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HomeMy WebLinkAboutCP-21-JV-0288-2005 INRE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA D.S., BORN April 11, 1996 CP-21-mVENILE 288 - 2005 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., September 5, 2006 Father has filed an appeal from our order entered after the May 31, 2006 permanency review which continued the child's dependency and her placement in an Agency Foster Home. We also authorized her to spend the summer with her maternal aunt and uncle in New Jersey. Father has filed the instant appeal alleging that we erred 1) in finding the child to be dependent in October of2005; and 2) in not placing the child in his care and custody. FACTUAL BACKGROUND On October 10,2005, ten year old D.S. was placed on an emergency basis as a result of her mother's abuse of prescription medication. After a hearing before the Juvenile Master on October 13,2005, she was found to be dependent and continued in placement with agency foster parents. 1 At the time of her placement, the child was in the sole custody of mother. She had not had any contact with her father for more than four years prior to her placement. 2 Though no fault of his own, father was not advised of the child's placement until early November 2005. Thereafter, he participated in a family therapy session with the child on 1 We ratified the Master's Report and Recommendations by Order dated October 21,2005. 2 Transcript of Proceedings, May 31,2006, pp. 40 - 41. NO. CP-21-mVENILE 288 - 2005 November 10, 2005 and had supervised visits with her on November 19, December 27 and December 30,2005.3 Father participated along with his court appointed counsel in the dispositional hearing held before the Juvenile Master on December 8,2005.4 The Master recommended that dependency continue and that the child continue in placement with the agency foster parents.s We approved the report and recommendation by order dated December 13, 2005. No appeal was taken at that time. Prior to the December 8, 2005 hearing father had requested that a paternity test be conducted to make sure that he was in fact the child's biological father.6 In January 2006 he requested that visits and family therapy cease until the test results were received? At that time he also indicated his agreement for the child to be adopted by her maternal aunt and uncle Barb and Frank Golad.8 Father acknowledged this agreement and articulated his reasoning as follows: Because it was her (mother's) wish that after she died that D.S. be raised by Bob - - by Frank and Barb. And I was trying to be cooperative and - - and tried to be a good person about everything. And I was - - I figured as a dying wish that I would try to make everyone happy in this situation. 9 Father remained in agreement to have the child adopted by the Golads until the permanency hearing was about to be convened before the Master in April of this year. 10 After a dispute with the uncle, father changed his mind and demanded that the 3 Transcript of Proceedings, May 31,2006, p. 6. 4 He was made aware of the contact information for his court appointed counsel on November 15,2005. See Transcript of Proceedings, May 31,2006, p. 6. 5 See Master's Report attached to our order dated December 13,2005. 6 Transcript of Proceedings, May 31,2006, p. 7. We note that the legal determination of paternity was made years ago with the unappealed entry of a support order for the child. 7 Transcript of Proceedings, May 31,2006, p. 7. In March the results confirmed that he was the father. Nevertheless, he requested that visits and family therapy not resume until the summer. 8 Transcript of Proceedings, May 31,2006, p. 7. 9 Transcript of Proceedings, May 31,2006, p. 27. Mother has a potentially terminal illness. 10 Transcript of Proceedings, May 31,2006, pp. 26 - 27. 2 NO. CP-21-mVENILE 288 - 2005 permanency hearing be held before this court. 11 When he appeared before us for the permanency hearing he wanted the child returned to him immediately. His counsel stated his position as follows: Your Honor, I would just like to state for the record that it's my client's position that he's a ready, willing, and able natural parent and that dependency never should have been found back in October. His position is that Children and Youth did not take the proper steps to find him, notify him of the court hearing, of the problems that were happening with his daughter. . . . 12 DISCUSSION Although he did not expressly say so, Father's position is obviously based upon the Pennsylvania Supreme Court case of In re: ML. 562 Pa.646, 757 A.2d 849, (2000). As the Supreme Court stated: The definition of a dependent child contained in section 6302 clearly states that a child must lack a parent, guardian or other legal custodian who can provide appropriate care to the child. A child whose non- custodial parent is ready, willing and able to provide such care does not meet this definition. The plain language of the statutory definition of a dependent child compels the conclusion that a child is not dependent if the child has a parent who is willing and able to provide proper care to the child. When a court adjudges a child dependent, that court then possesses the authority to place the child in the custody of a relative or a public or private agency. Where a non-custodial parent is available and willing to provide care to the child, such power in the hands of the court is an unwarranted intrusion into the family. Only where a child is truly lacking a parent, guardian or legal custodian who can provide adequate care should we allow our courts to exercise such authority. 757 A.2d at 851. While we felt that father's challenge to the finding of dependency was untimely, we were also satisfied that it was without merit. Father's ability to provide for the child's 11 Transcript of Proceedings, May 31,2006, pp. 28 - 29. 12 Transcript of Proceedings, May 31,2006, pp. 25 - 26. 3 NO. CP-21-mVENILE 288 - 2005 physical needs was never in dispute. However, we had grave concerns with regard to his ability to provide for her emotional well being. He had not had any contact with her for more than four years at the time she was placed. Rather than question our finding of dependency when counsel was appointed to represent him in November 2005, he requested a paternity test. Even after the results proved him to be the biological father, he chose not to pursue the services offered to allow him to reunite with the child. At the time of the permanency hearing, we were also convinced that father was not really ready and willing to be a resource for the child. We were satisfied that his demands to have the child immediately placed in his custody were motivated not by a concern for her well being, but by a desire to "get even" with the Agency and the child's uncle for certain perceived transgressions. After having heard the testimony of all the witnesses, and having interviewed the child in chambers, we were further satisfied that it was not in her best interest to be reunited with her father until appropriate services were provided to allow them to reestablish a relationship. Furthermore, we were convinced that allowing her to spend the summer with the Golad's was in her best interest. She had spent a good deal of time with them in the past, enjoys being with her cousins, and was looking forward to spending the summer with them. DATE Edward E. Guido, J. Lindsay D. Baird, Esquire Megan Malone, Esquire John Mangan, Esquire 4 NO. CP-21-mVENILE 288 - 2005 Jacqueline M. Verney, Esquire Probation CCC& YS 5