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In re M.S.

July 29, 2009

IN RE IN THE MATTER OF M.S. APPEAL OF: R.S.


Appeal from the Order Dated July 1, 2008, In the Court of Common Pleas of Erie County, Criminal Division at No. 350 of 2008.

The opinion of the court was delivered by: Popovich, J.

Petition for Reargument Filed August 7, 2009

BEFORE: PANELLA, DONOHUE, and POPOVICH, JJ.

OPINION

¶ 1 Appellant R.S. appeals the trial court's order granting the Erie County Office of Children and Youth (ECOCY) temporary legal and physical custody of Appellant's minor daughter, M.S., and setting her permanency goal as adoption. We affirm.

¶ 2 We find no fault with the trial court's account of the events germane to this case; to-wit:

The facts may be summarized as follows. M.S., while living in the home of her parents, was repeatedly sexually assaulted by at least one but in all likelihood more than one of her brothers. M.S. was sexually assaulted by 16-year old P.S., who at the time of the hearing was detained in the Edmund L. Thomas Detention Center as a result of his conduct. At the time of the assaults, [Appellant] was not at home but she left M.S. in the care of her 15 year old brother, R.S. She was examined at Saint Vincent Health Center and was found to have evidence of vaginal trauma. Thereafter, P.S. admitted to raping his sister. At the time, M.S. indicated that she did not want to be returned to the care of [Appellant] until she could assure that she would be safe. M.S. also disclosed that she had been sexually abused by all of her brothers. At the time of the hearing, her brother R.S. continued to reside in [Appellant's] home.

[Appellant] has a longstanding relationship with [ECOCY] going back approximately 12 years. [ECOCY] received reports of child sexual abuse in the home in 1995, 1997, 2002 and 2005. In two of those instances, the Childline Report was determined to be founded [.]. In 2005, it was reported that D.S., the oldest brother, sexually abused M.S. In addition, there are reports of physical abuse in the home in 1995, 1999 and 2005. [Father] has prior criminal convictions for indecent assault and indecent exposure, as well as criminal attempt at involuntary deviate sexual intercourse and simple assault. At the time of the hearing, M.S.'s brother, R.S., continued to live with [Appellant] and R.S. had also been a perpetrator of sexual abuse on M.S. and in fact was responsible for M.S.'s care at the time when his brother P.S. raped her.

M.S. has significant mental health problems and is diagnosed with oppositional defiant disorder, attention deficit, hyperactivity disorder and bipolar disorder. It is noted that she has a history of sexual abuse and is prescribed medication for her conditions and receives mental health services from Safe Harbor Behavior Health. [Appellant] also suffers from mental health illnesses, including depression and bipolar disorder, and has experienced suicidal ideation and has been hospitalized for her condition. Furthermore, she has cognitive limitations and requires ongoing services in order to maintain some stability in her home. [Appellant] also has a long history of being sexually abused and she reports being raped by her uncle and father as a child and by a boyfriend as an adult. She has been involved in many abusive relationships and she has in the past had difficulty in providing proper supervision of her children because of her involvement with abusive men. She has not been able to control her children in the past and her oldest son has resided with the maternal grandmother since he was very young.

At the time of the disposition hearing [held on June 27, 2008,] M.S. was adjusting well to foster care and indicated that she liked being there, although she misses [Appellant].

Also, at the time of the disposition hearing, [ECOCY] requested that the goal of M.S. be adoption. It is [ECOCY] position that [Appellant] is incapable of protecting M.S. from further sexual abuse and there is simply no way of assuring her safety and no services can be provided to [Appellant] that will improve her ability to care for M.S. There is continuing concern that [Appellant] has a history of being involved with abusive paramours and jumping in and out of relationships and when this occurs she does not pay the necessary attention to the needs of her children. It is noteworthy that at the time of the dispositional hearing she had a new paramour and that on one occasion when meeting with intake he was engaging in what was clearly inappropriate touching and displays of affection towards [Appellant] in the presence of a caseworker.

