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HomeMy WebLinkAboutCP-21-JV-0001-2001IN THE MATTER OF C.Z., D.O.B. December 28, 2000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1 JUVENILE 2001 IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., February ,2003 C.Z. was born on December 28, 2000. He was adjudicated dependent within a week of his birth.~ He has remained dependent ever since. He has lived in the foster home of S.G. and T.G. (hereinafter "foster parents") since he was three weeks old. A permanency review was held before a juvenile master on April 30, 2002. The biological parents' love for C.Z. has never been questioned. Nor has their desire to properly parent him. However, the master concluded that their mental and emotional limitations made it unlikely that they would ever be able to properly care for him. Therefore, he recommended that the goal be changed from "return home" to "adoption". We refused to follow the master's recommendation. Rather, we ordered Cumberland County Children and Youth Services (hereinafter "the agency") to redouble its efforts to teach C.Z's parents the necessary skills to care for him. We also indicated that we would consider a goal change only if those efforts failed. Over the summer it became apparent that, even with the increased efforts, the parents would never be able to adequately care for their child.2 Another permanency review was scheduled before the master on August 27, 2002. The agency again 1 He was failing to thrive because his parents were unable to properly care for him. 2 The parents have conceded that the goal change to adoption is appropriate. NO. 1 JUVENILE 2001 recommended that the goal be changed to adoption. It also recommended that the child be placed in the pre-adoptive home of his paternal aunt and her husband.3 At the request of the agency, we appointed counsel to represent the aunt and uncle in those proceedings. C.Z.'s guardian ad litem objected to the proposed custody transfer. She contended that it would be best for C.Z. to remain in the home of his foster parents and to be adopted by them.4 Since counsel had been appointed to represent the aunt and uncle, the GAL requested that we also appoint counsel to represent the foster parents, which we did. Furthermore, the GAL objected to the permanency hearing being conducted by the master. Therefore, the matter was placed on our docket. We heard testimony over three separate days in September and October of 2002. At the conclusion of testimony on October 16, 2002, we entered an order directing that the goal be changed to adoption. We also directed the agency to maintain the child's placement in the home of the foster parents and to consider them as the prospective adoptive parents. The natural parents have filed this timely appeal from our order of October 16, 2002. They do not dispute the goal change to adoption. However, they contest the remainder of our order.5 They have raised the following issues on appeal: (1 .) We erred in appointing an attorney for the foster parents "thereby granting them standing, and allowing them to seek custody and adoption of their ~ The aunt and her husband came forward as a potential resource for the child just prior to the April permanency review. Prior to that time they had little or no contact with C.Z. 4 The foster parents have indicated their strong desire to adopt the child. s At the hearing each parent strongly argued for the child to be adopted by the paternal aunt and uncle. NO. 1 JUVENILE 2001 foster child without the consent of Cumberland County Children and Youth Services.''6 (2.) We erred "in failing to give proper consideration to the laws and policy which promote kinship adoption.''7 We will address each issue in the appeal that follows. Standing of Foster Parents. The parents' first contention is that we erred in appointing an attorney for the foster parents, "thereby granting them standing." They point to the Supreme Court's decision in In the Interst ofG. C., 558 Pa. 116, 735 A.2d 1226 (1999) for the proposition that the foster parents lack standing to seek or contest custody awards of their foster children or to pursue adoption proceedings without the consent of the agency. It is important to note that the foster parents' standing to seek or contest a custody award of their foster children is one issue. Their standing to pursue adoption without the consent of the agency is another. They are separate and distinct. G.C. dealt only with the issue of standing as it relates to custody.8 Both the Superior and Supreme courts affirmed the G.C. trial court's ruling that foster parents lacked such standing. However, since it was the product of evenly divided courts at both appellate levels, it has no precedential value. See Estate of Hopkins, 391 Pa. Super. 211, 570 A.2d 1058 (1990). 6 "Concise statement of the Matters Complained of on Appeal", paragraph 1. 7 "Concise Statement of the Matters Complained of on Appeal", paragraph 2. 8 "The sole issue before us on appeal is whether foster parents have standing to seek or contest custody awards concerning their foster children." 