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HomeMy WebLinkAboutCP-21-JV-0141-2004 IN THE MATTER OF AK., BORN FER 4, 2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN THE MATTER OF LX., BORN FER 4, 2004 NO. CP-21-mVENILE 141 - 2004 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., February , 2007 On November 29,2006, we conducted a permanency review hearing in connection with the dependency placement of 34 month old twin sisters AK. and L.K. At the conclusion of the hearing we changed the goal from "return home" to "adoption". Father has filed this timely appeal from that order. He alleges that we erred in changing the goal to adoption. Specifically, he contends that 1) the Superior Court previously reversed our goal change to adoption under essentially the same facts; 2) he completed the majority of his permanency plan; 3) we failed to consider the existing bonds between he and the children; and 4) we failed to consider the bond between the children and their paternal grandparents. 1 The reasons for our decision are set forth in the opinion that follows. Factual Background On June 4,2004 these girls were placed on an emergency basis because of suspected physical abuse. Over the next few months several hearings were conducted before the Dependency Master. On January 12, 2005, we approved the Master's Report and adopted his recommended findings that 1) the children had been abused; 2) they were 1 See "Concise Statement of Matters Complained of Pursuant to Pa. R.AP. 1 925(b)". NO. CP-21-mVENILE 141 - 2004 dependent; 3) father perpetrated the abuse; 4) mother was responsible for the abuse by omission; and 5) aggravated circumstances existed as to both parents? Both parents filed timely appeals from that order. In our "Opinion Pursuant to Pa. RAP. 1925" filed in connection with those appeals. We summarized the facts leading to placement, as we noted: AK. and L.K. were placed on an emergency basis because of suspected physical abuse. Pictures taken of the babies on that date showed that each child had extensive bruising on her face and body as well as dried blood under her fingernails and toenails. Skeletal surveys were performed on each child at the Hershey Medical Center. AK.'s survey showed that she had sustained 18 rib fractures and 12 fractures of her arms and legs. In addition, she had a possible skull fracture. Her sister L.K. had sustained 17 rib fractures. All of the fractures on each child were in various stages of healing, indicating that they occurred at different time. Dr. Danielle Boal interpreted the skeletal survey. She is board certified in radiology and pediatrics. It was her opinion that the majority of the fractures could not have been caused accidentally. She further opined that they were caused by various intentional actions, i. e. shaking the children, as well as bending and jerking their extremities. Other physicians testified regarding the non fracture injuries, including the blood under the fingernails and toenails, as well as the extensive bruising. They concluded that the majority, if not all, of those injuries had been intentionally caused? Both parents were eventually convicted of criminal charges in connection with the injuries inflicted upon their children. Each was sentenced to prison. Mother received a four to twelve month sentence in the Cumberland County Prison. Father was sentenced to serve three to ten years in a state correctional institution. Mother has been paroled. 2 See orders of January 12, 2005, with Master's Report and Recommendation attached thereto. Despite the existence of aggravated circumstances, we directed the agency to work toward reunification. 3 See our July 25,2005, "Opinion Pursuant to Pa. R.AP. 1925", p. 2. We note that the Superior Court affirmed our decision in a "Memorandum Opinion" dated December 29,2005. 2 NO. CP-21-mVENILE 141 - 2004 Father will not be eligible for parole until the end of November, 2008. His maximum date is in November 2015. In November of2005 we conducted a permanency review hearing at which time we changed the goal from "return home" to "adoption". Both Mother and Father filed an appeal from that order. The Superior Court reversed us, directing that the "Agency should continue efforts to reunite (mother) with (the children)".4 At the permanency hearing of November 29,2006 which gives rise to this appeal, we again changed the goal from "return home" to "adoption". The driving force behind the goal change was mother's desire to have the children adopted by the foster parents with whom they have lived for the vast majority of their lives. DISCUSSION Section 6351 (f) of the Juvenile Act provides, in relevant part as follows: (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. (2) The appropriateness, feasibility and extent of compliance with the permanency plan developed for the child. (3) The extent of progress made toward alleviating the circumstances which necessitated the original placement. (4) The appropriateness and feasibility of the current placement goal for the child. (5) The likely date by which the placement goal for the child might be achieved. (5.1) Whether reasonable efforts were made to finalize the permanency plan in effect. (9) If the child has been in placement for a least 15 of the last 22 months. . . whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child unless: . . . (ii) the county agency has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the needs and welfare of the child. 4906 A2d. 596,601 (Pa. Super 2006). 