At the time of the dispositional hearing, [Father] was incarcerated and not due to be released until July 2009. Although he was not present at the hearing, his attorney related to the [trial c]court that she discussed M.S.'s situation with her client and it was his opinion that M.S. should not be returned to [Appellant's] care. [Appellant] maintained at the hearing that she can protect M.S. and she would follow whatever rules the [trial c]court required. However, she made it absolutely clear that she would not exclude M.S.'s older brothers from the household. She indicated, "I can't choose between my two children."

[Appellant] is mentally ill and has a history of being involved with abusive paramours and having her children exposed to individuals who have abused them. She has a history of not properly caring for her children. Given the age and circumstances of M.S. and her serious mental health problems, absent a profound change in [Appellant's] circumstances and position with regard to the need to protect M.S., it is inconceivable that reunification with [Appellant] would be in her best interest.

Trial court opinion, 9/29/08, at 1-4. Based on the preceding facts, the trial court directed ECOCY to take the steps necessary to make M.S. available for adoption, but not to the point of foreclosing Appellant from participating in and continuing to advance her position throughout the hearing process. Id. Yet, the trial court found, and, on the basis of the factual record, we agree that the likelihood that Appellant may remedy the condition that led ECOCY to taking the 12-year-old minor into protective custody after evidence of sexual abuse by one or all three of her older brothers is slight and that a permanency arrangement that facilitates M.S.'s emotional and physical well-being will be more likely found in an arrangement other than reunification. Id.

¶ 3 Appellant's efforts to have the trial court reconsider its disposition order authorizing ECOCY to terminate involuntarily her parental rights proved to be fruitless, which denial prompted Appellant to file a notice of appeal raising but a single issue for our consideration; namely: "Did the court below abuse its discretion in setting the Disposition Goal as adoption for a 12-year-old child Adjudicated Dependent who was sexually abused by her juvenile siblings, but who expressed a preference to return to her mother?" Appellant's brief, at 4. Interestingly, M.S.'s guardian ad litem joins in Appellant's contention that the trial court abused its discretion in setting the initial permanency goal in this case as adoption.

¶ 4 In the present case, we measure the actions of the trial court under an abuse of discretion standard, which requires that we must determine whether its judgment was manifestly unreasonable, that the trial court disregarded or misapplied the law, or that its action was the result of partiality, prejudice, bias or ill will. In the Matter of S.B., 943 A.2d 973, 977 (Pa. Super. 2008), appeal denied, 598 Pa. 782, 959 A.2d 320 (2008).

¶ 5 All parties agree that M.S. has been the victim of sexual violence (pursuant to 42 Pa.C.S.A. § 6302, rape and incest are types of "sexual violence"), and the fact that there is no evidence that the sexual violence was perpetrated by a parent does not dissuade us from affirming the trial court's dispositional order calling for adoption. It is true that the Juvenile Act does not define sexual violence by siblings to constitute "aggravated circumstances." Nonetheless, the lack of any aggravating circumstances attributable to the parent Appellant in the form of sexual abuse did not prohibit the trial court from authorizing immediate termination of family unification. Stated otherwise, the initial permanency goal for M.S. need not be set at reunification, especially since ECOCY has provided any and all reasonable services to assist Appellant toward this end without success.

¶ 6 We do not read the Adoption and Safe Families Act (ASFA, 42 U.S.C. § 671 et seq.) and Pennsylvania's Juvenile Act (42 Pa.C.S.A. § 6301 et seq.) so narrowly as to turn a blind eye to the realities of this case, supposedly in the name of pursuing the spirit of the law. Both statutes are compatible pieces of legislation seeking to benefit the best interest of the child, not the parent. There is no denying that ASFA promotes the reunification of foster care children with their natural parents when feasible, but the one notable exception to the goal of reunification is where aggravated circumstances are extant in the home, which encompasses abandonment, torture, and/or abuse of a chronic or sexual nature:

(D) reasonable efforts of the type described in subparagraph

(B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that --

(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse)[.]

42 U.S.C. § 671(a)(15)(D)(i). In like fashion, Pennsylvania's Juvenile Act focuses upon reunification of the family, which means that the unity of the family shall be preserved "whenever possible." 42 Pa.C.S.A. § 6301(b)(1). However, as with ASFA, all family reunification ...


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