735 A.2d at 1226. NO. 1 JUVENILE 2001 While we are persuaded by the reasoning of those judges and justices who voted to grant the foster parents standing on the custody issue, that issue is not critical to our decision in the instant case. In the first place, allowing the foster parents to participate in the proceedings with counsel did not, in and of itself, grant them standing. We note that the G.C. trial court allowed the foster parents to participate with counsel in the custody In its "Opinion in Support of Affirmance" the Supreme Court proceedings before it. observed: While granting Appellants provisional standing, the trial court clearly concluded that, legally, Appellants did not have standing. The court noted: I've been allowing the [Appellants] to maintain what ! would perhaps characterize as temporary or unadjudicated standing--if ! can use that word--in order to better develop the record .... The Court basically considers the foster parents in this proceeding more as a friend of the Court. However, as pointed out in the briefs, the issue I've been asked to consider is whether, in fact, they have true standing in the legal sense .... ! do agree.., legally that the foster parents do not at this point in time have standing. N.T., September 13, 1994 at 31-34. 753 A.2d at 1227,fn 1. Like the trial court in G.C., we saw no harm in allowing the foster parents to participate, even if it should later be determined that they had no standing. In a matter as important as the welfare of this young child, we felt that we could not have too much information, nor view the issues from too many perspectives. Furthermore, the guardian ad litem advocated the same position as the foster parents, i.e. that it is best for C.Z to remain in the custody of, and to eventually be NO. 1 JUVENILE 2001 adopted by, the only family he has ever known. The GAL certainly had standing in this matter.9 Finally, we note that the agency did not object to the child staying with the foster parents if we decided they should be considered as prospective adoptive parents. Its recommendation of a change in custody to the home of aunt and uncle as a pre-adoptive placement was not motivated by the needs of the child as much as it was by a perceived The following exchange with the agency's counsel illustrates this regulatory obligation. point: THE COURT: As I understand it, the agency's position is in line with aunt and uncle being the adoptive family because of the federal regulations, and the child's position is in line with the foster parents being the adoptive family. MRS. WEEKS: I think to the extent that the agency must favor relatives they are, but they are really saying that both the foster parents and the aunt and uncle are appropriate, l0 For the above reasons, the foster parents' standing to participate in the custody proceedings was not a central issue. While the standing of the foster parents to seek adoption without the consent of the agency was not squarely before us, we certainly considered the issue. We were aware that Chester County Children and Youth Services v. Cunningham, 431 Pa. Super. 421, 636 A.2d 1157 (1994) affirmed by an evenly divided court 540 Pa. 258, 656 A.2d 1346 (1995) held that foster parents who are not related to the child lack standing to seek adoption 9 In July of 2000, the guardian ad litem provision of the Juvenile Act became effective (42 Pa. C.S.A. § 6311). The law charges the GAL "with representation of the legal interests and best interests of the child at every stage of the proceedings..." 42 Pa. C.S.A. § 6311 (b). The agency is required to advise the GAL of "any plan to relocate the child or modify custody.., arrangements." 42 Pa. C.S.A. § 631 l(b)(6). l0 October 16, 2002, Transcript, pp. 6. NO. 1 JUVENILE 2001 without the consent of the agency. Furthermore, unlike G.C., Chester County was not the product of an evenly divided Superior Court. Therefore, it establishes precedent by which we are bound. However, we were satisfied that Chester would not operate as a roadblock to C.Z.'s eventual adoption by his foster parents. We have no reason to believe that the agency will not consent to the foster parents' adoption of C.Z. As noted above, while it "favored" the aunt and uncle, the agency did not oppose the foster parents' quest to adopt the child. Kinship Adoptions. The parents also contend that we erred in failing "to give proper consideration to the laws and policy which promote kinship adoption.''~ We start with the proposition that the central question in cases such as this is the best interests of the child.