Loading...
HomeMy WebLinkAboutCP-21-JV-0114-2003 IN THE MATTER OF : IN THE COURT OF COMMON PLEAS OF S.B., BORN August 27, 1999 : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. CP-21-JUVENILE 114 – 2003 : : IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., June , 2007 Both mother and father have filed this timely appeal from our decision to change the goal for S.B. from “return home” to “adoption”. They have filed a joint 1925 Statement of Matters Complained of on appeal in which they contend that we erred in 1) changing the goal to adoption; 2) not considering a Permanent Legal Custodianship; and 3) refusing to allow cross-examination of the child’s play therapist concerning her notes from the beginning of therapy. We will address each issue in the opinion that follows. Factual Background S.B.’s involvement with Children and Youth Services began in early July of 2003 when her paternal step grandmother alleged that father had sexually abused the child. At that time she had been in the sole custody of her father for most of her young life. Mother had not had any contact or involvement with the child for several years. Although S.B. was in the custody of her father, she lived primarily with her paternal grandfather and his wife. Father adamantly denied any improper behavior with his daughter. He contended that step grandmother had coached S.B. to accuse him of sexual abuse in order to advance her goal of adopting the child. CP-21-JUVENILE 114 - 2003 After numerous hearings over the next several months, we found by clear and convincing evidence that S.B. had been sexually molested and that she was dependent. However, we could not determine who was responsible for the abuse. Although the child insisted that “Daddy hurt my butt”, the evidence was less than clear and convincing. We could not be sure that step-grandmother had not coached the child or, even worse, that she had not perpetrated the abuse herself. The evidence also suggested other possible perpetrators, including strangers, friends of the family, and even paternal grandfather. While mother had resurfaced during the course of the hearings, it was clear that she was not in a position to care for S.B. The stability of her living arrangements and her relationships, as well as her parenting skills were major concerns. The child was placed in foster care on January 13, 2004. On February 18, 2004 we concluded the hearings and entered an order which provided, inter alia, as follows: Although we are satisfied by clear and convincing evidence that the child has been sexually molested, we are not satisfied by clear and convincing evidence that any particular one of the caretakers is responsible for that abuse. The child shall continue in the care and custody of the agency for placement in a foster home. We are satisfied that mother, father, grandfather, and step grandmother qualify as potential resources at this point in time. All of the resources that wish to maintain contact with the child shall cooperate in the formulation of the permanency plan and shall undergo at a minimum a psychological evaluation. The child shall begin in individual therapy at the earliest possible date 1 with a new play therapist. (emphasis added). In accordance with our order permanency plans were prepared for all of the parties and the child began counseling with a play therapist. As time went on, paternal grandfather and step-grandmother were no longer considered as possible resources for the 1 Order of Court, dated February 18, 2004. 2 CP-21-JUVENILE 114 - 2003 child. Mother and father, however, worked diligently on their permanency plans and attained substantial compliance with the goals contained therein. From the time she was placed, S.B.’s emotional state has been very fragile because of the trauma of having been sexually abused. The child began counseling with play therapist Bridget Weible in early 2004. Ms. Weible has been a clinical psychologist focusing on play therapy for more than 25 years. Her primary focus in working with S.B. has been to help her heal emotionally. According to Ms. Weible, it is vitally important for the child’s emotional well being that she live in an environment where she feels safe and secure. While neither parent has been able to provide her with such an environment, the foster mother has. The child’s emotional instability has been the major impediment to reunification. Until she achieves that stability reunification with either parent would pose a serious threat to her emotional well being. Furthermore, the additional services needed for her to transition to the home of either parent, such as family counseling, cannot take place until 2 the child is able to exorcise the demons planted by the sexual abuse. At the time of the permanency hearing in April of 2006 S.B. had been in placement in the same foster home for more than 27 months. The following short exchange between the court and Ms. Weible summarized the situation. 