In re ALD

• Decision Date: 10 April 2002
• Parties: In the Interest of A.L.D., Jr., A Minor. Appeal of: M.D., Natural Mother, Appellant. Children and Youth Services of Washington County, Guardian Ad Litem, A.L.D., Sr., Natural Father, Appellees. In re: A.L.D., Jr., A Minor Child. Appeal of: Washington County Children and Youth Services, Appellant. M.D., Natural Mother, Appellee.
• Court: Pennsylvania Superior Court

797 A.2d 326

2002 PA Super 104

In the Interest of A.L.D., Jr., A Minor.

Appeal of: M.D., Natural Mother, Appellant.

Children and Youth Services of Washington County, Guardian Ad Litem, A.L.D., Sr., Natural Father, Appellees.

In re: A.L.D., Jr., A Minor Child.

Appeal of: Washington County Children and Youth Services, Appellant.

M.D., Natural Mother, Appellee.

Superior Court of Pennsylvania.

Submitted January 17, 2002.

Filed April 10, 2002.

Joan E. Lesnock, Washington, for M.D.

Karen Hassinger, Washington, for Guardian Ad Litem.

Dennis R. Paluso, Charleroi, for A.L.D., Sr.,

Joyce A. Hatfield-Wise, Washington, for Children and Youth Services of Washington.

Before DEL SOLE, P.J., BOWES, and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 In this appeal and cross-appeal of M.D., the natural mother of A.L.D., Jr. ("Mother") and Washington County Children and Youth Services ("CYS") respectively, we must determine whether the Washington County Orphans' Court erred in postponing the termination of Mother's parental rights. We must also determine whether the court erred (1) in directing Mother and CYS to make additional attempts toward the reunification of Mother and A.L.D., Jr. and (2) in providing for another hearing in six months regarding the termination of Mother's parental rights. For the following reasons, we hold that the portion of the Orphans' court order relating to Mother is inadequate and in error. Accordingly, we affirm in part, vacate in part, and remand with instructions.

¶ 2 The certified record, including the testimony presented at the termination proceedings, discloses the following relevant facts and procedural history of this case. CYS became involved with the family in January 1994, upon allegations that Mother, Father and their three-year old daughter were living under deplorable housing conditions, including assertions that their daughter was dirty and unfed and the home had a gas leak. Mother and Father unofficially placed their daughter with relatives and left the home.

¶ 3 A.L.D., Jr. was born on February 21, 1994. Mother and Father were then residing in the home of Father's stepbrother, Ray Williams, and his wife, Priscilla Williams. When A.L.D., Jr. was two months old, Mother and Father moved to independent housing. Nine days later, on April 22, 1994, the court approved the emergency removal of A.L.D., Jr. and his sister, based on CYS' investigation of allegations that Father had performed sexual acts on his young nephews. A.L.D., Jr. was placed in the physical care of Priscilla and Ray Williams, which was considered a "relative" placement, under the supervision of CYS. A.L.D., Jr.'s sister was placed in foster care. Both children were adjudicated dependent and continued in their placements. A.L.D., Jr. has remained in the Williams' home since that time, and has spent virtually his entire life as part of the Williams' family. A.L.D., Jr. is now almost eight years old.

¶ 4 A criminal complaint was lodged against Father on September 13, 1994 on multiple charges of involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, rape, indecent exposure, and unlawful restraint. Father performed the acts underlying these charges on his two nephews who were under the age of sixteen. The complaints indicate that the victims were as young as three years of age at the time of the offenses, which occurred in 1986, 1990, and 1993. Father eventually pled guilty to two counts of involuntary deviate sexual intercourse and was sentenced to five to ten years' incarceration. His minimum sentence date is September 1999 and his maximum sentence date is September 2004.

¶ 5 During the next four and one-half years, CYS developed approved service plans for both Mother and Father. Mother's service plans included court orders to complete parenting classes and mental health counseling, obtain suitable housing, undergo professional evaluations, and attend scheduled visitations with A.L.D., Jr. Father's service plans included "perpetrator" counseling while incarcerated. Father was discharged from counseling due to misconduct. He has not completed his court-ordered services.

¶ 6 Over the next four and one-half years, the Juvenile court held numerous hearings to review the status of A.L.D., Jr., during which the stated goal was reunification. In May 1994 and August 1994, Mother was ordered to complete parenting classes. By 1996, Mother had not completed the services available and had not obtained housing. Mother eventually completed parenting classes in October 1996, and obtained housing. Mother continued her visits with A.L.D., Jr.

