCAPACITY

In re S.P., 32 A.3d 723 (Pa. Super. Ct. 2011). Trial court erred in terminating father’s parental rights because evidence did not support claim that his incapacity was likely to continue into the future where father did not have a lengthy criminal record, was in prison due to a reckless violent act without intent to harm anyone, had sought to maintain contact with his child in various ways, and participated in services in prison including vocational training.

NONAGENCY PETITION

In re M.R.D., 2015 WL 8196636 (Pa. Super. Ct.). Mother and maternal grandparents filed petition to terminate father’s parental rights to two children. Evidence supported finding that involuntary termination was warranted, and good cause supported proceeding with maternal grandfather’s adoption of children. Father refused to allow children to come to his home or meet extended family and had not visited or supported them for almost six years.

RELATIVE PLACEMENT

In re G.R.L., 26 A.3d 1124 (Pa. Super. Ct. 2011). Trial court properly considered relative options before terminating parental rights; agency had investigated several relatives and found them unsuitable, several due to their own statements that they were not able to care for the children, and though the agency did not investigate the grandfather, this was due to the mother’s statements that he had been physically abusive to her and was not a good parent.

WITNESSES

In re I.E.P., 87 A.3d 340 (Pa. Super. Ct. 2014). Trial court properly terminated father’s parental rights, basing its decision solely on the fact-driven record and not direct observation of witnesses. At the end of the hearing to terminate father’s parental rights, the case was reassigned to another judge, who found that since the case was factually-driven and that there were no issues resting on witness credibility, the record was sufficient to make a decision.