2 We summarized the problems at the conclusion of the last permanency review: THE COURT: Well, but the difficulty with this case is not for the lack of efforts on the part of the agency or on the part of the parents, but for the problems that this young girl has, her own emotional problems. She had no connection with mom for a large part of her life. She didn’t feel safe with dad. When mom came into the picture, she did what was asked, but its clear - - and here’s the pickle in this case. Basically mom and dad have done what has been asked. There’s been some backsliding on mom’s part since the last permanency hearing in July as far as stability of her life goes and a bread winner in the home. But they have basically done what they’ve been asked to do. We’ve struggled for over three years now trying to figure out what other services could be there, and there really are none. Transcript of Proceedings, January 27, 2007, p. 88. 3 CP-21-JUVENILE 114 - 2003 Q. How long do you think it’s going to take S.B. to get her own emotional stability on track so that she can move on? A.I don’t have any answer for that. Q.I think you gave me that same answer about a year and a half ago, didn’t you? A.Yes, and she still continues to have some significant symptoms of 3 anxiety here. It was evident that she was not able to return to the care and custody of either parent. Regardless of our inability to find by clear and convincing evidence that father had 4 sexually abused S.B., the child was convinced that he was the perpetrator. Furthermore, we specifically questioned the child’s therapist about the prospects of reuniting her with mother. Q.This is Judge Guido again. Based upon what you know of this child, do you, in your professional opinion, have any reason to believe that the child would not feel safe living with mother? A.Well, I - - yes, I do. She has talked about mom. She has indicated that when things happen that, you know, she’s not - - she’s not cared for. She’s hit. She has some very negative perceptions about being with mom. Q.Would it be in the child’s best interests to change her placement at the current time and place her with her mother? A.In my opinion, it would not be in her best interests. Q.Do you foresee a time when that may be in her best interests? 5 A.I can’t honestly say that I do. She doesn’t talk about her mom. At the conclusion of that permanency hearing, we gave the parties the opportunity to file briefs in support of their respective positions. After reviewing the briefs, we entered an order on July 12, 2006 changing the goal from “return home” to adoption. However, on August 7, 2006 based upon what we considered to be controlling legally authority decided after our decision in this case, we vacated our order of July 12, 2006 and changed the goal back to return home. 3 See Transcript of Proceedings, April 5, 2006, p. 29. 4 See Transcript of Proceedings, April 5, 2006, p. 31. 5 Transcript of Proceedings, April 5, 2006, p. 45. 4 CP-21-JUVENILE 114 - 2003 The next permanency review commenced in October of 2006. The agency was again asking for a goal change to adoption. After we entered the order of July 12, 2006, the child was told that she would be adopted by her foster mother. This resulted in very positive changes to her emotional health. The following exchange with her play therapist is instructive: Q.Would you please give the Court an update on how S.B. is progressing since the last permanency hearing in the beginning of April? A.Her symptoms have stabilized. Her behavior has stabilized. Her play themes have become more positive since she was informed of the goal change to adoption. . . . BY THE COURT Q.Hold on a second. Be more specific on that. How was it before she was informed of the goal change? A.Before she was informed of the goal change, we were seeing some talk of death again. She complained to me about stomachaches. She said she’s had them often. She actually held her stomach during a therapy session, you know, just saying that she was having a lot of stomachaches. Play themes of things being scary, fear, aggression, victimization themes, danger, and concern about safety. . . . Q.Did she have a problem with nightmares and bed wetting? A.Yes. In the past we’ve had nightmares. We’ve had bed wetting. We’ve had treating pets - - you know, hitting them, that sort of thing. We’ve had excessive masturbation. We’ve had, you know, all the classic anxiety symptoms. Those had been continuing - - there has not been masturbation, but nightmares and bed wetting have been continuing. Again, since she was informed of the goal change, I’ve seen a difference. Her behavior has become more stabilized. We haven’t seen bed wetting. We haven’t seen nightmares. We haven’t seen a lot of the behavioral stuff that we saw before. Q.As I understand it, those behaviors and symptoms that you have described are not unusual in a young child who has been sexually molested? A.That’s correct. . . . 