¶ 7 In 1998, A.L.D., Jr.'s foster mother reported that the child was experiencing serious problems associated with his visits with Mother. The parties entered a joint proposal to the court whereby Mother would continue with counseling and parent education, A.L.D. Jr. would remain with his foster family, and his foster mother would begin counseling. The parties further agreed to abide by the outcome of the evaluation. If the psychologist who had evaluated the child in the past determined, after a follow-up interview with the parties, that reunification was still desirable, then Mother's visitation would be increased. On the other hand, if the expert recommended against reunification, then CYS would file a petition for termination of parental rights.

¶ 8 After his review, Dr. Stephen Schachner opined that termination of parental rights was in the child's best interest. Accordingly, on December 15, 1998, the Juvenile court approved the permanency plan presented by CYS, which requested a goal change to adoption and termination of parental rights. CYS then filed a petition for involuntary termination of parental rights on December 30, 1998. This petition was marked for filing on December 31, 1998 and was duly filed in the Orphans' Court Division of the Court of Common Pleas. On January 26, 1999, the termination hearing in Orphans' court was continued by court order until March 10, 1999. On March 8, 1999, the hearing was again continued until May 12, 1999. The parties obtained an additional continuance of the termination hearing until October 4, 1999.

¶ 9 Meanwhile, on June 30, 1999, Mother petitioned the Juvenile court for return of A.L.D., Jr., and sought to reverse the goal from adoption to reunification. After the review hearings held on July 26, 1999 and August 25, 1999, the trial court issued an order denying Mother's petition for return of A.L.D., Jr., continuing A.L.D., Jr. as a dependent child placed in foster care, and approving the goal of termination and adoption.

¶ 10 Mother filed an appeal from the Juvenile court's decision. Based upon the record and the testimony presented at the July 26, 1999 and August 25, 1999 review hearings, this Court affirmed the Juvenile court's order approving the continued goal of termination of parental rights and denying Mother's request to change the goal to reunification. See In the Interest of A.L.D., 777 A.2d 513 (Pa.Super.2001) (unpublished memorandum).¹

¶ 11 While that appeal was still pending before this Court, the termination hearings commenced in the Orphans' Court Division on October 4, 1999. The Orphans' court held additional hearings on October 12, 1999, November 8, 1999, September 25, 2000, February 1, 2001, and March 14, 2001, at which time the court admitted the exhibits, including this Court's memorandum opinion affirming the goal change. The termination record was then closed.

¶ 12 At the termination hearings, CYS presented the testimony of Cynthia Cummings, Base Service Unit Director of Centerville Clinic, Kathleen Cooper, A.L.D., Jr.'s kindergarten teacher, and Kelly Joseph, CYS caseworker. Ms. Cummings testified that the record diagnosis for A.L.D., Jr. involves an adjustment reaction disorder as a result of visitation with Mother. This disorder manifests as hyperactivity, attention-span difficulties, aggressive play, and self-abusive behavior. Ms. Cummings stated her opinion that A.L.D., Jr. needs a sense of permanency with respect to his living situation. (N.T. Hearing, 10/4/99, at 5-28). Kathleen Cooper testified to the child's disruptive behavior in the classroom and palpable tension on visiting days, his resistance to visitation with Mother, and the risks associated with his academic progress as a result of his conflict. (N.T. Hearing, 11/8/99, at 38-53).

¶ 13 The testimony of Kelly Joseph was the most extensive, during which she related the history of the case, CYS' involvement with the family, the history of Mother's response to court-ordered service plans, and visitation issues. She confirmed that A.L.D., Jr. was initially removed from the parents because Mother' was unwilling to leave Father and obtain independent housing, despite the sexual abuse charges pending against Father. Ms. Joseph stated that A.L.D., Jr. remained in placement because Mother did not demonstrate reasonable promptness in completing the services plans and/or unreasonably delayed completing them. Ms. Joseph acknowledged Mother's transportation difficulties related to visitation, but pointed out that over the years, CYS consistently provided more transportation for Mother than is regularly provided or required. Ms. Joseph also stated that Mother was simply reluctant to use public transportation, insisting instead that CYS provide personal transportation service because personal transportation is not otherwise available to Mother.

¶ 14 Additionally, Ms. Joseph related that Mother maintains her relationship with Father. Although Mother does not visit Father in prison, she and Father regularly correspond. At one point, Mother requested CYS to assist her in bringing the children to visit Father in prison or, in the alternative, having Father brought to her home for visits with the children. According to Ms. Joseph, Mother continues to deny Father's guilt and, despite recent assertions to the contrary, there is strong...