Adoption of J. A. B., In re

• Decision Date: 21 December 1979
• Parties: In re ADOPTION OF J. A. B., minor child of C. W. and S. W. B. Appeal of C. W. and S. W. B.
• Court: Pennsylvania Supreme Court

Page 1363

408 A.2d 1363

487 Pa. 79

In re ADOPTION OF J. A. B., minor child of C. W. and S. W. B. Appeal of C. W. and S. W. B.

Supreme Court of Pennsylvania.

Submitted Sept. 17, 1979.

Decided Dec. 21, 1979.

[487 Pa. 81] H. Edwin Mountford, Southern Alleghenys Legal Aid, Inc., Somerset, for appellants.

William L. Kimmel, County Sol., Somerset, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.

OPINION

EAGEN, Chief Justice.

This is an appeal from a decree of the Court of Common Pleas of Somerset County, Orphans' Court Division, involuntarily terminating the parental rights of C. W. B and S. W. B. with respect to their son, J. A. B. (hereinafter: "J."). The case arose from a petition filed on August 16, 1977, by the Somerset County Child Welfare Agency requesting termination of parental rights pursuant to section 311 of the Adoption Act. ¹

J., born August 16, 1969, is one of six children of C. W. B. and S. W. B. In September and October of 1973, the B. family experienced serious problems. Specifically, the parents became unable to cope with J.'s hyperactivity and destructive behavior. J., who was four years old at the time, would regularly awaken at 5:00 a. m., go downstairs, open the refrigerator, break all the eggs, and smash tomatoes on the floor. Further, although he was fully toilet trained, J. would defecate on the floor and wipe the walls with excrement. The parents sought help from the Cambria County Child Welfare Agency in procuring medication to control J.'s hyperactivity. However, this approach to the problem was abandoned since one type of pill prescribed by the City Clinic made J. more active and the second type over-tranquilized him. Because the parents recognized that J. had special and greater needs than their five other children, they tried to spend as much time as possible with him alone. One parent would remain at home with the five children while the other parent took J. on shopping trips and errands. The father asserted that, as a result, J. received more love and attention than any other child in the family.

Despite these efforts, J. became more difficult to control and the parents, who were also beset with financial difficulties, ² once again turned to outside help. Although the family had recently moved to Somerset County, the parents returned to the Cambria County agency seeking foster home placement for J. They were referred to the Somerset County Child Welfare Agency. At about the same time, the Somerset County agency received a report that the children were unsupervised and playing around the railroad tracks near their home.

Pursuant to the parents' contacts, the Somerset County agency investigated the B. home. The agency discussed the family's problems with the parents who agreed to place J. in a foster home. The parents then signed a Parent Placement Agreement on October 4, 1973. Both parents testified that they took this action hoping a foster family would be able to help J. and teach him right from wrong. They also understood that the placement would be temporary. The agency director, who assisted in arranging the placement, testified that the parents were frustrated and unable to cope with J.'s disruptive behavior. She further testified that, while the parents felt badly about J.'s departure, they were not angry with the agency, but were relieved by the prospect that J. might receive the help he needed. At that time, the parents were given a card bearing the agency's name, address and telephone number. Shortly thereafter, the agency returned with a petition and removed the five other children from the home without the parents' consent. The director testified that, at this time, the parents became very angry and upset.

When all of the children had been placed in foster homes pursuant to court order, the agency began counselling the parents about the criteria they would have to meet before the children would be returned. The agency stated generally that the home would have to be upgraded and organized. No other advice was given.

After approximately one month of foster care, the parents requested the return of all the children. At that time, the agency agreed to return the three older children. The parents next requested the return of the youngest child. In that case, the agency arranged for the parents to visit with the child at the agency office. The youngest child was ultimately returned to the B. home in November 1974, after a year of foster care. In the summer of 1976, the parents requested the return of the fifth child. After consulting with the court, the agency arranged three parental visits with this child, and he was returned after approximately three years of foster care. During this three-year period, the parents made repeated requests for the return of J. They were advised to consider getting back one child at a time and no visits were arranged pursuant to these requests. ³

Following the children's removal from the home, the agency remained actively involved with the family. The two caseworkers made numerous visits to the B.s' home, initially to advise the parents on upgrading the home and later, when the living conditions had improved, to counsel the parents prior to the homecoming of each child. Further, the B.s received counselling from the agency on dealing with the problems of each child after his return home. At no time did the parents receive counselling with respect to J., who remained in foster care, even though, ostensibly, he was a primary cause of the family's problems.

The agency director, who was also the initially assigned caseworker, readily conceded that the B.s asked about J. each time she visited the home. The B.s also requested that J. be returned to them. The director testified that the B.s were told to call the agency to arrange for a visit. The B.s failed to do so. The director admitted on cross-examination that the agency never seriously considered voluntarily returning J. to this family and that she would not have recommended J. be returned. ⁴

A second caseworker, who was assigned responsibility for the B. family after July 1975, testified that he conducted approximately five home visits up to November 1976. On those occasions, he observed that the home and children appeared clean and that the children were never outside unsupervised. Further, he did not observe anything in the home to indicate that J. could not be adequately raised there. The B.s told him on numerous occasions that they wanted the two children, who remained in foster care, to be returned. He stated, in response to these requests, that he "probably indicated to them we would expect them to visit with the children and things like that." However, he could not recall any requests for visits by the parents.

This caseworker testified further that in November 1976, he advised the mother the agency did not intend to return J. voluntarily. He stated that at that time "I advised her to seek legal counsel and she indicated she would." He explained that the agency's decision was based on "the fact that (J.) had been singled out as a problem child and also the fact that he had been separated from them for such a long period of time, such return would probably not be in his best interests." He stated that the decision was not based on anything he had observed, but, rather, was based on "the situation before (J.) was removed." Other than legal redress, he suggested no course of action, such as counselling, visits or other types of contact which the B.s might have pursued at that time to effect J.'s return. In his opinion, any request for a visit made after November 1976 would not have improved their chances for J.'s return. However, he could not recall whether the parents were "actively discouraged" with respect to the return of J. prior to November 1976. He did acknowledge that the agency had advised the B.s to consider the return of one child at a time.

The parents both testified that they were discouraged from contacting J. because the agency's attitude was different toward J. than toward the other children. Each time a caseworker visited the home, the parents asked about J. and stated that they wanted him back. The caseworker would respond that J. was doing well. He would then advise them not to worry about J. but, instead, to take care of the other children. The parents claimed they were assured that they would be notified when they could see J. They testified further that the caseworkers never mentioned J. unless they first inquired about him and that the caseworkers seemed unwilling to discuss him, always changing the subject to the other children.

J.'s father acknowledged that the director gave them (the parents) a card with the agency's telephone number on it in case the parents needed to reach the director. He stated that they did not call for an appointment since they understood the agency would let them know when they could visit. He further stated that they asked for the children's foster home addresses to send them cards, but were told this information could not be given to them. The parents assumed, therefore, that if they mailed cards or gifts to the agency, the children would not receive them.

J.'s mother testified that she asked to visit J. many times, but was always told she could not visit. The only reason offered for refusing her requests was that the agency was not yet ready to return J. She stated that she wanted J. to join the family on camping trips and picnics, but she had no idea that she was allowed to take him. She also denied the caseworker's assertion that he advised her to get legal assistance in November 1976, since the agency had decided not to return him voluntarily.

On August 16, 1977, the agency petitioned the Orphans' Court Division to involuntarily terminate the parents' rights to J. A final decree terminating those rights was entered on February 6, 1978. In the opinion in...