5 CP-21-JUVENILE 114 - 2003 Q.If you know, has she been informed of my reconsideration of that Order and the subsequent Order setting the goal at return home? A.As far as I know, she has not been informed of that, so she’s still under the impression that she’s going to be adopted. Q.Do you see a problem if she’s informed otherwise? A.I would expect there to be regression. . . . Q.I started with the premise that mom and dad have complied with the permanency plan. My focus, then, is from S.B.’s emotional or mental health. Is it safe now to return her to either one of those parents? A.I don’t think she would feel safe with either one of the parents. Q.Well, in your professional opinion, is it safe for her to be returned to the parents? A.In my professional opinion, no, I don’t. Q.Do you foresee a time when it will be safe; again, focusing upon her emotional and mental well-being? A.I think we’re seeing stabilization, but she is still very emotionally fragile. No, I don’t see a time when that would be safe for her. Q.Based upon her emotional fragility, is the current placement she has safe? A.Yes. She perceives that as her safe place. THE COURT: Okay. I think I have explored that issue. Ms. Baird, anything else you want to get from - - . MS. BAIRD: No questions, Your Honor. THE COURT: I do have one more. Is there anything else that could possibly be done for SB that would facilitate reunification with her parents? 6 THE WTNESS: I don’t think so. Over the next several months, we heard from many witnesses before we were able to conclude the permanency review. Finally, on January 24, 2007 we again entered an order changing the goal from “return home” to “adoption”. Change of Goal to Adoption Despite the fact that the parents had substantially complied with their permanency plans, we changed the goal from “return home” to “adoption” in July of 2006 because we were convinced that it would best serve S.B.’s needs and welfare. Shortly thereafter the 6 See Transcript of Proceedings, October 4, 2006, pp. 9-14. 6 CP-21-JUVENILE 114 - 2003 Superior Court issued a decision which indicated that “adoption should not be an option for goal change when the parent has complied with (the) permanency plan.” In Re: A.K., 906 A.2d 596 (Pa.Super 2006). Based upon that decision, and in response to petitions filed by the parents and unopposed by the other parties, we vacated our order and reinstated the goal of return home. Before the conclusion of the latest permanency review, the Superior Court decided In the Matter of N.C., 909 A.2d 818 (Pa.Super 2006). In N.C., as in the instant case, the emotional damage was done to the child before he was placed. Despite mother’s substantial compliance with the permanency plan, N.C. could not sufficiently overcome his emotional trauma to be reunited with her. The trial court changed the goal to adoption and mother appealed. The Superior Court affirmed the trial court, stating in relevant part as follows: Initially, we must point out that Mother appears to ignore the impact of the modifications to the Juvenile Act mandated by ASFA. Contrary to the implications of Mother’s argument, the focus of dependency proceedings is on the children’s safety, permanency, and well-being—not on Mother’s conduct. The trial court properly focused on the children and properly made its decision on the basis of their best interests. 909 A.2d at 824 (footnotes and citations omitted). It went on to hold: The trial court determined that these children need permanency and stability in a loving home, which their Mother has not given them and still cannot give them. Therefore, consistent with the Juvenile Act and the ASFA, the trial court focused on the best interests of the children and granted the goal change to adoption, even though Mother had made substantial progress in completing her permanency plan. 909 A.2d at 826 – 827. In the case before us, if we focus upon the best interests of the child, there is no question that the goal should be changed to adoption. S.B. has been in placement since 7 CP-21-JUVENILE 114 - 2003 January 2004. While the parents have made substantial progress in connection with their permanency plans, neither is in a position to meet the child’s emotional needs by providing her a home in which she feels safe. While we could not find by clear and convincing evidence that father sexually molested this young child, we did find that she thinks had been sexually molested by someone. We were also convinced that S.B. that her father molested her. Furthermore, in November of 2006 father submitted to a Psychosexual 7 Assessment. The evaluator included the following relevant findings. Mr. B’s responses to questions specifically related to childhood sexual abuse are concerning. His answers indicate that he believes that child victims gain some benefit from their experiences and are not as damaged as others might believe, that child victims contribute in some ways to their own victimization experiences, and that others overreact to childhood sexual abuse, including longer than . . . necessary sentences for child molesters. It is a concern to note that Mr. B. reported attitudes supportive of child sexual abuse and based his responses on childhood events and relationships rather than on his parental role. . . . Mr. B. did not at any time initiate any discussion of S.B. allegations of his sexual abuse to her or offer speculation on what might have happened. He did not address the court’s determination that S.B. had been sexually abused by someone, 8 nor did he indicate concern about the potential impact of this experience on S.B. Her recommendations included, inter alia, the following: ? That Mr. B. receives specialized counseling to address attitudes and beliefs which are supportive of sexual assault to children. ? That Mr. B. receives supervision, training, and counseling to develop parenting skills based on S.B.’s needs, rather than parenting directed from his own needs and desires. ? That Mr. B. receive training and counseling until he is able to consistently demonstrate understanding, acceptance, and sensitivity to the impact of sexual abuse on S.B. in the context of their relationship, on S.B.’s current functioning, and on any developmental milestones in the future which may 9 exacerbate the effects of having been sexually abused. 