~2 See In re: Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992). We certainly considered the paternal aunt and her husband as prospective adoptive parents. Furthermore, we were satisfied that they were able to provide a warm and loving home for the child. However, we were ~ "Concise Statement of Matters Complained of on Appeal", paragraph 2. ~: We articulated what we understood the law to be as follows: THE COURT: I think we're all on the same page that the best interests of the child is the guiding light or the pull (sic) star, if you will. If everything were equal, and if I find that everything else is equal, then I should favor the family. But if I find that the child is better off, from the best interests of the child's standpoint, with someone other than the family, then I should do what's in the best interests of the child. Have I appropriately stated the law? Does anyone disagree with that? October 16, 2002, Transcript, p. 7. Neither the agency nor the natural parents disagreed with the above statement. NO. 1 JUVENILE 2001 convinced that C.Z's best interests would be served by remaining in the home of, and eventually being adopted by, his foster parents.~3 C.Z. has lived with the foster parents all but nine days of his life.TM He was declared dependant because of his failure to thrive. As a result of this rough start in life, he has experienced several developmental problems, including a feeding problem as an infant. The foster parents worked through those problems, getting appropriate professional help when necessary. We also noted that C.Z. is at high risk for future problems, including an attachment disorder. The foster parents have extensive experience in dealing with the problems C.Z. has faced and may face in the future. They have provided a temporary home for dozens of foster children. ~5 Their adopted daughter is a former foster child who also suffers from an attachment disorder. They obtained professional help for her and she is doing well. The same expert has been involved in evaluating C.Z., and will work with him if necessary. There were many factors, in addition to their skill and experience in recognizing and dealing with his problems, which weighed in our decision to have C.Z. stay in the home of his foster parents. The length and stability of their marriage, the stay at home status of the foster mother, their willingness to keep his natural parents, as well as the aunt and uncle involved in his life, and C.Z.'s high risk for an attachment disorder, all certainly played a part. However, in the final analysis, the fact that C.Z. has formed a ~ Obviously, the question of custody was of immediate concern. However, the same best interests analysis applies to both the custody and the adoption question. ~4 He was just under two months shy of his second birthday when we entered the order at issue. ~s The agency's attorney expressed a deep appreciation of their efforts, calling them "angels on earth". September 11, 2002, proceedings, p. 53. NO. 1 JUVENILE 2001 strong bond with his foster family was the deciding factor. He is extremely close with his 11 year old "sister" and the parents are his "Mommy" and "Daddy". In short, they are, in his young eyes, his "family", the only family he has ever known. We were not prepared to rip this child from the security of that family. This is especially true in light of the various unknowns. The big question we faced was whether the disruption of the current custodial situation would have a negative impact on his future success. The best answer in support of disruption came from Dr. Lillenstein who could only say: "It is impossible to project.''~6 C.Z.'s treating pediatrician, on the other hand, strongly opposed the move, saying if it were to have been done, "it should have occurred during the first 6 months of life prior to the time when issues of attachment, separation anxiety and so forth develop in children.''~7 All of the professionals agreed that it was important for C.Z. to have a stay at home mother. The foster mother filled that position. We acknowledge that the maternal aunt expressed a willingness to quit her job, despite the financial hardship, if that is what it would take to get C.Z. to live with them. While that sentiment is admirable, we had concerns over whether she would actually follow through. We were also concerned that she may find it necessary to return to work after C.Z. was placed with them. ~8 Finally, all of the professionals agreed that risks would be involved in any custodial transition. We saw no reason to expose C.Z. to those risks. He is in a very loving, happy and secure setting at the current time. He needs to be adopted and the only 16 CCC&Y Exhibit 1, p. 10. ~? Court Exhibit 1, attachment 2. ~8 We want to unequivocally state that the sincerity of the aunt and uncle, as well as their ability to provide a loving home environment for the child, was never in question. However, while it is important, love is not always enough. We were convinced that C.Z. is clearly better off now, and has a better chance for success in the future, in the home of his foster parents. NO. 1 JUVENILE 2001 family he has ever known wants very much to adopt him. To uproot him and to ask him to start over, simply because he happens to share some DNA with another prospective adoptive family, made no sense to us. Therefore, we entered the order directing the agency to maintain the child's placement with the current foster parents and to consider them as a prospective adoptive family. DATE Edward E. Guido, J. Ruby D. Weeks, Esquire For CCC&Y Jacqueline M. Verney, Esquire Lisa Greason, Esquire Mark Bayley, Esquire Robert Mulderig, Esquire Jane Adams, Esquire :sld