HomeMy WebLinkAboutCP-21-JV-0197-2004
IN THE MATTER OF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
AKIRA BASTIANY,
BORN 9-1-1997
KYLIE BASTIANY,
BORN 9-12-1998
NO. CP-21- mVENILE 0197 - 2004
INRE: FATHER'S PETITION FOR VISITATION
BEFORE GUIDO, J.
OPINION AND ORDER OF COURT
Father filed a petition asking that we order these two children to visit with him at
the State Correctional Institution in Frackville. He is there serving a 4 - 8 year sentence
for sexually abusing his stepdaughter (the half sister of these two children). The master
recommended that we deny father's petition. On May 22, 2006 we entered an order
approving the findings, recommendation and report of the master. Father has filed
exceptions which contend that the master erred in denying the petition "without
considering whether father poses a threat of harm to the children pursuant to 23 Pa.
C.S.A. S 5303 (b)l
The facts of this case are not in dispute. In 1999 father was convicted of
involuntary deviate sexual intercourse (18 Pa. C.S.A. S 3123). These two children and
several of their half siblings were found to be dependent on August 30, 2004 as a result of
mother's drug dependency and neglect? At that time father was incarcerated in
connection with the above charge. We found the existence of aggravated circumstances
1 See Exceptions to Master's Report.
2 See order dated August 30,2004, approving Master's findings, recommendation and report.
NO. CP-21-mVENILE 197 - 2004
against father with respect to these two children.3 While the Agency was directed to
provide services in order to reunify the children with their mother, we specifically
directed that it need not work toward reunification with father. No appeal was taken from
that order.
Father contends that the master erred in not considering 23 Pa. C.S.A. S 5303.
The relevant portions of that section provide as follows:
~ 5303. Award of custody, partial custody or visitation
(b) Consideration of criminal conviction.- If a parent has been convicted of or
has pleaded guilty or no contest to an offense as set forth below, the court
shall consider such criminal conduct and shall determine that the parent does
not pose a threat of harm to the child before making an order of custody,
partial custody or visitation to that parent;
(6) 18 Pa. C.S. S 3123 (relating to involuntary deviate sexual intercourse);
Father also correctly points out that "where reunification remains the goal of a family
service plan, visitation will not be reduced or denied unless it poses a grave threat to the
dependent child." In re: CB., 861 A.2d 287,293 - 294 Pa.Super 2004. Likewise the
Agency correctly points out that when "the goal is no longer reunification of the family
then visitation may be limited or denied if it is in the best interests of the child or
children." In re: CJ, 729 A.2d 89, 95 (Pa.Super 1999). It argues that the goal of the
family service plan in this case has always been reunification with mother, not with
father. Therefore, it contends that "best interest" of the children should be our focus in
deciding whether to grant father's petition.
Father's reliance on 23 Pa. C.S.A. S 5303 is misplaced. That section applies to
custody actions between parents, not to dependency actions. On the other hand, the
Agency's position is also incorrect. The goal is to reunify the children with their family.
3 See order dated August 30,2004, approving Master's findings, recommendation and report.
2
NO. CP-21-mVENILE 197 - 2004
Even though he is not part of the household, father is still a part of the "family". Under
those circumstances, he is entitled to visitation unless there is a finding that it would pose
a grave threat to the children. Weare unable to make that determination on the record as
it currently exists. Consequently, we will hold an evidentiary hearing on that issue.
ORDER OF COURT
AND NOW, this 2ND day of AUGUST, 2006, for the reasons set forth in the
accompanying opinion a hearing on Father's Petition to Compel Visitation will be held
on THURSDAY. SEPTEMBER 7.2006. at 1:00 p.m. in Courtroom # 3 of the
Cumberland County Courthouse, Carlisle, Pa. 17013.
By the Court,
Isl Edward E. Guido
Edward E. Guido, J.
Lindsay D. Baird, Esquire
Michael Jerominski, Esquire
Sean Shultz, Esquire
Jacqueline M. Verney, Esquire
Galen R Waltz, Esquire
Juvenile Probation
CCC& YS
CASA
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