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HomeMy WebLinkAboutCP-21-JV-0014-2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-JUVENILE 14 - 2004 IN THE MATTER OF K. S., born November 24, 2003 IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., July ,2004 After a hearing on March 19, 2004 we found K.S. to be a dependent child. Father has filed this timely appeal. He contends that the finding of dependency was in error because he "was ready, willing, and able to provide parental care" and the agency "did not sustain its burden of showing that Father was not fit or capable of providing said care.''~ For the reasons hereinafter set forth, we were satisfied by clear and convincing evidence that the child was dependent. K.S. was born on November 24, 2003. Although not married, mother and father lived together at all relevant times. At the time of the child's birth, mother tested positive for cocaine and marijuana.2 She admitted to using marijuana and cocaine throughout her pregnancy.3 Father denied any knowledge of mother's drug usage.4 Despite the positive drug results, the Agency did not file a petition to have the child declared dependent. Rather she was allowed to go home with her parents subject to their cooperating with the Agency and complying with the terms of a safety plan. 5 Despite his knowledge of mother's drug use, father allowed the child to remain home See Concise Statement of Matters Complained of on Appeal. See CYS Exhibit 8 and Transcript of Proceedings, p. 51. See CYS Exhibit 7. Transcript of Proceedings, p. 51. The plan required both parents to abstain from drag use and to submit to random drug screens. CP-21-JUVENILE 14 - 2004 alone with her on January 8, 2004. rendered unconscious. father returned home. At 10:00 a.m. she overdosed on heroin and was The six week old child remained unattended for six hours until Upon finding his unconscious paramour, he immediately summoned an ambulance.6 As a result of the above incident the child was placed into emergency foster care. While she was returned to her parents briefly on the night of January 11, 2004, she was removed again the next day when the agency determined that the safety plan was inadequate.? Pursuant to the original safety plan formulated at the child' s birth, both mother and father had agreed to submit to random drug screens. We will focus on father's participation in the drug screens since mother's addiction is not in issue.8 Between the child's birth and the date of the hearing father had been asked to submit to several random drug screens. He failed to take five of the requested tests. On one occasion he "could not provide a sample" (urine).9 On another he did not show because "he would be too tired to take the test".~° On three occasions, he did not respond to messages left on his answering machines, including one weekend where 19 messages were left on his home phone, his cell phone, and another phone number he had provided. ~ Of the drug screens he did provide at least two were positive for cocaine. ~2 6 Transcript of proceedings, p. 54. 7 Transcript of proceedings, p. 55-56. The Agency also determined that the parties had violated the terms of that safety plan. Id. 8 Because of mother's obvious addiction, she entered an inpatient drag and alcohol treatment program sometime after the January 8, 2004 incident. At the time of the hearing she was doing very well and was ready to have the child reunited with her while she completed the remainder of the program. 9 Transcript of proceedings, p. 44. l0 Transcript of proceedings, p. 45. ~ Transcript of proceedings, p. 45-46. ~2 Counsel for father argued that the chain of custody had not been established sufficiently to allow admission of the four positive test results. However, there was no question as to the appropriateness of the CP-21-JUVENILE 14 - 2004 Although father's positive results were not particularly high, they were significant given all the other factors present in this case. The results were consistent with an intermittent user of the drug.~3 Further, we noted that cocaine clears the system relatively quickly. 14 Given father' s extensive drug involvement we concluded that he knew this fact.~5 That would explain his refusal (or professed inability) to take the test on some occasions, and his failure to show up on others. It would also explain the relatively low levels of cocaine in his system on the dates he provided positive samples. ~6 Of equal or greater concern was father's callous disregard for his child's safety in light of mother's extensive drug usage. When mother tested positive for drugs at the child's birth, father adamantly denied any knowledge of her drug addiction. ~7 We found this denial to be incredible. Rather, we were satisfied that he was aware of both mother's addiction and her drug usage throughout the pregnancy. ~8 Notwithstanding his knowledge of her obviously severe addiction, he allowed the child to be alone with her for an extended period of time. Consequently, the child was placed in danger on January 8, 2004. chain of custody for the specimens provided on January 13 and January 15, 2004. See Transcript of proceedings, March 19, 2004, pp. 2-4. ~3Transcript of proceedings, p. 38. ~4 Transcript of proceedings, p. 24. ~s In 1994 father had been convicted of delivering 13 1/: ounces of cocaine in New Jersey. In 1999, while he was still on parole for the New Jersey crime, he was convicted of cocaine delivery in this county, for which he received a 15-30 month sentence. (Transcript of proceedings, p. 87). 16 We found father's explanation that the samples resulted from his casual handling of the drug to be totally unbelievable. As Dr. Krooks noted positive tests caused by casual handling are "rare". (Transcript of proceedings, p. 26). We also found father's denial of cocaine use to be well beyond the realm of credibility. ~ 7 Transcript of proceedings, pp. 51-52. ~8 A search of the parties' apartment in October resulted in the recovery of some drugs which were sitting on a coffee table in the living room, drug paraphernalia, weapons, a large amount of cash, and a picture of mother smoking drugs in a bong. See CYS Exhibit 1. CP-21-JUVENILE 14 - 2004 We were convinced that K. S' s parents both had need for treatment to address their drug problems. ~9 Mother had begun treatment and was progressing nicely. Father was in denial and refused to begin any type of treatment. Under those circumstances and in light of all the other facts in this case, we were convinced that the child was dependent and that it was not safe for her to return home. Stated another way, we were satisfied that the Agency had presented clear and convincing evidence that K.S. was "without parental care or control.., necessary for (her) physical, mental or emotional health, or morals." 42 Pa. C.S. § 6302. DATE Edward E. Guido, J. Lindsay Dare Baird, Esquire Jacqueline M. Verney, Esquire Brian Bornman, Esquire Karl Rominger, Esquire CCC&Y Juvenile Probation :sld 19 Angie McKee conducted father's drag and alcohol evaluation. We believed her when she testified that he needed inpatient drug treatment.