7 We note that Father was requested to submit to such an assessment early in the child’s placement, but refused to do so. 8 Children and Youth Exhibit #1, December 20, 2006, p. 24. 9 Children and Youth Exhibit #1, December 20, 2007, p. 25. 8 CP-21-JUVENILE 114 - 2003 Mother’s stability remained a concern. In fact, she had regressed significantly since the last permanency review. She had separated from her long time paramour to begin a new relationship. She had no visible means of support for herself and her children. Furthermore, there had been nine police calls to her residence during the previous year. In addition the child’s therapist confirmed that she was not ready to be reunited with either parent. The following exchange illustrates the point: BY THE COURT: Q.We’ve had so many hearings to get this particular permanency hearing done. I want to make sure that I understand your position. S.B.’s current placement is appropriate for her emotional well-being? A.Yes, it is. Q.If I were to place her at the current time with her mother or her father, what, if any, effect would that have upon the child? A.I think it’s likely that there’s going to be regression and acting out behaviors and emotional distress. Q.Would there be danger of any serious or permanent emotional harm to the child? A.I think there would be a danger of serious or permanent harm to the child. She doesn’t feel safe in either one of these environments. Q.Do you have a likely date by which she would progress enough that she would be safe in either of those other environments? 10 A.No, I don’t. On the other hand, the child did feel safe and secure in the foster home. She had an obvious bond with the foster mother with whom she had lived for more than three years. As we noted above, her behavior and emotional well being improved greatly when she was advised of our prior ruling changing the goal to adoption. It was clear that S.B. needs permanency. The goal change to adoption will achieve that for her. 10 Transcript of Proceedings, January 24, 2007, pp. 43 – 44. 9 CP-21-JUVENILE 114 - 2003 Permanent Legal Custodians Appellees allege that we erred in not considering a permanent legal custodian. We start by stating that we did consider the permanent legal custodian option as set forth in 42 Pa. C.S.A. § 6351 (f.1). However, in order for us to order placement with a permanent legal custodian, we “must find that neither reunification nor adoption is best suited to the child’s safety, protection and physical, mental and moral welfare of the child.” In re: B.S., 861 A.2d 974, 977 (Pa.Super 2004). In the instant case we could not in good conscience find that adoption was not the best alternative available for S.B. She and her foster mother have formed a mutual bond of love and affection. S.B. needs permanency and her foster mother is willing to provide that by adopting her. There is every reason to believe that adoption will help her achieve the emotional healing that has eluded her to date. While she has formed a bond with both of her natural parents, it is not nearly as strong as it is with her foster mother. Furthermore, the foster mother is committed to the welfare of the child. We are absolutely convinced that she will allow S.B. to have contact with her natural parents as long as it remains in the child’s best interests. Refusal to Allow Cross Examination on Ms. Weible’s Notes Over the strenuous objection of the agency as well as the child’s therapist, we made the therapist’s notes available to the parents’ attorneys to aid them in their cross examination. In the interest of moving the hearing along, we ruled that the cross examination should be limited to her sessions since the last permanency review in April 10 CP-21-JUVENILE 114 - 2003 11 of 2006. We conducted numerous hearings and permanency reviews in this matter over the years. We had heard from Ms. Weible on several occasions regarding her past treatment of the child. We did not see the need to revisit all of that testimony again. However, despite our initial ruling, where appropriate and relevant, we did allow the attorneys to question Ms. Weible regarding notes she made for sessions prior to the last permanency review. Specifically questions were posed regarding the initial intake in 1213 April 2004, as well as her notes from the January through March 2006 sessions. ____________________ ______________________________ DATE Edward E. Guido, J. Lindsay Dare Baird, Esquire For CCC&YS Megan Malone Riesmeyer, Esquire For the Mother Jacqueline M. Verney, Esquire For the Father Kathleen Shaulis, Esquire For the Juvenile (GAL) Juvenile Probation CCC&YS CASA :sld 11 See Transcript of Proceedings, January 10, 2007. 12 See Transcript of Proceedings, January 24, 2007, p. 25. 13 See Transcript of Proceedings, January 10, 2007, p. 33 and January 24, 2007, pp. 30-31, and 39. 11