3 NO. CP-21-mVENILE 141 - 2004 42 Pa. C.S.A S 6351 (F). We will discuss each item seriatim. Since mother was not in a position to reunite with the girls, and father was in prison, the placement was obviously necessary. We also determined that the current placement was appropriate since the children were thriving in the foster home. With regard to the next two items, we were satisfied that nothing had changed since the November 2005 permanency review hearing where we had changed the goal to "adoption". As we stated in connection with that previous order: While the parents were cooperating with the agency, and had achieved most, if not all, of the goals of their respective permanency plans, there had been virtually no progress "towards alleviating the circumstances which necessitated the original placement." Despite having been convicted and sentenced, neither parent stood willing to accept responsibility for his or her actions. Notwithstanding overwhelming medical evidence that the multiple injuries to these children were intentionally caused, father remained adamant that they were caused accidentally, and mother still believed him. As long as they remain in denial, neither parent can properly address the issues that led to the abuse of these children. Until those underlying issues are addressed, it will not be safe for the children to return home. (citations and footnotes omitted).s In reversing our decision to change the goal the Superior Court stated: Because we conclude that the trial court erred in assigning the parent's failure to admit that they intentionally abused their children determinative weight, we reverse the order of the trial court and reinstate the goal of reunification. As this Court has stated, "progress toward alleviating the circumstances which necessitated the original placement is but one determination the trial court must make under Section 6351 (f)." As to the other factors pertinent to a permanency review, the trial court found that Mother was successful in meeting the requirements of her permanency plan. ... Moreover, those who observed Mother's interaction with her children testified at previous hearings that her parenting skills were completely appropriate and that a parental bond was evident. Finally, it is undisputed that Mother has been released from prison and has a support system in place to assist her in raising her children. Thus, the 5 See 1925 Opinion dated March 2,2006, pp. 3 - 4. 4 NO. CP-21-mVENILE 141 - 2004 record supports the conclusion that the Agency should continue efforts to reunite her with them. (emphasis added) (citations and footnotes omitted).6 Once mother decided that she would rather have the children adopted, the current placement goal of "return home" was no longer appropriate. Nor was it feasible. Father will be in prison until at least November of2008 and possibly a great deal longer. Furthermore, as noted above, since he has continuously refused to accept responsibility for injuring these girls, he is unable to address the underlying causes for his actions. Since the children had been in placement for almost 30 months, the issue of permanency was paramount to us. They have been in the same foster home that entire time. They have formed a very real bond with those foster parents as well as their extended family. They have thrived in the safe and loving environment provided to them. The foster parents stand ready to adopt these children and to give them the permanency they deserve. We were mindful of the bond the children had with both their parents and their paternal grandparents. During the course of their placement, both parents, as well as the paternal grandparents, had participated in weekly supervised visits with the girls. At our request, bonding evaluations were conducted in February and December of2005? The evaluator concluded: During a previous evaluation, the degree of attachment with the (foster parents) was noted to be significant and in this sense the attachment of L.K. and AK. with the (foster parents) appeared to be similar to that which would be observed in a child with a biological parent. In other words, the (foster parents) fulfilled the role of parent due to the length of time the children have been placed with them. Although the (paternal 6 906 A2d. 596,601 (Pa. Super 2006). 7 See Proceedings, of June 8, 2005, CCCYS, Exhibit 7, and Proceedings, of March 1,2006, CCCYS, Exhibit 1. 5 NO. CP-21-mVENILE 141 - 2004 grandparents) and (mother) are clearly connected to and fond of AK. and LX., they have done so through limited contact of one hour supervised visitation at CCCYS per week. This should never be considered a substitute for daily and hourly parenting of a child. The amount of time and the degree of attachment with the (foster parents) should not be discounted or underestimated. Children of this age operate and live in the present. They do not necessarily have the mental or developmental capacity outlook forward to future events such as supervised visitations. Therefore, while both children appear to have attachment with (paternal grandparents), as well as with (mother), it is unlikely that terminating contact would have detrimental effect on the children. Terminating contact with the foster parent's however, might result in reactive behaviors as the foster parents have essentially fulfilled "parent" role for the children. (emphasis added).8 We also considered the paternal grandparents as a potential resource for the children. However, in view of the girls deep attachment to their foster parents, and the possible adverse consequences of separating them from the only parents they have ever really known, we were convinced that it was in their best interests to remain in the foster home. As we indicated at the conclusion of the hearing: As far as the grandparents being the resource for the child - - for the children, they came forward early on. There were good reasons not to place them then. Father was not in prison. They would not admit that Father was capable of creating these injuries. They posed a threat to the safety of the children. And here we are 30 months later. These children have been in one home the entire time, have made extensive bonds with all members of the immediate family, the extended family, and the community. For us to uproot them and place them in the home of someone that they've had nothing but casual contact with over their lives just does not make sense and is not in their best interests.9 8 Proceedings of March 1,2006, CCCYS Exhibit 1, p. 14. Father did not participate in this evaluation because of his incarceration. However, the prior evaluation noted a connection between him and his children. Since the connection was established through the limited contact of weekly supervised visitation, the same rationale applies to him as to mother and his parents. 9 Transcript of Proceedings, November 29,2006, pp. 60 - 61. 6 NO. CP-21-mVENILE 141 - 2004 Therefore, for the reasons set forth above, we changed the goal from return home to adoption. DATE Edward E. Guido, 1. Lindsay D. Baird, Esquire For CCC&YS Jacqueline M. Verney, Esquire For the Juveniles Megan Riesmeyer, Esquire F or the Mother Kathleen Shaulis, Esquire For the Father John 1. Mangan, III, Esquire For the Paternal Grandparents :sld 7